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2004 DIGILAW 390 (PNJ)

Kulwant Singh v. Amar Singh

2004-03-31

J.S.KESAR

body2004
ORDER J.S. Kesar, FC. - This revision petition has been filed under Section 16 of the Punjab Land Revenue Act, 1887 against the order dated 26.7.2001 of the Additional Commissioner (Appeals), Jalandhar, vide which he dismissed the appeal filed by the petitioner against the order dated 28.6.2000 of the Collector Bholath. 2. As per brief facts of the case, the petitioner filed an application before the Assistant Collector 1st Grade, Bholath for partition of land measuring 222 K-3M as per Jamabandi for the year 1995-96 for the land situated in village Begowal, Tehsil Bholath, District Kapurthala. The respondent No. 1 appeared and filed written statement. Naqsha T was prepared and objections were invited. On the basis of objections submitted by the petitioner, the amended Naqsha T was prepared and the Mode of Partition was suggested on 26.8.1999, which was subsequently confirmed on 31.8.99. Naqsha Zeem was got prepared. Since there was no objection raised to that, the partition was sanctioned on 30.9.1999. Aggrieved by this order, respondents No. 1 to 3 filed appeal before the Collector, Bholath who remanded the case to the Assistant Collector 1st Grade for passing afresh order after hearing the parties and after inspecting the spot. Since the petitioner did not present himself before the Assistant Collector 1st Grade, the partition application was dismissed in default on 5.9.2000. In the meantime, the petitioner preferred an appeal before the Additional Commissioner (Appeals), Jalandhar against the order dated 28.6.2000, vide which the Collector had remanded the case to the Assistant Collector 1st Grade. He took the plea in the appeal that respondents No. 1 to 3 had full knowledge of the partition proceedings since Amar Singh had filed written statement before the Assistant Collector 1st Grade. However, the Additional Commissioner (Appeals) finding no irregularity in the order dated 28.6.2000 of the Collector, dismissed the appeal, necessitating the present revision petition in this court. 3. The counsels for the parties have been heard at length. The learned counsel for the petitioner has argued that respondent No. 1 wilfully absented himself from the proceedings, though it is fully established on record that he was aware of the partition proceedings. 3. The counsels for the parties have been heard at length. The learned counsel for the petitioner has argued that respondent No. 1 wilfully absented himself from the proceedings, though it is fully established on record that he was aware of the partition proceedings. The counsel has drawn my attention to the order dated 30.9.99 of Assistant Collector 1st Grade, where it is clearly written that the second party has not appeared despite the proclamation having been done in the village and accordingly, the ex-parte order was passed against them on 18.5.99. However, it is further mentioned that respondent No. 1 who is the father of respondents No. 2 & 3, had put in his appearance and he submitted reply as well. According to the learned counsel and the circumstances, it cannot be said that the respondents were not aware of the partition proceedings. The counsel further argued that the plea of the respondents that there was a civil suit No. 234 of 8.8.1994 decreed on 17.5.1995 in favour of the respondents will affect the merits of this case because the petitioner was not a party in that case. The learned counsel has pleaded that respondents were given full opportunity but they deliberately did not participate, hence, the order of the Assistant Collector is right and there was no need of remanding the case again to the Assistant Collector 1st Grade. Accordingly, the counsel has pleaded for setting aside the order of the learned Addl. Commissioner (Appeals) and that of the Collector. 4. On the other hand, the counsel for the respondent has pointed out that all the co-sharers have been clubbed together, whereas each Khewat is to be partitioned separately and a separate application is needed in each case. The counsel has pointed out that Davinder Singh, one of the respondents was out of India from 4.3.99 to August, 99, hence no order passed during this period will be binding on him. He has further pointed out that the respondents were not proceeded against ex-parte. There was no order on record to this effect. The partition proceedings against Davinder Singh cannot be held valid because he was not properly served. The counsel has further pointed out that Kulwant Singh, petitioner has already sold his land to one Joginder Singh and the petitioner has no interest, whatsoever, in the land now. There was no order on record to this effect. The partition proceedings against Davinder Singh cannot be held valid because he was not properly served. The counsel has further pointed out that Kulwant Singh, petitioner has already sold his land to one Joginder Singh and the petitioner has no interest, whatsoever, in the land now. He has, therefore, pleaded for dismissal of the revision petition. 5. I have considered the views of the counsels of both the parties and have gone through the relevant record. The interim order dated 11.5.1999 of the file of Assistant Collector 1st Grade indicates that whereas Amar Singh was present, the Mushtri Munadi was ordered to be made in the village in respect of other respondents and the case was fixed on 18.5.1999. The interim order dated 18.5.1999 indicates that Mushtri Munadi was duly done and its report was received and Amar Singh, one of the respondents also filed the reply. Though it has not been specifically mentioned that the remaining respondents had been proceeded against ex-parte, but the very fact that they have not presented themselves despite the Mushtri Munadi, amounts to their wilful absence for the proceedings. As far as the question of Davinder Singh, being out of India from 4.3.99 to 8/99 is concerned, the order of the Assistant Collector 1st Grade was passed on 30.9.1999 when Davinder Singh was very much in India. If he wanted, he could have joined the proceedings since his father Amar Singh was already a party and was participating in the proceedings. Further the appeal against the order of the Assistant Collector 1st Grade was filed by Amar Singh, the father of respondents Davinder Singh and Narinderjit Singh. All the facts indicate that respondents had due opportunity of presenting their case before the Assistant Collector 1st Grade. In view of these facts, this court is of the view that the Collector was not correct in concluding that the respondents were not given due opportunity to present their case. Similarly, the learned Commissioner has also erred in upholding the order of the Collector dated 28.6.2000. Accordingly, the revision petition is accepted and the impugned order of the Commissioner and the order dated 28.6.2000 of the Collector are set aside. The parties be communicated. The file be cosigned to record room. Revision allowed.