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2001 DIGILAW 720 (PNJ)

Chanan Singh v. Mehal Singh

2001-07-19

I.S.BINDRA

body2001
ORDER I.S. Bindra, FC. - This is a revision petition under Section 16 of the Punjab Land Revenue Act 1887, against the order dated 30.11.2000 of the Additional Commissioner (Appeals), Jalandhar Division, whereby order dated 17.12.1996 of the Collector, Patti who dropped the partition proceedings pending on the file of Assistant Collector 1st Grade, Patti, has been set aside and the Assistant Collector 1st Grade has been directed to proceed with the petition of the joint land measuring 57K-1M comprised in Khewat No. 431/1 Khatauni No. 743/1, 743/2 (2IR-13M) and Khewat No. 550/880 (35K-8M) as per Jamabandi for the year 1990-91, situate in the revenue estate of village Khem Karan, Tehsil Patti, District Amritsar. The Collector had passed the order dated 17.12.1996 on the appeal of the petitioners preferred against order dated 3.6.1996 of the Assistant Collector 1st Grade, Patti who had rejected the objections of the petitioners that it is a case of partial partition since some other joint land of the parties in village Mianwal had not been included in the application, and that the question of title in the land under partition is involved since this land had already been partitioned through a family settlement dated 21.5.1967 and the parties are in possession of their respective shares. The Assistant Collector 1st Grade had found that the land under partition is a joint ownership and directed to start the partition proceeding initiated on the application filed by Pritam Singh, father and predecessor-in-interest of the respondents. The Collector based his order on an order dated 9.12.1996 where by the Additional District Judge, Amritsar had restrained the parties from disturbing status quo regarding possession over the suit property. The operative part of the Additional Commissioner (Appeals) is as follows :- "As per Naqsha Alaf the respondents are in possession of whole of land comprising in Khewat No. 550/880. The document of private partition dated 21.5.1967 has already been rejected by the civil court and civil court has also held that the appellant are co-shares in the joint land. As per revenue record the land is joint between the parties. The order of civil court dated 9.10.1996 was passed in the suit filed by the appellants for restraining the defendants from alienating more than their share and making improvement/construction over the disputed land measuring 57 kanal 1 marla. The defendants had also filed a suit in the court of Sh. The order of civil court dated 9.10.1996 was passed in the suit filed by the appellants for restraining the defendants from alienating more than their share and making improvement/construction over the disputed land measuring 57 kanal 1 marla. The defendants had also filed a suit in the court of Sh. J.P.Mehmi for permanent injunction on 16.6.1994 after filing the partition application by Pritam Singh, but that suit was dismissed in default on 25.7.1996. From the facts and circumstances of the case I am not inclined to agree with the finding of the Collector. The order of Additional District Judge dated 9.12.1996 does not debar the revenue officers from partitioning the joint land. The order of civil court was made in the suit filed by the appellants and dependents cannot get any benefit of the findings of civil court. Keeping in view these points the appeal is accepted and order of Collector is set aside. It is directed that A.C. 1st Grade will proceed with the partition of the joint land." 2. Argument of learned counsel or both the parties have been heard. Shri M.I. Singh, learned counsel for the petitioners stated that grounds taken in the revision petition may the treated as his arguments. Main grounds taken in the revision petition are that a report of the private partition dated 21.5.1967 was made to the Patwari and vide Roznamcha No. 42 dated 5.10.1967 and No. 44 dated 9.10.1967 the Khasra Giriawari entries were corrected accordingly and the same have been continuing in the Jamabandis also; that the respondents had sought partition of the land situate in village Khem Karan only and they have not sought the partition of the land situate in village Mianwal; that suit for permanent injunction was decided in favour of the respondent and appeal of the petitioners is pending at Amritsar and thus the matter is sub-judice in view of the law laid down in 1996(2) Revenue Law Reporter 10 (S.C.). 1986 PLJ 413 has also been referred to wherein my learned predecessor Shri P.K. Kathpalia had held that where an appeal against the judgment and decree of the civil court relating to question of title is pending and the Honble High Court has not stayed the partition proceedings, it does not mean that no question of title is involved. 1986 PLJ 413 has also been referred to wherein my learned predecessor Shri P.K. Kathpalia had held that where an appeal against the judgment and decree of the civil court relating to question of title is pending and the Honble High Court has not stayed the partition proceedings, it does not mean that no question of title is involved. In rebuttal, Shri S.K. Mahajan, learned counsel for the respondents furnished a copy of judgment dated 9.10.1996 passed by the Civil Judge (Jun. Div.), Patti and stated that on a suit for permanent injunction filed by the respondents to the effect that the present petitioners be restrained for ever from alienating more than their share and making any improvement/construction over the land sought to be partitioned and the civil court has decreed the suit deciding in favour of the respondents the specific issues viz. (i) whether the plaintiff is a co-sharer and is entitled to injunction as prayed for; and (ii) whether the suit land has already been partitioned vide instrument dated 21.5.1967. He asserted that there is no illegality or irregularity in the order of the Additional Commissioner (Appeals) requiring interference in revision. 3. I have examined the record and considered the matter carefully. Case of the parties is that their land is situate in villages Khem Karan and Mianwal and that they are in exclusive possession of certain pieces of land on the basis of family partition. The respondents seek partition of the land situate in village Khem Karan where the petitioners are in possession but they have excluded from partition by the Land situate in village Mianwal, though a separate revenue estate, where they are in possession. The sole reason that has weighed with the Additional Commissioner (Appeals) is that the order of civil court was made in the suit filed by the respondents and the petitioners could not get any benefit of the findings of the civil court. His this view suffers from illegality in as much as both parties to a suit equally bound by the findings of the civil court. Besides, it is not refuted that the appeal of the petitioner against the judgment and decree passed on the suit of the respondents is pending. His this view suffers from illegality in as much as both parties to a suit equally bound by the findings of the civil court. Besides, it is not refuted that the appeal of the petitioner against the judgment and decree passed on the suit of the respondents is pending. I fully agree with the view of my learned predecessor Shri P.K. Kathpalia, expressed in his order reported as 1986 PLJ 413 that where an appeal against the judgment and decree of the civil court relating to question of title is pending but the partition proceedings are not stayed, it does no mean that no question of title is involved. Each case has to be seen on the basis of its peculiar facts. This revision petition is accepted and the impugned order of the Additional Commissioner (Appeals) is set aside. The partition should not go ahead till civil court passes a decree about family partition and the same attains finality. Announced. Order accordingly.