CWP No.18641 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.18641 of 2009 Date of decision: 20.09.2010 Chandan ..... Petitioner Versus The Financial Commissioner, Haryana Civil Secretariat, Chandigarh and others ..... Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr.R.N.Lohan, Advocate for the petitioner. Ms.Shruti Jain, AAG, Haryana for respondents no.1 to 4. Mr.J.R.Jain, Advocate for respondents no.5 to 9, 16 and 17. ***** RAJIVE BHALLA, J. The petitioner prays for issuance of a writ in the nature of certiorari for quashing the orders dated 22.05.2009 and 09.09.2009, passed by Commissioner, Hisar Division, Hisar and the Financial Commissioner, Chandigarh, respectively. The Assistant Collector, Ist Grade, Narwana, prepared a mode of partition, in proceedings for partition filed by respondents no.5 to 17. The petitioner raised objections that as he has made improvements on land in view of a family settlement, his possession should not be disturbed. Vide order dated 30.07.2002, the Assistant Collector, Ist Grade, amended the mode of partition. Aggrieved by this order, respondents no.5 to 17 filed an appeal before the Collector. The Collector remanded the matter to the Assistant Collector, by directing him to inspect the site and satisfy himself that parties do not suffer any loss in case possession is kept intact. Respondents no.5 to 9 filed a revision before the Commissioner, Hisar CWP No.18641 of 2009 -2- Division, Hisar, who accepted the revision and directed the Assistant Collector, to obtain the proposed mode of partition from the first party by giving a choice to the first party and thereafter the 2nd party would be at liberty to select his parcel of land. Aggrieved by this order, the petitioners filed a revision before the Financial Commissioner, Hisar, which was dismissed on 09.09.2009 by holding that as there are only two parties, the proposed mode of partition be taken from the first party and the second party would be at liberty to select his parcel of land. Counsel for the petitioner submits that both the Commissioner and the Financial Commissioner have committed an error as there are more than two parties i.e. more than two sets of co-sharers. In addition, the impugned orders have not dealt with the order passed by the Collector, directing the Assistant Collector, Ist Grade, to prepare a fresh mode of partition after inspecting the site. It is further argued that the Commissioner had no jurisdiction to direct the Assistant Collector, IInd Grade, to call upon parties to submit their respective proposed modes of partition. It is also argued that as per the mode of partition, all co-sharers are entitled to a separate parcel of land from superior and inferior land as per their shareholding. Counsel for the contesting respondents submits that the order passed by the Commissioner is just and equitable and even if there are more than two sets of co-sharers, the impugned orders have to be read in the context that the land comprises of only two parcels of land. I have heard counsel for the parties and perused the impugned orders. The Commissioner passed an order directing the Assistant Collector, IInd Grade, to obtain the proposed mode of partition from the first party and CWP No.18641 of 2009 -3- conferred a right on the second party to select land of its choice. In the absence of any agreement between the parties, the Commissioner had no jurisdiction to pass such an order particularly as there are more than two co- sharers. The Financial Commissioner compounded this error by affirming this order. The mere fact that land is divided into two parcels, does not empower the Commissioner to impose his perception of rights of co-sharers, upon the parties. In partition proceedings, each co-sharer is entitled, as far as is possible to a separate “kura” (parcel of land). A perusal of the record, discloses that co-sharers have not made any statement that their “kura” should be kept joint. In this view of the matter, the writ petition is allowed, the impugned orders are set aside and the matter is remitted to the Assistant Collector, IInd Grade, Narwana, to prepare a fresh mode of partition, in accordance with the directions issued by the Collector, and conclude partition proceedings within three months from the receipt of a certified copy of this order. Parties are directed to appear before the Assistant Collector, IInd Grade, Narwana, on 28.10.2010. 20.09.2010 [ RAJIVE BHALLA ] shamsher JUDGE