Ashutosh Mohunta, J.
1. The vendee-plaintiffs have filed this appeal to challenge the judgments and decrees passed by the Courts below whereby their suit and the appeal against the partition of the land ordered by the Assistant Collector, 1st Grade, Guhla, vide order dated 16.7.1975, were dismissed.
2. In brief the facts giving rise to this appeal are that defendant-respondent Nos. 1 to 5 filed an application for partition of the suit land against Smt.Kirpal Kaur (Plaintiff No. 1) and defendant Nos. 6 to 15 in the court of Assistant Collector, 1st Grade, Guhla. In that application Smt. Kirpal Kaur was proceeded against ex parte. The partition was confirmed on 16.6.1975 and the case was fixed for instrument of partition for 16.7.1975. Rai Jasbir Singh, plaintiff No. 2 purchased land measuring 80 Kanals from Smt. Kirpal Kaur (plaintiff No. 1) vide sale deed dated 27.5.1975 during the pendency of the partition proceedings and plaintiff No. 2 and 3, i.e., Rai Jasbir Singh and Swaran Singh were in actual physical possession of 228 Kanals 8 Marias and 77 Kanals 8 Marias, respectively. The plaintiffs challenged the order dated 16.7.1975 passed by the Assistant Grade, 1st Class, Guhla, by filing the present suit for declaration, which was dismissed by the Sub Judge, 1st Class, Kaithal, vide judgment and decree dated 29.1.1980 on the ground that the Civil Court had no jurisdiction to entertain the suit. The plaintiffs then filed appeal to challenge the judgment and decree dated 29.1.1980 passed by the trial Court. During the pendency of the appeal, Smt. Kirpal Kaur withdrew herself from being the appellant. Consequently, vide order dated 17.1.1980 the appeal qua Kirpal Kaur was ordered to be dismissed as withdrawn. The appeal qua the remaining two appellants, i.e., Rai Jasbir Singh and Swaran Singh (present appellants) was dismissed by the Additional District Judge, Kurukshetra, vide judgment and decree dated 4.12.1981 and the decision of the trial Court with regard to the jurisdiction of the Civil Court was upheld. Now Rai Jasbir Singh arid Swaran Singh have filed the present appeal wherein challenge has been made to the findings of both the Courts below.
3. It has been contended by Mr. R.S. Mittal, learned Senior Advocate, appearing for the appellants, that Smt. Kirpal Kaur was not duly served and, thus,the ex parte order dated 16.6.1975/16.7.1975 passed by the Assistant Collector,1st Grade, Guhla, was a nullity. It has further been argued by the learned counsel for the appellants that the Courts below erred in holding that the Civil Court had no jurisdiction to entertain the suit against partition ordered by the Revenue Officer in view of the provisions of the Punjab Land Revenue Act, 1887 (for short 'the Act'), despite the fact that the order for partition of the suit land was passed ex parte without serving Smt.Kirpal Kaur according to the prescribed legal procedure.
4. The contentions raised by the learned counsel for the appellants have been controverted by Mr. M.L.Sarin, learned Senior Advocate, appearing for the respondents. It has been contended by him that the Civil Court has no jurisdiction to go into the validity of the partition proceedings. The appellants have approached the Civil Court without exhausting the remedy available to them under Section 13 of the Act. It has further been contended by him that Smt. Kirpal Kaur had duly been served in the partition proceedings by sending notice to her by registered post.The counsel has also contended that she had withdrawn her appeal before the lower appellate court and in this view of the matter, the present appellants, who had purchased the land from her during the pendency of the partition proceedings, had no locus standi to challenge the order of partition passed by the Assistant Collector, 1st Grade.
5. 1 have heard the learned counsel for the parties and gone through the evidence adduced on record.
6. The only question that arises for consideration in the present appeal is to the following effect:-
Whether or not the Civil Court has the jurisdiction to entertain the suit wherein the order of partition passed by a Revenue Officer has been challenged and Smt. Kirpal Kaur was properly served in the partition proceedings
7. The first objection raised on behalf of the appellants is that Smt. Kirpal Kaur was not served in the partition proceedings before the Assistant Collector 1st Grade, Guhla, as per the provisions contained in Section 20 of the Act.
8. I do not find any merit in this contention raised by the learned counsel for the appellants. It is not the case of the appellants that Smt.Kirpal Kaur was not served at all. The bald statement of the plaintiffs was rebutted by the statement on oath of defendant Balwant Singh and also by documentary evidence adduced on record which shows that a registered notice was issued to her and acknowledgement due (Ex.DIO) was received in the office of the Assistant Collector, 1st Grade. Sub-section (3) of Section 20 of the Act gives discretion to the Revenue Officer to serve the concerned person 'either in addition to, or in substitution for, any other mode of service, by forwarding the summons by post in a-letter addressed' to him and registered under Part II of the Indian Post Office Act, 1886. In this view of the matter, it cannot be said that Smt. Kirpal Kaur was not served as per the procedure prescribed under the Act.
9. The next contention raised by the learned counsel for the appellants is that the Civil Court had jurisdiction to entertain the ex parte order passed by the Revenue Officer.
10. This contention is also without any merit. Section 158 of the Act specifically excludes the jurisdiction of the Civil Courts in matters within the jurisdiction of the Revenue Officers. In order to challenge the order passed by the Assistant Collector, a provision for filing of appeals before the higher Revenue Authorities has been made in Section 13 of the Act. The plaintiffs without exhausting the remedies available to them under Section 13, approached the Civil Court to challenge the order passed by the Assistant Collector.
11. Moreover, it has come on record that Smt. Kirpal Kaur, from whom the present appellants had purchased the land during the pendency of the partition proceedings, had withdrawn from the appeal before the lower appellate Court. As the present appellants had purchased the suit land during the pendency of the partition proceedings, they have, therefore, no locus standi to challenge the order passed by the Assistant Collector 1st Grade and pursue the appeal. It is not the case of the plaintiff-appellants that the ex parte decree was obtained by the defendant-respondents by fraud or misrepresentation. In A.C. Ananthaswamy and Ors. v. Boraiah (D) by Lrs. (2004-3)138 Punjab Law Reporter 557, it has been held by their Lordships of the Supreme Court that in the absence of any fraud or misrepresentation, an ex parte order on the bare plea of non-service cannot be set aside. In the present case it is an undisputed fact that registered notice (Ex.DIO) was issued to Smt. Kirpal Kaur and she had even filed an application for setting aside the ex parte order passed by the Assistant Collector. The ratio of the authority Firm Seth Radha Kishun (deceased) represented by Hari Kishan and Ors. v. Administrator Municipal Committee, Ludhiana : [1964]2SCR273 , that the jurisdiction of the Civil Court is not specifically ousted where a statute created a liability and provided a remedy, is not applicable to the facts appearing in the present case. In the present case, as already mentioned above, registered A.D. notice was issued to and served on Smt. Kirpal Kaur, who had thereafter, filed an application for setting aside the ex parte order.
12. Both the courts below have given concurrent findings of fact which cannot be interfered with in the second appeal in view of the provisions of Section 100 of the Code of Civil Procedure, as no substantial question of law has either been pleaded in the memorandum of appeal or arises for consideration in the present appeal. I do not find any infirmity in the well-reasoned judgments and decrees passed by both the Courts below.
13. Consequently, there is no merit in this appeal. It is, accordingly, dismissed. However, I do no make any order as to costs.