JUDGMENT Mr. Rakesh Kumar Jain, J.: - The petitioner has challenged order dated 07.10.2008 passed by the Commissioner, Jalandhar Division, Jalandhar, order dated 04.11.2009 passed by the Financial Commissioner (Revenue), Punjab, and has prayed for restoration of order dated 05.12.2005 passed by the Assistant Collector 1st Grade, Ajnala, which was upheld by the Collector, vide order dated 26.12.2006. 2. The parties to the lis are related to each other. In order to appreciate their relationship, pedigree table supplied to the Court during the course of hearing by learned counsel for the respondents reads as under:- Jawanda Singh | ------------------------------------------------------------------------------------------------------------------------------- | | Natha Singh Veer Singh | | Sohan Singh -------------------------------------------------------------------------- | | | Jarnail Singh Bhagwan Singh/Avtar Kaur Surain Singh | | ------------------------------------------------ ------------------------------------------------- | | | | | | | | Devinder Swaran A Amarjit Manjit Joginder Sukhjit Gurnam Singh Singh Res No.2 Res No.3 Res No.4 Res no.5 Petitioner 3. Originally, two brothers, namely, Veer Singh and Natha Singh were the joint owners of agricultural land measuring 468 Kanals 17 Marlas, situated in village Bagha Kalan, Tehsil Ajnala, District Amritsar. After the death of Veer Singh, land of his share was inherited by his two sons, namely, Bhagwan Singh and Surain Singh. After the death of Natha Singh, land of his share was inherited by his son Sohan Singh and after the death of Sohan Singh by his son Jarnail Singh. 4. Bhagwan Singh and Surain Singh sons of Veer Singh filed an application for partition of their share in the land measuring 468 Kanals 17 Marlas in the year 1983 against Jarnail Singh and one Inder Singh who had purchased some land from the joint holding from Jarnail Singh. The application for partition was allowed by the Assistant Collector 1st Grade, Ajnala on 06.12.1983. Naksha Zeem was prepared and specific Khasra Numbers were allotted to the parties. The proceedings were finalized and Sanad Taqsim (document of partition) was prepared. 5. After the death of Bhagwan Singh, his estate was inherited by his heirs Swaran Singh and Davinder Singh being his sons and Avtar Kaur being his widow. After the death of Surain Singh, his estate was inherited by his sons Manjit Singh, Joginder Singh, Sukhjit Singh and Gurnam Singh. Davinder Singh S/o Bhagwan Singh also died and his share was inherited by his widow Surinder Kaur. 6. After the death of Surain Singh, his estate was inherited by his sons Manjit Singh, Joginder Singh, Sukhjit Singh and Gurnam Singh. Davinder Singh S/o Bhagwan Singh also died and his share was inherited by his widow Surinder Kaur. 6. On 27.03.2000, respondent nos.2 to 5 filed a fresh application for partition of entire land measuring 468 Kanals 17 Marlas before Assistant Collector 1st Grade, Ajnala who vide his order dated 05.12.2005 dismissed the application holding that the land has already been partitioned on 06.12.1983 and fresh application was not maintainable. 7. Respondent nos.2 to 4 challenged the order of Assistant Collector 1st Grade, Ajnala, dated 05.12.2005, by way of appeal before the Collector, who dismissed the same on 26.12.2006. Respondent nos.2 to 4 filed revision before the Commissioner, Jalandhar Division, Jalandhar, which was allowed on 07.10.2008 on the ground that the land in dispute might have been partitioned on 06.12.1983 but its effect has not been reflected in the revenue record, therefore, the fresh application could not be declined as in the revenue record, the joint status of the property in dispute between the parties has not been shown to have been severed. 8. Aggrieved against the order of the Divisional Commissioner, the petitioner filed revision before the Financial Commissioner which has been dismissed vide order dated 04.11.2009 against which the present petition has been filed by the petitioner. 9. Counsel for the petitioner has submitted that both the Divisional Commissioner and the Financial Commissioner have erred on facts as well as on law while reversing the order of the Assistant Collector 1st Grade and the Collector because in order dated 07.10.2008, the Divisional Commissioner has wrongly observed that “no Sanad Taqsim has been prepared and even possession have not been transferred in accordance with the said partition order through any cogent and material evidence”. It is submitted that Sanad Taqsim has been prepared which has been attached even by the private respondents with their reply and it has been prepared on a stamp paper of Rs.15/- as ordered by the Assistant Collector 1st Grade. It is submitted that Sanad Taqsim has been prepared which has been attached even by the private respondents with their reply and it has been prepared on a stamp paper of Rs.15/- as ordered by the Assistant Collector 1st Grade. Insofar as the order of Financial Commissioner is concerned, it is argued that the revision petition has been dismissed by wrongly observing that “the earlier partition has not been reflected in the revenue record, whatever the reason may be, and thus can not be relied upon at this stage, though, as claimed by the petitioner, all the co-sharers are in possession of their quarrah in view of order dated 06.12.1983. The revision petition carries no merit and is accordingly dismissed”. 10. Counsel for the petitioner has submitted that when the partition was ordered by the Assistant Collector 1st Grade, predecessors-in-interest of the parties were already in their respective possession which has been noticed by the Assistant Collector 1st Grade and the Collector in their orders dated 05.12.2005 and 26.12.2006 respectively, and till date they are in cultivating possession as per their respective shares. 11. Counsel for respondent nos.2 to 5 has argued that since the earlier partition proceedings carried out vide order dated 06.12.1983 has not been reflected in the revenue record and application for partition was not made within the period of 3 years thereafter, the said proceedings have become redundant giving a fresh cause of action to the respondents herein to file an application for partition. The entire case of the respondents is based upon the interpretation of Section 122 of the Punjab Land Revenue Act, 1887 (hereinafter referred to as the “Act”). 12. I have heard learned counsel for the parties and perused the record with their able assistance. 13. There is no dispute that the land in dispute has already been partitioned between the predecessors-in-interest of the parties on 06.12.1983. Sanad Taqsim was prepared on a stamp paper of Rs.15/-. The land so partitioned has not been reflected in the revenue record and no such application was given to the revenue authorities in terms of Section 122 of the Act. 14. Sanad Taqsim was prepared on a stamp paper of Rs.15/-. The land so partitioned has not been reflected in the revenue record and no such application was given to the revenue authorities in terms of Section 122 of the Act. 14. The question thus arise is as to “whether fresh application for partition is maintainable at the instance of successors-in-interest for the land which has earlier been got partitioned by their predecessors-in-interest who have not made any application in terms of Section 122 of the Act to the revenue authorities for possession though as per the earlier partition they continued to be in their respective possession”. 15. In order to find out the answer to the aforesaid question, it would be appropriate to refer to Section 122 of the Act, which reads thus:- “122. Delivery of possession of property allotted, on partition.-- An owner or tenant to whom any land or portion of a tenancy, as the case may be, is allotted in proceedings for partition shall be entitled to possession thereof as against the other parties to the proceedings and their legal representatives, and a Revenue-officer shall, on application made to him for the purpose by any such owner or tenant at any time within three years from the date recorded in the instrument of partition under the last foregoing section, give effect to that instrument so far as it concerns the applicant as if it were a decree for immoveable property.” 16. Before I delve into the interpretation of Section 122 of the Act, it would be relevant to mentioned that the application for partition is filed to separate the joint holding of land. Needless to mention that in such an application, all the co-sharers and the entire land has to be made part of the partition proceedings, otherwise the proceedings would be termed as bad because of partial partition. 17. Needless to mention that in such an application, all the co-sharers and the entire land has to be made part of the partition proceedings, otherwise the proceedings would be termed as bad because of partial partition. 17. As per the scheme of the Act, after the application for partition is filed, any of the co-sharers who have been joined as respondent can file objection regarding question of title which may be decided by the Revenue Officer himself or direct the parties to get it decided from the Civil Court and keep the partition proceedings in abeyance until such question of title is decided but if the Revenue Officer comes to the conclusion that no question of title is involved, he will ask the Patwari to prepare a Naksha of the land to be partitioned and the share of the persons asking partition called Naksha Alif. It would contain details of the possession of the co-sharers asking for partition, excess or less area cultivated by that co-sharer. Naksha Alif can be objected to by the parties concerned and after disposing of those objections, mode of partition is framed which can be challenged by any parties to the partition proceedings by way of appeal under Section 118(2) of the Act. If the mode of partition is not challenged, it becomes final and Revenue Officer would get the share separated of the joint holding according to the mode of partition and a Naksha is prepared called Naksha- Be, which can still further be challenged by way of appeal on the ground that it is not in accordance with the mode of partition. However, when Naksha-Be becomes final, it is deemed to be sanctioned and the order of sanction is known as Naksha ‘Zeem’ which is communicated to the Patwari, Kanoongo and the parties and after the expiry of the period of limitation, instrument of partition is drawn on the stamp paper by the Revenue Officer. The Revenue Officer puts the parties into possession according to the instrument of partition within 3 years from the date of its preparation. The Revenue Officer puts the parties into possession according to the instrument of partition within 3 years from the date of its preparation. In terms of Section 122 of the Act, which clearly says that if an owner is allotted land in partition proceedings, he is entitled to possession and can make an application in this regard to the revenue officer within 3 years for this purpose which shall be extended from the date of the instrument of partition and given effect to that instrument so far it concerns the said applicant as it will be a decree for immovable property. Meaning thereby the Sanad Taqsim (instrument of partition) can be executed by the revenue authorities as a decree for the purpose of delivery of possession, resorting to the provisions of the Code of Civil Procedure, 1908, which relates to a decree for possession, but in the present case, the situation is altogether different because it has been recorded by the Assistant Collector 1st Grade and the Collector and has not been disputed by the respondents that the predecessors-in-interest of the parties to this case were already in possession of their respective shares when instrument of partition was prepared, therefore, there was no occasion for them to file any application to the revenue authorities for the purpose of delivery of possession of the property allotted on partition. Had the property not been allotted according to the partition carried out by the Assistant Collector 1st Grade on 06.12.1983 and the application was not filed within the prescribed period of 3 years counted from the date of preparation of mode of partition, the respondents could have challenged the jurisdiction of the revenue authorities for executing the instrument of partition as a decree for the purpose of delivery of possession of the allotted land in partition. No such case is made out in the present case because the predecessors-in-interest of the parties to the lis were already in their respective cultivating possession, therefore, the question which has been posed here-in-above is answered in favour of the petitioner that Section 122 of the Act is not attracted in a case where the partition proceedings have been carried out in which one of the mode of partition was that the possession of the parties has to be kept intact and once the parties are in their respective possession, they need not to file an application for delivery of possession of the land so allotted in partition proceedings. 18. However, in the present case, the private respondents filed fresh application for partition in which they had prayed for partition of the land on the basis of its value which can not be taken up after the partition has already been concluded on 06.12.1983 as it may be reopening of the said partition proceedings which had become final between the parties. If the effect of the partition is not being reflected in the Jamabandi, the parties to this case can still move an application to the concerned revenue authorities for the purpose of recording this fact in the revenue record on the basis of the Sanad Taqsim which would indicate their separate Khewats and their specific Khasra Numbers in the joint holding. 19. Consequently, the present petition is found to be meritorious and the same is hereby allowed and the order dated 07.10.2008 passed by the Commissioner, Jalandhar Division, Jalandhar, and the order dated 04.11.2009 passed by the Financial Commissioner (Revenue), Punjab are hereby set aside. --------0.B.S.0------------