In the High Court of Punjab and Haryana at Chandigarh ...... CM No.18356 of 2009 in/and C.W.P. No.14769 of 2009 (O&M) ..... Date of decision:16.11.2009 Zora Singh .....Petitioner v. State of Punjab and others .....Respondents .... Present: Mr. Gurnam Singh, Advocate for the petitioner. ..... S.S. Saron, J. CM No.18356 of 2009 The copy of the order dated 7.8.2006 (Annexure P9) approving the mode of partition and the site plan dated 9.10.2009 attached with the civil miscellaneous application are taken on record subject to just exceptions. Civil Misc. stands disposed of. C.W.P. No.14769 of 2009 This petition under Articles 226/227 of the Constitution of India has been filed seeking quashing of the orders 26.3.2008 (Annexure-P.5), 25.9.2008 (Annexure-P.6) and 21.8.2009 (Annexure-P.8) passed by the Commissioner, Faridkot Division, Faridkot (respondent No.3), the Financial CM No.18356 of 2009 in/and [2] C.W.P. No.14769 of 2009 (O&M) Commissioner (Appeals-I), Punjab (respondent No.2) and the Assistant Collector Ist Grade (Tehsildar), Rampura Phul (respondent No.5) respectively. Gurjant Singh (respondent No.6) filed a petition before the the Assistant Collector Ist Grade (Tehsildar), Rampura Phul (respondent No.5) seeking partition of land measuring 50 Kanals 17 Marlas situated in the revenue estate of Village Kangar, Tehsil Rampura Phul, District Bathinda. The Assistant Collector Ist Grade (respondent No.5) in his order dated 29.11.2006 (Annexure P1) observed that Gurjant Singh (respondent No.6) had filed an application for partition of the land through his counsel. Respondents of the petition were summoned in accordance with the rules. There was no objection as to the title of the land and therefore, the partition proceedings were initiated on 21.4.2006 and 'naksha alaf' was requisitioned. Parties were given opportunity to file objections to 'naksha alaf'. However, no objections were filed. Accordingly, 'naksha alaf' was approved on 20.5.2006. The statements of the parties as regard the mode of partition were recorded and the mode of partition was prepared on 26.7.2006. As regards the mode of partition, the parties were given to opportunity to file their objections. There being no objection to the mode of partition, the same was approved on 7.8.2006 and 'naksha bey' was requisitioned. 'Naksha Bey' was submitted on 18.10.2006 and counsel for the parties were apprised of the same and given opportunities to file objections. The counsel for the respondent Zora Singh (now petitioner) raised no objection to 'naksha bey'. The applicant Gurjant Singh (now respondent No.6) filed written objections to 'naksha bey'. He stated that 'naksha bey' was not according to the mode of CM No.18356 of 2009 in/and [3] C.W.P. No.14769 of 2009 (O&M) partition. It was submitted that the land which abuts the main Baja Khana road was very costly which had not been given to him as per his share. Besides, the land in Khasra No. 926/3 which was of a low quality had been given to him in its entirety. The parties were heard on the objections and with the consent of the parties, the parties and the respectables were asked to be present at the spot on 28.11.2006 for spot inspection. Along with the inspection of the spot, the case file was perused and counsel for the parties heard. The objections of the applicant Gurjant Singh (now respondent No.6) that the land given to him on the main road was less than his share was in fact in accordance with the mode of partition and whatever land was in his possession had been given to him. The land Khasra No.926/3 which was stated to be of low quality by Gurjant Singh (respondent No.6) was in fact found to be canal irrigated and proper; besides, it being in possession of the applicant (Gurjant Singh – respondent No.6) was given to him. No merit was found in the petition by Gurjant Singh (respondent No.6) raising objections to 'naksha bey' and these were rejected and 'naksha bey' was approved. After expiry of one month, it was ordered that the 'sanad taksim' be prepared i.e. by requisitioning 'naksha jeem' from the Kanungo Halqa. The partition was ordered to be immediately effected. The order was pronounced. After compliance, it was ordered to be consigned to the record room. Gurjant Singh, Balbir Singh and Bhupinder Singh (respondents No.6, 7 and 9) respectively aggrieved against the aforesaid order dated 29.11.2006 (Annexure-P.1) passed by the Assistant Collector Ist Grade, Rampura Phul (respondent No.5) filed an appeal (Annexure P2). It was inter CM No.18356 of 2009 in/and [4] C.W.P. No.14769 of 2009 (O&M) alia contended that no decision had been taken in respect of the objections raised on 7.11.2006. There was no application of mind that in 'naksha bey', out of the good quality land, good quality land was to be given and out of the bad quality land, bad quality land was to be given. From the joint land abutting the Baja Khana road, which by width was 56 Karams, only 8 Karams had been given whereas the other side i.e. Zora Singh (petitioner) had been given 48 Karams; besides, out of the same he had already sold 9 karams. In this manner, prejudice had been caused to the appellants (now respondents No.6, 7 and 9). Besides, land in Khasra No.926/3, which was of low quality in its entirety was given to the appellants (now respondents No.6, 7 and 9) in its entirety. Moreover, there was no need for a water course (khal) along the land in Khasra No.937/2/1/2 and the 'naksha bey' was not according to the mode of partition. It was contended on behalf of the appellants (now respondents No.6, 7 and 9) that they had 2/3 share in the entire land in question and out of 56 Karams, land abutting the 'Baja Khana' road, they were entitled to 37 Karams width of land but they had been given only 8 Karams width. The possession alleged by the respondent (now petitioner) on this land was wrong and the possession of the valuable land was liable to be interfered with and possession was not liable to be given undue importance. In fact the possession is to be interfered with and even though 'naksha jeem' had been prepared but in the interest of justice, the decision was liable to be rescinded. Therefore, the appeal was liable to be accepted as the appellants (now respondents No.6, 7 and 9) had raised objections in the lower Court. The counsel for the respondent (now petitioner), however, supported the decision dated 29.11.2006 (Annexure CM No.18356 of 2009 in/and [5] C.W.P. No.14769 of 2009 (O&M) P1) of the Assistant Collector Ist Grade, Rampura Phul (respondent No.5). The Collector/SDM, Rampura Phul (respondent No.4) inter alia observed after hearing the counsel for the parties and perusing the record that the mode of partition had been settled on 7.8.2006 and a provision had been made in it for keeping the possession intact. The officer below i.e. the Assistant Collector Ist Grade had visited the spot and had found the possession to be that of the respondent (now petitioner – Zora Singh). For this reason, the plot (tak) had been prepared as per possession. It was observed that though the citations given by counsel for the respondent (now petitioner – Zora Singh) were apposite, however, after preparation of the mode of partition, the 'naksha bey' was to be prepared in accordance with it only and the same had been prepared in accordance with it. Therefore, there was no weight in the appeal. The objection of the appellants (now respondents No.6, 7 and 9) regarding less land abutting the road being assigned was considered. In this regard, it was held that a provision was to be made in the mode of partition itself. Then only by interfering with the possession, the land could be given as per the share. However, no appeal had been filed against the mode of partition. The mode of partition could now not be interfered with. The decision of the Court below was correct and the appeal was rejected. The parties were asked to appear before the Assistant Collector Ist Grade, Rampura Phul. Gurjant Singh (respondent No.6) filed a revision petition (Annexure-P.4) against the order dated 31.5.2007 (Annexure-P.3) passed by the Collector, Sub Division, Rampura Phul (respondent No.4) before the Commissioner, Faridkot Division, Faridkot (respondent No.3). The CM No.18356 of 2009 in/and [6] C.W.P. No.14769 of 2009 (O&M) Commissioner (respondent No.3) in his order dated 26.3.2008 (Annexure- P.5) after considering the case noticed that the main contention of Gurjant Singh (respondent No.6) was regarding the land in dispute which abuts the main Baja Khana G.T. Road. Gurjant Singh (respondent No.6), Balbir Singh (respondent No.7) and Bhupinder Singh (respondent No.9) were owners of the land to the extent of 2/3 share. The joint land abutting the main road was 56 Karams in width and they were to be given 37 Karams of land abutting the road but they had been given only 8 Karams of land abutting the road. The land, it was contended on behalf of Gurjant Singh (respondent No.6), had not been partitioned by the Assistant Collector Ist Grade according to its incremental value. It was held by the Commissioner, Faridkot Division, Faridkot that possession alone of the land could not be a determining factor for effecting partition and if there was considerable variation in the quality of land, possession would have to be disturbed. Co- sharers should be allowed share of different pieces of land. Therefore, this case, it was observed, needed a fresh look at the level of Assistant Commission Ist Grade (respondent No.5). Accordingly, the revision petition of Gurjant Singh (respondent No.6) was accepted and the impugned orders i.e. order dated 29.11.2006 (Annexure-P.1) passed by the Assistant Collector Ist Grade (Tehsildar), Rampura Phul (respondent No.5) and the order dated 31.5.2007 (Annexure-P.3) passed by the Collector/Sub Division, Rampura Phul (respondent No.4) were set aside and the case was remanded to the Assistant Collector Ist Grade, Rampura Phul (respondent No.5) for fresh decision after hearing both the parties. Against the order dated 26.3.2008 (Annexure-P.5) passed by CM No.18356 of 2009 in/and [7] C.W.P. No.14769 of 2009 (O&M) the Commissioner, Faridkot, Division, Faridkot, Zora Singh (petitioner) filed a revision petition before the Financial Commissioner (Appeals-I), Punjab (respondent No.2) which was dismissed in limine vide order dated 28.9.2008 (Annexure-P.6). It was held that the Commissioner (respondent No.3) had only remanded the case to the Assistant Collector Ist Grade (respondent No.5) for a fresh decision after hearing both the parties on the ground that there was a variation in the quality of land and possession would have to be disturbed and co-sharers should be allowed shares of different qualities of land. In view of this, the petitioner (Zora Singh) would get an opportunity of being heard. Accordingly, it was observed that no injustice had been done to the petitioner. The petitioner aggrieved against the said order filed C.W.P. No.530 of 2009 in this Court which was dismissed vide order dated 14.1.2009 (Annexure-P.7). It was observed by this Court that so far mode of partition had not been changed. The petitioner, it was observed, would have a cause to challenge the order, if his possession, in any manner, is disturbed. It was noticed that the Financial Commissioner had observed that so far the case had been remanded. As such it was premature at the said stage for the petitioner to file the said petition. The Assistant Collector (respondent No.5) it was observed could allow the partition as per mode already decided and may not disturb the possession. The petitioner, it was further observed, would be entitled to have his remedy, in case, his possession was disturbed, in any manner, in violation of the mode of partition, if he was entitled to do so in accordance with law. The Assistant Collector Ist Grade (Tehsildar), Rampura Phul CM No.18356 of 2009 in/and [8] C.W.P. No.14769 of 2009 (O&M) (respondent No.5) has now in terms of order dated 21.8.2009 (Annexure-P8) accepted the objections submitted by respondents No.6 to 9 to the extent that they be given land on the main Baja Khana Road as per their share. Part of the share taken from the petitioner Zora Singh on the G.T. Road, was ordered to be compensated from the other land as per his share. The petitioner was to be compensated in lieu of his tube-well and 'kotha' by giving land on the passage along the 'phirni' (circular road around the village). As per the said amendment, 'naksha bey', was also ordered to be amended. Against the said order dated 21.8.2009 (Annexure P6), the petitioner has filed the present petition inter alia contending that his possession is being disturbed in pursuance of the impugned order and, therefore, he is entitled to file the present petition. A reference has been made to the mode of partition (Annexure P9) particularly clause 4 thereof, which envisages that while preparing a 'tak' (plot) in case slight possession is required to be changed or to complete the area in possession of the parties is found to be necessary, then it shall be over-looked. Therefore, it is submitted that only a slight possession could be disturbed to create a separate plot but the entire possession was being disturbed. I have given my thoughtful consideration to the contentions of the learned counsel for the petitioner and perused the record. It is not in dispute that the land which is sought to be partitioned measures 50 Kanals 17 Marlas. The petitioner Zora Singh is owner of 1/3 share in the said land and the private respondents are owners of 2/3 shares. The dispute primarily relates to land which adjoins and abuts the Baja Khana G.T. Road. CM No.18356 of 2009 in/and [9] C.W.P. No.14769 of 2009 (O&M) According to Gurjant Singh etc. (respondents No.6 to 13) they should be given 37 Karams land out of 56 Karams, which is abutting the main road. It may be noticed that it has been stated by Gurjant Singh, Balbir Singh and Bhupinder Singh (respondents No.6, 7 and 9) in the grounds of appeal (Annexure P2) and in the contentions raised before Collector, Sub Division, Rampura Phul (respondent No.4) that Zora Singh (petitioner) had already disposed of 9 Karams of land from the main road. If this be so the total area of the land now abutting the road is 47 Karams. Learned counsel for the petitioner has not been able to show as to what is the actual width of the land now abutting the main road. He has though referred to the site plan placed on record with CM No.18356 of 2009, however, the same is quite unclear. It only mentions that green colour depicts the land of Gurjant Singh (respondent No.6) and brown colour of Surjit Singh (respondent No.11). The land of Zora Singh (petitioner) is not shown or depicted. Neither is the main Baja Khana GT Road shown and as to which is the land that adjoins the same. According to the learned counsel for the petitioner, the possession of the share of the land abutting the main road has been disturbed. However, learned counsel has not been able to spell out as to what is the actual area of the land from which the petitioner is being dispossessed and what is the 2/3 share to which the respondents No.6 to 13 are entitled to. The petitioner in order to show an error apparent on the face of the record is liable to at least show as to which is the exact land from which it is alleged he is being dislodged. It is merely alleged that the petitioner is being dispossessed. Besides, clause 4 of the mode of partition (Annexure P9) envisages that in preparation of a 'tak' (plot) in case slight possession is required to be CM No.18356 of 2009 in/and [10] C.W.P. No.14769 of 2009 (O&M) changed or to complete the area in possession of the parties is necessary then it shall be over-looked. Therefore, it is to be ascertained as to whether in order to complete the frontage there has been change in possession and whether it is substantial or slight and also whether it is to be over-looked. These aspects can more appropriately be considered and gone into by the revenue authorities for which the petitioner has his remedy. It would be inexpedient to embark upon an enquiry in this regard in exercise of the writ jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. Moreover, on the basis of mere allegations of parties in revenue matters where specific field numbers and areas are involved it would be improper to interfere. Besides, the Assistant Collector Ist Grade (respondent No.5) has also ordered amendment of the mode of partition. Against the said orders, the petitioner indeed has his remedies under the Punjab Land Revenue Act. The petitioner has a remedy of filing an appeal against the order dated 21.8.2009 (Annexure-P.8) passed by the Assistant Collector Ist Grade (respondent No.5). However, he has not chosen to straightway file a writ petition before this Court and that too without full and necessary particulars. Therefore, no interference is called for at this stage as the entire matter is premature. The writ petition is, accordingly, dismissed. November 16, 2009. (S.S. Saron) Judge *hsp*/amit