Punjab-Haryana High Court
Mohinder Kaur And Another vs Financial Commissioner (Appeals-I) ... on 4 February, 2013
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
CWP No.13248 of 2009 1
HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT
CHANDIGARH
CWP No.13248 of 2009
Date of decision:04.02.2013
Mohinder Kaur and another
...Petitioner(s)
Versus
Financial Commissioner (Appeals-I) Punjab and others
...Respondent(s)
CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
1. To be referred to the Reporters or not ?
2. Whether the judgment should be reported in the Digest ?
Present: Mr.L.S.Bhangu, Advocate,
for the petitioners.
Mr.Pankaj Mulwani, DAG, Punjab.
Mr.Kanwaljit Singh, Sr. Advocate with
Mr.Harsh Aggarwal, Advocate,
for respondents Nos. 4 to 6.
RAMESHWAR SINGH MALIK, J. (Oral)
The present writ petition is directed against the order dated 5.2.2009 passed by the Financial Commissioner (Appeals-I), Punjab, remanding the case to Assistant Collector 1st Grade, Rajpura with the direction that he should proceed with the partition proceedings and finalise the same.
The brief facts of the case are that Gopal Singh, father of the petitioner, filed an application dated 22.6.1984 for partition of the land measuring 50 bighas and 3 biswas situated in village Ajraur Tehsil Rajpura, District Patiala, impleading all the co-sharers as party including one Raj Kumar from whom the private respondents purchased some land CWP No.13248 of 2009 2 vide registered sale-deed dated 2.7.1984. The mode of partition was prepared on 10.10.1984 and the deed of partition was finalised on 27.12.1984. The respondents moved an application for impleadement before Assistant Collector 1st Grade, but their request was declined saying that their names were not shown in the revenue record, as co-sharers. The deed of partition was issued on 8.4.1985. The private respondents approached this Court by way of CWP No.2920 of 1990 (Balwinder Singh & others v. Financial Commissioner, Punjab and others), which was allowed by a Division Bench of this Court, vide order dated 8.8.1990 (Annexure P-2), allowing them to be impleaded as parties to the partition proceedings and directing to decide partition proceedings afresh.
The partition proceedings were carried out and feeling aggrieved, the respondents approached this Court by way of CWP No.8030 of 1993 (Balwinder Singh & others v. Financial Commissioner, Punjab and others), which came to be dismissed vide order dated 19.3.2001 (Annexure P-3), observing that in the mode of partition, it was clearly mentioned that partition will be effected keeping in view the possession of the parties and the shortage, if any, will be made good. Since the case of Gopal Singh was that he was in possession of Khasra Nos. 1435 and 1436 and that assertion of Gopal Singh was being contested by the petitioners (private respondents herein), Assistant Collector was duty bound to prepare Naksha Bey only after settling, as to who was in possession of Khasra Nos. 1435 and 1436, at the time when application for partition was filed. It was further observed that since it was not done, Financial Commissioner was well within his jurisdiction to CWP No.13248 of 2009 3 remand the case to Assistant Collector 1st Grade for partition of joint holding of the parties, in accordance with the mode of partition, after settling objections of the parties.
Thereafter, the matter was decided afresh by Assistant Collector 1st Grade vide his order dated 21.2.2002 and this order was upheld by the Collector vide his order dated 10.9.2002. However, revision petition filed against the above-said orders of Assistant Collector 1st Grade and Collector, was allowed by the Commissioner vide his order dated 1.7.2003. Dissatisfied, petitioners challenged the order dated 1.7.2003 before the Financial Commissioner, who dismissed their revision, vide impugned order dated 5.2.2009, Annexure P-1. It is pertinent to note here that the order dated 21.2.2002 passed by the Assistant Collector 1st Grade, order dated 10.9.2002 passed by the Collector and also the order dated 1.7.2003 passed by the Commissioner were placed on record by the petitioner as Annexures P-6 to P-8, respectively, alongwith her replication to the written statement filed by respondents Nos. 4 to 6.
Feeling aggrieved against the above-said order dated 5.2.2009, passed by the Financial Commissioner, Punjab, petitioner has approached this Court by way of instant writ petition under Articles 226/227 of the Constitution of India, seeking a writ in the nature of certiorari for restoring the order dated 21.2.2002 passed by the Assistant Collector 1st Grade, Rajpura.
Notice of motion was issued and in response thereto, a joint written statement was filed on behalf of respondents Nos. 1 to 3. CWP No.13248 of 2009 4 However, a separate written statement was filed on behalf of respondents Nos. 4 to 6.
Learned counsel for the petitioner submits that the directions issued by this Court vide order dated 19.3.2001, while dismissing CWP No.8030 of 1993 filed by the respondents, have not been properly complied with by the respondents authorities. The possession of Khasra Nos. 1435 and 1436 cannot be treated to be exclusive that of the private respondents because they were only co-sharers of the land. He further submits that since the respondent authorities have failed to follow the directions issued by this Court, the impugned orders were not sustainable in law. He concluded by submitting that the present writ petition may be allowed and the impugned orders may be set aside.
Per contra, learned senior counsel for respondents Nos. 4 to 6 vehemently argued that Gopal Singh, father of the petitioner, was only a mortgagee, which is clear from the agreement dated 28.10.1982, Annexure R-4/1, wherein these two Khasra Nos. 1435 and 1436 are specifically mentioned. Once, late Shri Gopal Singh received the full mortgage amount and handed over possession to the true owner Raj Kumar son of Kacheri Lal, on 28.10.1982, as per Annexure R4/1, he had no connection with these two khasra numbers. Thereafter, he further submits that the private respondents purchased the land measuring 6 bighas in Khasra Nos. 1435 and 1436 from the true owner Raj Kumar vide sale-deed dated 2.7.1984. He next contended that Bagh Singh, who filed the suit for specific performance against the widow of Kacheri Lal, was none else but the husband of the petitioner. Smt.Bhagwati widow of CWP No.13248 of 2009 5 Kacheri Lal was admittedly the mother of Raj Kumar from whom the respondents have purchased the land measuring 6 bighas in Khasra Nos. 1435 and 1436. He submits that the suit filed by the husband of the petitioner, against the widow of Kacheri Lal was dismissed vide judgment dated 3.9.1985 (Annexure R-4/2), on the basis of above-said agreement/compromise dated 28.10.1982 (Annexure R-4/1).
The judgment of the civil court dated 3.9.1985 (Annexure R- 4/2) was upheld by the lower appellate court vide judgment and decree dated 12.12.1986. Thus, it was clear that father of the petitioner himself put Raj Kumar son of Kacheri Lal in possession of disputed Khasra Nos. 1435 and 1436. Learned senior counsel for respondents Nos. 4 to 6 submits that father of the petitioner allegedly purchased some land from other co-sharers vide sale-deeds dated 1.2.1983, 14.2.1984 and 7.1.1985 and on the basis of these sale-deeds, father of the petitioner filed an application for partition. On the other hand, these two specific Khasra Nos. 1435 and 1436 were purchased by the private respondents vide sale- deed dated 2.7.1984 and possession thereof was handed over to them.
It is the further pleaded case of the private respondents that a suit for permanent injunction was filed by them on 8.4.1985 restraining the father of the petitioner from interferring in their possession over the disputed Khasra Nos. 1435 and 1436. The said suit was decreed by the learned trial court vide judgment and decree dated 18.1.1990. This judgment was challenged by the father of the petitioner before the lower appellate court. During the pendency of the appeal filed by father of the petitioner, private respondents moved an application for withdrawal of CWP No.13248 of 2009 6 the suit itself which was permitted by the learned lower appellate court vide order dated 10.1.1994. Withdrawal of the suit for injunction was necessitated because the private respondents, in the meantime, had filed a suit for declaration on 4.6.1988 claiming themselves to be owners in possession over these two disputed Khasra Nos. 1435 and 1436.
Suit for declaration filed by the private respondents was decreed vide judgment dated 28.4.1995 declaring them to be owners in possession over these two Khasra Nos. 1435 and 1436. Appeal filed by the defendants was dismissed vide judgment and decree dated 3.4.2003 against which the petitioner filed RSA No.3711 of 2003 before this Court and the same was also dismissed by this Court vide order dated 6.10.2003 (Annexure R-4/3) observing that due weightage had to be given to the possession of the respondents over the suit land, i.e. land measuring 6 biswas comprised in Khasra Nos. 1435 (2-0) and 1436 (4-0). Learned senior counsel for the private respondents concluded by submitting that the writ petition was wholly misconceived and apprehension raised by the learned counsel for the petitioner was wholly misplaced. He finally prays for dismissal of the writ petition.
Having heard the learned counsel for the parties, after careful perusal of the record of the case and after giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that the present writ petition is without any substance and liable to be dismissed for more than one following reasons.
The detailed factual background of the case has not been disputed by the learned counsel for the petitioner. The civil court's CWP No.13248 of 2009 7 decree, which had been upheld upto this Court in a suit for declaration holding the private respondents as owners in possession of Khasra Nos. 1435 and 1436, is also a matter of record and could not have been disputed. The ownership as well as possession of the private respondents on these two Khasra Nos. 1435 and 1436 is no more in dispute.
In view of the above-said factual as well as legal aspect of the matter, no fault can be found with the impugned order passed by the Financial Commissioner. During the course of arguments, learned counsel for the petitioner could not point out any patent illegality or perversity in the orders passed by the Commissioner as well as the Financial Commissioner. The Commissioner, Patiala Division, while passing his order dated 1.7.2003, discussed each and every aspect of the matter before arriving at a judicious conclusion. The relevant part of the order dated 1.7.2003 passed by the Divisional Commissioner, Patiala, reads as under:-
"I have heard the learned counsel for the parties and have also gone through the record of the case carefully. From perusal of order dated 3.4.2003 passed by the Additional District Judge (Adhoc) Patiala, it is revealed that the petitioners are in actual possession of Khasra No.1435(2-0) and 1436(4-0). The Assistant Collector Ist Grade was duty bound to prepare Naksha B only after settling as to who was in the possession of these khasra numbers. The Assistant Collector, Ist Grade vide order dated 28.2.2002 has wrongly ordered to prepare Table B in contravention of the mode of CWP No.13248 of 2009 8 partition. I also find that the Assistant Collector 1st Grade vide order dated 31.10.86 held that Raj Kumar being the owner of land is in cultivating possession of Khasra No.1435 (2-0), and 1436(4-0), and accordingly the Assistant Collector 2nd Grade vide order dated 9.1.1985 held that the Girdawari in respect of Crop Sauni 1984 in respect of Khasra No.1435 (2-0), and 1436(4-0), be effected in the name of Amrik Singh, Balwinder Singh and Daljeet Singh because they are owner in possession of land bearing 1435(2-0), and 1436(4-
0), situated in village Ajrawaur Tehsil Rajpura District Patiala and the entry to this effect has been incorporated in the jamabandi. Thus, a miscarriage of justice has taken place in this case. The revision petition is accordingly accepted and the impugned orders are set aside. The original application for partition dated 19.7.1984 is hereby dismissed."
Similarly, Financial Commissioner again reconsidered the relevant issues involved and the argument raised on behalf of both the parties before passing his factually correct and legally justified order dated 5.2.2009 and the operative part thereof reads as under:-
"I have heard the learned counsel for both the parties. A perusal of order of the Commissioner indicates that as per the latest civil court rulings, the possession of the respondents over khasra Nos. 1435 and 1436 measuring 6 bighas of land stood fully established. According, to that extent, the order CWP No.13248 of 2009 9 of the Commissioner is unassailable. However, the order of the Commissioner regarding rejection of partition application is not legally sound as claim of the respondents regarding actual possession over Khasra Nos. 1435 and 1436 is required to be honored and partition proceedings were required to be finalized. The land ultimately has to be partitioned as requested by the petitioners, protecting, in the process, the rights of the respondents of actual possession over Khasra Nos.1435 and 1436 to the extent of share of the vendees in the joint khat. In case the share of the venders is less in the joint holding only then possession of the respondent would be disturbed. Otherwise, at the time of final partition, their possession should not be disturbed. In the light of these observations, the case is remanded to the Assistant Collector Grade-I Rajpura with the direction that he should proceed with the partition proceedings and finalize the case within three months from the receipt of this order. The parties are directed to appear before him on 30.3.2009 for further proceedings."
The Financial Commissioner and Divisional Commissioner committed no error of law while passing their respective impugned orders. Learned counsel for the petitioner failed to point out any patent illegality or perversity in the concurrent findings of fact recorded by the respondents revenue authorities.
Having said that, it is unhesitatingly held that the CWP No.13248 of 2009 10 apprehension raised by the learned counsel for the petitioner that the competent revenue authorities will not consider the observations made by the higher authorities and also the observations made by this Court, is wholly misplaced and without any basis.
In view of the above, this Court feels no hesitation to conclude that the impugned orders passed by the revenue authorities are based on true facts of the case and the same are sustainable in law, as well.
No other argument was raised.
Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the present writ petition is bereft of any merit and without any substance, thus, it must fail. No case for interference has been made out.
Resultantly, the instant writ petition stands dismissed.
04.02.2013 (RAMESHWAR SINGH MALIK) mks JUDGE