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2004 DIGILAW 503 (PNJ)

Mohinder Singh v. Jagir Singh

2004-04-29

J.S.KESAR

body2004
ORDER J.S. Kesar, FC. - This revision petition has been filed under Section 16(1) of Punjab Land Revenue Act, 1887, against the order dated 28.6.2001 passed by the Additional Commissioner (Appeals), Jalandhar Division, Jalandhar. 2. The brief facts of the case are that respondent No. 1 filed an application for partition of land on 19.1.1998 in the court of Assistant Collect 1st Grade, Bholath regarding Khewat No. 205, Khatoni No. 296-97, Khasra No. 14//20(7-2), 21/1 (3-16), 13//25/1 (1-16) total 12K-4M situated in village Lamme, Tehsil Bholath, District Kapurthala. Total 8 persons were impleaded as party-respondents in the above mentioned application. The Assistant Collector 1st Grade, Bholath accepted the partition application vide order dated 26.10.99. Two appeals were filed before the Collector, Bholath against the order of the Assistant Collector 1st Grade, Bholath. One appeal was filed by Karnail Singh and other by Lakhwinder Singh. The Collector, Bholath came to the conclusion that compliance of Section-20 of the Punjab Land Revenue Act has not been done and remanded the matter back on 29.2.2000 to the Assistant Collector Ist Grade, Bholath. Jagir Singh, respondent No. 1 filed appeal before the Additional Commissioner (Appeals), Jalandhar Division, Jalandhar against the order of the Collector. The Addl. Commissioner (Appeals), Jalandhar Division, Jalandhar accepted the appeal filed by Jagir Singh on 28.6.2001 and set aside the order of the Collector, Bholath, necessitating the present revision petition. 3. I have heard the learned counsel for the parties. The learned counsel for the petitioner has argued that on 19.1.98, Smt. Dalip Kaur who was respondent No. 1 in the application for partition was already dead. She died on 8.5.95 whereas the application for partition was filed on 19.1.98 against the dead person which was not maintainable. He has further submitted that the persons who are legal representative of Dalip Kaur wd/o Mangta Singh and Karnail Singh, one of the legal representatives of Dalip Kaur, moved an application dated 28.5.98 before the Assistant Collector Ist Grade, Bholath stating that her mother Dalip Kaur died on 8.4.95 and the present application for partition has been filed against the dead person and as such, the same is not maintainable. The request was made for dismissal of the partition application and further prayed for issuance of notice to the legal representatives of Dalip Kaur was also made. The request was made for dismissal of the partition application and further prayed for issuance of notice to the legal representatives of Dalip Kaur was also made. The Assistant Collector 1st Grade, Bholath issued notice on the application for 17.6.98 for impleading legal representatives of Dalip Kaur. Copy of the application was given to Mastan Singh attorney of Jagir Singh and the case was adjourned to 30.6.98. Reply was not filed to the application on 30.6.98 and the case was again adjourned to 24.7.98 and on 24.7.98, the Presiding Officer was transferred and the case was adjourned to 10.8.98. On 10.8.98, the matter was adjourned to 28.8.98 and directions were issued to Karnail Singh for proving legal representative of Dalip Kaur. The matter was against adjourned to 4.9.98, 8.9.98, 18.9.98, 13.10.98, 22.10.98 and on 22.10.98, the present petitioners were impleaded as legal representatives of Smt. Dalip Kaur. The learned counsel has made reference to the Ziminy order dated 18.5.98 in which the respondents were proceeded ex parte by the Assistant Collect 1st Grade, Bholath. It is further argued that the learned Addl. Commissioner (Appeals)., Jalandhar in the impugned order has mentioned that the legal representatives of Smt. Dalip Kaur were served through Munadi and Akali Patrika newspaper. The reference has also been made to the Punjabi Newspapers which is available on the file. In the publication notice given in the press Smt. Dalip Kaur, wd/o of Mangta Singh was shown respondent No. 1 and not his legal representative. It has been further submitted that no efforts were made for personal service of the respondents (including present petitioners). Reference has been made to Section 20 of the Act and submitted that the order of the Assistant Collector Ist Grade, Bholath is totally against law and was rightly set aside by the Collector, Kapurthala. But the learned Addl. Commissioner (Appeals), Jalandhar has wrongly set aside the order of the Collector. 4. The next argument raised by the counsel for the petitioners is that it was partial partition. The Jamabandi for the year 1993-94 has been attached with the revision petition filed by the petitioners before this court and the said Jamabandi shows that Jagir Singh and Dalip Kaur (mother of the petitioners) were co-sharers in Khewat Nos. 27, 205 and 22 and as such, the application for partial partition was liable to be set aside. The Jamabandi for the year 1993-94 has been attached with the revision petition filed by the petitioners before this court and the said Jamabandi shows that Jagir Singh and Dalip Kaur (mother of the petitioners) were co-sharers in Khewat Nos. 27, 205 and 22 and as such, the application for partial partition was liable to be set aside. The reference has been made to the last part of the order of the Additional Commissioner (Appeals) in which it has been stated that there is no evidence to show that any tubewell/bore/Engine/Kotha is situated in Khasra No. 14//20. The Additional Commissioner (Appeals) has not taken care of Jamabandi for the year 2000-2001 which clearly shows that Gair Mumkin Bore (Engine) is mentioned in the Khasra Girdawari. Lastly, the counsel has submitted that the Assistant Collector Ist Grade, Bholath did not afford any opportunity to the petitioners as they were not before him on or before 22.10.98 when they were impleaded as legal representatives of Dalip Kaur (deceased). The reference has also been made to the mode of partition which provides that partition has to be done by keeping the possession of Khasra No. 14//20 and 13//16. But the Assistant Collector Ist Grade, Bholath has given some area out of Khasra No. 14//20 to the respondent No. 1 which is total against the mode of partition. The counsel for the petitioners has also made submission for acceptance of the revision petition and for remand of the case back to the Assistant Collector Ist Grade, Bholath. 5. The learned counsel for the respondents has also submitted written arguments. It has been stated that the order of the Additional Commissioner (Appeals) is well-reasoned order and the same does not require any interference in the revisional jurisdiction. He has justified the order of the Assistant Collector Ist Grade, Bholath and that of the Additional Commissioner (Appeals) on the points that the land has been partitioned keeping in view the kind and quality of the land. He has further submitted that the petitioners want to prolong the case on one or the other excuse and prayed for dismissal of the revision petitioner. 6. I have considered the arguments of the learned counsels and have perused the record of the case. It is an admitted fact that respondent Jagir Singh filed an application for partition on 19.1.98 against Smt. Dalip Kaur who was already dead on 8.4.95. 6. I have considered the arguments of the learned counsels and have perused the record of the case. It is an admitted fact that respondent Jagir Singh filed an application for partition on 19.1.98 against Smt. Dalip Kaur who was already dead on 8.4.95. The munadi was done in the village on 12.5.98 and the respondents were proceeded ex parte on 18.5.98. Likewise, publication in Akali Patrika was issued on 2.3.98 and the date of hearing was fixed for 6.4.98, whereas the legal representatives of Dalip Kaur were made party on 22.10.98. Thus, it is clear that the petitioners were not properly served by the Assistant Collector Ist Grade, Bholath before passing the order dated 26.10.99 and due compliance of Section 20 was not done. Moreover, the perusal of application for partition shows that it was filed qua 3 Khasra Numbers area (12-4), whereas Naksha T shows that the same was received qua 22K-18M and the predecessor of the petitioners and Jagir Singh, respondent are co-sharers in other Khewat also. To my mind, the Collector, Bholath rightly passed the order, remanding the matter back to the Assistant Collector Ist Grade, Bholath for deciding afresh. Consequently, the revision petition is accepted and the impugned order dated 28.6.2001 of the Additional Commissioner (Appeals), Jalandhar Division, Jalandhar and the order dated 26.10.99 of the Assistant Collector Ist Grade, Bholath are set aside and the matter is remanded back to the Assistant Collector Ist Grade, Bholath for deciding afresh after hearing all the concerned parties. The parties to appear before the Assistant Collector Ist Grade, Bholath on 26.5.2004. The parties be communicated. Revision allowed.