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2004 DIGILAW 405 (PNJ)

Paramjit Singh v. Sampuran Kaur

2004-04-01

J.S.KESAR

body2004
ORDER J.S. Kesar, FC. - These are 6 revision filed against a common order dated 14.8.2001 passed by the Commissioner, Jalandhar Division, Jalandhar whereby he dismissed the revision petitions filed against the order dated 5.7.1996 passed by the Collector, Jalandhar-II. 2. According to the facts of the case, Sampuran Kaur and Mohinder Kaur, respondents filed 6 applications for partition of land comprised in Khewat No. 107-10, 112 & 113 situated in village Mithapur, Tehsil and District Jalandhar before the Assistant Collector Ist Grade. The petitioners were issued summons. The notice was also published in the newspapers and Mushtri Munadi was also done. Since the petitioners failed to appear in the court, ex parte proceedings were ordered against them on 22.3.1994. The Mode of Partition was sanctioned on 23.5.94. The petitioners moved an application dated 27.6.94 for impleading them as a party. The Assistant Collector allowed them to join the proceedings from the stage of the order. Objections were filed by the petitioners and the partition was finally sanctioned in 1.2.95. Aggrieved by this partition order, the petitioners filed appeal before the Collector, Jalandhar mainly on the ground that they have constructed house in Khasra No. 7//9, 26 & 27 and this land has not been given to them. Further, the possession was unnecessarily disturbed and they were not given opportunity to be heard, since the Mode of Partition was sanctioned even before their joining as a party. The Collector, vide order dated 5.7.1996 dismissed the appeals. Further revision petitions were dismissed vide impugned order of the Commissioner, necessitating the present revision petitions. 3. I have heard the learned counsel for the parties. The main ground taken by the learned counsel for the petitioner is that the petitioners were allowed to join the proceedings from the date of passing the order. The order on their application was passed on 4.8.94. The counsel has pointed out that the Mode of Partition was sanctioned on 23.5.94. Their objections to the Mode of Partition were not considered since they were allowed to join the proceedings only w.e.f. 4.8.94. This order of the Assistant Collector Ist Grade has deprived them of filing the objections to the Mode of Partition and other stages of the proceedings. Further, the counsel has pointed out that separate Kurrahs have not been carved out for them. Their objections filed on 24.8.94 were rejected. This order of the Assistant Collector Ist Grade has deprived them of filing the objections to the Mode of Partition and other stages of the proceedings. Further, the counsel has pointed out that separate Kurrahs have not been carved out for them. Their objections filed on 24.8.94 were rejected. The counsel has also drawn my attention to page 71 of the file of Assistant Collector Ist Grade where a site plan of the land is placed. The counsel pointed out that the respondents have been given all the land abutting either the road or the Rasta. Since their objections were not decided on merits, it cannot be said that the partition proceedings have been carried out by giving them full opportunity of being heard. He has, therefore, pleaded for remanding the case and taking a decision afresh after hearing them. On the other hand, the counsel for the respondents has pointed out that no injustice has been done to the petitioners since they did not join the proceedings. Therefore, the Mode of Partition was sanctioned on 23.5.94. Since they were allowed to join the proceedings only w.e.f. 4.8.94, the question of reconsideration of the sanctioned Mode of Partition did not arise. If the petitioners want, according to the counsel, they can get their share partitioned as well. According to the learned counsel, there is no mala fide in the partition proceedings and accordingly, the revision petitions are liable to be dismissed. 4. I have considered the arguments advanced by the counsel and have gone through the record. It is a fact that the application dated 27.6.94 filed by the petitioners for setting aside the ex parte proceedings ordered against then was accepted, but they were allowed to join the proceedings only w.e.f. 4.8.94 i.e. the date of decision of their application. Since the Mode of Partition was already sanctioned, this could not give any positive benefit to the petitioners since their objections were not considered on merits. It appears to be in the interest of justice that when the application of a party for setting aside the ex parte proceedings is accepted, they should be allowed to join the case from the beginning. It was only appropriate for the Assistant Collector Ist Grade that while accepting the application for setting aside the ex parte order, the objections of the petitioners should have been considered. It was only appropriate for the Assistant Collector Ist Grade that while accepting the application for setting aside the ex parte order, the objections of the petitioners should have been considered. Acceptance or rejection of the objections is subject matter of merits, but the denial of consideration of the objections clearly amounts to denial of justice to the petitioners. Without considering other points, this Court is of the view that the petitioners have not been given due opportunity of being heard. The unfair treatment given to them for being absent from the proceedings is disproportionate to their fault. I, therefore, accept the revision petitions, set aside the impugned order and remand the case to the Assistant Collector Ist Grade, Jalandhar, with the direction that the case be decided afresh after giving opportunity of being heard to the petitioners. The parties have been directed to appear before the Assistant Collector Ist Grade, Jalandhar On 3.5.2004. The parties be communicated. Revision allowed.