Amit Rawal, J. - (1.) This order of mine shall dispose of two revision petitions bearing No. 7148 of 2014, wherein, the order passed on application filed under Order 7 Rule 11 of the Code of the Civil Procedure, at the instance of the petitioner -defendant, has been rejected and in CR No. 7149 of 2014, an application seeking amendment of the plaint, at the instance of the respondent -plaintiff has been allowed.
(2.) Mr. Chetan Mittal, learned Senior Counsel assisted by Mr. Adarsh Jain, Advocate appearing on behalf of the petitioner - defendant submits that suit for separate possession by way of partition of the suit land was not maintainable, for the reasons that on on 8.12.2008 (Annexure P -3), an application for partition of land measuring 13 kanals 16 marlas was filed before the revenue Court. The proceedings were finalized by the revenue Court in the year 2012 and thereafter, Sanad Taksim was finalized on 02.01.2013. The written statement in the aforementioned suit was filed on 30.09.2011 and the specific objection vis -a -vis jurisdiction of the Civil Court was taken as per the provisions of Sec. 158 of the Punjab Land Revenue Act, 1887. The respondent -plaintiff did not disclose the factum of passing of the order dated 18.08.2011 (Annexure P -5), whereby, an application challenging the jurisdiction of the revenue Court has been rejected and appeal filed against the same, vide order dated 13.09.2011 (Annexure P -6), has also been dismissed by the Collector, whereas, the present suit had been filed on 19.09.2011. On realising that suit seeking partition in view of the partition proceedings which culminated into Sanad Taksim, sought the amendment of the suit seeking challenge to the partition proceedings conducted by the revenue Court being illegal, null, void and beyond the jurisdiction and the said application has erroneously been allowed by the trial Court. In support of his contention, he has relied upon the judgment rendered by the Division Bench of this Court in Fauja Singh vs. Pritam Singh : 1993(2) R.R.R. 640, wherein, it has been held that where a particular property is in abadi land and does not fall within the definition of land, revenue authorities would not have any jurisdiction to partition the same. Once an order of partition, instrument of partition has been prepared, the plaintiff has no right to get suit land re -partitioned from the Civil Court and the aforementioned finding has been reiterated by the Single Bench of this Court in Sukhbir Kaur vs. Gurjit Singh and others : 2012(3) R.C.R.(Civil) 94; Rai Jasbir Singh vs. Balwant Singh and others : 2006(1) RCR (Civil) 12 and Raj Kumar vs. Katu Ram @ Chhotu Ram and others : 1995(1) R.R.R.709. However, the Court below erroneously dismissed the application holding that it is being mixed question of fact and law and can be seen at the time of final adjudication of the suit. Even otherwise, the amendment seeking to incorporate the declaration, is an afterthought as the respondent - plaintiff had not approached the Court with clean hands by withholding particulars of the partition proceedings, therefore, the amendment should not be allowed as it does not fall within the expression "despite exercise of due diligence" and prays for allowing of the revision petitions and setting aside of the impugned orders. He further submits that remedy to challenge 'Sanad Taksim' was to file appeal under Sec. 16 (1) of Punjab Land Revenue Act, before Financial Commissioner. In this regard, relied upon judgments of the Hon'ble Supreme Court in Amar Khan and others vs. State of Punjab and others, 2009(1) RCR (Civil) 741 and Mohannakumaran Nair vs. Vijayakumaran Nair : 2008(1) RCR (Civil) 21, to contend that question of jurisdiction is to be seen at the time of filing of suit and not with reference to future date.
(3.) Mr. Parvinder Singh, learned counsel appearing on behalf of the respondent -plaintiff submits that application seeking partition was filed on 08.12.2008, but on 02.01.2009, the petitioner -defendant obtained the CLU (change of land use) converting the nature of land into commercial. This fact has been specifically pleaded in paragraph 10 of the plaint. Before the revenue Court, an application for dismissal of the partition was filed as it was filed against the dead person. After that, an application dated 10.12.2010 was filed before the Tehsildar to ascertain the outcome of partition proceedings vis -a - vis whether such proceedings are pending or not. Thereafter, an application was filed challenging the jurisdiction of the revenue Court on account of change of nature of land but the same has erroneously been dismissed vide order dated 12.09.2011 and Sanad Taksim has been passed after filing of suit, i.e., on 20.01.2013. Once the character and nature of the property changed from agricultural to commercial, therefore, revenue Court did not have the jurisdiction, then the final partition proceedings dated 16.11.2012 (Annexure P -7) and Sanad Taksim are without jurisdiction and rightly so, the amendment in the suit was sought by way of declaration of the aforementioned orders. In support of his aforementioned contentions, relied upon the Division Bench judgment of this Court rendered in Surjit Singh vs. Financial Commissioner Appeals -II, Punjab and others, 2012(5) R.C.R.(Civil) 683, wherein, the judgment rendered in Fauja Singh's case (supra) has also been discussed and the view expressed in Fauja Singh's case helped the case of the party to ascertain the jurisdiction of the revenue Court. He, thus, prays for dismissal of the revision petitions.;