Raghbir Singh Deceased Through ... vs Darhsna Devi And Ors
2022 Latest Caselaw 15744 P&H

                           129

                                 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                                CHANDIGARH

                                                                        CR-3827-2022 (O&M)
                                                                        Date of Decision : 05.12.2022



                           Ragbhbir Singh (deceased) through his LR                         ....Petitioners

                                                             VERSUS

                           Darshna Devi & Others                                          ....Respondents


                           CORAM : HON'BLE MRS. JUSTICE ALKA SARIN

                           Present :   Mr. Vikram Singh Punia, Advocate for the petitioner.
                                                            -.-

                           ALKA SARIN, J. (Oral)

The present revision has been filed under Article 227 of the

Constitution of India challenging the order dated 09.08.2022 whereby the

application filed by the defendant-petitioner under Order 7 Rule 11 CPC has

been dismissed.

The brief facts relevant to the present lis are that the plaintiff-

respondents filed a suit for declaration and permanent injunction under

Sections 34, 37 and 38 of the Specific Relief Act, 1963 wherein the

following prayers were made :

"It is, therefore, prayed that a decree for declaration

declaring the partition proceedings including all

proceedings from the date of passing exparte order till

the partition and passing of Sanand Taksim and Kabja

Karwai proceedings and mutations if any or any

subsequent record prepared there upon as wrong, TRIPTI SAINI 2022.12.06 11:08 I attest to the accuracy and illegal, null, void, abinitio, nonest and inoperative and integrity of this document Chandigarh CR-3827-2022 (O&M) -2-

not binding upon the rights of the plaintiff and

proforma defendants and thus are liable to be aside

including all Nakshas like KA, KHA, GA, mode of

partition, Sanand Taksim etc. and the plaintiff and

proforma defendants may kindly be declare as joint

owner in possession as before as per their respective

shares as per the revenue record attached with the

plaint qua the suit property fully described in para No.1

of the plaint, be passed in favour of the plaintiff and

against the defendants on the grounds stated above in

the plaint.

xxxx"

During the pendency of the suit an application was filed by the

defendant-petitioner for rejection of the plaint on the ground that the suit

was barred under Section 158(2)(xvii) of the Punjab Land Revenue Act,

1887.

Learned counsel for the defendant-petitioner would contend

that the jurisdiction of the Civil Court is completely barred by virtue of the

provisions of Section 158(2)(xvii) of the Punjab Land Revenue Act, 1887.

It is further the contention that the remedy lies before the Revenue Court

and all the pleas can be raised by the plaintiff-respondents before the

Revenue Court. In support of his contentions, learned counsel has relied

upon the judgments passed by the Hon'ble Supreme Court in the cases of

Hardesh Ores Pvt. Ltd. Vs. M/s Hede and Company [2007 (5) SCC 614] TRIPTI SAINI 2022.12.06 11:08 I attest to the accuracy and integrity of this document Chandigarh CR-3827-2022 (O&M) -3-

and Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) (D) Thr. LRs

& Ors. [2020 (7) SCC 366].

Heard.

It is trite that while deciding an application under Order 7 Rule

11 CPC, only the contents of the plaint have to be seen. The contents of the

plaint reveal that fraud has been alleged while carrying out the partition

proceedings. In Para 3 of the plaint, it has specifically been stated that all

proceedings were conducted behind the back of the plaintiff-respondents.

Details of the fraud as alleged have been given in the plaint. In the case of

Giani Ram & Ors. Vs Ompati & Ors. [2008(1) RCR (Civil) 619] it has

been held as under :

8. It was claimed that partition proceedings cannot be

called into question in view of Section 158(2) of the Act

and in support of this contention reliance was placed on

the judgment of this court in the case of Pritam Singh v.

Jaskaur Singh, 1993(1) RRR 390 : 1992 PLJ 435 and in

the case of Lala Ram v. The Financial Commissioner,

Haryana, Chandigarh, 1992(1) RRR 231 : 1992(I)

Revenue Law Reporter 85 wherein this Court has been

pleased to lay down that the suit to challenge the order

of Assistant Collector alleging that the Assistant

Collector did not follow the procedure for deciding the

question of title, and therefore, the order is illegal and

without jurisdiction is barred under Section 158(2) of TRIPTI SAINI 2022.12.06 11:08 I attest to the accuracy and the Act. However, it may be noticed that before the integrity of this document Chandigarh CR-3827-2022 (O&M) -4-

learned Trial Court issue No.8 was framed regarding

the jurisdiction of the civil court to try the suit.

However, the appellant-defendants failed to show

anything in this regard. Even before the learned lower

appellate court no such plea as raised in this court was

taken. Learned lower appellate court was pleased to

reject the plea of partition by observing as under :

"20. As per my discussion above there is nothing to

show that Om Pati was duly served in he partition

proceeding. There is also no evidence that she has

engaged Kuldeep Singh Advocate. There is no

evidence on the file to show that she had executed

power of attorney in favour of Tek Chand thereby

authorising him to make statement on her behalf.

Moreover, as mentioned above the compromise

was not signed by all the parties even statement

were not made by all the parties before the AC II

Grade, Hansi. The compromise as well as

statements made by some of the parties cannot bind

the remaining parties, who had not singed the

compromise and also not made statement in the

court thereby admitting the factum of compromise.

Hence I have no hesitation to hold that Sanad

Taksi Ex.D4, mutation No.285 and subsequent

TRIPTI SAINI 2022.12.06 11:08 proceeding thereby delivering the possession of I attest to the accuracy and integrity of this document Chandigarh CR-3827-2022 (O&M) -5-

suit property on the basis of Sanad Taksim are

illegal null and void.

21. The plaintiff-respondent No.1 was also not

required to challenge the partition proceeding by

way of filing of appeal or revision as the order is

non-est in the eyes of law qua the plaintiff. The

party adversely effected by an illegal, null and void

order has a remedy to challenge the same in the

civil court. Reliance can be placed upon Harbans

Singh v. State of Punjab, 1978 PLJ 261. According

to the partition proceeding, Sanad Taksim Ex.D.4,

mutation No. 285 are illegal null and void and

liable to be set aside. Suit land measuring 99

kanals and 11 marlas is accordingly jointly owned

and possessed by the parties to the suit and cannot

be said to have been partitioned in consequence of

declaring the partition proceeding to be illegal null

and void and setting aside the same."

Thus, I find no force in the contentions raised by Mr.

Sanjay Majithia, learned counsel appearing for the

appellants to contend that the jurisdiction of the civil

court was barred. The authorities relied upon by the

learned counsel for the appellants, thus, have no

application to the facts of the present case as in the TRIPTI SAINI 2022.12.06 11:08 I attest to the accuracy and present case a concurrent finding of fact has been integrity of this document Chandigarh CR-3827-2022 (O&M) -6-

recorded that the plaintiff was not served in the partition

proceedings and therefore, learned courts below were

right in deciding the issue of jurisdiction in favour of the

plaintiff-respondent."

It has been held in the case of State of Haryana Vs. Vinod

Kumar [1986 (1) PLR 222] that where procedure followed, as prescribed

in the statute, has not been adhered to, the Civil Court would have

jurisdiction.

In the case of Dhruv Green Field Ltd. Vs. Hukam Singh &

Ors. [2002 (6) SCC 416] it has been laid down that the Civil Court would

have jurisdiction where the order complained of is a nullity. It has been held

as under :

"In the light of the above discussion, the following

principles may be re- stated :

(1) If there is express provision in any Special Act

barring the jurisdiction of a civil court to deal with

matters specified thereunder the jurisdiction of an

ordinary civil court shall stand excluded.

(2) If there is no express provision in the Act but an

examination of the provisions contained therein lead to

a conclusion in regard to exclusion of jurisdiction of a

civil court, the Court would then inquire whether any

adequate and efficacious alternative remedy is

provided under the Act; if the answer is in the

TRIPTI SAINI 2022.12.06 11:08 affirmative, it can safely be concluded that the I attest to the accuracy and integrity of this document Chandigarh CR-3827-2022 (O&M) -7-

jurisdiction of the civil court is barred, If however, no

such adequate and effective alternative remedy is

provided then exclusion of the jurisdiction of civil court

cannot be inferred.

(3) Even in cases where the jurisdiction of a civil

court is barred expressly or impliedly the court would

nonetheless retain its jurisdiction to entertain and

adjudicate the suit provided the order complained of is

a nullity."

The judgments relied upon by the learned counsel would have

no applicability in the present case as the said two cases do not relate to

plaints having been filed challenging the orders therein on the ground of

fraud.

In view of the above, I do not find any merit in the present

revision petition which is accordingly dismissed. Pending applications, if

any, also stand disposed off.

                           December 05, 2022                            (ALKA SARIN)
                           tripti                                           JUDGE

NOTE : Whether speaking/non-speaking : Speaking Whether reportable : YES/NO

TRIPTI SAINI 2022.12.06 11:08 I attest to the accuracy and integrity of this document Chandigarh