SANT RAM Vs. BALDEV SINGH

JUDGEMENT

(1.) THE plaintiff-respondents filed a suit for declaration that they were entitled to get the disputed land partitioned. It was decreed by the trial court. The defendants' appeal was dismissed. In Second Appeal (RSA No. 2059 of 1992), the plea raised on behalf of the defendant-appellants was that a deed of partition Ex. D. 1 having been duly executed and the claim for partition having been rejected by the Financial Commissioner in the year 1982, the suit filed by the plaintiff-respondents was not maintainable. This contention was rejected by both the courts below on the ground that the plaintiff-respondents were not a party to the deed of partition Ex. D. 1. It was further found that the suit land was jointly owned by the parties and, therefore, the claim for partition which was a continuing right was maintainable. Dissatisfied with the judgment and decree passed by the courts below, the defendant-appellants had filed the second appeal. The only contention raised on behalf of the appellants was that the suit was barred by limitation. This claim was negatived on the ground that the land was shown to be a joint holding of the parties and that the right to enforce partition was a continuing one. It was observed that a co-sharer could claim partition at any stage. Consequently, the appeal was dismissed.

(2.) AGGRIEVED by this order, the defendants filed a petition for Special Leave to Appeal (Civil)No. 27749 of 1995. It was contended by the counsel for the appellants before their Lordships of the Supreme Court that in view of the provisions of Section 111 read with Section 158 (9) (XVII)of the Punjab Land Revenue Act, 1885, the civil court had no jurisdiction to go into the question of partition. Their Lordships observed that "this point was not canvassed in the High Court". In this situation, counsel for the appellants sought permission to make an application for review. Their Lordships granted leave to file application and dismissed the Special Leave Petition. Consequently, the present review application has been filed.

(3.) IT is the admitted position that the plaintiff-respondents were not parties to the, deed of partition Ex. D. 1. It is also admitted that even after the order passed by the Financial Commissioner in the year 1982, the land has been shown a joint property of the parties. The plaintiff-respondents are recorded as co-sharers. Further-more, a perusal of the order dated February 3, 1982 passed by the Financial Commissioner,! Haryana clearly shows that the question of title was left to be settled by the civil Court. The learned Financial Commissioner had inter alia observed as under: "i fully agree with the Assistant Collector Ist Grade and learned Commissioner, Ambala Division that the question of 'title' is involved and before the case proceeds this issue should be got settled by the petitioners from a competent court". Since the plaintiff-respondents were not signatories to the partition deed and the land was admittedly shown as a joint holding of the parties in the revenue record, they had a right to approach the civil court for a declaration that they were joint owners of the property and that they are entitled to their share. Even the, Financial Commissioner had categorically said that the parties should get their title settled through the Civil Court. In this situation, it cannot be said that the civil court did not have the jurisdiction to pronounce upon the title of the parties as has been done by the decree passed by it. It is probably in view of this position that the issue was not pressed before the courts below.