L.P.A. No.707 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH L.P.A. No.707 of 2009 (O&M) DATE OF DECISION: JANUARY 07, 2011 Surjit Singh .....APPELLANT Versus Financial Commissioner Appeals-II, Punjab and others ....RESPONDENTS CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE M. JEYAPAUL --- Present: Mr. C.M. Chopra, Advocate, for the appellant. Mr. Krishan Sehajpal, Advocate, for respondent No.2. .. SATISH KUMAR MITTAL, J. Surjit Singh has filed this Letters Patent Appeal against the order dated 14.5.2009 passed by the learned Single Judge in C.W.P. No.7269 of 2009. The said writ petition was filed by Surjit Singh appellant under Articles 226/227 of the Constitution of India for quashing the order dated 30.7.2003 passed by the Collector, Garhshankar; order dated 17.2.2005 passed by the Commissioner and the order dated 1.10.2008 passed by the Financial Commissioner Appeals-II, whereby the revenue authorities have dismissed the partition application moved by the appellant on the ground that in view of the fact that the land has been carved out in plots for residential purposes and construction has been raised thereon, L.P.A. No.707 of 2009 (O&M) -2- therefore, the same loses its agricultural nature, hence, the same cannot be partitioned by the revenue Court. However, liberty was given to the appellant to seek the remedy of partition before the Civil Court. The learned Single Judge has affirmed the order of the revenue authorities. Hence, the instant appeal has been filed by the appellant. We have heard the learned counsel for the parties and gone through the orders passed by the revenue authorities as well as the order passed by the learned Single Judge. Undisputedly, in the year 1999, the appellant and other co- sharer Bakhshish Singh filed two applications under Section 111 of the Punjab Land Revenue Act, 1887 (hereinafter referred to as `the Land Revenue Act') before Assistant Collector Ist Grade for partition of the land measuring 59 Kanals 1 Marla comprising in two Khewats situated in the revenue estate of village Rurkee Khas, Tehsil Garhshankar, District Hoshiarpur in which they were having shares along with other co-sharers, who were impleaded as respondents. In the said partition proceedings, initially the respondents were proceeded exparte and in their absence the mode of partition was prepared as well as the final order of partition was passed exparte. Later on, on the appeal filed by respondent No.2, the exparte order was set aside and the matter was remanded to Assistant Collector Ist Grade to proceed with the partition afresh. After the remand before the Assistant Collector Ist Grade, at the initial stage of preparing the mode of partition, the respondent raised certain objections, but without properly considering those objections, the mode of partition was confirmed by the Assistant Collector Ist Grade vide order L.P.A. No.707 of 2009 (O&M) -3- dated 4.2.2003. Against the said order, the respondent filed an appeal before the Collector, where the respondent pleaded that the Assistant Collector Ist Grade had not taken into consideration their objections with regard to the subsequent development. It was pleaded that the appellant and Bakhshish Singh, who had filed the partition applications, had converted the land into plots, which was in their possession. After carving out the plots out of their land, they had sold the same to many purchasers who have constructed their residential houses on those plots. Some of the purchasers have constructed the boundary walls. Therefore, by their own conduct, they have dis-entitled themselves for getting the land in dispute partitioned. The learned Collector while taking into consideration those facts had set aside the order dated 4.2.2003 passed by the Assistant Collector Ist Grade and held that in view of the construction raised on the disputed land, the revenue authorities ceased to have the jurisdiction to partition the same because the land has lost its nature as agricultural land. The said order was upheld by the Commissioner. On appeal, before the Financial Commissioner, the appellant got appointed a Local Commissioner on the contention that no construction had been raised on the land in dispute. However, the Local Commissioner in his report, which has been annexed with this appeal, found that large scale construction activity was going on in and around the land in dispute. It has been found that the plots have been carved out of the land and residential houses have been constructed. According to him, although carving out of the plots and selling the same were of 5/6 years back, but the construction was recently made. The learned Financial Commissioner then dismissed the revision filed by L.P.A. No.707 of 2009 (O&M) -4- the appellant. Learned counsel for the appellant, while assailing the orders of the revenue authorities as well as learned Single Judge, has argued that when the application for partition of the land was moved, at that time there was no construction. He further argued that when the agricultural land, which was part of `estate', as defined in Section 3 of the Land Revenue Act, can only be partitioned by the revenue authorities under the Land Revenue Act and in view of Section 158(2) of the said Act, the Civil Court has no jurisdiction to partition the same. According to the learned counsel, the land in dispute, at the time when the partition application was filed, as per the Jamabandi for the year 1995-96, was an agricultural land and it was assessed to land revenue. Therefore, it was to be partitioned under the Land Revenue Act by the Revenue Officer and if subsequently, some constructions have been raised, that subsequent fact will not debar the Revenue Officer from partitioning the said land. In support of his contention, learned counsel relied upon the decision of this Court in Sucha Singh and others v. Balbir Singh and others, 1964 PLJ 160 and a Division Bench judgment of this Court in Auja Singh v. Pritam Singh and another, 1993(2) PLR 335. It is pertinent to mention here that at one stage, the matter was referred to the Lok Adalat for compromise as the dispute was between brothers. Since neither the appellant nor respondent No.2 could settle the matter amicably before the Lok Adalat, the same was returned to this Court. After considering the submissions made by the counsel for the appellant, we do not find any force in the same. It is uncontroverted fact that L.P.A. No.707 of 2009 (O&M) -5- after filing the partition application, the appellant himself has carved out plots on the land in their possession for residential purposes on which construction has been raised by the purchasers. This factum of large scale construction in and around the land in dispute and construction of roads and houses on the plots carved out has been confirmed by the Local Commissioner. Undisputedly, the subsequent development had taken place before the final order of partition was passed. Initially, at the time of confirmation of the mode of partition, the respondent raised objections in this regard. It is true that the agricultural land, which is part of an estate, which has been defined under the Land Revenue Act, cannot be partitioned by the Civil Court in view of Section 158(2) of the said Act. But, when the agricultural land before partition loses its nature as such by the acts of the parties, particularly, who is seeking partition, then such land cannot be partitioned by the revenue Court. During the partition before the Revenue Officer, a co-sharer can raise an objection that the land, which has been shown in the revenue record as agricultural and assessed to land revenue, should not be partitioned as the same due to the acts of the other co-sharer, who is seeking partition, loses its nature as an agricultural land. Exactly this thing has happened in the present case and by taking into consideration the subsequent development and the acts of the appellant himself, the revenue Court refused to partition the land with liberty to the appellant to seek the remedy of partition before the Civil Court. In Auja Singh's case (supra), cited by the learned counsel for the appellant, some observations have been made by the Division Bench of this Court which do not support the case of L.P.A. No.707 of 2009 (O&M) -6- the appellant, rather those observations support the case of the respondent. These observations read as under:- “No doubt, if a particular property is a abadi land and does not fall under the definition of land, the revenue authorities have no jurisdiction to partition the same but in this case, there is no evidence to prove that at the time the land in dispute was ordered to be partitioned by the Revenue Officer, it was abadi land and was not agricultural land. The order of partition was passed by the Revenue Officer on 22.9.1970, Exhibit D11. The suit land at that time was entered in the revenue papers and it was assessed to land revenue. So, apparently the Revenue Officer, who partitioned the land, had the jurisdiction to partition the same and as such, the order of partition is valid. Before this order could be held to be invalid, the plaintiff, we think, was required to produce evidence which could show that at the time the order of partition was passed, the suit land was not being used for agricultural purposes, but was being used as abadi land. There is, however, no evidence in this behalf nor any such evidence was referred to by the learned counsel for the appellant. Learned counsel for the appellant- plaintiff has simply tried to press into service the written statement filed by defendant No.1. No doubt, defendant No.1 in his written statement alleged that the installations and structures on the suit land raised by defendant No.1 were existing for the last 20 years, but this averment made by defendant No.1 was not binding on defendant No.2 who had raised the plea that the suit land had already been partitioned. So, qua defendant No.2, the plaintiff cannot take advantage of any averment made in the written statement filed by defendant No.1. The plaintiff was required to produce some evidence which could show that at the time the suit land was ordered to be partitioned, it was no more an agricultural land, but L.P.A. No.707 of 2009 (O&M) -7- was being used as abadi land.” (Emphasis Added) In view of the aforesaid observations made by the Division Bench, in our opinion, in the instant case the revenue authorities were fully justified while coming to the conclusion that with the subsequent wide constructions raised, the land in dispute cannot be partitioned by the revenue Court. By the impugned order, the revenue Court has specifically given liberty to the appellant to seek his remedy for partition of the land before the Civil Court. Therefore, the appellant is not remediless. If he feels that the co-sharers have unequal possession of the joint land or some portion of the land property has not been given the passage, he is not remediless. He can approach the Civil Court for seeking partition. Since the revenue Court itself has held that the appellant can approach the Civil Court, the bar created by Section 158(2) of the Land Revenue Act will not come in the way of the appellant. In view of the above, we do not find any merit in the appeal and the same is hereby dismissed. (SATISH KUMAR MITTAL) JUDGE January 07, 2011 ( M. JEYAPAUL ) vkg JUDGE