BAL KRISHAN Vs. SURINDER KUMAR

JUDGEMENT

(1.) This petition is directed against the order dated 7.10.2009 passed by the learned Civil Judge (Junior Division), Anni, District Kullu whereby he dismissed the preliminary submission raised by the Petitioners (hereinafter referred to as the 'Defendants') that the Civil Court had no jurisdiction to decide the matter.

(2.) To understand the controversy between the parties, it would be relevant to give certain facts. Bhag Chand, predecessor-in-interest of the present Petitioners and Sh. Magan Dass, predecessor-in-interest of the Respondents were co-sharers of the said property. According to Bhag Chand, he had half share in the land whereas Magan Dass claimed that Bhag Chand had only 1/4th share in the land. To establish his right, Bhag Chand had to file a suit in the Court of the Sub Judge 1st Class, Rampur. The suit was dismissed but in the appeal, the learned Additional District Judge, Shimla vide judgment and decree dated 17.6.1984 came to the conclusion that Bhag Chand had half share in the land. Against the said judgment and decree, Magan Dass filed RSA No. 142 of 1984 in this Court which was dismissed on 27.9.1984. Thereafter, Bhag Chand filed an Execution Petition and got symbolic possession of the land. However, since he had been held to be a co-owner, actual possession was not given to him.

(3.) Finally, Bhag chand filed an application for partition of the land before the Assistant Collector 1st Grade on 6.11.1997. All the co-sharers were served in such partition proceedings and thereafter, mode of partition which is Annexure P/3 was prepared on 30.5.2001. Thereafter, instrument of partition as per shares was prepared which has been attached as Annexure P/4 with this petition. The Petitioners who are the legal heirs of Bhag Chand were held entitled to 1/2 share of land measuring 46-08 bighas and the Respondents were given similar amount of land measuring 46-09 bighas. The actual partition showed the Khasra numbers allotted to each party in the partition. Thereafter, the instrument of partition, Annexure P/5 was prepared on stamp paper. Thereafter, physical possession of the land was handed over to the parties by the revenue staff vide Annexure P/7 on 18.4.2006.