IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 11115 of 2006 Date of decision : 8.7.2009 Mohinder Singh and Others ….. Petitioners Versus State of Punjab and Others ….. Respondents Present: Mr. Ajay Pal Singh, Advocate for the petitioner. Mr. H.S. Gill, DAG, Punjab for respondents No.1 to 4. Mr. B.S. Bali, Advocate for respondent No.5. **** S.S. SARON, J. Heard counsel for the parties. The petitioner has filed the present petition seeking quashing of the order dated 14.2.2006 (Annexure P10) passed by the learned Financial Commissioner (Appeals-II), Punjab (respondent No.1) whereby the revision petition filed by Kesar Singh (respondent No.5) has been accepted after setting aside the order dated 14.10.2004 (Annexure P9) passed by the Commissioner, Patiala Division, Patiala (respondent No.2). The case relates to partition of land measuring 3 kanals 15 marlas situated in village Dehlon, Tehsil and District Ludhiana comprised in Rectangle No.82 Khasra Nos.5/2/2 (2-4) and 6/1/1 (1-11). The Assistant Collector Ist Grade, Ludhiana vide order dated 4.5.1987 (Annexure P3) came to the conclusion that the partition between the parties had already been effected on the basis of written compromise. Therefore, question of title was CWP No. 11115 of 2006 [2] involved and the application for partition could not be proceeded with. The parties were directed to first get the case decided from the Civil Court and thereafter file an application before the revenue Court. Accordingly, application for partition was filed. Gurdev Singh the father of Kesar Singh (respondent No.5) filed an appeal against the said order dated 4.5.1987 (Annexure P3). The Collector (SDM – Civil), Ludhiana vide order dated 26.4.1989 (Annexure P4) held that the land in dispute was the joint ownership of the parties as per the revenue records and the alleged agreement for partition had not been incorporated in the revenue records. The appeal was accepted and the impugned order dated 4.5.1987 (Annexure P3) passed by the Assistant Collector, Ist Grade (Tehsildar), Ludhiana was set aside and the matter was remanded back to him for partition of the agricultural land and to decide it afresh in the light of the orders passed. The Assistant Collector Ist Grade, Ludhiana vide order dated 12.11.1992 (Annexure P5) after considering the matter afresh found that the amended mode of partition was correct which was liable to be accepted. The file along with Naksha ‘Eree’ was ordered to be produced on 22.11.1992. Thereafter, the Assistant Collector Ist Grade, Ludhiana vide order dated 13.3.2003 (Annexure P6) passed an order to the effect that the mode of partition had already been decided by the said Court vide order dated 2.9.1992. Consequently, Naksha ‘Oora’ and Naksha ‘Eree’ were prepared by the Patwari. Objections were invited to Naksha ‘Arra’ vide summons dated 5.3.2003. No objections were raised. Accordingly, the partition it was ordered shall be effected by change in possession according to the mode of partition already decided. Naksha ‘Oora’ and Naksha ‘Arra’, it was observed shall be the basis for partition. Besides, Naksha ‘Arra’ shall be a part of the said order. CWP No. 11115 of 2006 [3] According to the learned counsel for the petitioner, the copies of the Naksha ‘Oora’, Naksha ‘Arra’ and Naksha ‘Eree’ were applied for and a report dated 21.6.2001 (Annexure P7) was received that after seeing the files, the said Nakshas could not be found. As such, the application was returned. In any case, Mal Singh (father of petitioner No.3-Gurmail Singh) represented by his sons Parmatma Singh and Gurmail Singh (petitioner No.3) as also Mohinder Singh (petitioner No.1) and Nachhattar Singh (petitioner No.2) sons of Lal Singh (brother of Mal Singh) filed an appeal against the order dated 13.3.2003 (Annexure P6) passed by the Assistant Collector, Grade-I, Ludhiana. The Collector (SDM – East), Ludhiana vide order dated 30.9.2003 (Annexure P8) held that the mode of partition had already been decided on 2.9.1992 and Naksha ‘Aarra’ (Eree) had been got prepared from Assistant Collector Ist Grade in terms of the mode of partition which was not objected to by either party. As such, the Assistant Collector, Grade I had correctly prepared the mode of partition by changing the possessions. Accordingly, no merit was found in the appeal and the order dated 13.3.2003 (Annexure P6) passed by the Assistant Collector, Grade I was upheld. Mal Singh (father of Gurmail Singh - petitioner No.3) along with Mohinder Singh (petitioner No.1) and Nachhattar Singh (petitioner No.2) sons of Lal Singh filed a revision petition against the order dated 30.9.2003 (Annexure P8) passed by the Collector (SDM-East), Ludhiana before the Divisional Commissioner, Patiala Division, Patiala (respondent No.2). The Divisional Commissioner, Patiala Division, Patiala in terms of order dated 14.10.2004 (Annexure P9) after perusal of the record, observed that during the life time of Lal Singh, Bhag Singh and Mal Singh, who are the sons of Jhagru, a family settlement was arrived at between the three brothers on 20.1.1971, by which they had partitioned their land amongst themselves and possession of the property in CWP No. 11115 of 2006 [4] dispute which fell to the share of each brother, was settled. On the basis of the family partition dated 20.1.1971, the sons of Lal Singh again partitioned their land amongst themselves vide memo of partition dated 15.10.1973. Since then, the sons of Lal Singh i.e. Mohinder Singh and Nachattar Singh (petitioners No.1 and 2) were in possession of the said property. The parties had raised their construction for their residence and were in physical possession of the suit property. Each of the parties, it was observed, had made their land more fertile which was in their respective possession as per their share. Therefore, it was held that partial portion cannot be allowed to be partitioned unless all the co-sharers agree. It was observed that the petitioner – Mal Singh son of Jhagru (since deceased) and represented by his son Gurmel Singh (petitioner-3) as also Mohinder Singh and Nachhattar Singh (petitioners No.1 and 2) sons of Lal Singh had not been granted any opportunity to plead their cases before the Assistant Collector Ist Grade. They had been condemned unheard. The revision petition was accordingly accepted vide order dated 14.10.2004 (Annexure P9) and the impugned orders i.e. the order dated 30.9.2003 (Annexure P8) passed by the Collector (SDM – East) Ludhiana and the order dated 13.3.2003 (Annexure P6) passed by the Assistant Collector Grade-I, Ludhiana were set aside. Kesar Singh (respondent No.5) son of Gurdev Singh son of Bhag Singh (brother of Lal Singh and Mal Singh) aggrieved against the order dated 14.10.2004 (Annexure P9) passed by the Divisional Commissioner, Patiala Division, Patiala filed a revision petition before the learned Financial Commissioner (Appeals-II), Punjab. It was contended by Kesar Singh (respondent No.5) in the revision that the learned Commissioner while passing the order dated 14.10.2004 (Annexure P9) could not revise the orders of the previous Commissioner dated 14.8.2000, whereby CWP No. 11115 of 2006 [5] the mode of partition was accepted and plea of the respondents before the learned Financial Commissioner of the present petitioners regarding private partition was rejected. It was also contended that the Commissioner had neither remanded the case to the Assistant Collector Ist Grade nor his order had been discussed in the arguments raised by the petitioner. The learned Financial Commissioner after going through the written arguments submitted by counsel for the parties and examining the record observed that the learned District Judge, Ludhiana vide his judgment dated 19.7.2004 had rejected the factum of private partition. After considering the matter, it was observed that the order of the Commissioner was not based on the factual position with sound reasoning. Therefore, the revision petition was accepted vide order dated 14.2.2006 (Annexure P10) and the order dated 14.10.2004 (Annexure P9) of the Commissioner was set aside and the earlier orders dated 30.9.2003 (Annexure P8) and 13.3.2003 (Annexure P6) passed by the Collector (SDM- I), Ludhiana and Assistant Collector Grade-I, Ludhiana respectively were upheld. The petitioner aggrieved against the said order has filed the present petition. It is contended by the learned counsel for the petitioner that the Commissioner, Patiala Division, Patiala had rightly held that partial portion of land cannot be allowed unless all the co-sharers agree to the inclusion of a part of their joint holdings in the partition proceedings. Therefore, the learned Financial Commissioner gravely erred in passing the impugned order dated 14.2.2006 (Annexure P10). The plea of private partition that was raised is subject matter of a civil suit that has been filed by the petitioners since a question of title was involved. It is submitted that against the order of injunction regarding the possession that was granted vide order dated 1.9.2003 passed by the learned Civil Judge (Junior Division), Ludhiana and CWP No. 11115 of 2006 [6] the order dated 19.7.2004 passed by the learned Additional District Judge (Ad hoc) Fast Track Court, Ludhiana, vide which the appeal of the petitioners had been dismissed; a revision petition (i.e. CRR No. 5889 of 2004) has been filed in this Court by the petitioners and Hakam Singh son of Lal Singh . The same was admitted vide order dated 19.1.2007 and meanwhile, the parties have been directed to maintain possession in terms of the partition deeds dated 20.1.1971 and 15.10.1973 which it is stated are the private partition that had been effected between the parties. Therefore, it is submitted that the order dated 14.2.2006 (Annexure P10) passed by the learned Financial Commissioner, Appeals-II, Punjab is liable to be set aside. In response, learned counsel appearing for respondent No.5 has submitted that the partition proceedings as have been initiated are liable to be completed and the order dated 13.3.2003 (Annexure P6) passed by the Assistant Collector Grade-I, Ludhiana be implemented as the mode of partition had already been decided vide order dated 2.9.1992 in consequence of which Naksha ‘Oora’ and Naksha ‘Eree’ were prepared by the Patwari. Besides, objections were invited to Naksha ‘Arra’ vide summons dated 5.3.2003. However, no objections were raised by the respondents therein i.e. Zora Singh, Nachhattar Singh (petitioner No.2), Hakam Singh, Mohinder Singh (petitioner No.1) and Mal Singh @ Mallu. After giving my thoughtful consideration to the matter, it may be noticed that Chapter IX of the Punjab Land Revenue Act, 1887 (“Act” – for short) provides the procedure for partition of land. Section 117 provides for disposal of questions as to title in property to be divided. Sub-Section (1) of Section 117 envisages that when there is a question as to title in any of the property of which partition is sought, the Revenue Officer may decline to grant the application of partition until the question has been determined by a CWP No. 11115 of 2006 [7] competent Court, or he may himself proceed to determine the question as though he were such a Court. In the present case, admittedly the petitioners have sought their remedy of civil suit and a plea of private partition has been raised. The records of the case Mohinder Singh and ors v. Mukhtiar Singh and ors Civil Revision 5889 of 2004 have been requisitioned and a perusal of the same show that the said revision petition has been filed against the order dated 19.7.2004 passed by the learned Additional District Judge (Adhoc ) Fast Track Court, Ludhiana. The learned Financial Commissioner had referred to the order dated 19.7.2004 passed by the learned Additional Sessions Judge (Ad hoc) Fast Track Court, Ludhiana, wherein the plea of private partition had been rejected. In terms of the said order dated 19.7.2004 passed by the learned Additional District Judge, the appeal filed by the petitioners against the order dated 1.9.2003 passed by the learned Civil Judge (Jr Divn) Ludhiana has been dismissed. The said orders have been passed on an application for interim injunction. It may be noticed that Mohinder Singh, Hakam Singh and Nachhattar Singh sons of Lal Singh son of Jhagru, Nirbhai Singh and Avtar Singh sons of Parmatama Singh son of Mal Singh son of Jhagru and Gurmel Singh son of Mal Singh son of Jhagru had filed a suit against Mukhtiar Singh, Kesar Singh, Mohinder Singh sons of Gurtej Singh son of Bhag Singh son of Jhagru, Kartar Singh and Hardev Singh sons of Zora Singh son of Lal Singh son of Jhagru, claiming decree for declaration that the land measuring 124 Kanals 9 Marlas as detailed in the head note of the plaint as per Jamabandi for the year 1998-99 situated in village Dehlon, Tehsil and District Ludhiana, had been partitioned between Mal Singh, Lal Singh and Bhag Singh, predecessors-in-interest of the parties, vide memo of partition dated 20.1.1971 and 15.10.1973 executed between CWP No. 11115 of 2006 [8] Mal Singh, Bhag Singh and Lal Singh in the manner as detailed in the head note of the petition. A further declaration is sought for declaring that the order dated 13.3.2003 passed by the Assistant Collector (under trainee)-cum- Assistant Collector Ist Grade Ludhiana, as illegal, null and void and contrary to the law and against the interest of the plaintiffs and is liable to be set aside and Naksha ‘oora’, ‘arra’ and ‘eree’ are also illegal, null and void, contrary to law and against the interest of the plaintiffs. The learned Civil Judge (Jr Divn) Ludhiana vide order dated 1.9.2003 dismissed the application for interim injunction whereby the plaintiffs had claimed that they were in physical possession of the suit property. The plaintiffs filed an appeal and the learned Additional District Judge (Ad hoc) Fast Track Court, Ludhiana, vide order dated 19.7.2004 dismissed the same being without merit. In Civil Revision 5889 of 2004, this Court, vide order dated 19.1.2007 admitted the revision petition and meanwhile ordered that the parties shall maintain possession in terms of the partition deeds dated 20.1.1971 and 15.10.1973. The learned Financial Commissioner vide order dated 14.2.2006 (Annexure P10) on the basis of the order dated 19.7.2004 passed by the learned Additional District Judge (Ad hoc) Fast Track Court, Ludhiana had rejected the factum of private partition and held that the order of the Commissioner dated 14.10.2004 (Annexure P9) was not passed on the factual position with sound reasoning. The revision petition was accordingly accepted and the order dated 30.9.2003 (Annexure P8) passed by the Collector-cum-SDM (East) Ludhiana and the order dated 13.3.2003 (Annexure P6) passed by the Assistant Collector Ist Grade were upheld. As has already been noticed, this Court vide order dated 19.1.2007 in Civil Revision No.5889 of 2004 has ordered the parities to maintain possession in terms of the partition deeds dated 20.1.1971 and CWP No. 11115 of 2006 [9] 15.10.1973. In fact the position would be that the partition deeds are subject matter of consideration before the civil Court which has been filed by Mohinder Singh, Hakam Singh and Nachhattar Singh sons of Lal Singh son of Jhagru, Nirbhai Singh and Avtar Singh sons of Parmatama Singh son of Lal Singh son of Jhagru and Gurmel Singh son of Mal Singh son of Jhagru. The order dated 14.2.2006 (Annexure P10) passed by the Financial Commissioner is primarily based on the order dated 19.7.2004 passed by the learned Additional District Judge (Ad hoc) Fast Track Court, Ludhiana. The said order in fact has been modified by this Court vide order dated 19.1.2007 passed in the Civil Revision No.5889 of 2004 whereby parties have been ordered to maintain possession in terms of the partition deeds dated 20.1.1971 and 15.10.1973. Therefore, it would be just and expedient that in consonance with the order passed by this Court in the aforesaid Civil Revision, the parties maintain possession in terms of the partition deeds dated 20.1.1971 and 15.10.1973. The question of title in the circumstances would be considered and decided in terms of Section 117(i) of the Act. The civil writ petition is accordingly disposed of. (S.S. SARON) JUDGE July 8, 2009 amit