RSA/156/2026 on 6 November 2026

2026:HHC:49256 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

RSA No. 156/2026

Reserved on: 29.10.2026 Decided on: 6.11.2026

Jasbir Kaur

..…Appellant

Versus

Onkar Dass

…..Respondent

Coram

The Hon’ble Mr. Justice Romesh Verma, Judge. Whether approved for reporting ?1

For the appellant: Mr. Mohit Jaitak, Advocate, (through

V.C.)

For the respondent: Mr. Animesh Pathak, Advocate.

Romesh Verma, Judge

The present appeal arises out of the judgment and decree, dated 18.06.2026, as passed by the learned Additional District Judge-I, Una, H.P. whereby the appeal preferred by the present appellant/plaintiff came to be dismissed and the order, dated 11.05.2026, as passed by the learned Senior Civil Judge, District Una, H.P., accepting the application filed by the defendant/respondent under Order VII Rule 11 of CPC for rejection of the plaint, was affirmed.

1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes

The facts, as emerge in the present case, are that the present appellant/plaintiff, Jasbir Kaur, had filed a suit against the present respondent/defendant, Onkar Dass, before the learned trial Court for declaration to the effect that the parties are joint owners in possession of the land, measuring 583-47 square meters, bearing Khewat No. 606, Khatauni Nos. 1257 and 1258, Khasra Nos. 1420, 1428 and 1429, as per jamabandi for the year 2020-2021, situated in Up Mohal Galua, Tehsil and District Una, H.P. and the alleged partition conducted in the partition case number 52/T/Una/2016 and further order of mutation attested on the basis of the partition file is wrong, illegal, null and void, and the mutation has been sanctioned without any final order being passed in the partition case No. 52/T/Una/2016, and for issuance of the permanent prohibitory injunction restraining the defendant from changing the nature and character and raising any sort of construction or alienating any specific portion of the suit land till the valid legal partition under sections 34 to 38 of the Specific Relief Act.

As per the case, as set up by the plaintiff in the plaint, she and the defendant are co-sharers over the suit land. The defendant had filed an application for partition bearing partition case No. 52/T/Una/16 before the Assistant

Collector 1st Grade, Una. During the pendency of the aforesaid proceedings, initially the Assistant Collector 1st Grade, Una, accepted the partition vide order, dated 22.02.2019, whereby Khasra No. 1420/1 was reserved as passage and was kept joint, whereas the remaining land was ordered to be partitioned.

It is case of the plaintiff that the Assistant Collector 1st Grade, Una prepared the mode of partition, in which it was stated that the possession be respected and the land be allotted to the parties in accordance with their shares along with road and passage. During the pendency of the partition proceedings, the Assistant Collector, 1st Grade, Una sent the file to the lower field staff for verification and during the inspection, it was found that there is a passage in Khasra No. 1420, which is a “Share Aam Rasta”. Thereafter, the Assistant Collector, 1st Grade, Una called for the report of the Municipal Council, Una, regarding the passage and it was stated by the Municipal Committee that the passage is for use of the general public. The Tehsildar accepted the proposed partition, whereby the passage was kept joint between the parties and the remaining land was proposed to be partitioned.

As per the plaintiff, feeling aggrieved by the same, the defendant preferred an appeal before the Sub-Divisional Collector, bearing Appeal No. 12/2019, which came to be accepted vide order dated 21.11.2019, and the matter was remanded back to the Assistant Collector 1st Grade, Una, with a direction to either accept first partition discussed on 20.03.2017 or make minor changes as agreed upon on that day. Thereafter, the plaintiff preferred Appeal No. 16/2001 against the order of Sub-Divisional Collector, however, the said appeal was dismissed in default. Though an application for restoration of the appeal was filed, but the said application also came to be dismissed by the Divisional Commissioner vide order dated, 25.10.2024. Thereafter, being dissatisfied, the present appellant/plaintiff filed a revision petition No.

before the Financial Commissioner, State of Himachal Pradesh, which is still pending.

It is the case of the plaintiff that in the month of December 2024, the Assistant Collector, 1st Grade, Una, sanctioned the mutation of partition without even passing final order in the partition file and the provisions of partition, as envisaged in the H.P. Land Revenue Act have been ignored and by-passed, therefore, the attestation of mutation is illegal, null and void, and not tenable in the eyes of law. Hence, the plaintiff filed the suit seeking decree for declaration, as aforesaid.

The aforesaid suit came to be resisted by the defendant by filing a comprehensive written statement, wherein preliminary objections with respect to the enforceability, maintainability, locus standi, jurisdiction, valuation, etc. were raised. On merits, it was contended by the defendant that the plaintiff is neither co-owner nor co- sharer in the suit land and her status is that of lessee (Patedar). The suit land has been partitioned and the defendant was allotted Khasra Nos. 1420/2, 1428 and 1429, and other co-owner, namely, Mahant Tara Singh, now deceased, through his Chela Mahant Pritpal Singh was allotted Khasra No.1420/1, vide mutation No. 2426. It was admitted that the defendant had filed the partition application before the Assistant Collector, 1st Grade, Una, against the real owner. The plaintiff is not the owner of the suit land and her status is that of lessee. After filing of the partition application, general power of attorney of the plaintiff, S. Paramjit Singh, her son appeared on 7.09.2016, and 7.11.2016 and made the statement that the land they have taken on lease is in their possession and the same be allotted to the plaintiff in their “Kurrah”, and the “Girdawar” was asked to send “Naksha Alaf” and “Fard Kabza Moka”. The “Fard Moka Kabza” as well as report of Kanungo, was received and “Tarika Taksim” was got prepared and that was admitted by both the parties and no objection was raised by either of the parties in the shape of objection or appeal within the period as prescribed under the law, and “Tarika Taksim” was confirmed. Thereafter, the papers were sent for spot partition, and the same were received back, and the case was fixed on 20.03.2017, whereby both the parties agreed, but the plaintiff requested for small conditional adjustment, which was approved by the defendant, and after that the Assistant Collector, 1st Grade, Una, connived with the plaintiff.

It was admitted by the defendant that an appeal was preferred before the Sub-Divisional Collector, who, after accepting the same, remanded the matter to the Assistant Collector 1st Grade, Una. As per the defendant, after dismissal of the appeal before the Divisional Commissioner on 06.05.2024, the defendant on 7.9.2024 moved an application to the Assistant Collector 1st Grade, Una, for implementation of the order of the partition dated 20.3.2017, admitted by both the parties, and for delivery (dakhal) of possession of “Kurrah” at the spot. On the application of the defendant, the notices were issued to the plaintiff and real owner for 17.9.2024, and the Patwari “Girdawar Halqua” reached the spot, and plaintiff despite notice was not present at the spot, and her husband and son Iqbal Singh produced some papers, which were not considered, and possession was duly delivered at the spot as per the law. After the delivery of possession, the plaintiff moved an application before the Divisional Commissioner Kangra on 27.09.2024 for restoration of the aforesaid appeal, and for stay of the mutation. The Divisional Commissioner after hearing the parties dismissed the application, as well as the stay granted was also vacated. The plaintiff filed revision petition before the Financial Commissioner Shimla and also filed an application before the Tehsildar Una on 25.11.2024, not to implement the partition order, and filed an affidavit that she would produce the stay order on or before 13.12.2024 and when she failed to produce the same, the Assistant Collector 1st Grade, Una, sanctioned the mutation No.2426 on 16.12.2024. As per defendant, he along with owner Pritpal Singh, is in separate possession of the land, and he has got every right to enjoy the property in any manner.

The defendant filed an application under Order VII Rule 11 of the CPC for the rejection of the plaint, on the ground that the suit as filed by the plaintiff is expressly barred by the statute, and therefore it is beyond the pale of the civil court jurisdiction. As per contents, as made in the application, fair and meaningful reading of the plaint itself reveals that plaintiff has instituted the suit seeking relief, which in substance and effect, relates to partition of the land and the matters identical thereto, despite the admitted and undisputed fact that the partition of the land already stands concluded through statutory proceedings. As per the defendant, Section 171 of the HP Land Revenue Act (for short “the Act”) excludes the jurisdiction of the civil court, more specifically, section 171(2)(xvii) of the Act, which envisages that the jurisdiction of the civil court is barred in any claim for partition of an estate holdings or tenancy, or any question connected with or arising out of the proceedings for partition not being a question as to title in any of the property of which partition is sought. As per the defendant, the preliminary objection with respect to the maintainability of the suit has been specifically taken in the written statement. Therefore, it was prayed that since the suit is expressly barred by the

provision of Section 171 of the Act, therefore, the plaint as filed by the plaintiff deserves to be rejected.

The said application was duly resisted by the plaintiff by filing reply, wherein all the averments as made in the application were specifically refuted and denied. The plaintiff prayed for the dismissal of the application as filed by the defendant.

The learned trial Court, vide its order dated 11.05. 2026, accepted the application as filed by the defendant under the provisions of Order VII Rule 11 of the CPC and rejected the plaint as filed by the plaintiff/present appellant.

Against the rejection of the plaint, the present appellant/plaintiff filed an appeal under section 96 of the CPC before the the learned first Appellate Court, which vide impugned judgment and decree dated 18.10.2026, dismissed the appeal and affirmed the findings of the learned trial Court rejecting the plaint of the plaintiff.

Feeling dissatisfied, the plaintiff has approached this court by invoking the provisions of section 100 of the CPC.

With the consent of the parties, the instant appeal is finally disposed of on the following substantial question of law:-

Whether the civil courts jurisdiction

is completely barred under Section 171 of H.P. Land Revenue Act where the procedure laid down under the Act for conducting partition has not been followed?

It is contended by Mr. Mohit Jaitak, learned counsel for the appellant that the impugned judgment and the order as passed by the learned Courts below are erroneous and liable to be quashed and set aside. He has submitted that the learned courts below have not interpreted the true import and spirit of Order VII Rule 11 of the CPC, and have wrongly rejected the plaint as filed by the plaintiff. He would submit that since no final order has been passed in the partition proceedings, therefore, the suit as filed by the plaintiff is very much maintainable in its present form.

On the other hand, Mr. Animesh Pathak, learned counsel for the respondent, has defended the impugned judgment and order as passed by the learned Courts below. He would submit that primarily the challenge as laid by the plaintiff is to the partition proceedings, therefore, in view of the provisions as expressly envisaged under section 171 of the Act and catena of judgments as passed by this Court, the suit itself is not maintainable. He would further submit that the present appeal has been instituted, despite pendency of the revenue proceedings before the Financial Commissioner, and it shows that the appellant/plaintiff, is bent upon to prolong the litigation, therefore, the present appeal is a gross abuse of process of law and deserves to be dismissed with huge and special costs.

I have heard the learned counsel for the parties and have also gone through the material available on record.

In the present case, since this court is concerned with respect to the legality of the impugned judgment and order as passed by the learned Courts below, whereby after appreciating the material placed on record, the learned trial court allowed the application as filed by the defendant under Order VII Rule 11 of the CPC and rejected the plaint, after taking into consideration the provisions of section 171 of the Act and such findings stood affirmed by the learned first Appellate Court, therefore, only the averments as made in the plaint have to be seen for determination of the application under Order VII Rule 11 of CPC.

Perusal of the plaint, which has been filed by the plaintiff/appellant, before the learned trial court, clearly demonstrates that the sum and substance of the relief, which has been sought by the present plaintiff/appellant, pertains to the partition proceedings. The entire story as projected in the plaint revolves around the partition proceedings, which took place before the Assistant Collector 1st Grade, Una and vide its order dated 22.02.2019, proposed Khasra No.1420/1 was reserved as passage and kept joint, while the remaining land was ordered to be partitioned. The aforesaid order, dated 22.02.2019 was assailed by the present respondent before the Sub Divisional Collector in appeal No. 12/2019, which came to be allowed and the matter was remanded back to the Assistant Collector 1st Grade, Una with direction either to accept first partition discussed on 20.03.2017 or make minor changes as agreed upon on the said day. Thereafter, the present appellant approached the Divisional Commissioner, Kangra, by instituting the appeal against the order as passed by the Sub-Divisional Collector.

As conceded by the parties, the appeal came to be dismissed in default on 6.05.2024. The present appellant filed an application for the restoration of the said appeal, and the said application also came to be dismissed on 25.10.2024. Thereafter, feeling dissatisfied, the present appellant filed a revision petition before the Financial Commissioner, Shimla, on 23.11.2024, which is still pending adjudication.

It is contended by the learned counsel for the respondent that when no interim order was passed by the Financial Commissioner, the instant suit came to be filed just to scuttle and override the statutory provisions of the Act, including the partition proceedings.

The provisions of Section 171(2)(xvii) & (xviii) of the Act read as under:- “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.”

The bare perusal of Section 171 (2)(xvii) and (xviii) of the Act, would go to show 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 of title. Therefore, the jurisdiction of the civil court to determine the questions arising out of the partition proceeding is barred, and the civil court is not competent to entertain any suit connected to the partition proceedings or any question arising out of the partition proceeding. The aforesaid provisions make crystal clear that any claim with respect to partition or any question as to the allotment of the land in the partition is barred by the Act, therefore, the suit which has been filed by the present plaintiff/appellant is clearly barred by the provisions of section 171 of the Act.

The suit as filed by the plaintiff has been filed on the analogy that the Assistant Collector 1st Grade, Una, has sanctioned the mutation of partition without passing any final order, after the matter was remanded back by the Sub- Divisional Collector.

This court is in agreement with the contention of the learned counsel for the respondent that the partition proceedings are the subject matter before the revenue authorities, and as of today, the revision petition is pending before the Financial Commissioner, State of Himachal Pradesh.

It is contended by learned counsel for the respondent that the legality and veracity of the partition proceedings has to be determined and adjudicated by the revenue authorities, and since the proceedings are pending before the competent authorities, therefore, when no interim order was passed by the Financial Commissioner in order to scuttle the same, the present suit came to be filed.

A learned coordinate Bench of this Court in CMPMO No. 62 of 2022, titled as Sachin Dogar vs. Rattan Dass, decided on 21.06.2024, has held as under:-

19. 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 of 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 question arising out of the partition proceedings. This provision was considered by this Court in many cases.

20. 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 analyzing 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 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.”

21. In Bal Krishan versus 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 the suit relating to the same. The plea that such a suit is maintainable under Section 45 and 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 Khataunishave 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).

22. In Khalil versus Meena @ Yamin 2016 (2) Himachal Law Reporter 869, the revenue authority 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 of 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 prefer an appeal and have to exercise remedies only in accordance with the special statute.”

In Ajmer Singh v. Dharam Singh, 2006 SCC OnLine P&H 333: (2006) 2 RCR (Civil) 541: PLR (2006) 143 P&H 25, the Punjab & Haryana High Court has laid down that non-affirmation of a partition by the Revenue Officer will not render the same redundant.

To the similar effect, this Court in CMPMO No. 368/2016, titled as Pawan Kumar vs. Dev Raj (deceased) through his LRs, decided on 02.12.2024, after relying upon provisions of Section 171 of the Act has held that civil court will have the jurisdiction to try all civil suits unless the same are barred expressly or impliedly. Section 171 of the Act bars the jurisdiction of the civil courts on the matters which fall exclusively in the domain of the revenue courts. The partition of the land indisputably falls in the domain of revenue courts. Once the courts/authorities have jurisdiction to decide the issues involved inter-se the parties, the same cannot be assailed by way of civil suit, except on the grounds of lack of inherent jurisdiction and violations of principles of natural justice. The court held as follows:-

14. Indisputably, the Civil Court will have jurisdiction to try all civil suits unless barred expressly or impliedly. Section 171 of the Act bars the jurisdiction of Civil Courts on the matters which fall exclusively in the domain of revenue courts. The partition of land, indisputably falls in the domain of revenue courts. Once, the courts/authorities having jurisdiction have decided the issues involved inter se the parties, the same cannot be assailed by way of Civil Suit except on the grounds of lack of inherent jurisdiction and violations of principles of judicial procedure.

15. As noticed above, the plaintiffs had availed the remedy of appeal and revision against the order of partition passed by the Assistant Collector 1st Grade, Palampur. Thus, the plaintiffs had the opportunity to challenge the order of partition on available grounds including on the merits of the decision. It is not the case of the plaintiffs that the Assistant Collector 1st Grade, Palampur had no jurisdiction to decide the partition proceedings. No violation of fundamental principles of judicial procedure has been pleaded. The only case of the plaintiffs is that they had not been allotted the valuable land in partition, which by itself cannot vest the Civil Court with jurisdiction to decide the issues already decided by the competent court of jurisdiction.

16. Order VII Rule 11 of the Code, reads as under:-

1. Rejection of plaint. The plaint shall be rejected in the following cases- (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law:

(e) where it is not filed in duplicate:

(f) where the plaintiff fails to comply with the provisions of rule 9. Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature form correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.

19. In light of above discussion, the petition is allowed, order dated 31.8.2016 passed by learned Civil Judge

(Jr. Division), Palampur, District Kangra in CMA No. 260/2016 in Civil Suit No. 167/2015 is set-aside. The application of the defendants i.e. CMA No. 260 of 2016 under order VII Rule 11 of the Code seeking rejection of the plaint is allowed. The plaint in Civil Suit No. 167 of 2015 is ordered to be rejected.”

In RSA No. 312 of 2004, titled as Khalil vs. Meena, decided on 16.12.015, this Court held that statute ousting the jurisdiction of the civil court is required to be strictly construed. The relevant extract of the aforesaid judgment reads as under:

10. A Coordinate Bench of this Court in Dalip Singh & others vs. State of H.P. & others, 1992(1) Sim. L. C. 320 has categorically held that statute ousting the jurisdiction of the Civil Court is required to be strictly construed. To similar effect are the decisions rendered by the apex Court in Dhruv Green Field Ltd. vs. Hukam Singh & others, (2002) 6 SCC 416 and State of A. P. vs. Prameela Modi (Smt.) & others, (2006) 13 SCC 147.

11. In Dhruv Green Field Ltd. (supra), Court has held as under:- “10. In the light of the above discussion, the following principles may be restated:

(1) If there is express provision in any special Act baring the jurisdiction of a civil court to deal with matters specified thereunder the jurisdiction of an ordinary civil court shall stand excluded.

(2) If there is no express provision in the Act but an examination of the provisions contained therein leads to a conclusion in regard to exclusion of jurisdiction of a civil court, the court would then inquire whether any adequate and efficacious alternative remedy is provided under the Act; if the answer is in the affirmative, it can safely be concluded that the jurisdiction of the civil court is barred. If, however, no such adequate and effective alternative remedy is provided then exclusion of the jurisdiction of the civil court cannot be inferred.

(3) Even in cases where the jurisdiction of a civil court is barred expressly or impliedly, the court would nonetheless retain its jurisdiction to entertain and adjudicate the suit provided the order complained of is a nullity.”

12. On the asking of the appellants, 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 vs. 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 prefer an appeal and have to exercise remedies only in accordance with the special statute.

13. Significantly in the case in hand, Section 129 of the Act categorically empowers the Revenue Officer to determine the question of title by converting himself as a Civil Court and by virtue of the bar contained under Section 171 of the Act, jurisdiction of the Civil Court is specifically barred on matters over which a Revenue Officer is empowered with, including correction of any entry in the record of rights, periodical record or register of mutations. Hence the substantial question of law is no longer res integra and is answered accordingly. The Courts below rightly held the jurisdiction of the civil court to have been ousted by a special statute in the aforesaid factual backdrop.

In view of the specific provision, as contained under section 171 of the Act, when it is read in conjoint reading with exposition of law (supra), this court comes to an inescapable conclusion that the suit, which was instituted by the plaintiff/ appellant, is barred in view of the provisions of section 171 of the Act. Therefore, the application under Order VII Rule 11 of CPC, which was filed by the defendant rightly came to be allowed by the learned trial court, and those findings have been affirmed by the learned first Appellate Court.

This court does not see any infirmity, illegality, or perversity in the impugned judgment and order, as passed by the learned Courts below and this court is convinced that the present proceedings have been initiated just to avoid and prolong the proceedings which are still pending before the revenue authorities, and to drag the present respondent in an uncalled for litigation for perpetuity. The substantial question of law is answered accordingly.

No other point was urged by the learned counsel for the parties.

In view of above, the present appeal being devoid of any merit deserves to be dismissed. Ordered accordingly. Pending application(s), if any, also stands disposed of.

6th November, 2026 (Romesh Verma) (pankaj)

Judge