Jeevan Singh and Others vs Ishwar Singh and Others

Servesh Kumar Gupta, J.—Having heard learned Counsel of the appellants/defendants and respondents/plaintiffs, it transpires that the property bearing Khasra No. 674M, Cantt. Board No. 477 is situated in the total area of 0.115 hectare. Both parties are the lineage of the common grandfather. A partition suit was instituted by the plaintiff Ishwar Singh claiming one half share in the property along with proforma defendant No. 5 and remaining one half was accepted to be of defendants No. 1 to 4. Joint written statement was filed by the defendants No. 1 to 3, while defendant No. 4 Smt. Pushpa Devi filed her separate written statement. Smt. Pushpa Devi also sought an injunction against the plaintiff as a counter claim asking to restrain the plaintiff from interfering in her possession over the property in question. The learned Civil Judge accepted the share of all parties as have been pleaded by the plaintiff, but at the same time rejected the counter-claim regarding the prayer of injunction sought by Smt. Pushpa Devi.

All the defendants No. 1 to 4 filed a composite appeal against the judgment of the trial court challenging the preliminary decree regarding the determination of the shares settled by the Civil Judge as also the refusal of injunction. Appeal was dismissed with costs. So, all the defendants are before this Court in this second appeal.

Learned Counsel of the appellants/defendants has argued basically on the question that since the disputed land, on which the constructed structure has been built upon, is agricultural in nature, therefore, the matter should have been adjudicated by the Revenue Court, and not by the Civil Court. Further, the Civil Court was even not competent to entertain the litigation between the parties and would have sent this matter to determine the real nature of the property, in question, by the Revenue Court.

Learned Counsel of the appellants/defendants has relied upon a precedent of Hon''ble Apex Court rendered in Shri Chandrika Singh and others Vs. Raja Vishwanath Pratap Singh and another, AIR 1992 SC 1318 : (1992) 3 JT 55 : (1992) 1 SCALE 883 : (1992) 3 SCC 90 : (1992) 2 SCR 640 . This precedent is not at all applicable in the present controversy for the reason that Hon''ble Apex Court has held that such matter should be remitted for decision to the Revenue Court only when the question arises or is raised as regards the nature of the land, in question, or its use. When the nature of the land and its use is evident from the pleadings of the defendants itself, then no question arises to remit the matter to the Revenue Court and unnecessarily keep the litigation pending between the parties.

It is accepted in the pleadings of both the parties that at least 150 years old building is standing on the land, in question. The building is so old that it is now in dilapidated condition. No agriculture is being done even in the appurtenant land. Then I do not think that there is any use to send the matter to the Revenue Court to determine its nature. More so, the property is under the assessment by the Cantt. Board w.e.f. 1990 simply for the reason that revenue of rupees two per annum is recorded somewhere in Khasra or Khatauni exigible from the owners and it does not at all make this land as agricultural in nature.

I am unable to agree with the substantial questions of law as have been formulated by the learned Counsel of the appellants. This appeal has no force and it is hereby dismissed at the very threshold.