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2001 DIGILAW 425 (PNJ)

Dharam Singh v. Financial Commissioner, Appeals-II, Punjab

2001-04-17

JAWAHAR LAL GUPTA, N.K.SUD

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JUDGMENT N.K. Sud, J. - The petitioners and respondent No. 4 are close relatives and were joint holders of land measuring 161 Kanals 2 Marlas in village Shingariwala, Hadbast No. 345, Tehsil Kharar, District Ropar. Respondent No. 4 filed an application before the Assistant Collector 1st Grade-cum-Tehsildar, Kharar, for partition of his share from the total joint land holding. The Assistant Collector Ist Grade, Kharar, vide order dated 28.9.1994, decided the mode of partition. Except the suggestion made by respondent No. 4 that the tubewell be kept common, no objection to the mode of partition was made by any party. The petitioners even consented to the suggestion of keeping the tubewell joint. Accordingly, the Assistant Collector finalised the partition vide order dated 16.11.1995. Thereafter on finding that no appeal had been filed within the period of limitation by any party, he issued the instrument of partition (Sanad Taqseem) on 21.12.1995. Copies of his orders dated 28.9.1994, 16.11.1995 and 21.12.1995, have been filed as Annexures P-2, P-1 and P-3, respectively. 2. The petitioners, thereafter, filed an appeal before the Collector against the order of partition dated 6.11.1995 on the ground that the partition was against the mode of partition inasmuch as the possession of the parties had been changed; all the good quality land in one Tak had been given to respondent No. 4; all the bad land had been given to the petitioners; the land near the houses of the petitioners had been given to respondent No. 4; land given to the petitioners was less than their entitlement; objections of the petitioners had not been considered and the tubewell could not be kept in joint ownership as it had been installed exclusively by the petitioner-Dharam Singh. During the appellate proceedings, the parties made some statements about partition before the Assistant Collector on 18.3.1997. The Collector vide his order dated 21.3.1997 partly allowed the appeal. He duly noticed that no objections had been raised by the petitioners against the mode of partition nor had they filed any appeal. Yet, by referring to the statements of the parties made on 18.3.1998, he directed certain modifications in the partition and for this purpose, he directed the parties to appear before the Assistant Collector on 22.4.1997. A copy of the order of the Collector dated 21.3.1997 has been filed as Annexure P-7. 3. Yet, by referring to the statements of the parties made on 18.3.1998, he directed certain modifications in the partition and for this purpose, he directed the parties to appear before the Assistant Collector on 22.4.1997. A copy of the order of the Collector dated 21.3.1997 has been filed as Annexure P-7. 3. Aggrieved by the order of the Collector, respondent No. 4 filed an appeal before the Commissioner, Patiala Division, Patiala, on the ground that the mode of partition passed on 28.9.1994 had been meticulously followed by the Assistant Collector against which no appeal had been filed and as such, the same had become final. He also contended that even the order of partition dated 16.11.1995 had become final as no appeal had been filed against it within the period of limitation. The appeal filed against the said order was filed after a delay of three months and the Collector had wrongly entertained it without even referring to the provisions of the Limitation Act. The Commissioner vide his order dated 31.8.1998 accepted the appeal and set aside the order of the Collector dated 21.3.1997. He accepted the contention put forward on behalf of respondent No. 4 that the instrument of partition was strictly in accordance with the mode of partition against which no objections had been raised by the petitioners. He also accepted the contention that even the mode of partition had become final when no appeal had been filed against the same within the period of limitation. A copy of the order of the Commissioner dated 31.8.1998 has been filed as Annexure P-10. 4. Feeling aggrieved by the order of the Commissioner, Patiala Division, Patiala, the petitioners filed a revision petition before the Financial Commissioner, Appeals-II, Punjab. In the grounds of revision, the petitioners once again contended that the mode of partition had not been properly followed as all the good quality land in one Tak had been given to respondent No. 4 whereas the petitioners were given fragmented land in four Taks which was of bad quality and the land near the built-up houses of the petitioners ought to have been given to them. A dispute was also raised about the ownership of the tube-well. The petitioners also contended that the Collector had rightly directed the modification of the order of partition in view of the compromise to which respondent No. 4 had agreed before him. A dispute was also raised about the ownership of the tube-well. The petitioners also contended that the Collector had rightly directed the modification of the order of partition in view of the compromise to which respondent No. 4 had agreed before him. According to the petitioners, respondent No. 4 could not be allowed to resile from that agreement. The Financial Commissioner vide his order dated 2.3.2001 dismissed the revision petition. He concurred with the findings of the Commissioner that since no objections had been filed against the mode of partition which had become final and as no appeal had been filed against the order of partition within the period of limitation, the petitioners could not be allowed to challenge the order of partition. It was further found that the order of partition was strictly in accordance with the mode of partition. The Financial Commissioner also found that there was no agreement before the Collector as alleged by the petitioners. By referring to the statements of the parties, the Financial Commissioner pointed out that the proposal put forward by respondent No. 4 was not accepted by the petitioner-Dharam Singh and the corresponding proposal given by the petitioner Dharam Singh was not accepted by respondent No. 4. Thus, the Financial Commissioner held that the Collector had wrongly confused the issue by treating the statements of the parties as an agreement. A copy of the order of the Financial Commissioner has been filed as Annexure P-11. It is in this background that the present writ petition has been filed and the petitioners pray that the order of the Commissioner dated 31.8.1998 (Annexure P-10) and that of the Financial Commissioner dated 2.3.2001 (Annexure P-11) be quashed. 5. According to Mr. Pawan Kumar, learned counsel for the petitioners, the order of the Collector dated 21.3.1997 was based on a compromise arrived at between the parties and as such, the Commissioner was not justified in entertaining the appeal against the said order. He further challenged the order of partition on the grounds as had been raised before the Collector and the Financial Commissioner. 6. After hearing the learned counsel for the petitioners and after going through the relevant orders, we find no merit in this writ petition. He further challenged the order of partition on the grounds as had been raised before the Collector and the Financial Commissioner. 6. After hearing the learned counsel for the petitioners and after going through the relevant orders, we find no merit in this writ petition. The learned Financial Commissioner has correctly held that there was no compromise between the parties during the appellate proceedings before the Collector and that the Collector had confused the matter on the basis of the statements of the parties recorded by the Assistant Collector on 18.3.1997. He has specifically referred to the contradictions in the order of the Collector. We, therefore, find no merit in the contention of the learned counsel for the petitioners that the Commissioner had wrongly entertained the appeal against the order of the Collector which was based on a compromise. 7. Regarding the other grievances of the petitioners, the Commissioner and the Financial Commissioner have concurrently found that the share had been allotted strictly in accordance with the mode of partition as determined by the Collector on 28.9.1994 against which no objections had been raised by the petitioners. The Financial Commissioner has correctly observed that merely because the petitioners had been divested from the Tak allotted to respondent No. 4, it cannot be said that there was any violation of law laid down in Bardu Ram and others v. Tara Chand, 1986 Lahore Law Times 12 : 1986 PLJ 203. Admittedly, the entire land was in the possession of the petitioners and it was but natural that as and when the share of respondent No. 4 was to be bifurcated, the petitioners had to vacate their possession from the land allotted to him. It has also been found as a fact that while making the partition, the quality and the nature of the land had been kept in view. Respondent No. 4 had also been allotted land of inferior quality in proportion to his share. The contention of the petitioners that their holding has been fragmented is also without any merit. In this case, only respondent No. 4 has asked for partition of his share and the petitioners had chosen to remain joint. While allowing the partition, one Tak has been allotted to respondent No. 4 and the remaining land continues to belong to the petitioners jointly. In this case, only respondent No. 4 has asked for partition of his share and the petitioners had chosen to remain joint. While allowing the partition, one Tak has been allotted to respondent No. 4 and the remaining land continues to belong to the petitioners jointly. Thus, there is no question of any violation of the mode of partition in this regard as well. The learned counsel has not been able to point out any infirmity in these findings and, therefore, we find no ground to interfere in the orders of the Commissioner and the Financial Commissioner. 8. In the result, we find no merit in this writ petition which is, accordingly, dismissed in limine. Petition dismissed.