CIVIL WRIT PETITION NO.15022 OF 2010 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: JULY 19 ,2011 Parkash Devi .....Petitioner VERSUS The Financial Commissioner, Revenue, Punjab, Chandiga rh and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Rahul Sharma, Advocate, for the petitioner. Mr. A. S. Jattana, Addl.A.G., Punjab, for the State. Mr. S. S. Rangi, Advocate, for respondent Nos.3 to 9. **** RANJIT SINGH, J. Late Risal Singh, husband of the petitioner, filed an application for partition of land measuring 8 kanals 11 marlas in Khewat No.145, Khatauni No.225 and 226, Khasra No.70 (7K-6M) and Khasra No.19/7/3 (1K-5M) in Village Aima Mangat, Tehsil Mukerian, District Hoshiarpur. Khasra No.70 abuts the road and is situated near abadi. This piece of land accordingly is much more valuable than the remaining land in Khasra No.19/7/3. Assistant Collector had held that partition must be effected after distributing the CIVIL WRIT PETITION NO.15022 OF 2010 :{ 2 }: possession of the parties so that equal share is given to all the parties of this valuable land. Respondent Nos.3 to 9 filed an appeal against this order, which was dismissed by Collector on 28.12.2004. The Collector was of the view that the Joint Khewat is to be partitioned between the parties after disturbing the possession so that all co-sharers can get land of equal value. Aggrieved against this, the said respondent filed a revision petition before Commissioner, Jalandhar Division, Jalandhar, who vide his order dated 6.10.2005 has accepted the revision on the ground that Fard Badar was pending before S.D.M., Mukarian. Additionally, Commissioner also observed that the possession can be disturbed where one is found in possession of the land in excess of his/her due share in the property. Against this, late husband of the petitioner filed a revision, which was dismissed by the Financial Commissioner, Punjab, by holding that Rehabilitation Department had allotted land to the allottees separately and the specific khasra numbers were delivered to them in the year 1962. This order is now impugned by the petitioner through the present writ petition. Respondent Nos.3 to 9 have filed written statement in response to the notice issued. They would allege that the petitioner has not approached the Court with clean hands and has concealed material facts. It is stated that late Basawa Singh, predecessor of the petitioner, was allotted Khasra No.19/7/3 and Mann Singh, predecessor of the answering respondent, was allotted Khasra No.70 by the Punjab Government, Department of Rehabilitation. The possession was delivered through Rapat Roznamcha on 1.3.1962 to CIVIL WRIT PETITION NO.15022 OF 2010 :{ 3 }: said late Basawa Singh and through separate Rapat Roznamcha No.268 to Mann Singh, predecessor of the answering respondent. Late Basawa Singh was accordingly recorded to be in possession of Khasra No.19/7/3 (nehri) whereas Mann Singh was recorded in possession of Khasra No.70 (barani). It is accordingly urged that both the parties are separately cultivating the land so allotted and at no point of time suit property was joint. The order passed by the Commissioner, Jalandhar Division, Jalandhar and Financial Commissioner are, therefore, termed legal and valid, there being no perversity therein and accordingly it is urged that the writ petition be dismissed. It is further pointed out that at the time of allotment the predecessor of the petitioner and the answering respondent were recorded as mortgagees but subsequently Department of Rehabilitation, Punjab Government, issued a letter dated 6.7.1963, directing to redeemed the land without payment of consideration. Mutation No.1302 was sanctioned on 30.11.1977. In this both the parties are recorded in separate possession over the exclusive Khasra Numbers. Copy of this mutation is placed on record as Annexure R3/4. It is alleged that late Rasal Singh Singh (husband of the petitioner) taking undue benefit of the wrong entries in the jamabandies claimed to be a co-sharer in a joint khata and filed an application for partition, which was opposed by the answering respondent. The revenue authorities have since corrected the mistake by preparing a Fard Badar, which has been sanctioned by the Collector-cum-S.D.M., Mukarian, vide order dated 23.3.2005. CIVIL WRIT PETITION NO.15022 OF 2010 :{ 4 }: Copy of this is also attached with the reply as Annexure R3/5. It is on this basis stated that the land was never jointly held by the petitioner and the answering respondent and as such, there is no cause or reason for the petitioner to seek partition of this land. I have heard the counsel for the parties. It is first to be seen whether the petitioner and the answering respondent are the joint holders of this property or not. As per counsel for the petitioner, both the parties were allotted land in one and the same Khewat and both the parties are in joint possession of the land in dispute. The finding of fact as recorded by the Commissioner and Financial Commissioner would show that the petitioner could not refute the fact that consideration of Fard Badar was pending adjudication when the Commissioner dealt with the case. The correction sought was on the basis that specific khasra numbers were allotted to the original allottees. The petitioners could not dispute that the parties were in possession of specific khasra numbers for more than 50 years. The Commissioner accordingly observed that there was no logic to dislodge the co-sharers while partitioning the land. By the time, the case was considered by Financial Commissioner, Fard Badar has been issued and the entry relied upon by the petitioner to allege land being joint had been amended to show the actual possession of the parties. It is seen that the parties were in possession according to the share allotted by the Rehabilitation Department and the late husband of the petitioner had taken possession of the land on the basis of a sale deed regarding the land purchased by him from son of Basawa Singh. The petitioner CIVIL WRIT PETITION NO.15022 OF 2010 :{ 5 }: is in possession of the suit land ever since then. Parties were allotted separate khasra numbers and they got possession of the said khasra numbers. Both the khasra numbers are situated at two different places and it was only at the time of preparation of jamabandi that they were shown as point owners. The mistake got repeated in the subsequent jamabandies and to remove this clerical error, the petitioner has moved an application for Fard Badar which was pending when the case was considered and decided by the Commissioner. It is noticed that Assistant Collector Ist Class had ignored the possession of the parties over the suit land for the last 50 years while framing the mode of partition, whereas he was required to keep the possession intact. Sanction of Fard Badar would remove the base of the arguments and submissions made by the petitioners. Accordingly, there is no legal infirmity in the orders passed by the Commissioner and the Financial Commissioner, which would call for interference in exercise of writ jurisdiction. The reliance placed by the counsel for the petitioner on the Full Bench decision of this Court in Ram Chander Versus Bhim Singh & others, 2008(3) R.C.R. (Civil) 685 would be of no avail to them as the petitioner and the private respondent Nos.3 to 8 were not the co-owners to be taken as being in possession of the entire land being co-sharers. That ratio in the facts and circumstances of the case would have no application. The writ petition is accordingly dismissed. July 19, 2011 (RANJIT SINGH ) khurmi JUDGE