Full Judgment
V.K. Jhanji, J.
1. Petitioners are the vendees. On purchase, they applied to the Assistant Collector Grade II, Charkhi Dadri for getting their land partitioned. Respondents, on appearance, raised an objection to the continuance of the partition proceedings. Their objection was that they had filed a suit in Civil Court in which the sale in favour of the petitioners stands challenged on the ground that the property belonged to Hindu Undivided Family and thus, could not be sold without any legal necessity. On the strength of the suit which they had filed in the Civil Court, they asked the Asstt. Collector to stay the proceedings since the question of title was involved. Assistant Collector Grade II, vide order dated November 20, 1990, found as follows :--
'Counsel for the applicant, counsel for respondents No. 1 to 6 are present. They have been heard. No question of title is involved in the present case. Hence the objections filed by the respondents are dismissed, Naksha 'K' for 17.12.90 be sum moned.'
Against this order appeal was preferred by the respondents before the Distt Judge, Bhiwani, who allowed the appeal, set aside the order of Assistant Collector Grade II and stayed the partition proceedings on the ground that the question of the title was involved and the same is pending decision in the Civil Court. The order of the District Judge is being impugned in this Court.
2. The only contention of Mr. V. K. Jain, Senior Advocate, counsel for the petitioners, is that no appeal was maintainable before the District Judge because there was no decision of the Revenue Court declining the question of title. In reply, Mr. Rajiv Bhalla, counsel for the respondents, contended that the Assistant Collector did decide the question of title and, therefore, the appeal was rightly entertained by the Distt. Judge.
3. Having heard the counsel for the parties at length I am of the view that the order of the District Judge cannot be sustained. Section 117 of the Punjab Land Revenue Act. 1887 deals with appeal. For facility of reference, Section 117 is reproduced below :--
'117. Disposal of questions as to title in property to be divided.
(1) When there is a question as to title in any of the property of which partition is sought, the Revenue Officer may decline to grant the application for partition until the question has been determined by a competent Court, or he may himself proceed to determine the question as though he was such a Court.
(2) Where the Revenue Officer himself proceeds to determine the question, the following rules shall apply, namely,
(a) If the question is one over which a Revenue Court has jurisdiction, the Revenue Officer shall proceed as a Revenue Court under the provisions of the Punjab Tenancy Act, 1887.
(b) If the question is one over which a Civil Court has jurisdiction, the procedure of the Revenue Officer shall be that applicable to the trial of an original suit by a Civil Court and he shall record a judgment and decree containing the particulars required by the Code of Civil Procedure to be specified therein.
(c) An appeal shall lie from the decree of the Revenue Officer under clause (b) as though that decree were a decree of a Subordinate Judge in an original suit;
(d) Upon such an appeal being made the District Court or High Court as the case may be, may issue an injunction to the Revenue Officer requiring him to stay proceeding pending the disposal of the appeal.
(e) From the appellate decree of a District Court upon such an appeal, a further appeal shall lie to the High Court if such a further appeal is allowed by the law for the time being in force.'
Sub-Section (1) of Section 117 of the Act makes it abundantly clear that when any question as to title of property is raised, two modes are open to the Revenue Officer, The first is that he may stay the application for title until the question has been determined by a Competent Authority. The second mode is that he may proceed to determine the question as though he was such a Court. 'Where he himself decided to determine the question of title, then he shall proceed as a Revenue Court as per the provisions of the Punjab Tenancy Act, 1887. But where the question is one where the Civil Court has the jurisdiction, procedure of the Revenue Officer would be the one applicable to the trial of an original suit by a Civil Court The Revenue Officer on determination of the question of title, would proceed to record judgment and decree containing particulars required by the Code of Civil Procedure Once the judgment and decree is given, appeal lies to the Distt. Judge as though that may be a decree of a subordinate Judge in an original suit Second appeal is provided to the High Court. Thus, once the Revenue Officer forms his satisfaction that there is a question of title, he would proceed to decide himself or refer the matter to the Civil Court. In the present case, the order of the Assistant Collector indicates that the Revenue Officer found that no question of title was inolved. Objections preferred by the respondents to that effect were dismissed. There was no determination of question of title No judgment or decree was passed as provided under clause (b) of Sub section (2) of Section 117 of the Act Appeal was maintainable only if judgment and decree had been passed. In this view of the matter, I am of the view that the District Judge had no jurisdiction to entertain the appeal against the order of the Revenue Officer.
9. Consequently, the revision petition is allowed and the order of the District Judge is set aside. Now it shall be open to the Assistant Collector to proceed with the partition proceedings. The respondents, of course, shall be at liberty to challenge the order of the Assistant Collector in accordance with law before the appropriate Court.