Punjab-Haryana High Court
Avtar Singh vs Financial Commissioner Appeals Punjab ... on 15 February, 2017
Author: Amit Rawal
Bench: Amit Rawal
CWP No.6873 of 2009 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
CWP No.6873 of 2009
Date of Decision.15.02.2017
Avtar Singh .......Petitioner
Vs
Financial Commissioner (Appeals II), Punjab and others
........Respondents
Present: Mr. Krishan Sehajpal, Advocate
for the petitioner.
Mr. Yatinder Sharma, Addl. A.G., Punjab.
Mr. Rajiv Joshi, Advocate
for respondent No.4.
CORAM:HON'BLE MR. JUSTICE AMIT RAWAL
-.-
AMIT RAWAL J. (ORAL)
The petitioner is the successor-in-interest of Malkiat Singh, who is aggrieved of the impugned orders of the Collector, Commissioner and Financial Commission on the premise that the objections to the naksha (Annexure P-3) have not been considered.
Learned counsel appearing on behalf of the petitioner has drawn attention of this Court to Annexures P-2 and P-4, the orders passed by the Assistant Collector and the mode of partition, which read as under:-
"Mode of partition Land situated in village Isharwal
1. Total land of partition is 125 kanal 7 marla.
2. Kura (tak) of applicant and kura (tak) of Gurdev Singh respondent will be kept separate and kura of sardar, Avtar Singh, Kewal Singh, Jaspal Kaur, Avtar Kaur, Niranjan Kaur, respondents and other respondents will be kept separate.
3. Land will be partitioned as per kind and quality of land superior with superior and inferior with inferior.
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4. Partition will be done keeping in view principle of consolidation.
5. Path and drain will be provided as per necessity.
6. Trees will be also partitioned.
7. If any person sold his land that will be adjusted in his kura.
8. Tubewell and kotha (room) will be given to that person in whose land is found."
Annexure P-4 "The applicant submitted in his application dated 27.11.1997 that his land is joint with respondents and being joint land he cannot get fruits of his share. In the end he prayed for partition of land.
After recording the application respondents were summoned, except respondents Bhajan Singh, Dalbir Singh, Malkiat Singh, Gurdev Singh, Sardara Singh and other respondents appeared on 18.12.97, 15.1.98, 23.1.98 but on 24.2.98 above mentioned respondents despite manadi not come present and proceeded ex parte on 20.3.98. Nachhattar Kaur, Gurdev Singh, Avtar Singh, Sardara Singh, Jaspal Kaur and Avtar Singh filed application and made prayer for setting asdie ex parte and they were joined in the proceedings. Site plan 'Ura was called from Girdawar site plan Ura was accepted by the parties and site plan 'Ura' was accepted. On 26.2.98 mode of partition was made and objections were called. Objection was raised by respondent that land be partitioned as per possession. Counsel for the applicant argued that all the respondents are in possession in small portions as per Madhani partition. Keeping in view of benefits of all co-sharers, mode of partition should be after disturbing possession minimum. As per mode of partition, papers from the Girdwar were prepared and called and objections were called.
Direction was given by Girdwar thereafter hearing the parties and as per their convenient papers partition be again produced. Papers of partition were placed on record after preparing by the Girdawar. Objections of parties were called. Both the parties admitted as correct. Partition sanctioned as per Naksha 'Eree' Executive A-1, Akas Sajra, Executive-II and field book Executive 111. Naksh 1Erey Akas Sajra and Field back Executive III be read as part of this order. Copy of order be placed on filed.
2 of 4 ::: Downloaded on - 10-07-2017 17:55:07 ::: CWP No.6873 of 2009 -3- Sanad Taksim will be prepared after the limitation of appeal 30 days. File be consigned to record room. Order is pronounced." and drawn attention to Annexure P-3 to show that upper portion is far away from the area shown (red) whereas lower portion is close to drain viz-a-viz the land given to the petitioner. In fact, the naksha has not been prepared in accordance with mode of partition suggested. The factum of quality of land i.e. superior and inferior has not been taken into consideration.
He further submits that the petitioner was ex parte and therefore, not been given opportunity to defend the case.
Mr. Rajiv Joshi, learned counsel appearing for respondent No.4 submits that petitioner's father Malkiat Singh represented before the Assistant Collector yet did not object to the preparation of the naksha and suggested mode of partition and therefore, it does not lie in the mouth of the petitioner to agitate this aspect. LRs have to tow the whim and desire of their father. No separate or independent stand can be taken. Even sanad taksim had also been passed and therefore, appeal before the Collector was not maintainable as the remedy is only under Section 16 (1) of Land Revenue Act in view of the law laid down by this Court in Amar Khan Vs. State of Punjab and others 2009(1) RCR (Civil) 741.
I have heard learned counsel for the parties, appraised the paper book and of the view that the mode of partition suggested i.e. quality of land being superior and inferior have to be equally distributed. From the perusal of the naksha bey, the land shown in blue colour in the upper portion is far away from the red whereas lower portion is close to the drain than the one given to the respondents-applicants before the Assistant Collector, in essence, the naksha has not been prepared strictly as per the mode of partition. There should be equal distribution of inferior and superior quality 3 of 4 ::: Downloaded on - 10-07-2017 17:55:07 ::: CWP No.6873 of 2009 -4- of land. This aspect has not been taken into consideration by all the authorities, particularly, the Financial Commissioner. As per the ratio decidendi culled out by this Court in Amar Khan's case (supra), this Court or the Financial Commissioner would have power to look into/ponder upon the matter when the sanad taksim has been passed and therefore, while exercising the power under Article 226 of the Constitution, I am of the view that there has not been adherence to the mode of partition viz-a-viz the nature and quality of land as indicated above, thus, there is illegality and perversity. I hereby set aside the order of the Financial Commissioner which has not taken care of the aspects as mentioned above. The matter is remitted back to him to look into/ponder upon the matter again by taking into consideration the mode of partition extracted above viz; as to whether the naksha has been prepared in terms of the mode of partition viz-a-viz the kind and quality of the land.
Let this exercise be done within a period of five months from the date of receipt of certified copy of this order.
The parties through their counsel shall appear before the Financial Commissioner on 07.03.2017.
The writ petition stands disposed of in the aforementioned terms.
(AMIT RAWAL)
JUDGE
February 15, 2017
Pankaj*
Whether speaking/reasoned Yes
Whether reportable No
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