C.W.P.No.8411 of 1987 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : 28.01.2011 C.W.P.No.8411 of 1987 Jammu Ram …Petitioner Versus The Financial Commissioner (Appeals), Punjab …Respondents at Chandigarh and others CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present : Mr. Vikas Behl, Advocate and Ms. Teena, Advocate, for the petitioner. Mr. P.S.Thaira, Addl. AG, Punjab. Mr. Sandeep Khunger, Advocate, for respondent No.5. HEMANT GUPTA, J. (ORAL) Challenge in the present writ petition is to an order passed by the learned Financial Commissioner (Appeals) on 28.05.1987, whereby revision filed by respondent No.5 was allowed and the Assistant Collector, Ist Grade was directed to prepare fresh mode of partition keeping in view the equity and practical convenience of the parties. The petitioner and respondent No.5 are owners of joint land measuring 87 Kanals 15 Marlas. The petitioner filed an application for the partition of the said joint land in which respondent No.5 was proceeded ex 1 C.W.P.No.8411 of 1987 parte on 06.01.1983, when the following mode of partition was proposed: “(a) Clause I of the mode of partition laid down that each party will be given a separate kurrah; and (b) Clause II laid down that partition would be done in accordance with the possession of the parties but possession can be disturbed if it was necessary to do so in order to give each party a single tak that would include the major portion held in possession by it.” It is the case of the petitioner that subsequent to the said order, respondent No.5 filed an application raising objections and sought setting aside of the order sanctioning the mode of partition. Such application was dismissed on 20.01.1983 by the Assistant Collector, Ist Grade and the appeal against such order was also dismissed by the Collector on 04.05.1983. The Assistant Collector thereafter invited objections after preparation of Naqsha Be and Jeem. The petitioner accepted the mode of partition, whereas respondent No.5 objected to the mode of partition. Learned Assistant Collector in terms of Clause II of the mode of partition ordered partition by keeping in view the possession of the parties by suggesting changes in the Naqsha Jeem. Against the said order, an appeal was filed by the petitioner. The said appeal was allowed by the Collector on 27.02.1984. It was held that the Assistant Collector has not resorted to mode of partition while passing the impugned order and that the lower Revenue Staff had correctly prepared the Naqshas on the basis of possession at the spot. Aggrieved against the said order, respondent No.5 filed an appeal before the Commissioner, Ferozepur, which was dismissed on 18.04.1985, but the revision against the said order was accepted by the learned Financial Commissioner (Appeals) vide the 2 C.W.P.No.8411 of 1987 order impugned in the present writ petition on 28.05.1987. It was held to the following effect: “3. The submission of the petitioner that the partition effected by the Collector and the Commissioner is not in accordance with the mode of partition as it disturbs possession is not quite correct for the mode of partition envisages disturbance of possession. The Assistant Collector’s interpretation of the mode of partition was not correct. However, the partition effected by the Collector, is clearly not equitable as the petitioner has been deprived of his best land and in lieu thereof has been given the western most portion of the land, which converges into a narrow triangle and was in the possession of the respondent. Clearly, the mode of partition was not carefully prepared. According to the petitioner, the eastern portion of Rect.No.126 is the most valuable land in the holding, far more valuable than the western corner of Rect.No.127. It is not clear from the record what the value of eastern and western extremities of this joint holding is but even a look at the map would suggest that the eastern portion would much easier to till than the western corner. The petitioner insists that it is also much more valuable. If a single Tak has to be given to each party and one person necessarily has to be given the western portion exclusively, it would need to be considered whether he should not be compensated perhaps by giving him a larger share, or, alternatively one tak to each party should not be insisted upon. In this case the mode of partition itself has not been equitably drawn up and I, therefore, accept the petition, set aside the impugned orders as well as the mode of partition dated 06.01.1983 and direct that a fresh mode of partition be drawn up after the Assistant Collector, Ist Grade, has visited the spot and assessed the situation himself. What the mode of partition should be, I would leave Pb. To the Assistant Collector, Ist Grade, to decide keeping in view equity and practical convenience. The parties may appear before him on 23.07.1987.” 3 C.W.P.No.8411 of 1987 Learned counsel for the petitioner has vehemently argued that since mode of partition has been finalized on 04.05.1983, therefore, respondent No.5 cannot be permitted to file object such mode of partition. Therefore, the order passed by the Financial Commissioner (Appeals) has the effect of setting aside the mode of partition, which has attained finality. Reliance is placed upon Pritam Singh Vs. Jaskaur Singh 1992 (2) PLR 742, Munshi Vs. Financial Commissioner, Haryana, Chandigarh 1994 (1) PLR 723 and Lala Ram Vs. Financial Commissioner, Haryana, AIR 1992 (Punjab) 62. As per respondent No.5, the eastern portion of Rect.No.126 is most valuable land in the holding, far more valuable than the western corner of Rect.No.127 and that the manner of partition is inequitable. The learned Financial Commissioner (Appeals) has rightly set aside the order passed by the Collector. After hearing learned counsel for the parties, I do not find any merit in the present writ petition. The mode of partition, as mentioned above, was an ex parte order. After drawing Naqsha Be and Jeem, the Assistant Collector has invited objections. Thus, such Naqsha Be and Jeem was only suggested mode. It was not finalized. It was while considering the objections, the impugned order has been passed. The judgments relied upon by the learned counsel for the petitioner is of no help to the arguments raised. Suffice to state that the mode of partition has not yet attained finality. The Assistant Collector in order Annexure P-1 has decided the objections invited from both the parties in respect of proposed Naqsha Be and Jeem. It is only on finalization of Naqsha Be and Jeem, the mode of partition can be said to be finalized. 4 C.W.P.No.8411 of 1987 The learned Financial Commissioner (Appeals) has recorded a finding that the Assistant Collector’s interpretation of the mode of partition was not correct and the partition effected by the Collector is not equitable, as respondent No.5 herein has been deprived of the best land and has been given western most portion of the land, which converges into a narrow triangle. It was found that the mode of partition was not carefully prepared. The substantial part of the rectangle falling in Rect.No.126 has fallen to the share of the petitioner in terms of mode of partition sanctioned by the Collector. Such partition adjoins road. The said eastern portion of Rect.No.126 is most valuable. Rest of partition assigned to respondent No.5 is triangle in nature and on the western corner of Rect.No.127. The finding recorded by the learned Financial Commissioner (Appeals) that eastern portion of Rect.No.126 is most valuable has not been disputed by the petitioner. Therefore, the finding recorded by the learned Financial Commissioner that mode of partition is not equitable cannot be said to be incorrect. In view of the above, I do not find any merit in the present writ petition, as the order impugned cannot be said to be suffering from any illegality or irregularity. The same is accordingly dismissed. 28.01.2011 (HEMANT GUPTA) Vimal JUDGE 5