DUGLA DECEASED THROUGH LR ROBEL SINGH AND ANOTHER vs CHAMAN LAL DECEASED THROUGH LR aNKUR kUMAR AND OTHERS

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High Court of H.P.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 423 of 2002
Reserved on: 25.04.2026
Date of Decision: 01.06.2026
Dugla (deceased) through LRs & others ...Appellants
Versus
Chaman Lal (deceased) through LRs ...Respondents
Coram
Hon’ble Mr Justice Rakesh Kainthla , Judge.
1
Whether approved for reporting? Yes
For the Appellants : Mr. N.K. Thakur, Senior Advocate
with Mr Divya Raj Singh,
Advocate.
For the respondents : Mr Neeraj Gupta, Senior
Advocate, with Mr Ajeet Pal Singh
Jaswal, Advocate, for respondents
No.1(a) to 1(d), 2 to 6, 8 and 9
None for respondents No. 7(c), 7(e), 10(b), 10(c), 11 to 15, 16(a),
16(d) to 16(f), 17, 18(a) to 18(e), 19 to 21, 22(a) to 22(c) and 23 to
27.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment
and decree dated 03.08.2002 passed by learned District Judge,
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Mandi, H.P. (learned Appellate Court) vide which the judgment
and decree dated 14.12.2000 passed by learned Sub-Judge, First
Class, Sarkaghat, District Mandi ( learned Trial Court ) were set
aside. (The parties shall hereinafter be referred to in the same
manner as they were arrayed before the learned Trial Court for
convenience).
2. Briefly stated, the facts giving rise to the present
appeal are that the plaintiff filed a civil suit before the learned
Trial Court seeking a declaration that the plaintiff is the owner
in possession of the suit land described in para- 1 of the plaint
by virtue of a sale. A consequential relief of permanent
prohibitory injunction and an alternative relief of possession
were also sought. It was asserted that the predecessor-in-
interest of the defendant made a sale in the plaintiff's favour
th
and put the plaintiff in possession of the suit land on 18 Jeth,
2013. Defendant filed an application for partition. The plaintiff
enquired from Patwari Halqa and found that the revenue entries
in the record of right were incorrect. The plaintiff asked the
defendant to correct the wrong entry, but in vain. Hence, the
plaintiff filed the present suit to seek the relief mentioned
above.
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3. The defendants opposed the suit by filing a written
statement taking preliminary objections regarding lack of
maintainability and cause of action, the suit being bad for
nonjoinder and misjoinder of the parties, the suit being barred
by limitation, and the suit land having been partitioned by the
competent authority. The plaintiff’s claim was denied on the
merits. It was specifically denied that the defendants’
predecessor had sold the suit land to the plaintiff. It was
asserted that the suit land was recorded in the joint ownership
and possession of the plaintiff, replying defendant, proforma
defendant and other co-sharers. Defendant filed a partition
application on 08.01.1986, and the defendant’s share was
separated. The plaintiff knew of the partition proceedings, but
he chose not to participate. The plaintiff filed a false suit without
any basis. Hence, it was prayed that the present suit be
dismissed.
4. A replication denying the contents of the written
statement and affirming those of the plaint was filed.
5. The following issues were framed by the learned
Trial Court on 27.10.1999:
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1. Whether the suit land was sold by the defendant in favour
th
of the plaintiff on 18 Jeth, 2013, through a valid sale and
the plaintiff was duly put in possession of the suit land?
OPP.
2. If the aforesaid issue is proved, whether the plaintiff
owner in possession of the suit land? OPP.
3. If the aforesaid issue is proved, whether the revenue entry
showing the defendants as owners in possession is wrong
and is not binding upon the rights of the plaintiff? OPP
4. Whether the suit is not maintainable? OPD
5. Whether the suit is bad for non-joinder and mis-joinder
of necessary parties? OPD
6. Whether the suit is time-barred? OPD
7. Whether the plaintiff has no locus standi to file the
present suit? OPD
8. Relief.
6. The plaintiff died during the pendency of the suit,
and his legal representatives were brought on record.
7. The parties were called upon to produce the evidence,
and the plaintiff’s legal representatives examined Chaman Lal
(PW1), Sardaru (PW2), Bila Ram (PW3), Changu Ram (PW4),
Sant Ram (PW5), and Chela Ram (PW6). The defendant
examined himself (DW1), Ashwani Kumar (DW2), Gian Chand
(DW3), Gian Chand, Patwari (DW4), and Daleep Singh (DW5).
8. Learned Trial Court held that the original plaintiff
was a retired Revenue Officer. He was aware of the fact that any
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acquisition of the right had to be reported to the Patwari. He had
not reported the sale to the Patwari for nearly 42 years. The suit
land was partitioned by the competent authority. The possession
was delivered to the owners after the partition. The plaintiff was
aware of the wrong revenue entry in the year 1986, but he had
not filed the suit immediately after coming to know of the
revenue entries. The plaintiff was duly served and did not appear
before the Revenue Court to contest the partition proceedings.
Hence, the learned Trial Court answered issue No.6 in the
affirmative, the rest of the issues in the negative and dismissed
the plaintiff’s suit.
9. Aggrieved by the judgment and decree passed by the
learned Trial Court, the plaintiff filed an appeal, which was
decided by the learned Additional District Judge, Mandi, H.P.
(learned Appellate Court). Learned Appellate Court held that the
service upon the original plaintiff was not valid because the
Process Server had mentioned in his report that the plaintiff had
been informed about the date of the hearing. The copy of the
partition application did not accompany the summons, and the
service was not valid. The plaintiff had proved the sale deed by
producing a document that was more than 30 years old and
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carried a presumption under Section 90 of the Indian Evidence
Act. The land described in the document tallied with the suit
land. Learned Trial Court erred in dismissing the suit. Hence, the
appeal filed by the plaintiff was accepted, and the suit was
decreed.
10. Being aggrieved by the judgment and decree passed
by the learned Appellate Court, the defendant has filed the
present appeal, which was admitted on the following substantial
questions of law on 23.09.2002:
1. Whether the jurisdiction of the civil Court is barred under
Section 173 of the HP Land Revenue Act?
2. Whether the suit for declaration filed after three years
from the date of acquiring the constructive knowledge of
the impugned entry, can be maintainable and the present
suit barred by limitation as the same has been filed in the
year 1997, though the constructive knowledge acquired in
the year 1986?
3. Whether the present plaintiffs/respondents can seek
declaration on the basis of a defective document of title,
which is unstamped and unregistered?
11. I have heard Mr N.K. Thakur, learned Senior
Advocate, assisted by Mr Divya Raj Singh, learned counsel for
the appellants and Mr Neeraj Gupta, learned Senior Advocate,
assisted by Mr Ajeet Pal Singh, learned counsel for respondents
No.1 (a) to 1(d), 2 to 6, 8 and 9.
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12. Mr N.K. Thakur, learned counsel for the appellants,
submitted that the plaintiff was duly served in partition
proceedings. He did not appear before the revenue authorities,
and the land was partitioned by metes and bounds. The
possession was delivered to the plaintiff. The civil court does not
have the jurisdiction to hear and entertain the suit, because of
the bar contained in Section 171 of the H.P. Land Revenue Act.
The plaintiff was aware of the revenue entries in the year 1988,
and he had filed the suit more than three years after gaining
such knowledge. The learned Trial Court had rightly held that
the suit was barred by limitation. The document of sale
propounded by the plaintiff was unregistered and unstamped.
The land mentioned in it could not be connected to the suit land,
and the learned Appellate Court erred in holding that the suit
land was sold by means of the document produced by the
plaintiff. Hence, he prayed that the present appeal be allowed
and the judgment and decree passed by the learned Appellate
Court be set aside.
13. Mr Neeraj Gupta, learned Senior Counsel for the
respondent, submitted that the plaintiff was not properly
served. The Process Server had only made a report on the
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summons that the plaintiff was informed of the partition
proceedings. The signatures of the plaintiff were not obtained
regarding the service. Hence, the learned Appellate Court had
rightly held that the service could not be held to be proper. The
limitation would not start running unless the plaintiff knew of
the partition proceedings. The revenue authorities had
proceeded to partition the land without associating the plaintiff,
which is a violation of the principle of natural justice. The
document of sale was corroborated by an entry made in the
revenue record, and the learned Trial Court erred in ignoring the
document of sale. Hence, he prayed that the present appeal be
dismissed. He relied upon the judgments in Dev Raj vs. Mansha
Ram, Latest HLJ 2002 (HP) 1222 and Prakash Chand and others vs.
Hans Raj and another 1994 (1) Sim. L.C. 114 in support of his
submission.
14. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
Substantial Question of Law No.1 :
15. Section 171(2)(xvii) & (xviii) of H.P. Land Revenue Act
reads as under: -
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“171. Exclusion of jurisdiction of Civil Courts in matters
within the jurisdiction of Revenue Officers . – Except as
otherwise provided by this Act –
*
(2) A Civil Court shall not exercise jurisdiction over
any of the following matters, namely –
*
(xvii) any claim for the partition of an estate,
holding, or tenancy, or any question
connected 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;
(xviii) any question as to the allotment of
land on the partition of an estate holding or
tenancy, or as to the distribution of land
subject by established custom to periodical
redistribution, or as to the distribution of
land revenue on the partition of an estate or
holding or a periodical redistribution of land,
or as to the distribution of rent on the
partition of a tenancy.”
16. It is apparent from the bare perusal of the Section
that a Civil Court cannot exercise jurisdiction regarding any
claim for the partition of an estate or any question connected
with or arising out of the proceedings for partition, not being a
question as to title. Therefore, the jurisdiction of the civil Court
to determine the questions arising out of the partition
proceedings is barred, and the civil Court is not competent to
entertain any suit connected to the partition proceedings or any
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question arising out of the partition proceedings. This provision
was considered by this Court in many cases.
17. In Gopi Chand Vs. Sonam Dass 1998(1) Shimla Law
Cases 488 , the question was whether the civil Court had
jurisdiction regarding the delivery of possession of the land
allotted in the partition. After analysing the proceedings of
Section 171(2)(xvii), it was held by this Court that the civil Court
does not have jurisdiction relating to the partition where such
questions can be disposed of by the revenue authorities. It was
observed:
“17. The matter with regard to the delivery of possession
of the land in dispute consequent upon partition ordered
by the Revenue Officer falls within the exclusive
jurisdiction of such Revenue Officer within the ambit of
Section 134 of the Revenue Act. Therefore, if the plaintiffs
have failed to obtain possession under Section 134 of the
Revenue Act, they cannot approach the Civil Court for
such relief of possession. The Civil Court has no
jurisdiction in view of the provisions contained in Section
171(1) and Section 171(2)(xvii) of the Revenue Act.”
18. In Bal Krishan Vs. Surinder Kumar 2011(1) Shimla Law
Cases 312, a civil suit was filed regarding the tampering of the
Khataunis. It was held that the dispute regarding the tampering
of Khatauni was within the exclusive jurisdiction of revenue
authorities, and the civil court had no jurisdiction to entertain
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the suit relating to the same. The plea that such a suit is
maintainable under Section 45 of the H.P. Land Revenue Act.
Section 46 of the H.P. Land Revenue Act was also negated, and it
was held: -
“11. The dispute whether there was any tampering in the
Khataunis or not fell squarely within the purview of the
revenue officers since the Khataunis have no records of
rights. Therefore, it was the Revenue Courts alone who
had jurisdiction to decide the matter. The appeal filed by
respondents No. 1 and 2 was dismissed by the Collector,
and they chose not to challenge the same in further
proceedings. The suit filed by them is, therefore, barred
in view of the provisions of Section 171 (2) (xviii).”
19. In Khalil Vs. Meena @ Yamin 2016 (2) Himachal Law
Reporter 869 , the revenue authority had proceeded to determine
the question of title. However, the procedure was not followed,
and the decree sheet was not prepared. It was held that the
plaintiff has to avail the remedy of appeal, and the civil suit
cannot be filed before the Court. It was observed: -
“12. On the asking of the appellants, the Revenue Officer
did proceed to determine the title of the parties in the
proceedings for partition pending before him. It being a
different matter that he did not follow the procedure, nor
was any decree sheet prepared by him. But then, as has
been held by this Court in State of Himachal Pradesh v.
Chet Ram, 2000 (3) Shim. L.C. 344, the appellants have a
remedy of filing an appeal and not independently assail
the order by way of a civil suit. In fact, appellants did
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prefer an appeal and had to exercise remedies only in
accordance with the special statute.”
20. In Label Chand alias Albel Chand vs. Smt. Sita Devi 2017
(1) Him. L.R. 44 , a civil suit was filed to contend that the best
portion was allotted to the defendants by the revenue authorities
in the partition proceedings. It was held that civil courts do not
have jurisdiction to entertain such suits. It was observed:
“Admittedly, the jurisdiction of the civil Court to try and
entertain a suit of this nature is barred under Sub Section
(1) of Section 171, clause (XVII) and XVIII) of H.P. Land
Revenue Act. The remedy available against an order of
partition is to file an appeal/revision before the revenue
authorities, i.e., the Collector.”
21. In Chamko Devi vs. Mohinder, Latest HLJ 2011 (1) HP
101, a civil suit was filed asserting that the inferior quality land
was allotted to the plaintiff contrary to the mode of partition. It
was held that the suit was barred. It was observed:
“16. Now, in the instant case, the title of the land is not in
dispute. The shareholding is not in dispute. It is urged
that, in violation of the Mode of partition, poor quality
and less land have been allotted to the plaintiffs. The
Courts below have repelled this contention on the merits.
I see no infirmity in the same. That apart, the jurisdiction
of the Civil Court to go into this aspect of the matter is
specifically barred. In the instant case, it cannot be said
that either there has been a violation of principles of
natural justice or any procedural irregularity adopted by
the revenue authorities while passing the orders under
challenge.”
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22. Thus, it is apparent that the jurisdiction of the civil
Court to go into the question related to the partition proceedings
is barred as per Section 171 of the H.P. Land Revenue Act. In the
present case, the suit land was partitioned by the revenue
authorities, and the Civil Court cannot declare that the suit land
was purchased by the plaintiff, ignoring the partition
proceedings. It was laid down by this Court in Dev Raj versus
Mansha Ram, latest HLJ 2002(2) HP 1222, that Tehsildar
settlement is a competent authority under the Land Revenue Act
for the correction of revenue entries, and an order passed by him
would constitute a res-judicata before the Civil Court. It was
observed:
“6. In this regard, it may also be appropriate to observe
that the Tehsildar settlement is a competent authority
under the Land Revenue Act to have ordered the
correction of the revenue entries, as in the present case. It
is a case of the order having been passed by an authority
having limited jurisdiction, which could have passed the
same under the law. The same having not been challenged
in accordance with the law is also not disputed at the
hearing of this appeal. Here, Mr Ajay Sharma submitted
that his client was not present when this order was
passed. This plea is factually incorrect, being contrary to
the contents of Ext. D-5, as it clearly records not only his
presence, but also the plaintiff having led evidence and
thereafter, having been heard by the Revenue Officer.
This decision, i.e. Ext. D-5 clearly attracts provisions of
section 11 (viii) of the Code of Civil Procedure and
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operates as res judicata.”
23. The plaintiff was required to assert his claim of the
title before the competent authority, and once it was not done
and the partition was effected, it is impermissible to re-agitate
the same claim before the Civil Court, as this question would be
barred by the principle of constructive res judicata.
24. It was submitted that the plaintiff was not properly
served and there is a violation of the principle of natural justice,
which would confer jurisdiction upon the Court. Learned
Appellate Court had also held that the service of the plaintiff
during the partition proceedings was not as per law because the
signatures of the plaintiff were not obtained, and the copy of the
partition application had not accompanied the summons.
Neither of these reasons is sustainable. Copy of the summons
(Ext.D7) shows that the plaintiff was informed about the
pendency of the partition proceedings and that the matter was
listed on 24.06.1986 at 10 a.m., and in case of non-appearance,
the ex parte proceedings would be held against him. The
endorsement on the summons reads that “ श्रीमान जी सूचित हुआ , Sir,
I am informed ”. Thereafter, it bears the signatures of a person in
English with the date 14.06.1986. It also contains the
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endorsement of Hira Lal, Process Server, that a copy of the
notice was served upon Girdhari Lal, and the report was
submitted for further action. Therefore, the conclusion drawn
by the learned Appellate Court that the notice was not delivered
to the plaintiff was incorrect. The report contains the
endorsement of the plaintiff regarding the receipt of the
information and the endorsement of the Process Server that the
summons was served upon Girdhari Lal.
25. It was submitted that the defendant had not
examined Hira Lal, who had effected the service, and it is
impermissible to hold that the summons was duly served upon
the plaintiff. This submission is not acceptable. Every official act
is presumed to have been done regularly under Section 114 of the
Indian Evidence Act, and in the present case, the summons was
served upon the plaintiff by a Public Official while discharging
his official duties. Therefore, the presumption under Section 114
of the Indian Evidence Act would apply to the present case, and
the burden would shift upon the plaintiff to prove the contrary.
The plaintiff did not produce any contrary evidence. The
plaintiff Girdhari Lal could not appear before the Court because
he had died during the pendency of the proceedings. His legal
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heir, Chaman Lal (PW1), denied for want of knowledge that the
defendant had filed an application for partition before the
learned AC First Grade. He could not say whether the summons
had the signatures of his father. Thus, his statement is not
sufficient to rebut the presumption of correctness attached to
the official record, and it could not have been concluded that the
summons was not delivered to Girdhari Lal.
26. The learned Appellate Court also held that there was
no proof of the fact that copy of the application accompanied the
summons and it was “settled position of law” that unless the
copy of mutation (sic petition) is enclosed along with the
summons mere service of summons is not a proper legal service
Learned Appellate Court had not referred to any provision of law
in support of its conclusion that it was a settled position of law,
and it appears that the Order V Rule 2 of the Code of Civil
Procedure, 1908 (CPC) influenced this conclusion. Order V Rule 2
of the CPC reads as follows:
2. Copy of the plaint annexed to the summons. — Every
summons shall be accompanied by a copy of the plaint.
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27. It was laid down by this Court in Ishwar Dass vs
Mansha Ram, AIR 2005 HP 44, that the provisions of Order V of
CPC do not apply to the partition proceedings and they are
governed by Section 21 of the HP Land Revenue Act. It was
observed:
“5. The only ground taken before me by the learned
counsel for the plaintiffs/appellants is that the
plaintiffs/appellants had not been served in the partition
proceedings before the Assistant Collector in accordance
with law, since the provisions of Order 5, C.P.C. had not
been complied with and that the Assistant Collector had
illegally proceeded ex parte against the
plaintiffs/appellants in the partition proceedings.
However, I find no force in this submission of the learned
counsel for the plaintiffs/appellants. As referred to above,
the partition proceedings were pending before the
Assistant Collector and not before a Civil Court. The
provisions of Order 5, CPC would have no application to
the partition proceedings which were pending before the
Assistant Collector. On the other hand, the provisions of
Section 21 of the Himachal Pradesh Land Revenue Act
1953 would apply to the partition proceedings which were
pending before the Assistant Collector. Section 21 of the
said Act reads as under: -
"21. Mode of service of summons.-
(1) A summons issued by a Revenue Officer shall, if
practicable, be served (a) personally on the person
to whom it is addressed or failing him (b) his
recognised agent ( *)
(2) If service cannot be so made, or if acceptance of
service so made is refused, the summons may be
served by posting a copy thereof at the usual or last
known place of residence of the person to whom it
is addressed, or if that person does not reside in the
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district in which the Revenue Officer is employed
and the case to which the summons relates has
reference to land in that district, then by posting a
copy of the summons on some conspicuous place in
or near the estate wherein the land is situated.
(3) If the summons relates to a case in which person
having the same interest are so numerous that
personal service on all of them is not reasonably
practicable, it may, if the Revenue Officer so
directs, be served by delivery of a copy thereof to
such of those persons as the Revenue Officer
nominates in this behalf and by proclamation of the
contents thereof for the information of the other
persons interested.
(4) A summons may, if the Revenue Officer so
directs, be served on the persons named therein
either in addition to, or in substitution for, any
other mode of service, by forwarding the summons
by post in a letter addressed to the person and
registered under Part III of the Indian Post Office
Act, 1898.
(5) When a summons is forwarded in a letter, and it
is proved that the letter was properly addressed and
duly posted and registered, the Revenue Officer
may presume that the summons was served at the
time when the letter would be delivered in the
ordinary course of post."
6. From a perusal of the above, it would be clear that
where the summons has been issued by the revenue
officer, the same shall, if practicable, be served personally
on the person to whom it is addressed or upon his
recognised agent. It is further provided therein that if
service cannot be so made, or if acceptance of notice so
made is refused, the summons may be served by positing
a copy thereof at the usual or last known place of
residence of the person to whom the summons has been
addressed. In the present case, the service had been duly
effected upon the appellants by following the procedure
provided under Section 21 of the aforesaid Act. Under
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these circumstances, in my opinion, it cannot be said that
the plaintiffs/appellants had not been served in the
partition proceedings before the Assistant Collector in
accordance with law, merely because provisions of Order
5, CPC had not been complied with. As referred to above,
in the partition proceedings pending before the Assistant
Collector, the provisions of Section 21 of the said Act
would apply and not the provisions of Order 5, CPC,
especially when there is a specific provision regarding the
mode of service of summons provided under the
provisions of the Himachal Pradesh Land Revenue Act,
1953.
28. Therefore, the learned Appellate Court erred in
applying the provisions of Order V of the CPC to the present case.
29. This Court further held in Ishwar Dass (supra) that
when the service was proved to have been effected as per Section
21 of the HP Land Revenue Act, the Civil Courts do not have the
jurisdiction. It was observed:
“7. Once it is found that the plaintiffs/appellants were
duly served with the summons in the partition
proceedings before the Assistant Collector, in my opinion,
it cannot be said that the orders passed by the revenue
authorities in the partition proceedings suffered from any
legal infirmity, which may give jurisdiction to the Civil
Court. In fact, under Chapter IX of the aforesaid Act,
revenue officers have been empowered to entertain the
partition proceedings in respect of the agricultural land.
Section 171 of the aforesaid Act excludes the jurisdiction
of the Civil Court in matters within the jurisdiction of the
revenue officers, where the revenue officer has exercised
any of the powers vested in him under the said Act. It is
also provided therein that a Civil Court shall not exercise
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jurisdiction in respect of any claim for partition of an
estate, etc. or any question connected therewith or arising
out of the partition proceedings, not being a question of
title. In this view of the matter, in my opinion, both the
Courts below were perfectly justified in dismissing the
suit of the plaintiffs, whereby they had challenged the
legality of the orders passed by the Assistant Collector,
Collector and the Divisional Commissioner in respect of
the partition proceedings .”
30. Therefore, the civil suit in the present case was
barred by the provisions of Section 171 of the H.P. Land Revenue
Act and this substantial question of law is answered accordingly.
Substantial Questions of Law Nos. 2 and 3 :
31. It has been found above that the Civil Court has no
jurisdiction to hear and entertain the present suit. Therefore, it
is impermissible to give any findings on the other substantial
questions of law. It was laid down by the Hon'ble Supreme Court
in Athmanathswami Devasthanam Vs. K. Gopalaswami Ayyangar
AIR 1965 S.C. 338 , that once the Court concludes that it had no
jurisdiction, it should not give any findings on the merit. It was
observed: -
“13. The last point urged is that when the civil court had
no jurisdiction over the suit, the High Court could not
have dealt with the cross-objection filed by the appellant
with respect to the adjustment of a certain amount paid
by the respondent. This contention is correct. When the
Court has no jurisdiction over the subject matter of the
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suit, it cannot decide any question on the merits. It can
simply decide on the question of jurisdiction and, con-
cluding that it had no jurisdiction over the matter, had to
return the plaint.”
32. Therefore, in view of the binding precedents of the
Hon’ble Supreme Court, these substantial questions of law have
become redundant.
Final Order :
33. In view of the above, the present appeal is allowed,
and the judgment and decree passed by the learned Courts below
are set aside, and the plaint is ordered to be returned to the
plaintiff for presentation before the competent court having
jurisdiction.
34. The appeal stands disposed of, so also the pending
application(s), if any.
35. Records of the learned Courts below be sent down
forthwith.
(Rakesh Kainthla)
Judge
st
1 June, 2026
(Nikita)
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