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2009 DIGILAW 769 (PNJ)

Dharma v. Sultan

2009-04-22

L.S.M.SALINS

body2009
ORDER L.S.M. Salins, FCH. - Petitioner is aggrieved with the order dated 26.05.2006 passed by the Assistant Collector 1st Grade, Matanhail, the order dated 28.02.2008 passed by the Collector, Jhajjar, and the order dated 09.05.2008 passed by the Commissioner, Rohtak wherein all have rejected his claims that the Naksha Be has been drawn up in violation of the Mode of Partition. The officers have held that the said Naksha Be has been drawn up as per the compromise among the parties. Petitioner refutes this saying that the alleged compromise is against the Mode of Partition and that their thumb impressions and signatures were taken on a blank sheet. The petitioner claims to have been deprived of the field numbers granted him by Collector’s order of 04.08.2004 and he further claims that the tube well and father’s samadhi should have been allotted to him as per the Mode of Partition. 2. The brief background of this matter is that the respondents No.1 and 2 filed an application before the Assistant Collector 1st Grade Matanhail for partition of the joint agricultural land measuring 440 Kanal and 19 maria situated in the revenue estate of Village Koyalpuri, Tehsil Matanhail, District Jhajjar. 3. The Assistant Collector 1st Grade prepared the Mode of Partition wherein 3 khewats were to be carved out. Thereafter, the Assistant Collector, prepared Naksha Be on 28.2.2008. 4. Respondents 3 to 6, and 18 filed objections to the Naksha Be which were decided and allowed by the Assistant Collector vide his order dated 06.09.2002. Respondent Nos. 1 and 2 filed an appeal against this order of 6.9.2002 before the District Revenue Officer with appellate powers of Collector which was allowed vide order dated 4.08.2004 and the case was remanded back to the Assistant Collector for a fresh decision with the direction that the area falling in rectangle no. 28, killa Nos. 5/2, 6, 7/1; and 10/2 be allocated to the share of Sultan and Ram Kumar, the appellants before him and that the remaining area be partitioned after making site inspection in the presence of the parties. 5. In compliance of these directions, the Assistant Collector conducted a site inspection on 29.10.2005 in the presence of the parties and amended Naksha Be afresh. 5. In compliance of these directions, the Assistant Collector conducted a site inspection on 29.10.2005 in the presence of the parties and amended Naksha Be afresh. Aggrieved with this Naksha Be, petitioner filed objections which were rejected by the Assistant Collector vide his impugned order dated 26.05.2006 holding that Naksha Be had been prepared with the concurrence and mutual consent of the co-sharers and that all the co-sharers had signed/thumb marked the compromise. 6. Petitioner and three other co-sharers filed an appeal against the aforesaid order dated 26.05.2006. However, the Collector dismissed the appeal vide his impugned order dated 28.02.2008 holding that the Assistant Collector had conducted the partition proceedings after site inspection and with the mutual consent of both the parties. 7. Petitioner and three other co-sharers filed a revision petition against this order. However, the Commissioner also concurred with views of the e officers below and dismissed the revision petition vide his order dated 08.05.2008. 8. The main grouse of the petitioner is that the Mode of Partition has been amended without proper sanction and Naksha Be prepared in violation thereof. While the Mode of Partition enjoined preparation of 3 khewats, the revenue authority prepared 9 khewats. Counsel for the petitioner argued that petitioner’s father’s Samadhi and tubewell falling in 57//8 and 57//10 have not been allotted to him despite terms of the Mode of Partition. The Naksha Be has been prepared by the Kanungo and has not been signed by the Assistant Collector. He stated that there was no consent as alleged by the revenue authorities. Blank papers were got signed or thumb impressions taken from the parties. The Collector’s orders of 04.08.2004 have not been complied with. He argued that the Mode of Partition could not be changed without Collector’s permission. Hence of the partition’s documents have been wrongly drawn up and the case be remanded. 1987 PLJ 550 was relied on. 9. Counsel for the respondents in response referred to the order of the Collector dated 04.08.2004 in which the Assistant Collector 1st Grade was directed to visit the site and after allotment of specific killa numbers to Sultan Singh and Ram Kumar, appellants, the partition of the remaining land be made by making minimum number of kurras. Accordingly Assistant Collector 1st Grade visited the spot and made the compromise. He argued that partition was as per the compromise. Accordingly Assistant Collector 1st Grade visited the spot and made the compromise. He argued that partition was as per the compromise. The signatures and the thumb impressions were inserted after the specific killa numbers were given to all concerned. He argued that no revision or appeal lies against the consent orders. 10. The main point is whether the terms of the Mode of Partition once drawn up and approved can be amended by the Assistant Collector 1st Grade. It is settled law that Collector has the power to allow amendment to the Mode of Parti­tion once it has been framed by his subordinate. The Mode of Partition specifies 3 khewats. The Collector has in his order of 04.08.2004 directed that minimum number of khewats be made. However, the Mode of Partition has not been specifically allowed to be amended as seen in this order. An order permitting amendment to the Mode of Partition has to be clear and specific. Hence this order of 04.08.2008 cannot be deemed as amending the terms or clauses of the Mode of Partition. Therefore, the order of 04.08.2004 and the impugned order of the Assistant Collector 1st Grade dated 26.05.2006, the impugned order of Collector dated 28.02.2008 and that of the Commissioner 09.05.2008 are liable to be set aside as these have proceeded without the formal approval for a change in the terms of Mode of Partition. 11. As far as the allegation that the alleged compromise has been done on a blank piece of paper as sought to be made out by the petitioner, this is highly unlikely given there are so many share holders and even a lawyer appearing for one of the parties has signed this document. However, the allegation that the Collector’s allocation of specific killa numbers to Sultan and Ram Kumar have not been reflected in this compromise borne out. 12. The case is therefore remanded to the Assis­tant Collector 1st Grade Matanhail for seeking specific approval of new terms of Mode of Partition and proceeding thereafter as per law in case the existing Mode of Partition approved on 4.5.2001 by the Assistant Collector 1st Grade need to be amended. Perusal of the file shows that his this partition case has been pending since several years as obviously some of the parties want to prolong the matter. Perusal of the file shows that his this partition case has been pending since several years as obviously some of the parties want to prolong the matter. The parties are directed to appear before the Assistant Collector 1st Grade, Matanhail on 22 May 2009. Assistant Collector 1st Grade and Collector are further hereby directed that this matter be decided expeditiously and the partition completed within four months from this date. To be communicated. --------------------