BHAGWAN SINGH ALIAS BHAGWAN DASS Vs. SUDESH RANI

JUDGEMENT

(1.) (31st May, 2007) Challenge in this revision petition is made to the order dated 25.7.2006 passed by the learned Additional Civil Judge (Sr. Division), Malerkotla, who while declining the objection petition filed by the respondent ordered to appoint Local Commissioner to demarcate the share of the parties in pursuance of the judgment dated 18.5.1993 (Preliminary decree).

(2.) FACTUAL matrix in the background of the case is that some where in the year 1984-85 the plaintiffs filed an application for partition of the property measuring 19 kanal 17 marlas comprising of some constructed area as well as agricultural land bounded by the boundary wall situated in the municipal limits of Malerkotla on the assumption that the property was subject to payment of land revenue. The said application was contested by the defendants upto the level of Financial Commissioner, who while accepting the plea of the defendant that the Civil Court was the proper forum to partition before the Civil Court. Faced with the situation, plaintiff filed Civil Suit No, 608 dated 28.11.1988 which was decreed in favour of the plaintiffs (now decree holders) on 18.5.1993. While resiling from the previous plea raised before the Financial Commissioner, defendants-JDs raised the plea before the Civil Court that it had no jurisdiction to try the suit. The Civil Court, in its judgment dated 18.5.1993, while turning down the plea of the JDs and holding the jurisdiction of the Civil Court observed as under :-

(3.) BEFORE proceeding to decide the objection, it may be observed that judgment dated 18.5.1993, reveals that the land measuring 19 kanal 17 marlas comprised of Gair Mumkin Kothi and some cultivable area which is subject of lis is one compact unit situated within the municipal limits of Malerkotla, therefore, the same was rightly treated as property subject of partition by the Civil Court and the Revenue Court had no jurisdiction to try the same. The judgment debtors having lost before the Civil Court in this aspect have again raised the plea that the matter should have been referred to the Revenue Court for partitioning the shares. As a matter of fact, the land, over some portion of which houses or other buildings have been constructed, are not covered by the "estate" assessed for payment of land revenue, as such Civil Court has jurisdiction to partition such property. I find strength to my this view from the judgment delivered by this Court in case Kalyan Dass v. Som Nath and Ors., 1987 R.R.R. 48 : 1987 P.L.J. 4, wherein it was observed as under :-