L SHALLA Vs. RAHIM SHALLA

JUDGEMENT

(1.) THIS revision arises out of an order passed by the Assistant Collector 1st Class Sopore dated 23 -7 -64 rejecting the application of the petitioner for amendment of written statement in proceedings for partition of agricultural land situated in Aram Pura tehsil Sopore.

(2.) IN the course of the partition proceedings pending before the Assistant Collector, question relating to title was raised by the defendant respondent and it appears that the Assistant Collector decided to proceed under clause (3) of Section 111 (a) of the Land Revenue Act although he did not say so in so many words. Issues were framed in the case on 26 -7 -63. Afterwards an application for amendment was moved on 18 -12 -1963 by the defendant petitioner in which he prayed for leave to incorporate a further plea in the written statement that the plaintiff respondent was not entitled to claim partition of the landed property in as much as no ownership rights had vested in him as the father of the plaintiff had predeceased his father i.e. the grandfather of the plaintiff. This application was rejected by the Tehsildar on 23 -7 -1964. Thereupon the petitioner went in appeal before the Collector who accepted the same on 16 -1 -65 directing the Tehsildar to allow the petitioner to amend his written statement. Against this order of the Collector the plaintiff respondent went in further appeal before the Commissioner who set aside the order of the Collector dated 22 -8 -66. Thereafter a revision was filed before the Financial Commissioner who concurred with the opinion expressed by the Commissioner and dismissed the petition. Both the learned Commissioner and the Financial Commissioner took the view that the proceedings before the Assistant Collector were governed by the Civil Procedure Code and that the nature of the case was that of an original suit. They, therefore, held that the Collector had failed to carry the implications of this interpretation to its legical end by interposing his own jurisdiction when this jurisdiction had expressly been barred under Section 112 of the Land Revenue Act. Consequently the jurisdiction, not legally vested in the Collector, had been exercised by him giving rise to an illegality. In other words, both the aforesaid courts took the view that the case was governed by the provisions of the Civil Procedure Code and that revision petition could lie before the High Court. The decision given by the Financial Commissioner is dated 28 -10 -1967. Therefore, the petitioner moved this court under section 115 of the Civil Procedure Code on 6 -11 -1967.

(3.) I have heard the elaborate arguments of the learned counsel for the parties.