IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMPMO No. 311 of 2024 Decided on: 05.01.2026 ____________________________________________________ Om Parkash ……….. Petitioner Versus Sandesh Kumar & Anr. ……….Respondents ____________________________________________________ Coram: Hon'ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting? 1 For the petitioner : Mr. Digvijay Singh Bisht, Advocate, vice Mr. B. C. Verma, Advocate. For the respondents : Mr. Lovneesh Kanwar, Senior Advocate, with Mr. Tarun Garla, Advocate. ____________________________________________________ Bipin Chander Negi, Judge ( oral) The present petition has been preferred against the impugned order dated 15.01.2024, passed by the learned Civil Judge (Senior Division), Court No. 2, Sarkaghat, in CMA No. 787 of 2021, titled Om Prakash v. Sandesh Kumar & Ors., whereby a composite application filed under Order VI Rule 17 of the Code of Civil Procedure (CPC), read with Order I Rule 10 CPC, filed by the present petitioner/plaintiff, has been dismissed. 2. The petitioner/plaintiff, in the case at hand, has filed a suit for partition qua Khasra No. 2537, which is 1 Whether the reporters of the local papers may be allowed to see the judgment? recorded as Abadi Deh. By virtue of the amendment sought in the plaint, the petitioner/plaintiff wants to incorporate Khasra No. 2691 in the description of the suit land. Khasra No. 2691 is recorded as Barani Abbal in the revenue record. A portion of the house of the respondent/defendant is stated to lie in Khasra No. 2691. The other co-owners of Khasra No. 2691 are sought to be arrayed as proforma defendants in the suit. Other than the aforesaid, one Balbir Singh, who is stated to have exchanged a part of the suit land with the respondent/defendant without the consent of the present petitioner/plaintiff, is also sought to be included as a party in the pending lis before the Trial Court. The Trial Court has rejected the application under Order VI Rule 17 on the ground that Barani Abbal land can only be partitioned by the Revenue Authorities and not by the Civil Court. 3. The plea that the jurisdiction of the Civil Court is completely barred to partition lands assessed to revenue is fallacious. On a combined reading of Section 171 of the H.P. Land Revenue Act, Section 54 of the CPC, along with Order XX Rule 18 of the CPC, a Civil Court can declare the rights of the parties, and thereafter the actual partition can be carried out by the Collector or any Gazetted Officer subordinate to him. In this respect, it would be relevant to refer to the judgment dated 21.09.2023, passed by the 2 Coordinate Bench of this Court in RSA No. 92 of 2023, titled Mamta Rani v. Ram Dass, the relevant extract whereof is being reproduced here-in-below:- “ 16.Section 171 of the HP Land Revenue Act reads as under:- “171. Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers. Except as otherwise provided by this Act- (1) A Civil Court shall not have jurisdiction in any matter in which - the State Government or a Revenue Officer exercises any powers vested in it or him by or under this Act, and in particular. (2) A Civil Court shall not exercise jurisdiction over any of the following matters, namely- xxxxx (xvii) any claim for 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 on a periodical redistribution of land, or as to the distribution of rent on the partition of a tenancy; xxxxxx 17. It is apparent from the bare perusal of the Section that the jurisdiction of the Civil Court is barred to partition an estate assessed to the land revenue not being a question as to title in any of the property of which the partition is sought. Thus, the jurisdiction of the Civil Court to determine the title has not been taken away. The Civil Court can still determine the title of the parties, even if the land is assessed to land revenue. 18. Section 54 of the Code of Civil Procedure deals with partition of an estate and reads as under:- “54. Partition of estate or separation of share. Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time separate possession shares, of such estates.” 3 19. It clearly shows that when the decree for the partition of an undivided estate is assessed to the payment of land revenue, the partition shall be made by the Collector. 20. Order XX Rule 18 provides the procedure where the revenue is assessed to the land revenue which reads as under:- “18. Decree in suit for partition of property or separate possession of a share therein Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then, — (1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested 'in the property,-but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of section 54; (2) if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the right of the several parties interested in the property and giving such further directions as may be required.” 21. A combined reading of these provisions shows that the Civil Court can declare the rights of the parties and thereafter the actual Collector or any Gazetted Officer subordinate to him. It was laid down by the Hon’ble Supreme Court in Shub Karan Bubna v. Sita Saran Bubna, (2009) 9 SCC 689 that when the land is assessed to the land revenue, the Civil Court is to pass a preliminary decree declaring the rights of the parties and the actual division is to be carried out by the Collector. It was observed: “18. The following principles emerge from the above discussion regarding partition suits: 18.1. In regard to estates assessed to payment of revenue to the Government (agricultural land), the court is required to pass only one decree declaring the rights of several parties interested in the suit property with a direction to the Collector (or his subordinate) to effect actual partition or separation in accordance with the declaration made by the court in regard to the shares of various parties and deliver the respective portions to them, in accordance with Section 54 of the Code. Such entrustment to the Collector under law was for two reasons. First is that the Revenue Authorities are more conversant with 4 matters relating to agricultural lands. The second is to safeguard the interests of the Government in regard to revenue. (The second reason, which was very important in the 19th century and early 20th century when the Code was made, has now virtually lost its relevance, as revenue from agricultural lands is negligible.) Where the Collector acts in terms of the decree, the matter does not come back to the court at all. The court will not interfere with the partitions by the Collector, except to the extent of any complaint of a third party affected thereby.” 22. Therefore, the plea that the jurisdiction of the Civil Court is completely barred to partition the land assessed to the land revenue is not acceptable. The Civil Court can declare the rights of the parties and this is what the learned Courts below have done in the present case.” 4. Insofar as the plea of impleading proforma defendants No. 1 to 9, co-owners of Khasra No. 2691, is concerned, suffice it to state that in a lis wherein Khasra No. 2691 is sought to be partitioned co-owners are definitely proper parties to the lis. Other than the aforesaid, Balbir Singh, to whom joint lands inter se the present petitioner/plaintiff & the respondent/defendant are stated to have been given, is definitely a necessary party to a lis wherein partition of joint lands inter se the parties is being sought. 5. In view thereof, the impugned order dated 15.01.2024, passed by the learned Civil Judge (Senior Division), Court No. 2, Sarkaghat, in CMA No. 787 of 2021, titled Om Prakash v. Sandesh Kumar & Ors., is quashed and set aside. The amendment as sought herein is permitted to be carried out and the parties sought to be 5 arrayed are permitted to be impleaded as defendant, proforma defendants in the pending lis. Petition stands disposed of accordingly, so also the pending miscellaneous applications, if any. (Bipin Chander Negi) Judge 05th January, 2026 Shamsh Tabrez 6