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2001 DIGILAW 294 (PNJ)

Dharam Singh v. Lakhmir Singh

2001-03-02

RUPAN DEOL BAJAJ

body2001
ORDER Rupan Deol Bajaj, F.C. - The present is a revision petition under Section 16 of the Punjab Land Revenue Act, 1887 against the order dated 31.8.1998 passed by the Commissioner, Patiala Division, Patiala in the matter of partition of land in village Shingariwala, Tehsil Kharar, District Ropar. 2. The brief facts of the case are that Lakhmir Singh son of Mehma Singh, resident of village Shingariwala, Tehsil Kharar, District Ropar filed an application before the A.C. Ist Grade-cum-Tehsildar Kharar, for partition of his share from the total joint land holding of 137K 16M. The A. C. Ist Grade Kharar vide his order decided the Mode of Partition and after finalising the partition proceedings between the parties, issued the instrument of partition (Sanad Takseem) on 16.11.1995. The order dated 16.11.1995 reads as under : [Transliteration of Punjabi is given - Ed.] "Missal pesh hoi Lakhmir Singh mea vakil hajar duji dhir walon vee vakil hajar Lakhmir Singh ne apna bian kalamband karwa ke keha ki mainu tubewell sanjhan rakh ke takseem karan wich koi itraj nahi mai apna itraj wapas lenda haan duji dhir walon pahilan hi koi itraj nahee hai es lae tubewell nu sanjhan rakh ke naksha a e parwaan kite jande han baad gujarne miad sanad takseem tiar kiti jawe hukam sunaia gia misal baad takseem va tameel hasab jaabta daakhal record room karwaai jawae." 3. Aggrieved by the order of A. C. Ist Grade, Kharar, Dharam Singh and others filed an appeal before the Collector SDO(C) Kharar on the ground that the partition order was against the mode of partition agreed to because the possession of the parties had been changed; that good quality of land in one Tak had been given to Lakhmir Singh and all bad land had been given to the appellants; that the land near the houses of the appellants (Dharam Singh and others) had been given to Lakhmir Singh (respondent No. 1); that the land given to the appellants was less than their entitlement; that objections of the appellants had not been taken into consideration by the A. C. Ist Grade, Kharar; and that the tubewell had been installed by the appellant Dharam Singh and Lakhmir Singh and others had absolutely no share in it, and even the electricity connection of tubewell was in the name of Dharam Singh. During the proceedings in the appeal before the Collector Kharar, the parties on 18.3.1997, made some statement before him. Lakhmir Singh made a statement that provided that land was given to him in a single Tak along the existing (old) passage, he would have no objection, even if that Tak consisted of an inferior quality of land. Although the statement of Lakhmir Singh was shown as made with the consent of both the parties and Dharam Singh was required to accept it accordingly, nevertheless, Dharam Singh made statement and got recorded at variance with that of Lakhmir Singh, that the "statement of the respondent has been heard. The Tak which we will provide to the respondent, that will have a passage and Dharam Singh will be the sole owner of tubewell". While announcing his order dated 21.3.1997, the Collector Kharar observed as under : (Ventricular matter omitted) On the basis of his above observations, the Collector Kharar made the following order : 4. Aggrieved by the orders of the Collector, Lakhmir Singh filed appeal before the Commissioner, Patiala Division, Patiala on the ground that the mode of partition passed on 28.9.1994 was meticulously followed by the A.C. Ist Grade, Kharar and no appeal was filed against the same and as such it had attained finality. He further contended that even after the issue of Sanad Takseem no appeal was ever made within the period of limitation against the order dated 16.11.1995. The appeal was made before the Collector after 3 months of delay and as such Collector had ignored the provisions of the Limitation Act. Lakhmir Singh further contended that if the respondents (Dharam Singh and others) felt that he (Lakhmir Singh) had been given better quality of land they could give him any land they felt like even if it was inferior provided it was located on the old existing Rasta. To which the respondent agreed. But when they presented that proposed Tak, it was on a newly created Rasta which was different from what they had earlier agreed to. The petitioner (Lakhmir Singh) did not agree to the new proposal. He also contended that no objection had been raised earlier against the mode of partition. Last of all, Lakhmir Singh stressed that the tubewell was common and he had 1/12 share in it and the question of title raised by Dharam Singh was absolutely wrong. The petitioner (Lakhmir Singh) did not agree to the new proposal. He also contended that no objection had been raised earlier against the mode of partition. Last of all, Lakhmir Singh stressed that the tubewell was common and he had 1/12 share in it and the question of title raised by Dharam Singh was absolutely wrong. The Commissioner, Patiala Division, Patiala, after hearing counsel for both the parties upheld the orders of the A.C. Ist Grade, Kharar and accepted the appeal and set aside the order of the Collector vide his order dated 31.8.1998 with the following observations : "In addition to the above, it also transpires that "mode of partition was finalised on 28.9.94 and since no appeal was filed against that order, it had become final. The partition has been made thus in accordance with the accepted mode of partition. Moreover, table "B was also approved and was not challenged. The final table i.e. table "C is based on table "B but even that was also not challenged. The order of the A.C. Ist Grade is crystal clear, where the Court has held that since time period for filing the appeal has expired and no appeal has been filed, instrument of partition be issued. The above development is sufficient to prove that the partition exercise was never challenged. The respondents had given their concurrence when mode of partition was framed. Similarly, table "A, table "B and table "C were also framed, with concurrence of the parties and in their presence. The mere challenge of instrument of partition after the expiry of limitation period is sufficient to prove that it was filed just to delay the partition activity." 5. Feeling aggrieved by the orders of the Commissioner, Patiala Division. Patiala, Dharam Singh and others filed the present revision before this Court. In the grounds of revision, it has mainly been contended that Lakhmir Singh had been given all good quality of land which comprised of one Tak and the petitioners had been given fragmented land in 4 Taks; that total land of good or of bad quality should have been distributed proportionately as per the mode of partition but that had not been done; that the petitioner had raised numerous objections relating to land near their built-up houses; and that the land allotted to them was less than the entitlement. They also raised their contentions regarding the ownership of tubewell and electric connection. These were the same grounds which Dharam Singh and others had taken before the Collector Kharar in their appeal. The new ground taken before me is that Lakhmir Singh had consented in writing before the Collector that if he was given his share of land in one Tak on any of the old existing passages, he would have no objection to partition even if the land was of inferior quality. The petitioners have time and again stressed this point in the grounds of revision from one angle or the other and have prayed that the order of Commissioner may be set aside and the revision may be accepted and the order of the Collector dated 21.3.1997 may be upheld. 6. I have gone through the revision petition and the record and given careful consideration to the pleas raised by counsel for both the parties. Counsel for the petitioners alleged that the respondent being an employee of the Financial Commissioner Office, was exercising undue influence due to his position and power to circumvent the flow of justice in his own favour and against the interests of petitioners. However, it is noted that the respondent who had won his case in the Court of Commissioner, had filed a caveat in the Court of Financial Commissioner Revenue but his caveat was never considered and the petitioner was able to get an ex parte stay. Had this allegation of the counsel for the petitioner been correct, the respondent would atleast have been able to get his caveat tagged at the time of initial hearing when the petitioner got the ex parte stay. Moreover, the fact that the respondent is an employee of the Financial Commissioners Office does not debar him from getting justice under the law of land and the respondent is equally entitled to seek legal remedy available to him under the law. Therefore this contention of the counsel for petitioner is rejected. 7. Counsel for the petitioner again and again stressed in his pleadings that orders of the Collector should be accepted and the respondent should be directed to execute the compromise which he had agreed to before the Collector. A perusal of the order of the Collector dated 21.3.1997 shows that the same is inconsistent. 7. Counsel for the petitioner again and again stressed in his pleadings that orders of the Collector should be accepted and the respondent should be directed to execute the compromise which he had agreed to before the Collector. A perusal of the order of the Collector dated 21.3.1997 shows that the same is inconsistent. In the first part of his order, the Collector recorded that Lakhmir Singh agreed to accept his share of land provided the same was situated on the old existing passages, even if the said land was of inferior quality. It was Dharam Singh who did not accept the same, but proposed the share to be located on a new proposed passage, which was not as per the earlier statement of the party and accordingly Lakhmir Singh did not agree to the same. Thereafter the Collector also recorded the fact that the appellant before him (Dharam Singh etc.), as per record did not file any objection and appeal regarding mode of partition. However, the Collector in his operative part of the order, ordered that keeping in view the partition, which has already taken place, both the parties be heard again, new Taks be made and the respondent (Lakhmir Singh) be given his Tak as offered by him on the old passages. In this way the Collector Kharar vide his order dated 21.3.1997 confused the matter which has rightly been upset by the Commissioner vide his order dated 31.8.1998. Counsel for the petitioner further argued that in view of the law laid down in 1986 LLT page 12 : 1986 PLJ 203, due regard was required to be given to the possession of the parties and as far as possible, possession was not to be disturbed. This plea of the counsel for the petitioner no doubt holds good, but in present case, the respondent is not actually under possession of any land/his share of land. The entire land to be partitioned is under the possession of the petitioner and it is inevitable that they have to part with the land which is rightly the share of the respondent as per accepted mode of partition and as per Sanad Takseem. Therefore, this plea of the counsel for the petitioner is not valid in the circumstances of the present case. 8. Therefore, this plea of the counsel for the petitioner is not valid in the circumstances of the present case. 8. Counsel for the petitioner further contended that more Banjar Jadid land has been given to them as compared to the land of the respondent given as per the Sanad Takseem. Perusal of the record shows that the partition has been made on the basis of the quality and the nature of the land. As per the Jamabandi, the entire land is irrigable and has been partitioned as per mode of partition. Respondent has been allotted land in Khasra Nos. 5/21 (0-1), 44/1(0-4), 7/1/2/(3-6) 10/1(4-0) 11/1(4-0) total 11K-11M, of which 11K-6M is Chahi and the rest of 5 marlas is Banjar Jadid and Gair Mumkin Bara. Similarly the petitioners in their joint Khata also have such type of land consisting of 2K-3M. Hence the inferior quality of land is almost in the same proportions in the partition. Therefore, this contention of the counsel for petitioner also does not hold good. 9. Counsel for the petitioners has also contended that dead persons - Shri Teja Singh, Pritam Singh and Mangal Singh were impleaded as respondents in the partition application by the respondent before the Assistant Collector Ist Grade Kharar. However, the petitioner did not raise this issue before the Assistant Collector Ist Grade during the partition proceedings when the mode of partition was finalised, the Naqsha Bey was prepared and instruments of partition were also ordered and prepared. Rather the petitioners in this appeal before the Collector, against the orders of the Assistant Collector Ist Grade, Kharar also themselves impleaded these persons as respondents, alongwith Lakhmir Singh. Perusal of the record of Assistant Collector Ist Grade as well as of Collector indicates that these persons were never recorded as dead. It has been alleged for the first time by the petitioners before this Court. The counsel for the respondent stated that Managal Singh, Teja Singh and Pritam Singh were not share holders and they had sold their shares. They did not appear before the Assistant Collector Ist Grade and accordingly, they were proceeded against ex parte. As per the counsel for respondent, the present petitioners and the respondents were the only contesting/affected parties in the partition proceedings and the counsel for the petitioners has raised this point unnecessarily which was not there before the Courts below. They did not appear before the Assistant Collector Ist Grade and accordingly, they were proceeded against ex parte. As per the counsel for respondent, the present petitioners and the respondents were the only contesting/affected parties in the partition proceedings and the counsel for the petitioners has raised this point unnecessarily which was not there before the Courts below. Therefore, this contention of the counsel for the petitioner is found devoid of any merit. 10. Counsel for the petitioner also argued that even if objections of Naqsha "Bey" were not filed, the same could not debar the petitioners from assailing the same subsequently in their appeal. In this connection he has relied upon the authority titled as 1997(1) RLR 137 : 1996 PLJ 672. The same in the circumstances and context of the present case, is not applicable because before finalising Nausha "Bey", necessary mode of partition was prepared and finalised after giving due opportunity to the parties. If the petitioners did not raise any objection at that time, and the mode of partition was finalised, they certainly cannot rake up the issue later on after the Naqsha "Bey" had also been prepared on the basis of the accepted mode of partition and even Naqsha Zeem/instruments of partition had also been finalised. Accepting the contention of the counsel for the petitioners, would mean resorting to endless litigation and never allowing the partition proceedings to come to a logical conclusion. This cannot be permitted and the counter plea of the counsel for the respondent on this point in which he has relied on the citation 1999(2) PLJ 567, is plausible and is accepted. 11. The plea of the counsel for the petitioner that they have been given fragmented land in four Taks as compared to one Tak to the respondent is not correct because all the petitioners want to keep their share joint in one khata and only the respondent wants partition of his share. If the same is to be done, as per the accepted mode of partition, and the respondent has been given one Tak, naturally the petitioners will have their land in the second Tak. Therefore, question of four Taks for the petitioners is not based on facts. 12. If the same is to be done, as per the accepted mode of partition, and the respondent has been given one Tak, naturally the petitioners will have their land in the second Tak. Therefore, question of four Taks for the petitioners is not based on facts. 12. However, if Dharam Singh has spent the money for installation of tubewell, even if he has done so while cultivating the joint land, Lakhmir Singh and other share holders should pay their share of the cost to him which is only fair if they are given a share in it. This does not militate against the mode of partition in any manner. In view of the above, I am of the considered view that the petitioners have no case in their present revision petition and the same is, therefore, dismissed with the above observations. The order of the Commissioner dated 31.8.1998 is upheld. Announced Petition dismissed.