CIVIL WRIT PETITION NO.5115 OF 1984 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: APRIL 20, 2009 Kashmira Singh and others .....Petitioners VERSUS The State of Punjab 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. K. S. Cheema, Advocate, for the petitioner. ( in CWP No.5115 of 1984) for respondent Nos.2 to 5. (in C.W.P. No.5960 of 1986). Mr. Amarjit Markan & Mr. Jatinder Singla, Advocates, for the petitioner. (In CWP No.5960 of 1986) for respondent No.3. Mr. P. C. Goyal, Addl.A.G., Punjab, for the State. Mr. K. S. Garewal, Advocate, for respondent No.3. (in CWP No.5960 of 1986). **** RANJIT SINGH, J. This order will dispose of Civil Writ Petition Nos.5115 of 1984 (Kashmira Singh and others Vs. State of Punjab and others) and 5960 of 1986 (Jethu Singh through his L.Rs Vs. The CIVIL WRIT PETITION NO.5115 OF 1984 :{ 2 }: Financial Commissioner, Appeals, Punjab and others). Through CWP No.5115 of 1984, the petitioners have challenged the action of respondent No.3 in moving an application for partition of land under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short, “the Consolidation Act”). The petitioners would urge that this application for partition of the land was not maintainable under Section 42 of the Consolidation Act. The consolidation operation was conducted in village Jhambali Khas in the year 1952-53. Joint Taks were allotted to the predecessors-in-title of the petitioners to the extent of 2/3rd share and 1/3rd share was to go to respondent No.3. The petitioners had purchased 2/3rd share in the joint holding from their predecessors-in- title and on the basis of the same, they were recorded as owners of 2/3rd share in the joint holding in the jamabandi for the year 1970-71. The petitioners filed an application for partition of joint holding under Section 111 of the Punjab Land Revenue Act (for short, “the Revenue Act”). Respondent No.3 objected to it on the ground that a private partition had already taken place and the parties were accordingly in possession of their shares since 1960-61. Assistant collector Ist Grade held that the question of title was involved against which the petitioners filed an appeal before the Collector, who accepted the same and remanded the case back to the Assistant Collector to proceed with the partition proceedings. Respondent No.3 appealed against this order before the Commissioner, Patiala, who accepted the same on 2.9.1974, observing that revenue officer has to settle the issue of title by referring the parties to the civil court or CIVIL WRIT PETITION NO.5115 OF 1984 :{ 3 }: by himself sitting as a civil court. The petitioners thereafter on 7.12.1974 filed a suit in the Court of Sub Judge, Nabha, claiming joint possession to the extent of 2/3rd share of the land measuring 103 Bighas 13 Bisbas, which was subject matter of partition application before the Revenue Officer. Respondent No.3 contested the suit and claimed exclusive possession over certain khasra numbers. He also claimed that oral partition had taken place about 70 years ago between their ancestors. The suit, however, was decreed in favour of the petitioners on 29.1.1979. The issue of co-sharer and oral partition were taken up together and decided against respondent No.3. It was accordingly held that the petitioners had 2/3rd share in the joint Tak whereas respondent Jethu (since deceased) (respondent No.3) had 1/3rd share. It was further held that there was no partition till 1952-53. Respondent No.3 filed an appeal against this judgment, which was dismissed. Thereafter, he filed a Regular Second Appeal, which was also dismissed in limine on 8.2.1981. After getting the decision about the title of the land and a declaration that it was a joint khata, the petitioners moved another application for partition of land under Section 111 of the Revenue Act. Respondent No.3 filed objections against the same, which were rejected. The operative part of the order reads as under:- “The respondent's (respondent No.3) objection that he has been allotted inferior quality of land towards khasra No.140 and the petitioners have been given better quality of land in Khasra Nos.130, 131 and 132. He objects that area of Khasra No.140 and 141 be given to the CIVIL WRIT PETITION NO.5115 OF 1984 :{ 4 }: petitioners and area of Khasra Nos.13, 131 and 132 be given to him. Counsel for the parties have been heard thoroughly. Rather I have inspected the land personally in village Jhambali. According to spot inspection, Jethu respondent was in possession of whole area of one tak (qrrah) away from the village and he was in possession of lesser area near the village. Now respondent had been given only 1/3rd share in the far off land on his bore the remaining area has been given to him near the village, which land is much better than far off land. The respondent has been given land according to mode of partition proportionate to his share in both qualities of land – Naqsha `A' is accepted.” Respondent No.3 had earlier filed an appeal against the mode of partition, which was dismissed on 20.2.1984. He also filed an appeal against the order of partition, referred to above, which was fixed on 23.11.1984. Before the appeal filed against the partition could be decided, respondent No.3 filed an application under Section 42 of the Consolidation Act. Addl. Director has accepted the application of respondent No.3, which is now impugned through the Civil Writ Petition No.5115 of 1984. The writ petition was admitted and the operation of the impugned order passed by Additional Director, Consolidation of Holdings, was stayed. No reply has been filed on behalf of the respondents. Though the averments made in the writ petition would not be deemed to have been denied in any manner, yet the stand of the respondent can be noticed from the pleas raised in Writ Petition CIVIL WRIT PETITION NO.5115 OF 1984 :{ 5 }: No.5960 of 1986, in which the respondent has challenged the order of partition, which has been passed by the revenue officers. In this writ petition, respondent has clearly mentioned the details of the partition proceedings in the orders passed by the various authorities. The respondent has then mentioned that realising that the revenue authorities were not understanding the revenue record in a proper manner, he filed a petition under Section 42 of the Consolidation Act. He has accordingly challenged the orders passed by the Assistant Collector and Commissioner as well as the Financial Commissioner on various counts. This writ petition was also admitted and dispossession of the respondent, who was the petitioner, was stayed. Since no proceedings were stayed, these have been completed and a Sanad Takseem already issued. This writ petition was also admitted to be heard with Civil Writ Petition No.5115 of 1984. Mr.K.S.Cheema, counsel appearing for the petitioners in Civil Writ Petition No.5115 of 1984 would submit that the action of the respondents in filing application under Section 42 of the Consolidation Act for partition of the land, which was already in progress under the provisions of the Revenue Act, was not maintainable. Counsel pleads that Director Consolidation was not competent to order partition in the manner he has done. In short, the counsel submits that order passed by the Director Consolidation and impugned in the writ petition is without jurisdiction. The counsel refers to the provisions of Section 16-A to urge that this Section regulates the powers to make provisions in the scheme to partition joint land and joint occupancy tenancies. This Section provides that the scheme prepared by the Consolidation CIVIL WRIT PETITION NO.5115 OF 1984 :{ 6 }: Officer may provide for partition of land between joint-owners of land or between joint tenants of a tenancy in which a right of occupancy subsists, in accordance with share of each owner or tenant. This would be notwithstanding anything contained in Chapter IX of the Punjab Land Revenue Act, except Section 117, thereof. As per the counsel, the Director has not referred to the provisions of Section 16- A, but he says, that this would be the only section under which the partition could be directed by the Director. The counsel for the respondents forthrightly conceded that Section 16-A of the Consolidation Act would not be attracted here. He, however, pleads that the application under Section 42 was filed as the share according to the value of the land could only be determined by the consolidation staff. Section 16-A is an enabling provision in the Consolidation Act to regulate partition of the joint land or joint tenancy in the consolidation scheme. Once there was no provision made for partition in the scheme, Section 16-A would not be attracted. This provision apparently has been made as the partition proceedings under the Revenue Act has to be stayed during the currency of the consolidated proceedings in respect of the land which would be under consolidation. Thus, a substitute has been provided under the Act for partition of a joint khata in the contingencies mentioned in the clauses (a), (b) and (c ) of sub-section (1) of Section 16-A. In Ram Gopal Vs. State of Punjab, 1965 (67) PLR 1102, it has been held that discretionary power vested in the Consolidation authorities to effect partition of a joint Khata is to be exercised in any of the three contingencies embodied in clauses (a), (b) and (c ) of sub-section (1) CIVIL WRIT PETITION NO.5115 OF 1984 :{ 7 }: of Section 16-A. Thus, Section 16-A would not leave any power with the Consolidation Officer to effect partition in a case where the consolidation scheme is already finalised. Section 16-A was introduced in the year 1959 through Punjab Act 20 and was not in force in the year 1952-53, when the consolidation took place. On this count also, the provisions of Section 16-A would not be applicable in the present case. This apart, as already noticed, Section 16-A applies only in three eventualities mentioned in clauses (a), (b) and (c ) of sub-section (1) of Section 16-A, which are as under:- “(a) such share is recorded under Chapter IV of that Act as belonging to him, or (b) the right of such owner or tenant to such share has been established by a decree which is still subsisting at the time of preparing the scheme, or (c ) a written acknowledgment of such right has been executed by all persons interested in the admission or denial thereof. Thus, this Section is clearly not attracted in the present case. There is not much justification available on record which would explain the action of respondents in leaving the partition proceedings mid-way and in approaching the Director Consolidation under Section 42 of the Consolidation Act to seek the same relief. The partition proceedings were already in progress and there cannot be any justification for abandoning the same to file a petition under Section 42 that too for partition. To justify this action, the counsel for the respondents would plead that the partition in this case was required to be done as per the valuation of the land which could properly be CIVIL WRIT PETITION NO.5115 OF 1984 :{ 8 }: assessed only by the consolidation authorities. This line of submission apparently is not justified. The value of the total joint khata was assessed and the land allotted to the petitioners and the respondents jointly as per their total entitlement. No partition scheme was made during consolidation and rather at that time there was no enable provision to partition of a joint khata by the consolidation authorities. The right to seek partition of this land was available under the provisions of the Revenue Act, which was being exercised. The respondent had fully participated in the proceedings. He had in fact filed an appeal against the order which he abandoned to file a petition under Section 42 of the Consolidation Act. It would be significant to notice that the respondent had pleaded private partition and as such could not be heard to urge that the land was required to be partitioned as per value which had undergone charge. Even the revenue officers were to keep the value in view and indeed had kept the valuation in view while directing partition. Thus, this approach on the part of respondent appears impermissible and the order passed by the Director and impugned in the present writ petition is without jurisdiction. The partitioning of the land as per the valuation can very well be done under the provisions of the Revenue Act and indeed this partition, as already noticed, was so ordered. This is impugned in Writ Petition 5960 of 1986 by the respondent herein. The Sanad Takseem in this case has already been issued and the possession on the basis thereof has also been given to the respective parties. There is no justification otherwise made out to interfere in the order of partition. The counsel for the respondents could not point out any CIVIL WRIT PETITION NO.5115 OF 1984 :{ 9 }: defect in this partition, which would call for interference therein. As a result of the above discussion, Writ Petition 5115 of 84 is allowed and the impugned order, Annexure P-1, dated 27.9.1984 passed by the Additional Director is set-aside. Writ Petition No.5960 of 1986 would stand dismissed. Parties are left to bear their own costs. April 20 ,2009 ( RANJIT SINGH ) ramesh JUDGE