A.N.JINDAL,J - (1.) (31st May, 2007) Challenge in this revision petition is made to the order dated 25.7.2006 passed by the learned Additional Civil Judge (Sr. Division), Malerkotla, who while declining the objection petition filed by the respondent ordered to appoint Local Commissioner to demarcate the share of the parties in pursuance of the judgment dated 18.5.1993 (Preliminary decree).
(2.) FACTUAL matrix in the background of the case is that some where in the year 1984-85 the plaintiffs filed an application for partition of the property measuring 19 kanal 17 marlas comprising of some constructed area as well as agricultural land bounded by the boundary wall situated in the municipal limits of Malerkotla on the assumption that the property was subject to payment of land revenue. The said application was contested by the defendants upto the level of Financial Commissioner, who while accepting the plea of the defendant that the Civil Court was the proper forum to partition before the Civil Court. Faced with the situation, plaintiff filed Civil Suit No, 608 dated 28.11.1988 which was decreed in favour of the plaintiffs (now decree holders) on 18.5.1993. While resiling from the previous plea raised before the Financial Commissioner, defendants-JDs raised the plea before the Civil Court that it had no jurisdiction to try the suit. The Civil Court, in its judgment dated 18.5.1993, while turning down the plea of the JDs and holding the jurisdiction of the Civil Court observed as under :- "The suit property i.e. Gair Mumkin Kothi as well as the agricultural land attached to it is one unit and lie Civil Court has got the jurisdiction to partition the same. Thus, in pursuance of the orders of Financial Commissioner after a lengthy litigation at the instance of the present defendants present plaintiffs have filed this suit for partition and seeking possession of their respective shares and now in the Civil Court, for which present defendants fight up to the Court of Financial Commissioner against the present plaintiffs and got the orders of their choice with regard to the jurisdiction of the Civil Court for the partition of the suit property, and now the same defendants have resiled form their previous assertion and pleas that this Court has got no jurisdiction for the purposes of partition, which amounts to the conduct of the present defendants nothing more than that of inequitable and amounts to inconsistent pleas in different courts relating to same cause of action, which cannot be entertained and as per a well established rule of justice, present defendants now cannot be permitted to approbate and reprobate with regard to jurisdiction of this Court and present defendants are estopped from raising the plea in this Court about the jurisdiction of this Court and as such in view of the land mark authority relied upon by the learned Counsel for the plaintiffs cited as 1973 P.L.J. 577 (supra). I am also in full agreement with the arguments and case law relied upon by the learned Counsel for the plaintiffs and I hold that the Court has got every jurisdiction to entertain try and decide the present suit. Accordingly, this issue is decided against the defendants and in favour of the plaintiffs. Now the preliminary decree of the Civil Court, after passing through a long channel became mature for taking the shape of the final decree, then the defendants again raised the question that since the property was subject to payment of land revenue, therefore, this Court has no jurisdiction to appoint Local Commissioner as it is in violation of Section 54 and Order 20 Rule 18 of C.P.C. and that in view of Section 54 and Order 20 Rule 18 C.P.C. the Court should have referred the matter to the Revenue Court for partitioning the property.
(3.) BEFORE proceeding to decide the objection, it may be observed that judgment dated 18.5.1993, reveals that the land measuring 19 kanal 17 marlas comprised of Gair Mumkin Kothi and some cultivable area which is subject of lis is one compact unit situated within the municipal limits of Malerkotla, therefore, the same was rightly treated as property subject of partition by the Civil Court and the Revenue Court had no jurisdiction to try the same. The judgment debtors having lost before the Civil Court in this aspect have again raised the plea that the matter should have been referred to the Revenue Court for partitioning the shares. As a matter of fact, the land, over some portion of which houses or other buildings have been constructed, are not covered by the "estate" assessed for payment of land revenue, as such Civil Court has jurisdiction to partition such property. I find strength to my this view from the judgment delivered by this Court in case Kalyan Dass v. Som Nath and Ors., 1987 R.R.R. 48 : 1987 P.L.J. 4, wherein it was observed as under :- "5. The next contention raised was that property No. 6 should have been excluded from partition as such, as all the three Khasra numbers consists of agricultural land. According to the learned Counsel, simply because on one Khasra number buildings have been constructed did not mean that it ceased to be agricultural land and thus could be partitioned by the civil Court. I do not find any force in this contention either as estate assessed to the payment of revenue to the Government, do not cover land which have been built upon and have become house and factories and the civil Court has jurisdiction to partition this property in view of judgment of this Court in Rameshar Nath v. Jageshwar Nath and Ors., (1953) 55 P.L.R. 326." ;