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2014 DIGILAW 1366 (PNJ)

Gurminder Singh v. State of Punjab

2014-09-29

RAJAN GUPTA

body2014
JUDGMENT Rajan Gupta, J. - Petitioners have assailed the orders Annexures P4 and P7 dated 31.08.2006 and 11.02.2010 passed by SDM-cum-Collector, Kharar and Financial Commissioner respectively. 2. Learned counsel for the petitioners urges that Financial Commissioner has erroneously set-aside the well reasoned order passed by the Commissioner on the ground that respondent no. 3 was a necessary party. According to him, Financial Commissioner ignored from consideration the fact that respondent no. 3 had purchased land measuring 2 kanals during the partition proceedings. Thus, he was not required to be summoned in the partition proceedings as he stepped into the shoes of actual owner. Impugned orders are unsustainable and deserve to be set-aside. 3. Plea has been opposed by counsel appearing for respondent no. 3. He submits that respondent no. 3 was deprived of his right being heard. According to him, Financial Commissioner after considering the entire record rightly passed the impugned order. 4. Brief factual background of the case is that petitioners filed an application before A.C. Ist Grade, Kharar for partition of land measuring 81 kanals and 7 marlas situated in village Kartarpur district Roopnagar. Said application was accepted vide order dated 12.11.1999. Aggrieved, respondent no. 4 filed an appeal which was accepted and case was remanded to AC Ist Grade for decision afresh. Pursuant to remand order, AC Ist Grade called for naksha 'urra' and objections thereon were heard. Thereafter, statements of parties were recorded before framing mode of partition. After following due process, mode of partition was approved. Dissatisfied, petitioners preferred an appeal before Collector, Kharar. Said authority again remanded the case to A.C. Ist Grade, kharar to review the matter and decide after inspecting the spot. In compliance of remand order, A.C. Ist Grade after inspecting the spot finalized naksha 'arra' and 'irri' vide his order dated 06.07.2005. Aggrieved, respondent no. 3 filed an appeal before the Collector. A plea was raised by respondent no. 3 that he was not impleaded as a necessary party in the partition proceedings, despite being a co-sharer. Collector vide his order dated 31.08.2006 once again remanded the case to A.C. Ist Grade to decide afresh. Petitioners posed challenge to said order by filing revision before the Commissioner who vide his order dated 02.08.2007 accepted the plea and set-aside the order of Collector. Respondent no. 3 availed remedy of revision before Financial Commissioner (R) Punjab. Collector vide his order dated 31.08.2006 once again remanded the case to A.C. Ist Grade to decide afresh. Petitioners posed challenge to said order by filing revision before the Commissioner who vide his order dated 02.08.2007 accepted the plea and set-aside the order of Collector. Respondent no. 3 availed remedy of revision before Financial Commissioner (R) Punjab. Said authority after hearing the parties and appreciating the facts on record set-aside the order of Commissioner and upheld the order of Collector. Hence, instant petition. 5. I have heard counsel for the parties and carefully perused the paper-book. 6. Partition proceedings were initiated way-back in the year 2003. Process was completed on 30.01.2004. Sanad Taksim was issued on 06.07.2005. Possession of the land was delivered to the parties in their presence on 16.05.2006. Karnail Singh (respondent no. 3 herein) filed appeal against the order dated 05.06.2006 passed by Collector. Collector accepted the appeal condoned the delay in filing the same and remanded the case to Assistance Collector to decide as per law. Aggrieved, Gurminder Singh and Baljinder Singh (petitioners herein) preferred appeal before Commissioner. Said authority found that entire process had been completed. Karnail Singh was a subsequent vendee from one of the co-sharers namely Amrik Singh. Thus, there was no ground for the Collector to reopen the whole case. On a revision being filed by Karnail Singh before Financial Commissioner, he set-aside the order passed by Commissioner and restored the order passed by Collector. I am of the considered view that order passed by Financial Commissioner is erroneous and liable to be set-aside. In the facts and circumstances of the case ratio of judgment in Amar Khan and ors. v. State of Punjab, 2009(1) RCR (Civil) 741 would be attracted. It is evident that Act does not envisage an appeal against preparation of sanad taksim. Any aggrieved party can invoke jurisdiction of this court under Article 226/227 of Constitution of India, alternatively a revision petition before Financial Commissioner under section 16 of the Punjab Land Revenue Act. Parties, however, availed of these remedies before Collector and Commissioner and they decided the issue without any authority of law. Be that as it may, the fact remains that partition proceedings pertain to year 2003. Matter, therefore, needs to be adjudicated on merits. Parties, however, availed of these remedies before Collector and Commissioner and they decided the issue without any authority of law. Be that as it may, the fact remains that partition proceedings pertain to year 2003. Matter, therefore, needs to be adjudicated on merits. A perusal of order passed by Assistant Collector shows that all parties including Amrik Singh were heard and spot was inspected in their presence before issuance of naksha 'arra and irri' thereafter, sanad taksim prepared. Karnail Singh, a subsequent vendee from one of the co-sharers namely Amrik Singh, filed appeal before Collector who remanded the case to Assistant Collector for decision afresh. I am of the considered view that after partition proceedings culminated and possession of land was transferred, there was no ground for the Collector to accept the appeal and order de novo proceedings. Though decision rendered by appellate authority i.e. Commissioner, Patiala is in accordance with law but there is no provision to prefer appeal/revision against preparation of sanad taksim. Though the matter was considered by Financial Commissioner in revisional jurisdiction, it appears the authority lost sight of the fact that partition proceedings had culminated and could not be reopened on the basis of plea raised by a subsequent vendee. In my considered view Financial Commissioner erred in accepting the revision and remanding the case to Assistant Collector for de novo proceedings. In the facts and circumstances of the case and ratio of judgment in Amar Khan's case (supra), orders, Annexures P4, P6 and P7 dated 31.08.2006, 02.08.2007 and 11.02.2010 are hereby set-aside. Petition is allowed. Parties would be allowed to be in possession in terms of sanad taksim already issued.