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2001 DIGILAW 640 (PNJ)

Mukhtiar Singh v. Gurdeep Singh

2001-06-01

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 24.2.1998 passed by Commissioner, Faridkot Division, Faridkot, as well as the Order dated 19.3.1997 passed by the Assistant Collector Ist Grade, Bathinda in the matter of partition of land. 2. The brief facts of the case are that Gurdeep Singh, Jagroop Singh, Leela Singh, sons of Nidhan Singh and Gurdev Kaur, wife of Jagroop Singh filed an application dated 21.11.1994 before the Assistant Collector Ist Grade, Bathinda for partitioning their shares out of three Khewats of land measuring 310K 10M bearing Khewat No. 106 Khatoni Nos. 371 to 373, and Khewat No. 107 Khatoni Nos. 374 and 375, and Khewat No. 252 Khotoni Nos. 810, 811 Khasra Nos. 1611 Min (8-19), 1612 Min (13-0), 1629 Min (13-0), 1630 (25-0), 1634/2/2(6- 2), 1635(25-0), 1637/1 Min (14-10), 1652/1 (9-0), 1653/2 (16-0), 1654/1(10), 1655/2/1(6-2), 1731/34(0-3), 1611 Min (4-8), 1612 Min (12-0), 1629 Min (12-0), 1637/1 Min (5-10), 1667/1 (20-4) 1682/l/2 (9-10), 1652/2 (16-0), 1637/2 Min (2-10), 1651/1 (9-0), 1666/2 (7-10), 1667/2 (5-0), 1682/1/1 (2- 10), 1637/2 Min (2-10), 1628 Min (12-0), 1636 Min (10-10), 1628 Min (13- 0), 1636 Min (14-0) situated in village Gehri Devi Nagar, Tehsil and District Bathinda, as per Jamabandi for the year 1989-90. The Assistant Collector Ist Grade, Bathinda, after observing the necessary formalities and hearing of the objections of both the parties through their counsel approved amended Naqsha Alaf on 15. 12.1995 and proposed the mode of partition. The parties raised objections thereon. The Assistant Collector Ist Grade made a spot inspection of the disputed land on 15.1.1997. Their objections were also considered and with some amendments, Naqsha Bey was approved in the presence of counsel for both the parties and Halqa Patwari on 24.1.1997. He also ordered the Halqa Patwari to prepare amended Naqsha Bey and accordingly, Naqsha Zeem. On this, the Patwari Halqa asked for certain clarifications from the Assistant Collector Ist Grade, which were given by him on 19.3.1997 and he further directed the Patwari to produce amended Naqsha Bey and Zeem. On 10.4.1997, the amended Naqsha Bey and Zeem were received which were found to be in conformity with the orders dated 24.1.1997 and 19.3.1997 by the Assistant Collector Ist Grade who approved the same and ordered the issuance of Sanad Taqseem. On 10.4.1997, the amended Naqsha Bey and Zeem were received which were found to be in conformity with the orders dated 24.1.1997 and 19.3.1997 by the Assistant Collector Ist Grade who approved the same and ordered the issuance of Sanad Taqseem. Aggrieved by the order dated 19.3.1997, which came to his knowledge on 10.4.1997, Mukhtiar Singh challenged the same before Collector Bathinda through in appeal which was as withdrawn on 25.6.1997, on the request of the appellant. Thereafter a fresh appeal was filed by him on 2.7.1997 i.e. after the period of limitation. The Collector Bathinda condoned the delay, accepted the appeal and remanded the case to the Assistant Collector Ist Grade, Bathinda for a fresh decision after an inspection of the spot vide his order dated 27.10.1997. 3. Aggrieved by the order of the Collector, Bathinda. Gurdeep Singh and others filed an appeal before the Commissioner, Faridkot Division, Faridkot. He heard both the parties through their counsel and also perused the record. Counsel for the appellants before him, argued that the respondents had earlier filed an appeal against the order dated 19.3.1997 before the Collector, which was dismissed as withdrawn on 25.6.1997 and then again filed an appeal before the Collector on 2.7.1997. Counsel submitted that the appeal was highly belated and could not even be entertained and the order of the Collector was liable to be quashed on the ground of limitation itself. Counsel for the appellant further submitted before the Commissioner that the Collector had ordered the Assistant Collector Ist Grade to make a spot inspection which was not proper because the spot inspection had already been made by the Assistant Collector Ist Grade before he approved the amended Naqsha Bey and in accordance therewith, the Naqsha Zeem. He, therefore, argued that when the Sanad Taqseem had already been prepared, no further appeal was maintainable. Counsel for the appellant also pointed out that the allegations regarding the Khal and wrong classification of Barani land as Nehri had also been raised before the Assistant Collector Ist Grade and that is why he had made the spot inspection and had modified Naqsha Bey it to meet the objections of the parties. Counsel for the appellant also pointed out that the allegations regarding the Khal and wrong classification of Barani land as Nehri had also been raised before the Assistant Collector Ist Grade and that is why he had made the spot inspection and had modified Naqsha Bey it to meet the objections of the parties. On the other hand, Counsel for the respondents No. 1 to 6 submitted before the Commissioner that if the delay was condoned, it was in order to provide justice, and to give due regard to the merits of the case. He further stated that some portion of land which consisted two Tibas had been given to the respondents and no Khal had been provided to that land. He submitted that the order of Collector Bathinda was quite correct. The Commissioner heard the arguments of Counsel for both the parties and vide his order dated 24.2.1998 accepted the appeal and set aside the order dated 27.10.1997 of the Collector Sub Division Bathinda and upheld the order dated 19.3.1997 of the Assistant Collector Ist Grade, Bathinda, with the following observations : "Thus, there was hardly any need for the Collector to remand the case to the Assistant Collector Ist Grade for fresh decision after inspecting the spot." 4. Aggrieved by the orders of the Commissioner, Faridkot Division, Faridkot, Mukhtiar Singh and others filed present revision petition before this Court. Except respondents No. 1 to 4, all other respondents did not appear despite their service and were proceeded against ex-parte on 4.8.1998 and 30.11.1998. The arguments in this case were first heard on 18.5.1999 when Gurdeep Singh respondent, who was also present in person, stated that : "even if certain khasra numbers had been wrongly shown as Nehri instead of Barani, the petitioner-Mukhtiar Singh had been given both Nehri and Barani land as per his entitlement. As to the non-provision of Khal, even this contention was wrong as a Khal had been provided right upto the Khurah of petitioner, and it was for him to carry it across his fields as per the accepted practice in partition proceedings. As to the non-provision of Khal, even this contention was wrong as a Khal had been provided right upto the Khurah of petitioner, and it was for him to carry it across his fields as per the accepted practice in partition proceedings. He stated that on the contrary, it was the respondent who was the aggrieved party as he had been allotted Khasra No. 16371 which was low lying and uneven ; this was earlier in possession of the present petitioner Mukhtiar Singh who had leased it out to a brick kiln owner for a consideration of Rs. 2 lacs, but he (Gurdeep Singh) had not objected as he was keen to finalise the partition expeditiously." Thereafter arguments were further resumed and finalised on 8.12.2000 and orders were reserved Later on Shri S. C. Khunger Advocate counsel for respondent No. 1 to 4 requested for permission to file written arguments in addition. Both counsel were allowed to file written statements, which have been filed by both of them. 5. The written arguments filed by counsel for both the parties contained the same points which they had made orally. Counsel for the petitioners submitted that Khasra Nos. 1611/3, 1612/1, 1666/2/2, 1667/2/2, 1682/1/1/2 of the petitioners had been shown as barani in the Jamabandi for the year 1989-90, but had been now treated as Nehri causing injustice to the petitioners. He further submitted that the petitioners were still in possession of their lands and just with the preparation of Sanad Tuqseem it could not be considered that the partition had attained finality until the possession of the parties was changed; that Naqsha Bey and Naqsha Zeem were to be prepared and approved separately i.e. first Naqsha Zeem was to be approved and only then Naqsha Bey was to be approved and therefore the order of Assistant Collector Ist Grade, Bathinda was illegal; that the Naqsha Bey had not been prepared as per the spot inspection by Assistant Collector Ist Grade and the orders of the Collector on this point were correct that the same be done after spot inspection; that Khasra Nos. 1652/21/1, 1667/1 and 1682/1/2 were 3 to 4 feet higher that the other land and could not be irrigated; that as per Naqsha Bey, the petitioners had been given less irrigated land than their entitlement and the respondents had been given more irrigated land than their share. 6. 1652/21/1, 1667/1 and 1682/1/2 were 3 to 4 feet higher that the other land and could not be irrigated; that as per Naqsha Bey, the petitioners had been given less irrigated land than their entitlement and the respondents had been given more irrigated land than their share. 6. The counsel for the respondents submitted that the petitioner had first of all filed an appeal against the order dated 19.3.1997 of the Assistant Collector Ist Grade, Bathinda before the Collector, Bathinda, but the same had been dismissed as withdrawn on 25.6.1997 at their request. They filed a fresh appeal on 2.7.1997. Thus, after 19.3.1997 and upto 1.7.1997, there was no stay against the order of the Assistant Collector Ist Grade, Bathinda and Sanad Taqseem had been issued on 30.4.1997, meaning thereby that the partition proceedings had attained finality. Counsel further submitted that no claim could be made on this ground by the appellants in the present case, because the same was considered to be non-existent for the purpose of appeal. He cited 1992 Punjab Law Journal 45 on this point. Counsel the respondents further submitted that the order of Commissioner, Faridkot Division, Faridkot dated 24.2.1998 was quite legal because Commissioner had held that the Assistant Collector Ist Grade, Bathinda had already inspected spot in the presence of the parties on 15.1.1997 and had considered the objections of parties and after meeting the same, had approved the Naqsha Bey with certain modifications, then Naqsha Zeem ordered to be prepared accordingly. According to the counsel there was no need for a spot inspection for the second time as had been ordered by the Collector vide his order dated 27.10.1997. Counsel also submitted that Khasra Nos. 1611/3 and 1612/1 had been shown as Nehri by the Assistant Collector Ist Grade, Bathinda in the Khatoni Paimayash prepared by him only after spot inspection, as per the actual status of the land though the same had been entered all Barani in Jamabandi for the year 1989-90. Thus, these Khasra numbers had rightly been held to be Nehri as per the spot inspection report. With regard to Khasra No. 1628/3, the same had been shown as Barani by the Assistant Collector Ist Grade, Bathinda in the Khatoni Paimayash at the time of partition. Thus, these Khasra numbers had rightly been held to be Nehri as per the spot inspection report. With regard to Khasra No. 1628/3, the same had been shown as Barani by the Assistant Collector Ist Grade, Bathinda in the Khatoni Paimayash at the time of partition. According to the counsel the matter regarding the Khasra numbers referred to by the counsel for the petitioners as having been shown as Nehri in the Khatoni Paimayash, but shown as Barani in the Jamabandi, did not find any mention in the grounds of appeal and a party could not be allowed to go beyond the grounds of appeal. 7. As regards the higher level of the land of Khasra Nos. 1682/l/2, 1667/1 and 1682/1, counsel for the respondents submitted that the land adjoining to the Khasra numbers were given on lease by the petitioners themselves to a brick kiln owner for an amount of Rs. 2 lacs who had removed earth from that place for the making of bricks and this had caused difference of level between these two places and under these circumstances, no fault could be found against the respondents in this respect and the petitioners could not claim relief against the respondents for their own acts of commission. 8. The case was fixed for orders on 18.5.2001 but could not be announced. It was further adjourned for orders on 25.5.2001 and for today and is being announced when none is present. 9. I have gone through the ROR, the record of the Courts below and have given careful consideration to the oral and written arguments submitted by counsel for both the parties. Counsel for the petitioners has taken a plea regarding some additional Khasra numbers which were shown as Barani in the Jamabandi for the year 1989-90, but which had been wrongly treated as Nehri in the Khatoni Paimayash. Regarding most of these numbers, this is totally a new plea taken by the counsel for the petitioners, for the first time before this Court. The petitioner had nowhere mentioned these numbers either before the Assistant Collector Ist Grade or the Collector or Commissioner, except three mentioned in the respondents arguments above. They were required to be taken up in the initial stages of the partition and not at this level. The petitioner had nowhere mentioned these numbers either before the Assistant Collector Ist Grade or the Collector or Commissioner, except three mentioned in the respondents arguments above. They were required to be taken up in the initial stages of the partition and not at this level. Since no such objection was raised before the Assistant Collector Ist Grade and the Collector, it shows that the position was correctly noted at the time of spot inspection on 15.1.1997 as per Paras 18.12, 18.14 and 18.15 of Land Records Manual. Therefore, this plea of the counsel for the petitioners cannot be accepted at the revisional level and the argument of the counsel for the respondents on this point is quite plausible. It can be considered that the partition proceedings have attained finality. The plea of the counsel for the petitioner that Naqsha Zeem should be approved first and Naqsha Bey thereafter, is absolutely against the prescribed procedure of the partition laid down under the law. Undoubtedly Naqsha Bey is approved first and Naqsha Zeem is prepared thereafter as was the position in the present case. As regard the plea of the Counsel for the petitioners that Khasra No. 1652/2/1, 1667/1 and 1682/1/2 being 3 to 4 feet higher than the other land and cannot be irrigated, it has no basis in face of the rebuttal filed by the counsel for the respondents as well as by Gurdeep Singh respondent, because it was Mukhtiar Singh alias Balwant Singh himself who had earlier leased it out to a brick kiln owner, who had removed the earth from the place for making bricks and this had caused the difference of level between these places for no fault of respondents. Hence, this plea of the Counsel for the petitioner is also not acceptable. The revision petition being devoid of any merit, is hereby dismissed. The order of the Commissioner, Faridkot Division, Faridkot dated 24.2.1998 is upheld vide which he had set aside the order dated 22.7.1997 of the Collector Sub Division, Bathinda and sustained the order dated 19.3.1997 of the Assistant Collector Ist Grade, Bathinda. Announced. Petition dismissed.