M.L. Singhal, J.@mdashSurjeet Singh and others instituted suit for partition by metes and bounds of plot measuring 5 kanals 4 marlas as detailed in the heading of the plaint. They claimed that they be put in possession of specific portion, which became allotted to them in partition proceedings. They further sought injunction against Sampuran Singh and others from alienating any specific portion thereof and in excess of their share and also sought injunction against them restraining them from dispossessing them from any portion by way of raising construction. It was alleged in the plaint that the land measuring 5 kanals 4 marlas was joint of the parties and no partition of any kind had taken place between them. Plaintiffs have 930/3095 share. It was further alleged that AC 2nd Grade had kept the suit land as joint being gair mumkin in partition proceedings.
2. Defendants No. 2 to 7 contested the suit of the plaintiffs urging that they are not owners nor in possession of any portion of the suit land. They have moved an application before AC 2nd Grade, Dabwali titled Sukhdev Singh etc. v. Sampuran Singh etc. for partition of the agricultural land jointly owned and possessed by the parties to the suit and the plaintiffs themselves had stated in part 3 of additional objection of "Naksha Be" filed on 29.5.93 before the AC 2nd Grade Dabwali that they had already excess share of gair mumkin land and they were not in possession of gair mumkin land and they were also not entitled to the gair mumkin land. The said partition proceedings are still pending. It was further pleaded that the plaintiffs had no concern or connection whatsoever with the gair mumkin land which is the suit land. Sampuran Singh defendant was owner in possession of 1 kanal. Sukhdev Singh etc. defendants 2 to 5 were owners in possession in equal share of 2K2M in equal share. They (Sukhdev Singh etc defendants 2 to 7) and Sampuran Singh defendant constructed the suit land and were in possession at the spot. Revenue record showing plaintiffs to be co-sharers in the suit land was wrong, against law, facts and the rights of defendants 2 to 7 and was liable to be ignored.
3. Tej Singh etc. defendants No. 1 and 8 to 12 contested the suit of the plaintiffs urging that they are not co-sharers. It was further urged that Sampuran Singh was in possession of specific portion measuring 1 kanal and had raised construction. If any partition was ordered. Sampuran Singh was entitled to remain in possession of that portion over which he had raised construction. Defendants 8 to 10, 11 and 12 were also entitled to separate possession according to their respective shares.
On the pleadings of the parties, the following issues were framed by the trial Court:
1. Whether the plaintiffs are entitled for specific portion of their share in the suit land in the partition by metes and bounds? OPP
2. If issue No. 1 is proved whether the plaintiffs are entitled for injunction for restraining the defendants from alienating specific portion of the suit land more than their share? OPP
3. Whether the suit of the plaintiffs is not maintainable in the present form? OPD
4. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD
5. Whether the suit of the plaintiffs is false and frivolous and deserves dismissal? OPD
6. Whether the defendant is entitled for special costs u/s 35A CPC? OPD
7. Relief.
Additional Civil Judge, Senior Division, Dabwali decreed the plaintiffs'' suit preliminarily for partition to the effect that the plaintiffs were entitled to specific portion of the suit land equivalent to 930/3095 shares thereof by way of partition by metes and bounds and defendants were restrained from alienating the suit land or any portion thereof or interfering therein by way of raising construction or in any manner till actual partition of the suit land, by decree of permanent injunction in view of his findings that plaintiffs are co-sharers with the defendants and gair mumkin area had not been partitioned by AC 2nd Grade, Dabwali and the same had been kept joint between the parties. It was found that in partition, AC 2nd Grade had not given valuable/precious land abutting the village to the plaintiffs and instead they had been given less precious/valuable land and the defendants had been given in excess of their share in the gair mumkin area, though they never remained in possession in the said gair mumkin area. It was found that as per the amended "Naksha Be" dated 18.12.93, gair mumkin area was not partitioned and that the same was kept joint area of the parties. The said gair mumkin area i.e. plot measuring 5 k 4 M was still joint property of the parties in which plaintiffs had 930/3095 share. As such, the plaintiffs became entitled to the partition of the suit land as per their share by metes and bounds. By virtue of amended Naksha Be dated 18.12.93, agricultural land stood partitioned while gair mumkin land was kept joint.
4. Jagga Singh defendant No. 4 went in appeal. Additional District Judge, Sirsa dismissed the appeal vide order dated 21.5.99.
Still not satisfied, Jagga Singh defendant has knocked the door of this Court through this regular second appeal.
5. I have heard the learned counsel for the parties.
Learned counsel for the appellant submitted that no partition by metes and bounds could have been ordered at the instance of plaintiff respondents 1 to 6 as they were not co-sharers. It was submitted that they are already in possession of the gair mumkin land more than their share and in partition proceedings pending before AC 2nd Grade, Dabwali they have in para 3 of their objection to Naksha-Be admitted this fact themselves. It was submitted that plaintiff-respondents are already in possession of more than their share of the gair mumkin land and with this part of the suit land, they have nothing to do.
6. It was further submitted that Civil Court had no jurisdiction to order partition of the agricultural land and agricultural land could be partitioned only by the revenue court. It was submitted that if some construction has been raised on the agricultural land, that will not change the character of the land. It was submitted that with regard to non-agricultural property, the division has to be made by the civil Court and with regard to agricultural property, the division has to be made by the revenue court. "The word "estate" as defined in the Punjab Land Revenue Act applies to agricultural land only and does not include any other class of property. As soon as agricultural land is converted into building sites whether in a village or in a town, its owner so to say walks out of the "estate" and ceases to have any connection with it any longer." There is no quarrel so far as this principle of law is concerned. This principle of law finds support in Shah Mohammad v. Mst. Pairi ILR Lah 322 and Sucha Singh and Ors. v. Balbir Singh and Ors. 1964 P.L.J. 160. It was submitted that with the raising of construction, this land did not cease to be agricultural land and, therefore, the civil court had no jurisdiction to partition such land. It was further submitted that Section 158 of the Punjab Land Revenue Act excludes the jurisdiction of the civil Court in respect of the following matters:- namely any claim for partition of an estate, holding or tenancy or any question concerned with or arising out of proceedings for partition not being a question as to title in any other property of which partition is sought."
7. Learned counsel for the plaintiff-respondents, on the other hand, submitted that they are recorded as co-sharers with the defendant-appellant and others in jamabandi Ex.P1 for the years 1986-87 and as such they could ask for its partition. It was submitted that if agricultural land is converted into residential plots and houses are constructed thereon, such land can be partitioned not by revenue court but by the civil Court because such land ceases to be agricultural land. In support of this contention, he drew my attention to Khushal Singh and Ors. v. Gurdip Singh and Ors. 1987 P.L.J. 369. In Kalyan Dass v. Som Nath and Ors. 1987 P.L.J. 4 it was held that "the Civil Court will have jurisdiction to partition land, which has been built upon and houses and factories have come up, such land is not covered by "estate" assessed to payment of revenue. Such agricultural land will cease to the revenue estate." He drew my attention to Rattan and Anr. v. Ram Saroop and Anr. 1989 P.L.J. 7 where it was held that "where the plaintiff files suit for partition of gair mumkin bara and gair mumkin ghair in the civil Court and another agricultural land, which was also joint, was not included in the suit, suit cannot dismissed on account of partial partition. Partition of agricultural land could be done by the civil Court. Civil Court shall not exercise jurisdiction over any of the following matters namely:- any claim for partition of an estate, holding or tenancy, or any question concerned with, or arising out of proceedings for partition, not being a question as to title in any of the property of which partition is sought." Vide Section 158(2) of the Punjab Land Revenue Act, 1987.
8. After going through the authorities cited at bar, I am of the view that there can be no manner of doubt that civil Court cannot partition land assessed to land revenue. Land assessed to land revenue can be partitioned only by the revenue officer. Civil Court can partition agricultural land, which has been converted into residential plots and houses have been constructed thereon. It was gair mumkin plot, which was sought to be partitioned through the civil Court. In application for partition Ex.D1, Sukhdev Singh etc. had not included gair mumkin plot bearing Khasra Nos. 471(5-2) and 683(0-2). They had sought partition of the entire land measuring 154 kanals 15 Marlas. In objection raised to the mode of partition suggested in Naksha Be, Surjeet Singh etc. had averred that they had not been given any portion of the valuable land adjoining to the village and in their tak, more of gair mumkin land had been allotted which is in excess of their share and that they had never been in possession of any gair mumkin area nor they were entitled to any gair mumkin area. This admission cannot be allowed to work against the interest of the plaintiff-respondents because this admission has been found to be erroneous when they are shown to be recorded as joint owners of the land in suit. Learned counsel for the appellant submitted that the suit is bad for partial partition inasmuch as plaintiffs had not sought partition of Khasra No. 674 gair mumkin Muri(0-2). Suffice it to say, no such objection has been taken in the written statement. Even otherwise, it is a very small strip in which the plaintiffs have a very insignificant share. If the defendants had taken this objection in their written statement that the suit is bad for partial partition on account of non-inclusion of Khasra No. 674(0-2) gair mumkin rudi, plaintiffs could have thought of amending the plaint.
9. For the reasons given above, this appeal fails and is dismissed without any order as to costs.
