Punjab-Haryana High Court
Hem Raj vs The Financial Commissioner on 15 February, 2013
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
CWP No.5872 of 1989 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CWP No.5872 of 1989
Date of decision:15.02.2013
Hem Raj .....Petitioner
Versus
The Financial Commissioner, Haryana Department of Revenue,
Haryana Civil Secretariat, Chandigarh & others
.....Respondents
CORAM : HON'BLE MR.JUSTICE G.S.SANDHAWALIA
Present: Mr.Raj Mohan Singh, Advocate, for the petitioner,
Mr.Deepak Girotra, AAG, Haryana,
None for respondent No.5.
****
G.S.Sandhawalia J.
1. The present writ petition has been filed under Articles 226/227 of the Constitution of India challenging the order dated 22.12.1983, passed by the Collector, Karnal, whereby the petitioner sought review of the order dated 10.06.1982 in which the appeal filed by respondent No.5 had been accepted and his application dated 04.07.1977, filed under Section 144 Code of Civil Procedure, 1908 (for brevity, the 'CPC') for restitution of possession of the old situation was allowed. The subsequent order passed in revision by the Commissioner, Ambala Division dated 06.08.1985 (Annexure P-4) and 07.04.1989 (Annexure P-6), passed by the Financial Commissioner, Haryana are also subject matter of challenge since the revision petitions of the petitioner were also dismissed.
2. The facts, as pleaded in the writ petition, would show that the petitioner along with respondent No.5 and one Smt.Patauri were co-sharers CWP No.5872 of 1989 2 in the agricultural land total measuring 134 kanals 13 marlas in the revenue estate of village Ballah to the extent of 1/3rd share each. In the year 1969, the mother of the petitioner, Smt.Surti filed an application for partition of the joint holding of the agricultural land before Assistant Collector, 1st Grade, Karnal who approved the mode of partition on 05.08.1971. The sanad takseem was issued and respective possessions were delivered to the parties to the partition proceedings. Parties were given possession of almost the same khasra numbers which were possessed by them before partition. As per the sanad takseem dated 14.09.1971, parties were given possession as per their entitlement and each set of the co-sharer was entitled for 1/3rd share in the joint holding and khatas were separated and partition was given effect to in the revenue record. The mother of the petitioner was given total land measuring 47 kanals 4 marlas against 35 kanals 14 marlas which she was earlier in possession and thus, 11 kanals 10 marlas were given in excess to her earlier entitlement to make good the deficiency as she was possessing less than her entitlement. Respondent No.5 was in possession of 58 kanals 6 marlas along with the land of the other co-sharer, Patauri. A time-barred appeal was filed by respondent No.5 which was allowed on 16.04.1975 and the order dated 05.08.1971, passed by the Assistant Collector, 1st Grade, Karnal was set aside and the case was remanded back for fresh decision. In the meantime, Smt.Surti, mother of the petitioner suffered a civil Court decree dated 28.08.1975 and transferred her entire share in the land in favour of the petitioner vide mutation No.4971 and thus, the petitioner became absolute owner of the property. It is alleged that no notice was served upon the petitioner regarding the partition proceedings after the order of remand dated 16.04.1975 and the original application for partition CWP No.5872 of 1989 3 by the mother of the petitioner was dismissed in default on 19.07.1976 by the Assistant Collector, 1st Grade. The application for restoration was moved by Smt.Surti and another application under Section 144 CPC was filed for restitution of old possession of the land. The Assistant Collector dismissed the application for restoration on the ground that no such case was with him since it had been moved after four years and also the application for restitution on 28.07.1980 on the ground that the revenue record had also been changed, possession was in capacity of co-sharer and civil Court would have jurisdiction. An appeal was filed by respondent No.5 before the Collector, who, vide order dated 10.06.1982, allowed the same and directed the Assistant Collector to restore the old possession. The petitioner filed a review application dated 10.06.1982 before the Collector for review of the order and the same was dismissed on 22.12.1983. Thereafter, the revision petitions were dismissed in the Court of the Commissioner, Ambala Division, Ambala on 06.08.1985 (Annexure P-4) and by the Financial Commissioner on 07.04.1989 (Annexure P-6). Resultantly, the present writ petition has been filed on the ground that the application for restitution was wrongly allowed due to the wrong application of mind by the authorities and it is not applicable to revenue proceedings. The parties were co-sharers and there was no loss suffered by them and they had respective shares of the land in joint holding. It is further pleaded that the civil Court had jurisdiction and even mutation No.4971 had been sanctioned and the Collector had erred in not restoring the original application for partition.
3. Notice of motion was issued by the Division Bench and dispossession was stayed vide order dated 04.05.1989. Thereafter, the writ CWP No.5872 of 1989 4 petition was admitted on 08.08.1989 after noticing that respondent No.5 remained unserved despite two attempts.
4. In the reply, subsequently filed by respondent No.5, it has been alleged that the petitioner is no more co-sharer with the answering respondent as he had got partitioned his share out of the land since long by way of family partition. After decision of the application of partition proceedings, they had transferred the possession in the year 1970, however, an appeal had been filed before the Collector, who had allowed the same and remanded the matter to Assistant Collector 1st Grade for fresh decision, who, dismissed it in default on 19.07.1976. The answering respondent was in possession of the land measuring 58 kanals 6 marlas before passing of the order of partition by Assistant Collector 1st Grade as per family partition arrived at between the parties, much prior to filing of application for partition by Smt.Surti. She had been given possession of 35 kanals 14 marlas of land which was superior land in the khewat of all three co-sharers and the answering respondent was in possession of inferior land in the joint holding. Thus, it was wrong to allege that the petitioner was entitled to 47 kanals 4 marlas of land. Rather, as per the family settlement, answering respondent was given 58 kanals 6 marlas of land whereas Smt.Surti Devi was given possession of 35 kanals 14 marlas of land. The answering respondent was not aware of the passing of the civil Court decree in favour of the petitioner on 28.08.1975. Smt.Surti had not appeared before the Assistant Collector 1st Grade, Karnal who had no option but to dismiss the partition proceedings in default. The provisions of Section 144 CPC were fully applicable to the facts and circumstances. The partition order had resulted in a loss to the answering respondent and the benefit given was to CWP No.5872 of 1989 5 be made good by way of restitution.
5. Counsel for the petitioner has submitted that since the dispute in issue is regarding partition of land between co-sharers and all of them are jointly owners of all the land, it would cause no loss to respondent No.5 and the order passed for restitution by the Collector on 10.06.1982, which has been up-held by dismissing the review application of the petitioner in default was not justifiable since no loss was caused. Even otherwise, the petitioner had filed an application for restoration of his partition proceedings which was earlier dismissed in default.
6. Notice of actual date of hearing was also sent to the counsel for respondent No.5 on 01.02.2013 but none has put in appearance on his behalf, inspite of being served. Accordingly, this Court is left with no other option but to pass an ex parte order.
7. After hearing counsel for the petitioner, this Court is of the opinion that the order dated 22.12.1983, dismissing the review petition, is not sustainable. Admittedly, the Assistant Collector 1st Grade, Assandh dealt with two applications on 28.07.1980, one was an application filed by the petitioner's mother, namely, Smt.Surti, which was for restoration of the partition proceedings, in view of the fact that the appeal had been allowed on 16.04.1975 and the matter had been remanded back for fresh decision even after the sanad takseem was issued on 14.09.1971. The second application was that for restitution under Section 144 CPC and the Assistant Collector noticed that in pursuance of the sanad takseem, the possession had changed as per partition in the year 1970 in the khasra girdawaries and the restoration of the possession was not possible since parties were co-sharers and respondent No.5 was given the liberty to agitate the issue in CWP No.5872 of 1989 6 the civil Court for restoration of possession. The application of the mother of the petitioner for restoration was dismissed on the ground that since it was filed after 4 years, the case was not with the Assistant Collector. The Collector, Karnal, thereafter, allowed the appeal of respondent No.5 on 10.06.1982, which was agitated against by way of filing review petition by the petitioner. The same was dismissed on the ground that Hem Raj @ Raju, the present petitioner had became owner of the land only during the partition proceedings and therefore, was not made party to the case by the Collector on 10.06.1982 and it had been ordered that position, as existed before the commencement of the partition proceedings, be restored. The reason given by the Commissioner in revision is only that restitution can be ordered under Section 144 CPC, for restoration of the old status. The Financial Commissioner's observations are that the partition proceedings had come to an end on 16.04.1975 and the petitioner had not filed any appeal against the said order and therefore, the restoration of old status, prior to commencement of the partition proceedings was justified. It was also justified that the petitioner was unnecessary party in the remand proceedings and the revision was dismissed.
8. That it is a matter of fact, in the present case, that in pursuance of the sanad takseem which was issued on 05.08.1971, possession had been changed and the petitioner had been given 47 kanals 14 marlas of land. Once the sanad takseem had been issued, then the subsequent allowing of the appeal on 16.04.1975 by the Collector was not justified as it has been time and again held that once an instrument of partition had been prepared under the Punjab Land Revenue Act, 1887 and partition had been completed, then no appeal would lie against the said order and the same CWP No.5872 of 1989 7 could only be challenged by filing a revision petition before the Financial Commissioner or by filing writ petition under Article 226/227 of the Constitution of India. Thus, the order allowing the appeal of respondent No.5 was an order which was an order void ab initio and without jurisdiction. A Division Bench of this Court in Raja Ram @ Rajender & another Vs. Tehsildar-cum-Assistant Collector, IInd Grade, Hisar & others 2001(1) PLJ 1 has held as under:
"8. Law does not provided an appeal against the order under Section 121 of the Act, through which the Revenue Officer prepares an instrument of partition after the partition proceedings have been completed. Therefore, the only forum for the petitioner to challenge the partition proceedings was this Court exercising the jurisdiction under Articles 226/227 of the Constitution of India, but in order to invoke this jurisdiction, the petitioners should have honestly stated that the order was not an appealable one and that they did not propose to file an appeal. The conduct of the petitioners in filing the writ petition and in trying to obtain an order regarding status quo with regard to possession shows that they misled the Court on September 27, 1999 by stating that the impugned order, Annexure P-3, was not an appealable one, knowing fully well that an appeal had been lodged before the Collector on September 15, 1999 along with an application under Section 5 of the Limitation Act, which has been referred to above. The petitioners managed to secure the order of status quo with regard to possession by mis-stating the facts."
9. The said view was, thereafter, followed by another Division Bench in Ranbir Singh Vs. Financial Commissioner, Haryana & others 2005 (3) PLR 519 by holding that when a partition is complete and the instrument of partition, namely, sanad takseem is drawn up, no remedy of appeal is provided. Relevant observations reads as under:
"9. We have heard counsel for the petitioner, perused the CWP No.5872 of 1989 8 pleadings, as also the impugned orders. It is no doubt true that the Punjab Land Revenue Act does not provide a remedy against the final order of partition, which is concluded by the drawing up of the "Sanad Takseem".
However, as has been held in Raja Ram alias Rajender and another's case (supra), the final order of partition can be impugned by filing a writ petition under Article 226 of the Constitution of India. However, while examining the orders, passed in partition proceedings, this Court does not appraise the correctness thereof as an appellate or revisional forum. This Court while exercising its writ jurisdiction, would continue itself to examine any legal infirmities in the proceedings. Examination of findings of fact would be beyond the purview of this Court's jurisdiction."
10. Thus, it is apparent that the orders dated 16.04.1975, allowing the appeal of respondent No.5 after the sanad takseem had been drawn up, was an order without jurisdiction. However, the petitioner has not challenged the said order in the writ petition. Admittedly, once two applications had been moved before the Assistant Collector for restoration and for restitution by the parties and both were dismissed on 28.07.1980, as already noticed, the Collector, subsequently however, allowed the appeal of respondent No.5 and accepted the petition under Section 144 for restitution of possession. Once the Collector was setting aside the said order and allowing the petition for restitution, it would have been appropriate, at that stage, to direct the Assistant Collector to restore the partition proceedings which had been filed by the mother of the petitioner and which could be prosecuted by the present petitioner rather than just allow the application for restitution. Solely because the petitioner had become owner later on the basis of a civil Court decree, which the mother of the petitioner had suffered, would not debar him from agitating before the authorities. The partition proceedings had been dismissed in default earlier and if respondent No.5 was really CWP No.5872 of 1989 9 interested in continuing the partition proceedings, he could have been transposed against as a petitioner in the said case since in partition proceedings, all the parties are interested for the same benefit, i.e., the land which is to be divided between them. For the said proposition, support can be drawn from Om Parkash & another Vs. Parshotam Lal & others 2005 (2) PLR 702 in which, it was observed as under:
"On facts the position is some what similar. There is litigation between brothers and other close family relations over the property left by common ancestor. Respondent No. 1 may or may not have share in the property but that question would not call for determination at this stage because that would be a legal dispute between the parties. Moreover what would be the effect of filing of an earlier suit by respondent No. 1 which was got dismissed as withdrawn has also been expressly kept open by the learned Civil Judge. The transposition of respondent No. 1 who was impleaded as defendant would not cause any prejudice to the rights of the defendant-petitioner especially when it is remembered that in a partition suit the defendants are the plaintiffs and vice- versa. It is for this reason that ordinarily procedure followed in such suits in case of withdrawal by the plaintiff is to seek option of one of the defendant to be transposed as plaintiff."
11. Admittedly, the petitioner was a minor and his father had expired and respondent No.5, being the uncle, was trying to exploit the situation so that the family of the deceased-brother could not sell the share of the partitioned land and to grab a larger chunk of which he was earlier in possession. This aspect, unfortunately, was ignored by the Collector while dismissing the review and also by the revisional authorities. It is the case of respondent No.5 himself that he was in possession of inferior land in the joint holding whereas the mother of the petitioner was in possession of superior land. Thus, after the order of partition, superior land would have been transferred in favour of respondent No.5 and vice versa. This conduct CWP No.5872 of 1989 10 of respondent No.5 was apparent from the fact that he had initially chosen not to contest the partition proceedings which had become final on 14.09.1971 and the appeal was only subsequently allowed on 16.04.1975.
12. Once the appeal had been allowed on 16.04.1975 and the order of partition had been set aside, the parties were relegated to their old status of co-sharers of the land in dispute and were in the possession of each and every inch of the joint property and therefore, the principle of restitution would not come into play since the property had to be enjoyed by them in a husband like manner as laid down by a Full Bench judgment of this Court in Bhartu Vs. Ram Sarup 1981 PLJ 204. The possession of parties was a possession of co-sharer on behalf of the other co-sharers and respondent No.5 would not be entitled to raise the issue of restitution. This aspect was sought to be agitated by filing the review which was wrongly dismissed by the Collector on 22.12.1983.
13. This Court in Bhartu (supra), held that mere occupation of larger portion or even of the entire joint property did not necessarily amount to ouster as the possession of one is deemed to be on behalf of all in the eyes of law and the right of the co-owner to use the property in a husband like manner, not inconsistent with similar rights of other co-owners. The said view was followed by a Division Bench in Bachan Singh Vs. Swaran Singh 2000 (3) PLR 416 and thereafter, a five Judge Bench of this Court, in Ram Chander Vs. Bhim Singh & others 2008 (3) PLR 747 keeping in mind that there was apparent difference of opinion between two Full Bench judgments, held that in joint property, vendees' community of interest and commonality of possession could not claim any particular portion of the property till such time it remained joint and up-held the view recorded in CWP No.5872 of 1989 11 Bhartu's case (supra) and over-ruled in judgment of Lachhman Singh Vs. Pritam Chand 1970 PLR 341.
14. Accordingly, the order dated 22.12.1983, declining the review petition by the Collector, Karnal is quashed along with the consequential orders dated 06.08.1985 and 07.04.1989. Resultantly, the review petition, filed before the Collector, is revived and the Collector shall decide the same afresh as to whether the order dated 10.06.1982, passed by him was justified keeping in view the fact that both the applications for restoration and restitution had been dismissed earlier on 28.07.1980 by the Assistant Collector. The same be done after issuing fresh notice to the parties and in accordance with law.
15. Writ petition is, accordingly, disposed of in above-said terms.
15.02.2013 (G.S.Sandhawalia) sailesh JUDGE