Kuldip Singh, J. (Oral)
This petition is directed against judgement dated 5.6.2012 passed by learned District Judge, Kinnaur Civil Division, at Rampur Bushahr in Civil Misc. Application No. 1 of 2012 affirming the order dated 14.3.2012 passed by learned Civil Judge (Junior Division) Rampur Bushahr in case No. 62-1 of 2011 in CMP No. 48-6 of 2012.
2. The facts in brief are that petitioner has filed a suit for declaration and injunction against the respondents and others that he and his two brothers had inherited the landed property from their father Azeem Ulla, who constituted Hindu Joint Family. In April 1969 the petitioner and his two brothers entered into a family settlement and in such family settlement land comprised in specific khasra numbers had been allotted to each brother according to their convenience. After the settlement, the area so allotted in family settlement had been coming in their possession since then. The petitioner has developed the share, which came to him in family settlement and planted an apple orchard. The land comprised in khasra Nos. 31, 35, 41, 42, 44, 45, 46, 47, 48, 49, 50 and 55, kitas 12, measuring 01-20-51 hectares as per jamabandi for the year 2003-04 has been developed by the petitioner since the year 1969. The petitioner is exclusively enjoying this land which came to him in family settlement.
3. Biju son of Paras Ram had sold his half share to respondent No. 3 vide sale deed No. 208/2007. The respondent No. 3 filed an application for partition of the land before Assistant Collector Ist Grade, Kumarsain (for short, Assistant Collector). The petitioner in partition case raised specific plea that land has already been partitioned in the year 1969, there is question of title, therefore, land again cannot be partitioned. In any case, respondent No. 3 could claim an area out of land comprised in khasra Nos. 14, 27 and 58 measuring 00-98-54 hectares, which is recorded in possession of Biju after the settlement.
4. The revenue officer failed to decide the question of title either by converting into a civil court or by referring the parties to the civil court. The revenue officer has committed serious illegality. The mode of partition prepared by Assistant Collector in case No. 10/10 dated 23.3.2011 is illegal and not binding on the petitioner. The respondents No. 1 to 3 are threatening to interfere over the property in possession of the petitioner. The petitioner prayed for decree of injunction against respondents No. 1 to 3 regarding land comprised in khasra Nos. 31, 35, 41, 42, 44, 45, 46, 47, 48, 49, 50 and 55 as per jamabandi for the year 2003-04, Mouza Kehari, which is in possession of petitioner. The petitioner further prayed declaration that he may be declared exclusive owner of the aforesaid land which came to him in family partition effected in the year 1969. The order dated 23.3.2011 passed by Assistant Collector may be declared null and void.
5. The suit was contested by respondents No. 1 and 2. They took preliminary objections of jurisdiction of the civil court to try the suit, under section 171 of H.P. Land Revenue Act. The petitioner has been allotted his share in the partition proceedings. The order passed by Assistant Collector has attained finality. The petitioner is estopped from filing the suit. On merits, the respondents No. 1 and 2 denied any family partition took place in the year 1969.
6. The respondent No. 3 filed separate written statement and contested the suit. He has pleaded that entire holding owned and possessed by the petitioner and his two brothers Paras Ram and Ganga Ram was joint and each one of them was having 1/3rd share. The respondent No. 3 has stated that he has purchased half share of respondent No. 1 vide sale deed No. 208/2007. Thereafter he filed an application for partition of the land. He has denied any family partition in the year 1969. The Assistant Collector has allowed the partition application of respondent No. 3 and turned down the plea of question of title raised by the petitioner. It has been submitted that instrument of partition has been prepared on 23.3.2011. The order passed by Assistant Collector is binding on the parties.
7. The petitioner in the suit has filed an application, under Order 39, rules 1 and 2 CPC praying for interim injunction. This application has also been contested by the respondents. The learned Civil Judge on 14.3.2012 has held that there is no prima facie case, balance of convenience and irreparable loss in favour of the petitioner and dismissed the application on 14.3.2012. The appeal filed by the petitioner has been dismissed by the learned District Judge on 5.6.2012, hence present petition.
8. I have heard the learned counsel for the parties and have also gone through the record. The copies of material documents have been placed on record by the petitioner in the petition. It has been contended on behalf of the petitioner that petitioner, Paras Ram and Ganga Ram inherited the landed property after the death of their father Azeem Ulla, who constituted a Joint Hindu Family. The property inherited by the three brothers was orally partitioned in the year 1969 and thereafter the three brothers developed their respective shares. The petitioner developed the suit land and planted an apple orchard thereon. The respondent No. 3 purchased half share from Biju son of Paras Ram and thereafter in the year 2010, the respondent No. 3 filed an application for partition before Assistant Collector, which was allowed.
9. It has been also contended that in the partition proceedings the petitioner had raised specific question of title and had taken the plea that partition application filed by respondent No. 3 is not maintainable as the land involved in the partition application had already been partitioned in the year 1969. The Assistant Collector did not convert himself into a civil court nor he referred the parties for adjudication of the question of title from the civil court. Assistant Collector has illegally rejected the plea of question of title raised by the petitioner and proceeded with the partition case. The order of Assistant Collector has been assailed by the petitioner by way of an appeal which is pending. In order to protect his own rights, the petitioner has filed the present suit for declaration and injunction that the property inherited by the three brothers from their father Azeem Ulla stood already partitioned in the year 1969 and it cannot be again partitioned.
10. The learned counsel for the respondents has submitted that Assistant Collector has already partitioned the land and now the matter is pending in appeal. He has submitted that prima facie case, balance of convenience and irreparable loss are in favour of the respondents and against the petitioner.
11. The main contention of the petitioner is that land has already been partitioned in the year 1969, but nothing has been placed on record to show that after so called family settlement any step was taken by the petitioner or anybody else involved in the alleged family partition for implementing the family partition. The land continued to be shown joint. The separate possession on a particular piece of land out of the joint land of petitioner does not mean that land has been partitioned. The section 135 of H.P. Land Revenue Act provides that where partition has been made without intervention of the revenue officer, any party thereto may apply to the revenue officer for order affirming the partition. There is no material on record to show that at any time after 1969 any party involved in the alleged oral family settlement approached the revenue officer for implementation of the oral partition. This prima facie does not support the plea of petitioner that land has already been privately partitioned by him and his two brothers in the year 1969.
12. It is common case of the petitioner and respondents No. 1 to 3 that Assistant Collector has partitioned the land and even instrument of partition has been prepared. Now the matter is pending in appeal. The petitioner has termed the partition order of Assistant Collector illegal. It has been contended that in case interim-injunction is not granted then the suit filed by the petitioner will become infructuous. This contention has no force. The suit will be decided on merits. The application, under order 39 Rules 1 and 2 CPC is to be decided on the well known principles of prima facie case, balance of convenience and irreparable loss and injury.
13. The Asstt. Collector has ordered the partition of the land and the matter is now in appeal. This prima facie shows that land was joint and only thereafter the partition order has been made by the Asstt. Collector. The grievance of the petitioner is that question of title has not been considered by the Assistant Collector by converting himself into a civil court or referring the parties to have adjudication of the question of title from the civil court. All pleas in accordance with law are available to the petitioner in the appeal, which is pending before appellate authority against the partition order, but as of now the revenue officer has found the land in question to be joint.
14. The section 171 of H.P. Land Revenue Act excludes the jurisdiction of civil court over any claim for partition of any estate or holding or tenancy or any question connected with or arising out of the proceedings for partition not being a question as to title in any of the property of which partition is sought. The question of title must be effective and substantive and not for the sake of question of title. There is no explanation why the alleged oral partition of the year 1969 was not implemented. The petitioner has not pointed out any report made to any revenue officer or Patwari bringing to his notice the oral partition. No document has been pointed out to show that any oral partition of the year 1969 was given effect in any document. On the basis of material on record, prima facie it is not possible to hold that land in question was partitioned orally in the year 1969. Therefore, prima facie case is not in favour of the petitioner.
15. Once prima facie case is not in favour of the petitioner, then it cannot be said that irreparable loss or injury, balance of convenience are in favour of the petitioner. The two courts below have rightly considered the material on record and declined to grant interim injunction to the petitioner. There is no illegality in the impugned judgment nor any jurisdictional error in the impugned judgment has been shown. There is no merit in the petition.
16. In view of above, the petition fails and is dismissed. It is made clear that trial court shall decide the suit on merits in accordance with law and shall not be influenced by any observation made in this judgment. No costs.