NAND SINGH Vs. LABH SINGH

JUDGEMENT

(1.) THIS is plaintiff's second appeal directed against the judgment and decree of the Additional District Judge, Ropar whereby while allowing the appeal filed by the defendants the judgment and decree of the trial Court was set aside and in consequence thereof, suit filed by the plaintiffs was dismissed.

(2.) PLAINTIFFS had filed suit for declaration that land measuring S3 kanals 16 marlas situated in village Thalipur, District Ropar, had already been partitioned among the co-sharers and so orders dated 13. 8. 1985 and 22. 7. 1987 passed by the Collector and the Commissioner and the order of the Financial Commissioner passed in revision, ignoring the private partition were illegal. Plaintiffs had also sought consequential relief of injunction for restraining defendant No. 1, Labh Singh, from getting the land partitioned through the Revenue Agency. Plaintiffs in their suit averred that the land in suit was partitioned among the co-sharers at the time of consolidation and the land so taken in partition was duly recorded in the cultivation column of jamabandi. Shyama, father of Labh Singh (defendant No. 1) wanted to get the land partitioned again through the Revenue Court at which some of the appellants filed civil suit No. 85 of 1971 for declaration against Shyama. In the said suit filed against Shyama, plaintiffs therein sought declaration that the land had already been partitioned and the parties are in possession of their respective shares since 1952. In that case, a compromise was effected between the parties and a decree was passed in favour of the plaintiffs therein and against Shyama, deceased, on the basis of the compromise. Thereafter, Shyama died and his son, Labh Singh inherited the land in suit. Labh Singh filed an application for partition of the land before the Assistant Collector, 1st grade against the plaintiffs (appellants herein) and defendants 2 to 9 who had acquired the land from previous owners. In that application, plaintiffs filed objections stating that the land had already been partitioned. Assistant Collector Ist grade dismissed the application filed by Labh Singh by stating that question of title is involved. However, on appeal, the Collector set aside the order of the Assistant Collector Ist grade by saying that the decree passed in civil suit No. 85 of 1971 was never given effect to and since a period of more than 12 years has elapsed after the passing of the decree, it cannot be given effect to. The Collector also found that there had been no private partition between the parties, nor the same was ever reflected in the revenue record. Plaintiffs filed an appeal before the Commissioner and further revision to' the Financial Commissioner. Appeal as well as the revision were dismissed. It is only thereafter that the civil suit was filed. On notice of the suit, Labh Singh, defendant No. 1, filed written statement contesting the claim set up by the plaintiffs in the suit. In his written statement, Labh Singh submitted that the land in dispute had not been partitioned and the same is jointly owned and possessed by the parties. He further submitted that the plaintiffs have already exhausted their remedy before the revenue Authorities right upto the Court of Financial Commissioner, but have failed in their effort. He submitted that the Civil Court has got no jurisdiction to try and entertain the suit as the plaintiffs raised question of title before the Revenue Court and that question of title had been decided against them. He also submitted that a decision having been given by the Revenue Officers that there had been no partition, the issue of partition operates as res-judicata against the plaintiffs. Trial Court relying upon the decree passed in civil suit No. 85 of 1971, decreed the suit by saying that the land in suit already stood partitioned among the co-sharers. Orders of the Collector, Commissioner and the Financial Commissioner were set aside being illegal and without jurisdiction. Defendant, Labh Singh was restrained from getting the land partitioned through the Revenue Agency. However, in appeal by Labh Singh, judgment and decree of the trial Court was set aside and resultantly, suit filed by the plaintiffs was dismissed. The first appellate Court held that the suit before a Civil Court challenging the order of the Revenue Court was not' competent as the jurisdiction of the Civil Court is barred. Hence, this second appeal.

(3.) ON going through the record and hearing the learned counsel for the parties, I am of the view that the appeal is without any merit. As noticed earlier, on an application made by Labh Singh to the Assistant Collector Ist Grade for partition of the land in suit, plaintiffs appeared before the Assistant Collector and raised question of title by saying that the land already stood partitioned. In this regard, plaintiffs referred to the judgment and decree passed in civil suit No. 85 of 1971. Assistant Collector after taking the evidence, came to the conclusion that the land already stood partitioned and so, dismissed the application filed by Labh Singh. In appeal, the Collector held that there had been no private partition between the parties. In regard to the decree passed in civil suit No. 85 of 1971, the Collector held that the decree was never given effect to within the period of limitation and so, it cannot be given effect to. Plaintiffs instead of filing an appeal before the District Judge, as provided under Clause (c) of Sub-section Section (2) of Section 117 of the Act, filed an appeal before the Commissioner and further revision to the Financial Commissioner. In my view, the learned District Judge is right in saying that since the plaintiffs failed to avail of the remedy of appeal as provided Under Section 117 of the Act, the jurisdiction of the Civil Court is barred. Section 117 of the Act is reproduced hereunder: 117. Disposal of question as to title in property to be divided'