CWP No.2744 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.2744 of 2008 Date of Decision: 7.12.2010 Parjeet Singh @ Paramjit Singh .....Petitioner Vs. Financial Commissioner, Rural Development and Panchayat Punjab and others ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. S.S. Sodhi, Advocate for the petitioner. Mr. C.S. Brar, DAG, Punjab, for respondents no.1 to 5. Mr. Gurcharan Singh, Advocate for respondents no.6 to 8. Mr. Arun Bansal, Advocate for respondent no.19. .... RAJIVE BHALLA, J (Oral) The petitioner prays for issuance of a writ in the nature of Certiorari for quashing orders dated 29.10.2002, 7.2.2001 and 31.8.1998, passed by the Financial Commissioner, Rural Development and Panchayats, Punjab, the Additional Commissioner (Appeals), Patiala Division, Patiala and the Assistant Collector, Ist Grade, Ludhiana (East). The petitioner is aggrieved by clause 2 of the mode of partition sanctioned by the Assistant Collector, Ist Grade, Ludhiana (East) on 31.8.1988, which reads as follows :- “2. The partition shall be done while taking into consideration the possession.” CWP No.2744 of 2008 2 Counsel for the petitioner submits that on the basis of clause 2, of the mode of partition, the more valuable land that abuts the road, would be allotted to respondent no.6, as during partition proceedings, a Khasra Girdawari has been entered recording the possession of respondent no.6. It is further submitted that clause 2, of the mode of partition cannot be read to grant benefit to respondent no.6 of his possession (though not admitted) of more valuable land, as during partition, land has to be distributed in accordance with its quality, its location and other relevant factors. It is further argued that though the Financial Commissioner has accepted the petitioner's submissions, but while deciding the revision, the order passed by the Additional Commissioner to the contrary has been affirmed. Counsel for respondents no.6 to 8 submits that as they are in possession of the disputed land, duly recorded in a khasra girdawari, their possession cannot be disturbed. It is further argued that as the petitioner is not in possession of this land and the respondents have constructed a house and a fish pond, this land should be allotted to them. Counsel for respondent no.19, on the other hand, submits that as respondent no.19 has purchased 1 kanal 4.3/4 marlas of land out of the share of respondent no.6 by reference to specific khasra no., his possession has to be protected. I have heard counsel for the parties and perused the impugned orders. Inherent in the status of a co-sharers/co-owners, is a commonality of ownership and a community of possession, in the joint property. The principles that govern partition of agricultural land are : CWP No.2744 of 2008 3 (a) possession is not to be disturbed, except where it is imperative for effecting an equitable distribution of land ; (b) as a general rule houses are excluded from proceedings for partition of agricultural land; (c ) land has to be partitioned in accordance with its value, dependent upon (i) its location ; (ii) whether it abuts the village abadi; (iii) whether it abuts a road ; (iv) a highway or (v) a main road; (d) the quality of the land ; (e) the nature of irrigation and (f) any other attendant factor that may be relevant. The principles enumerated above are merely illustrative and not exhaustive of the factors that may be taken into consideration. While proceeding to partition the land, the Assistant Collector, Ist Grade has framed clause 2 of the mode of partition, which provides that regard shall be had to possession. Clause 2 inhers a principle of partition that possession shall be disturbed only where it is necessary for an equitable distribution of land based upon its value. Clause 2, therefore, cannot be read to prohibit the Assistant Collector, Ist Grade from disturbing possession. The impugned orders do not depart from these principles, but for reasons best known to the Additional Commissioner and the Financial Commissioner, the order passed by the Collector ordering an equitable distribution of land, was set aside. The Collector passed an order reiterating the principles noticed in the preceding paragraph, before directing the Assistant Collector to partition the land in accordance with its value. In this view of the matter, the writ petition is allowed, the orders dated 29.10.2002 and 7.2.2001, passed by the Additional Commissioner (Appeals). Patiala Division, Patiala and the Financial Commissioner are set aside, the order passed by the Collector is restored/affirmed. It is, however, made clear that private respondents would CWP No.2744 of 2008 4 be free to pray, before the Assistant Collector, Ist Grade that the house and the fish farm be allotted as per possession. In case, the Assistant Collector, Ist Grade decides to allot the fish farm to respondent no.6, he shall be free to evaluate this land and compensate the petitioner, with additional land. Parties are directed to appear before the Assistant Collector, Ist Grade on 24.1.2011, who shall conclude proceedings within three months from receipt of a certified copy of this order. 7.12.2010 (RAJIVE BHALLA) GS JUDGE