Punjab-Haryana High Court
Tarsem Singh And Others vs Financial Commissioner (Appeals-Ii) on 11 September, 2012
Author: Ranjit Singh
Bench: Ranjit Singh
CIVIL WRIT PETITION NO.7430 OF 2010 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: SEPTEMBER 11, 2012
Tarsem Singh and others
.....Petitioners
VERSUS
Financial Commissioner (Appeals-II), Punjab, Chandigarh and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Paramjit Rajput, Advocate,
for the petitioners.
Mr. B.B.S.Teji, Addl.A.G., Punjab,
for the State.
Ms. Amandeep Soni, Advocate,
for respondent Nos.5 to 8.
*****
RANJIT SINGH, J.
Assistant Collector Ist Grade, Gurdaspur, allowed the partition application filed by father of respondent Nos.5 to 8, on 8.12.1994. The petitioners were not impleaded as party, though they claimed that they were necessary party as they had purchased land measuring 9 kanals 9 marlas on 21.12.1988. Mutation had also been sanctioned in the name of the petitioner on 17.2.1990 on the basis of a sale deed dated 13.6.1989. Despite having known these facts, the petitioner apparently has slept over his rights to wake up only at the CIVIL WRIT PETITION NO.7430 OF 2010 :{ 2 }:
fag end of year 2006, when he filed appeal against the order dated 8.12.1994 on 10.11.2006.
As per the petitioners, they were not impleaded as party to the partition proceedings. Collector, Gurdaspur, however, dismissed this appeal on 31.7.2007. Revision filed before the Commissioner was dismissed on 27.8.2007. The Commissioner viewed that final instrument of partition had been issued so the appeal/revision would not be maintainable. The petitioners thereafter approached the Financial Commissioner, who also dismissed the revision on the ground that the final instrument of partition has already been issued. The petitioners accordingly have approached this Court through present writ petition to impugn these orders as well as the final instrument of partition.
Reply is filed on behalf of respondent Nos.5 to 8. Other respondents have only filed short reply. It is stated that final instrument of partition has already been issued in the year 1994 and the entries have also been incorporated in the jamabandi. The mode of partition in this case as prepared was never challenged and has not been challenged so far. It is accordingly pleaded that the petitioners can not now challenge the partition after so much of delay. It is also disclosed that the petitioners are vendees, who have stepped into the shoes of vendors and were not required to be impleaded as a party at the time when the application was moved because they have purchased the land subsequent to the date of filing of this petition. It is also stated that co-sharers of the respondents could not have sold any specific khasra numbers to the CIVIL WRIT PETITION NO.7430 OF 2010 :{ 3 }:
petitioners. The co-sharers earlier had been contesting the partition proceedings and the case had to be remanded back on the basis of challenge raised by the co-sharers. They were ultimately proceeded exparte.
The first hurdle, which the petitioners are to cross, is regarding the delay in making the approach. The case set up by the petitioners is not that they were not aware about the partition proceedings, which were pending and about the final instrument of partition, which was issued on 8.12.1994. That being so, the petitioners have to explain the delay of 12 years in challenging the instrument of partition. There is no reason offered despite the Court having asked the petitioners to explain this delay even now. Once the final instrument of partition was issued, which was allowed to remain unchallenged for a period of 12 years, it would not be fair to reopen the issues after so much of delay, when even the same has been implemented and entries have also been reflected in the jamabandi.
Instead of explaining this delay on the part of the petitioners, the counsel pressed hard to make his submissions on merits by urging that amended Naksha Zeem was prepared but the final instrument of partition was prepared on the basis of unamended Naksha Zeem prepared on 18.7.1984. The counsel for private respondents, however, would point out that amended Naksha Zeem was not placed on record as is reflected in the impugned orders. Ofcourse, the counsel for the petitioners would state that the amended Naksha Zeem was on record and still available on the file. Even if that be so, this grievance ought to have been raised, when CIVIL WRIT PETITION NO.7430 OF 2010 :{ 4 }:
the instrument of partition was finally prepared in the year 1994. There is nothing available on record to indicate if any such grievance was raised as the Assistant Collector has noticed that amended Naksha Zeem was not brought on record. At this stage, it would not be appropriate or fair to interfere in the instrument of partition, when the petitioners themselves have slept over their rights for so long. I am, therefore, not inclined to interfere in exercise of writ jurisdiction to reopen the issue, which has been finally settled since 1994.
The writ petition is accordingly dismissed.
September 11, 2012 (RANJIT SINGH ) khurmi JUDGE