Hem Raj vs The Financial Commissioner on 15 February, 2013
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: