RAGHUBIR SINGH Vs. JAGPAL SINGH AND ORS.

JUDGEMENT

(1.) Challenge in the present revision petition is to the order dated 30.09.2013 whereby the Civil Judge (Jr.Divn.), Faridabad had dismissed the application of the petitioner-defendant No.1, for rejection of the plaint. The Trial Court has relied upon a judgment of this Court in Giani Ram & others Vs. Ompati & others, 2008 1 RCR(Civ) 619 to come to the conclusion that if the partition proceedings are challenged on the ground that the same were not conducted in accordance with the prescribed procedure, then the jurisdiction of the Civil Court is not barred.

(2.) A perusal of the suit filed by the respondent-plaintiff would go on to show that it was his case that he was a co-sharer in the land measuring 19 kanals 7 marlas, situated in Village Jawan, Tehsil Ballabgarh, District Faridabad. He had been handed over physical possession of the suit property, by defendant No.2 and he was cultivating 11 kanals 6 marlas of land shown in rectangle No.86 killa No.85. The said defendant had not been seen by any person of the village. The present petitioner-defendant No.1, being the real brother, was not having the physical possession. In collusion with defendant No.6, the Assistant Collector, IInd Grade, moved an application for partition and only impleaded defendant No.2 and did not implead defendants No.3 to 5, who were having possessory rights. Defendant No.2 was alleged to have received the summons but nobody had seen that person in the village for the last 40 years and he never had any LRs.

(3.) The plaintiff had never received any summons in the partition proceedings and the procedural part was not done including the preparation of naksha KE, KH, GE, without following the due procedure of law. The thumb impression of Charan Singh, Amar Singh and Kishan were taken for using in the partition proceedings and accordingly, it was submitted that the partition proceedings dated 01.12.2010 were totally illegal. The service having not been effected and the order was only for the benefit of defendant No.1, without following proper procedure. The matter was challenged in the Civil Court, placing reliance upon the judgment in Giani Ram .