GIAN PARKASH Vs. SHIV KUMAR & OTHERS

JUDGEMENT

(1.) The present appeal has been filed by the plaintiff-appellant who is aggrieved against the concurrent findings of the Courts below whereby the suit for declaration and permanent injunction has been dismissed. The case of the plaintiff-appellant is that he was owner in possession along with defendant-respondent No.8 being sons of Ram Narian of the land detailed in the head-note of the plaint in Village Sakta Khera, Tehsil Dabwali, District Sirsa as per Jamabandi for the year 2000-2001 by way of family settlement but the revenue record showed defendant-respondent Nos.1 & 2, sons of Ram Sarup to be owner in possession of the suit land by way of family settlement and the same was not binding on the rights of the plaintiff-appellant and was liable to be corrected. Challenge was also made to the order dated 26.03.1996, passed by the Assistant Collector IInd Grade, Dabwali holding that it was wrong, illegal, null and void and not binding upon the rights of the plaintiff-appellant and thus the relief of permanent injunction was also sought. It was alleged that a family settlement had been effected in the year 1990 between the plaintiff and defendant No.8 and defendant-respondent Nos.1 & 2 in the presence of their relatives vide which the suit land detailed in the head-note of the plaint came to the share of the plaintiff and the defendants had promised to get the same corrected in their favour but they did not do so. Instead, defendant Nos.1 & 2 filed an application for seeking partition of the joint land situated in Village Sakta Khera, Tehsil Dabwali, District Sirsa without giving notice to the plaintiff.

(2.) In the written statement filed by defendant No.2, who contested the suit, various preliminary objections were taken including the jurisdiction of the Court. It was alleged that defendant Nos.1 & 2 were owners in possession as co-sharers of the suit land and had filed an application for partition of the joint land which had been allowed vide order dated 26.03.1996 by the Assistant Collector IInd Grade, Dabwali and specific killa numbers had come to the shares of defendants No.1 & 2 and they were in possession of the suit land and were cultivating the same. In the partition proceedings, plaintiff and defendant Nos.3 to 8 were also parties and the defendant Nos.3 to 8 also filed an execution application in the partition. It was alleged that the suit had been filed just to delay the execution proceedings and the plaintiff and defendant No.8 had no pre-existing rights in the suit land. The fact of any family settlement was also denied. It was alleged that the plaintiff and defendant No.8 had got the land measuring 34 kanals 16 marlas from the father of defendant Nos.1 & 2 vide a civil suit No.457/1987 from the Court of Sub-Judge, 1 st Class, Dabwali. The plaintiff produced 5 witnesses including himself in evidence and various documents whereas defendant- Shiv Kumar appeared as DW1 and placed on record Exhibit D1 to D4. The trial Court came to the conclusion that the alleged family settlement which was of the year 1990 whereby the suit land came to the share of the plaintiff and defendant No.8 and the land in Rajasthan went to the share of defendant Nos.1 & 2 was not proved as no evidence of any kind had been brought on record that the land had been transferred in favour of defendant Nos.1 & 2 and neither the family settlement had been proved. It was rather held that vide judgment and decree dated 27.08.1987 (Exhibit D1 & D2), the father of the contesting defendant had entered into a family settlement with the father of defendant No.8 and certain land was given to the father of the contesting defendant in Rajasthan and plaintiffappellant and defendant No.8 got certain land in Village Sakta Khera which is different land. The trial Court noticed that there was no evidence on record to show that the plaintiff was ever in cultivating position of the land in dispute as no revenue record has been placed on the file to prove this fact and neither any application for correction of khasra girdhawari has been made. Thus, it was held that the plaintiff had failed to prove that he was owner in possession in pursuance of the family settlement of 1990 and neither he was in cultivating posossession of the suit land. The order of the revenue Court, whereby the suit land was being partitioned, was noticed on the ground that the plaintiff had not been issued notice and they were not in knowledge of the proceedings. However, the appellate order passed in appeal dated 05.06.2007 preferred by defendant-respondent No.8 against the order dated 26.03.1996 was taken into account and it was noticed that the same had been challenged before the Sub-Divisional Officers (Civil), Dabwali and the appeal was dismissed, and therefore, the said order had not been challenged in the suit and neither the plaintiff has disclosed about this order, and accordingly, it was held that the plaintiff had not approached the Court with clean hands and the relief sought by the plaintiff was time barred. The trial Court also noticed that the counsel for the parties were placing reliance on a compromise dated 17.09.2003 during the pendency of the suit but also noticed that the defendants were permitted to come out of compromise by the order 17.03.2005. The fact that there were no pleadings to connect the compromise arrived at between the parties was also taken into consideration and in the failure of the plaintiff to prove the oral family settlement, it was held that he has failed to prove that he was the owner in possession of the suit land and that the revenue record was wrong.

(3.) The counsel for the plaintiff-appellant has contended that the judgments of the Courts below were not sustainable and there was misreading of evidence and the Assistant Collector, IInd Grade, Dabwali had condemned them unheard. The said submission of the counsel for the plaintiff-appellant is without any merit since the present suit filed on 14.07.2003 has challenged the order of the revenue Court and there is a specific bar under Section 158 of the Punjab Land Revenue Act, 1887(for brevity, 'the Act') which provides that a civil Court shall not have a jurisdiction in any matter which the Revenue Officer is empowered to take cognizance in any manner in powers vested in him under the Act. Clause (2) of Section 158 of the Act further provides that civil Court shall not exercise jurisdiction over any of the following matters, viz., any claim for partition of an estate or any question connected with or arising out of proceedings for partition, not being a question as to title in any property of which partition is sought.