Roop Chand and Others vs Smt. Murti and Others

Ajay Tewari, J.—This appeal has been filed against the judgment of the lower appellate Court reversing that of the trial Court and thereby

decreeing the suit of the plaintiffs/respondents No. 1 and 2 to the effect that a partition order passed by the Assistant Collector First Grade has

been declared to be illegal and null and void. However, further relief of permanent injunction restraining the appellants from raising construction or

changing the nature of the suit land has been declined on the ground that both the parties have constructed their houses in the property in dispute. It

may be mentioned here that the primary reason which weighed with the lower appellate Court to set aside the partition order passed by the

Assistant Collector First Grade was the fact that admittedly the houses of the parties were existing in the land in dispute.

The following questions of law have been proposed:-

i) Whether the order of revenue officer passing partition order can be challenged straightway in the civil court without exhausting statutory remedy

of appeal?

ii) Whether the order of learned lower appellate court accepting the appeal in violation of the settled law cited in 2006(1) R.C.R. (Civil) 12 : 2006

(1) LAR 115 -Raj Jasbir Singh v. Balwant Singh is illegal and is liable to be reversed?

iii) Whether the order of partition secured by the plaintiff-respondent by filing application in the revenue court can be challenged by them by way of

civil suit?

In regard to questions No. (i) and (iii), the lower appellate Court has rightly found that the revenue Court cannot order partition of land in which

there is construction. No argument has been raised on question No. (ii). Consequently, holding the questions proposed against the appellants, this

appeal is dismissed with no order as to costs.