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2001 DIGILAW 531 (PNJ)

Jarnail Singh v. Paramjit Singh

2001-05-11

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 16.3.1998 passed by the Commissioner, Patiala Division, Patiala as well as the order dated 3.12.1992, passed by the A.C. Ist Grade, Amloh, in the matter of partition of land. 2. The brief facts of the case are that Paramjit Singh son of Gurnam Singh, resident of village Khanian, Tehsil Amloh, District Fathegarh Sahib made an application dated 21.8.1991 for partition of his 2/9th share out of 133K-1M of land comprised in the Khasra numbers mentioned in the application itself as per the Jamabandi for the year 1986-87. He further submitted that some of the land to be partitioned was situated near the road and which may also be partitioned. The A.C. Ist Grade, Amloh, after hearing the opposite parties, and recording their statements, prepared Mode of Partition on 12.10.1992 and ordered to prepare Naqsha "Ara. However, Jarnail Singh submitted an application dated 9.11.1992 before A.C. Ist Grade, Amloh that the order dated 12.10.1992 was not in accordance with law, because the mode of partition had not been approved before calling Naqsha "Ara. He submitted that only the mode of partition had been proposed and not approved yet while calling for Naqsha "Ara. He accordingly requested that the order dated 12.10.1992 be recalled and the proposed mode of partition be approved only after hearing the objections of all the parties. However, the A.C. Ist Grade, Amloh after hearing the parties through their counsel, rejected the application vide his order dated 3.12.1992 stating therein that Naqsha "Ara had been called only after having approved the mode of partition. 3. Aggrieved by the orders of the A.C. Ist Grade, Jarnail Singh and others filed an appeal before the Collector, Amloh, who after hearing the counsel for both the parties and going through the record, found that Naqsha "Ara had been ordered to be prepared by A.C. Ist Grade, Amloh without approving of the mode of partition. 3. Aggrieved by the orders of the A.C. Ist Grade, Jarnail Singh and others filed an appeal before the Collector, Amloh, who after hearing the counsel for both the parties and going through the record, found that Naqsha "Ara had been ordered to be prepared by A.C. Ist Grade, Amloh without approving of the mode of partition. He, accordingly, agreed with the contentions of the counsel for the appellants and accepted the appeal vide his order dated 29.6.1993 and remanded the case to A.C. Ist Grade, Amloh with the directions that the mode of partition be approved first and only then the Naqsha "Ara called for in the partition proceedings and directed the parties to appear before him on 6.8.1993. Aggrieved by the orders of Collector Amloh, Paramjit Singh filed appeal before the Commissioner, Patiala Division, Patiala. The main plea taken by him was that the mode of partition has been challenged after the expiry of prescribed period of limitation, which was 15 days and the Collector had ignored the matter of limitation in his order. The Commissioner, after hearing the arguments of the counsel of both the parties and going through the record, found that the mode of partition was approved in the presence of respondent Jarnail Singh and, therefore, he had no right to challenge the mode of partition after the permissible period. He accepted the appeal on the ground of limitation and directed the A.C. Ist Grade to continue with the partition proceedings vide his order dated 16.3.1998. 4. Aggrieved by the orders of the Commissioner, Patiala Division, Patiala, Jarnail Singh and others filed the present revision in this Court. The arguments of counsel for the petitioner were heard on 20.10.2000. Gurnam Singh, respondent No. 4, who had been appearing in person throughout, stated that he had engaged one counsel Mr. Chopra Advocate, but he had not appeared and an adjournment may be given. It was found that no Power of Attorney has been filed by the said Advocate and, therefore, respondent No. 4 was directed to place on record written arguments through his lawyer and was given one month time for the same. On the next date of hearing i.e. 8.12.2000, the hearing could not take place as the Court time was over and the case was adjourned to 22.12.2000. On the next date of hearing i.e. 8.12.2000, the hearing could not take place as the Court time was over and the case was adjourned to 22.12.2000. However, on this date, Gurnam Singh respondent No. 4 did not appear in person or through any counsel, and no request for adjournment of case had been filed by him. Written arguments had not been filed by him even after two months. The orders in this case were accordingly reserved on 22.12.2000 for decision on merits. However, Gurnam Singh appeared before me in the Court on 30.3.2001 and stated that he had been appearing throughout and had engaged Shri N.S. Minhas Advocate who wished to submit written arguments as had earlier been permitted by this Court before the orders were reserved. Shri R.S. Chauhan, counsel for the petitioner, who was also present in the Court in connection with some other case, opposed the same on the ground that no Power of Attorney of the opposite counsel was on record at the time when the judgment was reserved and accordingly the respondent cannot be permitted to file a fresh Power of Attorney. Counsel for the petitioner, however, agreed that written arguments could be placed on record by the respondent No. 4, with copy to him. Since I had not yet applied my mind for dictating the judgment, the request of the respondent No. 4 to place written arguments on record with copy to counsel for the petitioner was allowed. The orders remained reserved. Counsel for the petitioner also filed his counter-reply dated 18.4.2001 which was also placed on record. 5. I have carefully gone through the record of the Courts below and have also heard the counsel for the petitioner and gone through the written arguments of respondent No. 4 and the counter-reply to the same by the counsel for the petitioner. Perusal of the record of A.C. Ist Grade, Amloh clearly reveals that he proposed mode of partition on 12.10.1992 but nowhere approved the same. It is noted that in point No. 7 of the order dated 12.10.1992, the A.C. Ist Grade Amloh, while proposing the mode of partition, ordered Halqa Kangungo to get Naqsha "Ara prepared under his supervision and guide the parties on the spot. It is noted that in point No. 7 of the order dated 12.10.1992, the A.C. Ist Grade Amloh, while proposing the mode of partition, ordered Halqa Kangungo to get Naqsha "Ara prepared under his supervision and guide the parties on the spot. From the perusal of the record, it has nowhere been found that the proposed mode of partition was ever approved after calling/settling the objections of the parties concerned. It has also been found in his order dated 3.12.1992 that while deciding the application dated 9.11.1992 of Jarnail Singh, he observed that the Naqsha "Ara has been ordered to be prepared only after approving the mode of partition, which, on the face of it, is patently wrong and erroneous. It is settled law that in the partition proceedings, unless the mode of partition is approved, no further steps can be initiated in the matter and the same is missing in this case in the orders of A.C. Ist Grade, Amloh. Collector SDO (C) Amloh has rightly accepted the appeal and remanded the case vide his order dated 29.6.1993. Even the Commissioner, Patiala Division, Patiala has not given his decision on merit and has based it upon limitation. As per decision cited in AIR 1997 Supreme Court 1353, the Apex Court has held that the Courts should adopt a liberal approach for condonation of delay and has further held that refusing to condone delay could result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. In this case, the case which otherwise is found on merits, has been rejected on the ground of limitation. Whereas the order of the A.C. Ist Grade, Amloh which was against the basic law was required to be corrected by the higher Courts in the interest of justice. Respondent No. 4 through his written arguments has only stressed upon the position which pertains to the preparation and finalisation of Naqsha "Ara which as per record and on the basis of above position of the case is not relevant because the main controversy in the present case revolves around the approval of mode of partition before inviting Naqsha "Ara, which had never been approved as per record and which is mandatory under Section 118(1) of the Punjab Land Revenue Act, 1887. 6. 6. In view of the above, the revision petition is accepted; order of the Commissioner, Patiala Division, Patiala dated 16.3.1998 and that of the A.C. Ist Grade, Amloh dated 3.12.1992 are set aside and the order dated 29.6.1993 of the Collector [SDO (C)] Amloh is upheld. The case is remanded to the A.C. Ist Grade (Tehsildar), Amloh with the direction to first approve the mode of partition after inviting objections from the concerned parties and only then to proceed further in the matter. Parties are directed to appear before him on 16.7.2001. Announced. Petition allowed.