Punjab-Haryana High Court
Amar Kaur & Ors vs Financial Commissioner Etc on 9 May, 2017
Author: Amit Rawal
Bench: Amit Rawal
CWP No.550 of 2012 (O&M) {1}
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CWP No.550 of 2012 (O&M)
Date of decision:09.05.2017
Amar Kaur and others ... Petitioners
Vs.
Financial Commissioner (Appeals-II),
Animal Husbandary, Punjab, Chandigarh and others
... Respondents
CORAM: HON'BLE MR. JUSTICE AMIT RAWAL
Present:- Mr. Jatinder Singla, Advocate and
Mr. Jatinder Nagpal, Advocate
for the petitioners.
Ms. Monica Chhibber Sharma, DAG, Punjab.
Mr. S.K.Singla, Advocate
for respondent No.5.
AMIT RAWAL J. (Oral)
The petitioners - Amar Kaur, Bahadur Singh and Devinder Singh being successors-in-interest of Pritam Singh, who was respondent No.1 in the partition application moved by respondent No.5-Naranjan Singh herein, are aggrieved of the impugned orders reflected in the head note, i.e., 22.09.2010 (Annexure P-10); 30.05.2011 (Annexure P-11) and 15.07.2011 (Annexure P-12) passed by the Financial Commissioner; and the Assistant Collector Ist Grade, respectively, whereby, warrant of possession has been issued on the premise, that there has not been adherence to equal mode of partition, much less compliance of principles of natural justice, as the petitioners have been deprived of the valuable land in the partition 1 of 6 ::: Downloaded on - 03-06-2017 09:56:43 ::: CWP No.550 of 2012 (O&M) {2} proceedings.
Mr. Jatinder Singla, learned counsel appearing on behalf of the petitioners has referred to the naksha arra/site plan (Annexure P-3/A) at page 36 of the paper book to contend that the portion shown in yellow colour, i.e., killa nos.1627, 1632 and 1634 have been given to the private respondents, whereas, killa nos.1629, 1628 , 1630, 1631/1, 1633/1 shown in red colour have been given to the petitioners, whereas, on the extreme right hand side, i.e., eastern side there is a passage, though on the northern side there is main road. The partition should have been done in horizontal instead of vertical.
The other argument qua maintainability of the partition application had been that in the revenue record, nature and character of the land has been shown as Gairmumkin "Abadi"/Gairmumkin "Ruri" which cannot be partitioned by the Revenue Court, in view of the provisions of Section 158 of the Punjab Land Revenue Act, 1887 (hereinafter referred to as "1887 Act") and remedy, if any, would be of the Civil Court. The aforementioned two points have not been taken into consideration by the authorities below. The reference has also been made to naksha arra, Annexure P-3/A, where portion fallen to the share of the respondents in the application for partition filed before the Assistant Collector has been shown as Gairmumkin Abadi.
In support of his contention, he has relied upon the ratio decidendi culled out by this Court in Jagga Singh vs. Surjeet Singh and 2 of 6 ::: Downloaded on - 03-06-2017 09:56:44 ::: CWP No.550 of 2012 (O&M) {3} others 2000(3) RCR (Civil) 52 and thus, urges this Court for setting aside the impugned orders.
Per contra, Ms. Monica Chhibber Sharma, learned Deputy Advocate General, Punjab and Mr. S.K.Singla, learned counsel for respondent no.5 submit that the orders under challenge are perfectly legal and justified, much less do not call for any interference. The Commissioner has erroneously reflected in the order the land to be Gairmumkin Abadi and this fact has been noticed by the Financial Commissioner while allowing the revision petition of the private respondents after taking into consideration the relevant jamabandi and in this regard, they have drawn the attention of this to the operative part of the order of the Financial Commissioner which reads as under:-
"3. I have heard the counsels for the parties. Counsel for the petitioner mentioned that Commissioner, Patiala Division, Patiala vide his impugned order dated 25.06.2002 has concluded that khasra no.744/1(0-1) is Gairmumkin "Abadi" which is not correct and that this khasra number is Gairmumkin "Ruri" and, therefore, the same can bee partitioned. In this regard, the counsel produced a copy of the jamabandi which shows this khasra number to be Gairmumkin "Ruri". Counsel further mentioned that this objection that this khasra number cannot be partitioned was never taken by the respondent before the Assistant Collector Ist Grade, Barnala while filing objections to the partition proceedings. Counsel 3 of 6 ::: Downloaded on - 03-06-2017 09:56:44 ::: CWP No.550 of 2012 (O&M) {4} for the respondent mentioned that the Divisional Commissioner, Patiala vide his impugned order dated 25.06.2002 has correctly upheld the contention of the respondent.
4. I have gone through the record of the case and have considered the arguments advanced by the counsels for the parties. Counsel for the petitioner produced jamabandi of the land in dispute which clearly shows khasra no.744 as Gairmumkin "Ruri" and not Gairmumkin "Abadi" as has been held by the Commissioner, Patiala Division, Patiala vide order dated 25.06.2002. There is no bar to Gairmumkin "Ruri" being partitioned amongst the co-sharers. It is only the "Abadi" area which cannot be partitioned. I also find that this objection was not taken by the respondent before the Assistant Collector Ist Grade, Barnala. Thus, the Commissioner, Patiala Division, Patiala vide his impugned order dated 25.06.2002 has committed grave mistake by classifying the Gairmumkin "Ruri" as Gairmumkin "Abadi." Consequently the petition is accepted and the impugned order dated 25.06.2002 of the Commissioner, Patiala Division, Patiala is set-aside." During the course of hearing also, jamabandi has been shown and conceded position is that it is not Gairmumkin "Abadi" but Gairmumkin "Ruri" and thus, submit that there is no bar for the revenue Courts to adjudicate the application seeking partition of the land and 4 of 6 ::: Downloaded on - 03-06-2017 09:56:44 ::: CWP No.550 of 2012 (O&M) {5} therefore, urge this Court for upholding the orders under challenge by dismissing the writ petition.
I have heard learned counsel for the parties, appraised the paper book and of the view that there is no force and merit in the submissions of Mr.Jatinder Singla, for, on going through the naksha arra/site plan, Annexure P-3/A, the portion shown in yellow colour has concededly been given to the private respondents vis-a-vis red to the petitioners. Both are having the frontage with the main road except a small passage on the right hand side. It is not case of the petitioners that there is no access to the land given to them in the partition proceedings, thus, in my view, objection of Mr. Singla, is wholly misplaced.
As regards the jurisdiction of the revenue Court for entertaining the application for partition in respect of nature of the land being Gairmumkin "Ruri", I am of the view that relevant finding of the Commissioner as noticed by the Financial Commissioner extracted above, the revenue record do not reflect the nature of the land to be Gairmumkin "Abadi" but Gairmumkin "Ruri". Since Gairmumkin "Ruri" land meant for keeping manure, therefore, there could not be expressed bar as provided under Section 158 of 1887 Act. The ratio decidendi culled out by this Court in Jagga Singh's case (supra) also deals with the aforementioned proposition. The Hon'ble Division Bench of this Court in Surjit Singh vs. Financial Commissioner Appeals-II, Punjab and others 2012(5) RCR 683 has held that if part of the land sought to be partitioned in abadi, i.e. 5 of 6 ::: Downloaded on - 03-06-2017 09:56:44 ::: CWP No.550 of 2012 (O&M) {6} cultivable/chahi, in such circumstances, the remedy to seek partition would vest with the Civil Court but not with the Revenue Court which on facts is not appreciated. In my view, the findings rendered by the Financial Commissioner are perfectly legal and justified, much less do not call for any interference. The authorities below have taken into consideration the potentiality, quality and nature of the land, much less parity.
Resultantly, the writ petition is dismissed.
(AMIT RAWAL)
JUDGE
May 09, 2017
savita
Whether Speaking/Reasoned Yes/No
Whether Reportable Yes/No
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