K.Kannan - (1.) THE petitioners contend that the order passed by the authorities is void and it cannot be executed. THE basis is that the property is gair mumkin and, therefore, it cannot be a subject of partition proceedings. I find the objection has come about for the first time at the time of execution after the partition proceedings were completed and the parties were heard on their objections before the authorities. THEre have been several stages from the year 1987 when the proceedings have meandered before it arrived at the execution stage. When an application was filed by the private respondents in the year 1998, the contention was that there have been several houses in the plots in khewat No.132/129, khatoni No.243, Khasra No.288 and there have been frequent quarrels amongst parties which required the ascertainment of the respective shares and the imperatives of finalization of partition. I find at no time in the past that the petitioners have taken up the issue of want of jurisdiction that the property was not partible. Initially after the inspection was carried out and a report was given by the patwari referring to the houses and gardens that had been found to exist and the respective areas in possession, the applicant had withdrawn the petition before the Collector, Grade-II on 07.08.2001, but this was restored on 09.04.2002 when the applicant pointed out that the withdrawal was wrong. Even at that stage the present petitioner ought to have treated himself as aggrieved. If the case could not have been revived after the withdrawal, he ought to have objected to the same. After the proceedings have come to final stage when the sanad was released, the petitioners have a contention that all the proceedings are without jurisdiction. What was not stated at the stage when the partition proceedings were under consideration could not be taken for the first time in execution.
(2.) THE learned counsel states that inherent lack of jurisdiction could be raised at any stage and the order passed already is void. THE character of property as gair mumkin that falls outside the jurisdiction of partition proceedings is essentially one of question of fact and if that objection with reference to the category of property was not brought before the authorities rendering adjudication, it shall be impermissible for them to take up the objection at the time of execution. THE petitioners must be taken to be barred by the principle of constructive res judicata for taking up such a plea. THE challenge to the impugned order ought to fail and the writ petition deserves to be dismissed and accordingly dismissed.;