CWP No.5371 of 1991 (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.5371 of 1991 (O&M) Date of Decision: 10.08.2011 Jaimal Singh son of Harbans Singh, resident of Village Haler Janardhan, Tehsil Dasuya, District Hoshiarpur and others ... Petitioners Versus The Financial Commissioner (Appeals), Punjab at Chandigarh and others ... Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present: Mr. Prem Nath Aggarwal, Advocate, for the petitioners. Mr. N.S. Pawar, Addl. AG, Punjab, for respondents No.1 to 4. Mr. P.C. Rakra, Advocate, for respondents. ***** 1. Whether reporters of local papers may be allowed to see the judgment? YES/NO 2. To be referred to the reporters or not? YES/NO 3. Whether the judgment should be reported in the digest? YES/NO K. KANNAN, J. (Oral) 1. The writ petition challenges the orders passed in consecutive tiers of the authorities constituted under the Punjab Land Revenue Act, 1987 for partition amongst the proprietors in the village in relation to shamilat deh. The petitioners' entitlement to the property as proprietors along with the private respondents had been affirmed in Civil Suit No.52/71 of 1976 filed before the learned Sub Judge, IInd Class, Dasuya. The petitioners contend CWP No.5371 of 1991 (O&M) [2] that the suit had been instituted by 23 persons as plaintiffs all of whom are the predecessors-in-title of the contesting private respondents in this writ petition. The suit had been filed against 146 persons and the petitioners are the legal representatives of some of the defendants in the above suit. A chart is prepared and filed as Annexure P-1/A describing each one of the petitioners as the legal heirs of the defendants and correlating the names, who are cited as defendants in the civil suit referred to above. Many of the plaintiffs in the said civil suit are reported to have died and the relationship of those plaintiffs to the contesting respondents is also brought out in the chart prepared and filed before this Court. Neither the relationship nor the representative character as urged in the petition and brought out by the chart have been denied by the contesting respondents. 2. The plaintiffs in the above suit instituted in the year 1976 failed in their attempt to seek for exclusive right to the property as they claimed and the Court dismissed the suit on 20.10.1978 finding that the defendants mentioned in the suit were also joint proprietors of the property either as subsequent purchasers or persons who had been displaced and later allotted the properties or persons who were previously occupancy tenants and whose rights were converted as proprietors by operation of law. The civil court held that the plaintiffs (respondents or the representatives of the plaintiffs in the writ petition) had failed to prove that they have exclusive ownership of the suit land. The Court held that all the properties of the village have interest in the suit land on the basis of hasab rasab khewat. The Court held that the case was decided against the plaintiffs and in favour of the defendants holding that they would be joint proprietors. There had CWP No.5371 of 1991 (O&M) [3] been an appeal against trial Court's judgment and the appellate Court also affirmed the judgment of the trial Court and it held by way of conclusion as follows: “5. Further more, it is admitted by the plaintiff-appellants in para No.5 of the plaint that the defendants are the owners in the village by transfer, allotment or otherwise; meaning thereby that the defendants are also proprietors in the village. By implication, the defendants are also entitled to a share in the area owned by ' Jumla Malkan Hasad Rasad Khewat' i.e. Revenue being paid by them in proportionate to their share. In the presence of these facts found on the file, the counsel for the appellants could not successfully assail the findings of the trial court.” This decree of civil suit become final between the parties. 3. The persons who had filed the suit and whose suit was also dismissed, presented a petition later through some of the legal representatives for partition under the Punjab Land Revenue Act before the Assistant Collector, 1st Grade. The partition was sought in the absence of the petitioners or that predecessors and the petitioners appear to have moved a application for impleadment under Order 1 Rule 10. In that application itself they had given detail of area of parties and civil suit and how the applicants as the representatives of some of the defendants were also entitled to partition of their respective shares. This application was dismissed holding that the applicants were occupancy tenants and they cannot ask for partition although they were treated as co-owners in the CWP No.5371 of 1991 (O&M) [4] civil suit. A similar line of reasoning was adopted by the Collector, Dasuya when he held that mere assertion of being joint owners or co-owners was not sufficient as per Punjab Land Records Manual Paragraphs 18.16 and 7.19. A further revision to the Commissioner against the interim order had been filed and by that time, the Assistant Collector, 1st Grade disposed of the petition for partition on 03.10.1989. Aggrieved against this order even when the petitioners were not parties, the petitioners challenged the final order before the Financial Commissioner in the revisional proceedings itself. They had not opted to resort to an action by appeal only because the revision was already pending and the order had been passed by the Assistant Collector, 1st Grade even before the revision against the interim order was disposed of. The Financial Commissioner held that there was a provision for an appeal against the final order and a revision filed before him was not competent. 4. The petitioners challenged all the interim orders as well as the final order passed by the respective authorities. The learned counsel appearing on behalf of the petitioners contends that when the rights of parties were determined by the civil court decree, the authorities could not have discarded the same and rejected the application for impleadment. The learned counsel also contends that the occupancy tenants become owners by virtue of law vesting them with title and, therefore, they fulfilled the same character as the private respondents in this writ petition in their co- ownership and the partition could not be effected in their absence. 5. The learned counsel appearing on behalf of the respondents would contend that against the order passed by the Assistant Collector, 1st CWP No.5371 of 1991 (O&M) [5] Grade on 03.10.1989 they directly filed a revision without preferring an appeal and, therefore, the impugned order passed dismissing the appeal cannot be assailed in the writ petition. The counsel would contend that the final order itself is not in challenge. I find this contention to be erroneous. Annexure P-14 is the order in revision against the interim order dated 08.03.1989 and Annexure P-15 is the order passed by the Financial Commissioner against the final order of Assistant Collector, 1st Grade on 03.10.1989. The contention that the petitioners have not preferred an appeal against the decision of the final order and had come by revision directly is merely an objection on a matter of procedure and not the content or the merit of the case itself. Although the final order passed by the Assistant Collector, 1st Grade was appealable, under the special circumstances when the interim order passed by the Assistant Collector, 1st Grade and the successive authorities were already in challenge before the Financial Commissioner and appeal on the final order could have been merely a formality for they could not preferred an appeal when they had not been made parties and the claim for impleadment had already been rejected, although pending consideration in revision before the Financial Commissioner. I will not hold the attempt of the petitioners to challenge the final order by means of revision would take away the right to contend that the order passed on 03.10.1989 and that stood affirmed on the issue of maintainability Annexure P-15 could always be assailed before this Court. 6. On the merit of the contentions, if it is seen that the petitioners' right had been affirmed in the civil court decree by the presence of their respective predecessors as defendants in that suit then, a partition relief CWP No.5371 of 1991 (O&M) [6] could not have been granted by the Assistant Collector, 1st Grade without making them as parties or without taking notice of their respective rights to the extent to which they had already been declared entitled to. The learned counsel appearing on behalf of the respondents stated that the sale deeds or the documents of title of the petitioners have not been filed. I do not think it is essential when all the petitioners are claiming their respective rights through the civil court decree obtained in the presence of all the private respondents' predecessors. Through the decision that had become final and that stood affirmed by the court in appeal referred to above. 7. The impugned orders are quashed and the matter is remitted to the Assistant Collector, 1st Grade, who will treat all the petitioners as party- respondents and will make an appropriate order for partition to the extent to which each one of the parties is found entitled to. The writ petition is allowed and remitted for disposal in accordance with law. Party will appear before the Assistant Collector, 1st Grade, Dasuya on 16th September, 2011. AUGUST 10, 2011 ( K. KANNAN ) Rajan JUDGE