LPA No.261 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No.261 of 2009 (O&M) Date of decision: 20.01.2010 Gurnam Singh ............Appellant Versus Financial Commissioner (Appeals-I) ..........Respondents and others CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. Rahul Sharma, Advocate for the appellant. Mr. Jaswinder Singh, D.A.G., Punjab. Mr. Guman Singh, Advocate for the respondent. ALOK SINGH, J. The present appeal is filed assailing the order dated 10.03.2009 passed by learned Single Judge in CWP No.3954 of 2009 thereby dismissing the writ petition challenging the order of the Commissioner in ROR No.185 of 2006 thereby allowing the revision petition and confirming the order of the Collector, Sub Division, Rajpura. LPA No.261 of 2009 (O&M) -2- 2. The brief facts of the present case are that Atma Singh was the owner of the land. After his death, property in dispute devolved upon the appellant and respondent No.3 in equal share. As per appellant, private partition was effected between the appellant and respondent No.3 almost 20 years back and since then appellant is in the exclusive possession of the land came into his share by way of private partition. Respondent No.3 illegally mortgaged the property to the State Bank bearing khasra Nos.153(6-5), 154(6-5) and 155(5-15) which was in the exclusive possession and share of the appellant. Having mortgaged the property illegally with the State Bank of Patiala, which was in exclusive possession and share of the appellant, respondent No.3 with malafide intention moved a petition seeking partition. Mode of Partition was approved on 08.10.2001. 3. As per the mode of partition, it was inter-alia decided that:- “a. Partition would mainly be affected keeping in view the possession of the parties and that possession of the parties would be the main consideration. It was further decided that both the parties would be given the best out of best land and worst out of worst land as per their share and if necessary, the possession may be disturbed. b. It was also decided that if any area or land LPA No.261 of 2009 (O&M) -3- is mortgaged or its ownership has been transferred by any share-holder then that area or land will be put into the share of the person who had mortgaged or alienated the land.” 4. At the time of preparation of 'Naksha Arra' appellant raised the objection, saying since appellant is in possession of khasra Nos.153(6-5), 154(6-5) and 155(5-15) which was illegally mortgaged by the respondent No.3 with the State Bank of Patiala, hence, area in the possession of the appellant cannot be given in the share of the respondent No.3 and partition proceedings be stayed till respondent No.3 does not redeem. Learned Assistant Collector Grade-I vide order dated 25.7.2003 stayed the proceedings of partition which was challenged by the respondent No.3 by way of appeal before the learned Collector, Sub-Division, Rajpura. Learned Appellate Court vide order dated 12.2.2004 allowed the appeal and remanded the case back to the Assistant Collector Grade – I, Rajpura directing that the land mortgaged should be given to the share of the parties who has mortgaged the same and partition proceedings be continued. Aggrieved against the order, appellant herein preferred second appeal before the learned Commissioner. Learned Commissioner vide order dated 12.1.2006 disposed of the appeal and directed the learned Assistant Collector Grade-I to ascertain the possession regarding khasra Nos.153(6-5), 154 (6-5) and 155(5-15) as per the objections raised by the appellant and to pass speaking order thereon and thereafter LPA No.261 of 2009 (O&M) -4- effect the partition proceedings. Order of the learned Commissioner was challenged by the respondent No.3 before the learned Financial Commissioner/respondent No.1 by way of revision petition. Learned Financial Commissioner/respondent No.1 vide order dated 11.12.2008 allowed the revision petition and order passed by the learned Commissioner was set aside. Order of the learned Financial Commissioner was challenged by the appellant before the learned Single Judge. However, learned Single Judge did not accept the submission of the appellant/writ petitioner and dismissed the writ petition. That is how the present appeal is before us. 5. We have heard learned Counsel for the parties and perused the record. 6. Admittedly, the mode of partition was approved on 8.10.2001. As per the mode of partition, following terms were agreed. “a. Partition would mainly be affected keeping in view the possession of the parties and that possession of the parties would be the main consideration. It was further decided that both the parties would be given the best out of best land and worst out of worst land as per their share and if necessary, the possession may be disturbed. b. It was also decided that if any area or land is mortgaged or its ownership has been LPA No.261 of 2009 (O&M) -5- transferred by any share-holder then that area or land will be put into the share of the person who had mortgaged or alienated the land.” 7. As per the mode of partition, partition was to be effected as per the actual possession of the parties on the spot. However, if any of the party is found having transferred any land then transferred land should be put in the share of that party. 8. Learned counsel for the appellant vehemently argued that parties have already partitioned the property amicably 20 years back and were in exclusive possession of shares allotted to them. He further submitted that appellant is in possession of khasra Nos.153 (6-5), 154(6-5) and 155(5-15) and it was illegally mortgaged by the respondent No.3. Hence, this land should be given into the possession/share of the appellant and should not be handed over to the respondent No.3. If it is given in the share of respondent, appellant would be deprived of his land over which he has possession over last more than 20 years and has made improvement by putting hard labour and invested hard earned income. Learned counsel for the appellant further argued that respondent No.3 should redeem and until and unless he redeems partition should not be effected. He further states that if mortgage done by respondent No.3 is found to be malafide then respondent No.3 should not be put into the possession of the land bearing khasra Nos.153, 154 and 155 (supra) depriving the appellant therefrom. 9. Learned counsel for the respondent No.3 submitted LPA No.261 of 2009 (O&M) -6- that although appellant is in exclusive possession of land bearing khasra Nos.153, 154 and 155 (supra), however, no formal partition was effected. Hence, mutual partition shall not take away the right of respondent No.3 and respondent No.3 shall always be deemed in joint possession with the appellant. Hence, mortgage done by respondent No.3 is legal, hence order passed by the learned Financial Commissioner is justified and does not require any interference. 10. Having heard learned counsel for the parties and having perused the record, we find that fact of exclusive possession of the appellant over khasra Nos.153(6-5), 154(6-5) and 155(5-15) has not been disputed by the respondent No.3 seriously. We find that appellant is in possession of land bearing khasra Nos.153(6-5), 154(6-5) and 155(5-15) for more than 20 years. Divisional Commissioner, Patiala in its order dated 12.1.2006 has rightly observed that :- “The intention of respondent to mortgage ½ share of specific khasra numbers needs to be examined in the trial Court with reference to revenue records of cultivating possession of the above khasra numbers and on the spot inquiry. On the above point, decision is to be given strictly as per the agreed 'Mode of Partition' and ground realities. In my opinion, the present respondent is trying to take undue advantage of condition no.6 of Mode of LPA No.261 of 2009 (O&M) -7- Partition. In view of the above, appeal filed in this Court is accepted to the extent that A.C. Ist Grade Rajpura is hereby directed to ascertain the possession regarding Khasra Nos.153, 154 and 155 as per the objections raised by the present appellant in his Court and pass a speaking order on the same.” 11. Ordinarily this Court, while exercising jurisdiction under Articles 226/227 of the Constitution of India, does not interfere with the orders passed by the Subordinate Courts/Tribunal unless this Court finds manifest error of law or jurisdiction error committed by the Subordinate Courts/Tribunals. However, since Divisional Commissioner confirmed the remand order with the direction that intention of respondent to mortgage the property needs to be examined and possession is to be ascertain, hence, there seems to be no justification to interfere with the direction of the learned Divisional Commissioner. In our opinion, learned Revisional Court committed error of law by disturbing the remand order passed by the Appellate Court. Hence, the said order cannot be sustained. 12. The present appeal is allowed. Order impugned dated 11.12.2008 passed by the Financial Commissioner is set aside. Order dated 12.1.2006 passed by the Divisional Commissioner is restored. Learned Assistant Collector Grade – I, Rajpura is directed to decide the case as per the LPA No.261 of 2009 (O&M) -8- direction issued by the learned Divisional Commissioner as early as possible and in any case within one year from the date of production of a certified copy of this judgment before him. (ALOK SINGH) JUDGE (ADARSH KUMAR GOEL) 20.01.2010 JUDGE ashish