C.W.P No.5962 of 2008 1 In the High Court of Punjab and Haryana, Chandigarh. C.W.P No.5962 of 2008 Date of Decision: 08.01.2009 Manjit Singh and others ....Petitioner. Versus Financial Commissioner, Appeals, Pb. and others. ....Respondents. Coram:- Hon'ble Mr.Justice J.S. Khehar Hon'ble Ms. Justice Nirmaljit Kaur Present: Mr. Parminder Singh, Advocate for the petitioners. Mr. Parveen Chander Goel, Addl. A.G., Pb. for respondent No.1 to 4. Ms. Deepika Verma, Advocate for respondent No.5. Mr. P.S. Khurana, Advocate for respondent No.6. ... J.S. Khehar, J. Balbir Kaur and her son Jatinder Singh filed an application for partition of land situated in village Dhablan, Tehsil and District Patiala, measuring 215 kanals 1 marla as per Jamabandi for the year 1991–92. The aforesaid application was filed on 22.11.1994. The Assistant Collector, First Grade, Patiala, before whom the aforesaid application was filed, sought a response from the other co- C.W.P No.5962 of 2008 2 sharers. A response to the aforesaid application was filed by the petitioners herein. In their reply, it was asserted that the land in question measuring 215 kanals 1 marla was previously owned by Kirpal Singh, and that, Kirpal Singh during his lifetime had partitioned the land by executing a written family partition dated 10.6.1985. By virtue of the aforesaid family partition, fertile and valuable land was kept by Kirpal Singh himself and for his son Jatinder Singh, whereas, sandy and uneven land located at some distance from the “abadi” of the village, was given to his two other sons Mohinder Singh and Mann Singh. The land given to Mohinder Singh and Mann Singh was in two “taks” measuring 9 ½ acres and 2 ¾ acres. The aforesaid land also had the advantage of one electric motor. On account of the sandy and uneven land given to Mohinder Singh and Mann Singh, they were given one acre additional land each more than the others so as to compensate them. Another son, namely, Surinder Singh was given 1/5th share of the land owned by Kirpal Singh. According to the stance adopted by the petitioners herein (or their ancestors) before the Assistant Collector, First Grade, Patiala, the written family partition executed on 10.6.1985 was to be binding on the members of the family of Kirpal Singh even after his death. The only additional aspect of the matter being that the land falling to the share of Kirpal Singh in the aforesaid family settlement dated 10.6.1985, has been given to his widow Balbir Kaur. During the course of hearing of the instant controversy, it emerged that Kirpal Singh was earlier married to Bachhittar Kaur. From Bachhittar Kaur, Kirpal Singh had three sons, namely, Mohinder Singh, Surinder Singh and Mann Singh. On the death of Bachhittar Kaur, Kirpal Singh married Balbir Kaur. From Balbir Kaur, Kirpal Singh had another C.W.P No.5962 of 2008 3 son Jatinder Singh. The division of land amongst the rival parties, in the present controversy, is amongst four sons of Kirpal Singh and his widow Balbir Kaur. As against the claim of Mohinder Singh and Mann Singh, who had allegedly been given one additional acre of land in the family partition dated 10.6.1985, the claim of Balbir Kaur and Jatinder Singh, was based on a Civil Court decree. In this behalf, it would be pertinent to mention that all the rival parties, namely, Mohinder Singh, Surinder Singh, Mann Singh and Jatinder Singh (sons of Kirpal Singh) and Balbir Kaur (now widow of Kirpal Singh) by filing a civil suit asserted, that they were owners in possession of land measuring 215 kanals and 1 marla in equal shares. The operative part of the judgement rendered on 15.6.1983 by the Sub Judge, First Class, Patiala (Special), arising out of Suit No.114 of 4.4.1994, is being extracted hereunder: -- “So, in view of the written statement admitting the claim of the plaintiffs in toto and the subsequent statement suffered on oath, there is no issue of law or fact which remains to be adjudicated by the Court. So, in these circumstances, I decree the suit of the plaintiffs to the effect that the plaintiffs are owners in possession of the land in equal shares, as detailed in the heading of the plaint, measuring 215 kanals 1 marla.” A copy of the aforesaid is available on the record of this case as Annexure R-5/1 with the written statement filed on behalf of respondent No.5, Balbir Kaur. During the course of partition proceedings, Balbir Kaur appeared as her own witness and asserted, that no written family partition C.W.P No.5962 of 2008 4 had been executed on 10.6.1985 (as had been alleged on behalf of Mohinder Singh and Mann Singh). She further stated that Mohinder Singh and Mann Singh were in possession of land in excess of their share, and that, a formal partition should be effected so as to assign to her 1/5th share of the land of Kirpal Singh, in terms of the judgement dated 15.6.1983 (relevant extract whereof has been reproduced hereinabove). Besides appearing as her own witness, Balbir Kaur produced Gurbachan Singh, Lamberdar of the village. During the course of his deposition, Gurbachan Singh asserted that the land in question had been divided into five shares between the parties. Gurbachan Singh in his deposition stated, that Balbir Kaur was in possession of less land than her share. He also asserted that the nature of the land held by the rival parties, was the same. In this behalf, Gurbachan Singh clarified, that the entire land produces two crops in a year. He also asserted that no part of the land was of poor quality. Mukhtiar Singh, another witness produced by Balbir Kaur, reiterated the same factual position as had been narrated by Gurbachan Singh in his deposition. Since Jatinder Singh son of Balbir Kaur was unwell during the course of the proceedings before the Assistant Collector, First Grade, Patiala, accordingly, his counsel made a statement asserting, that the deposition of Balbir Kaur (before the Assistant Collector, First Grade, Patiala,) be treated as the statement of Jatinder Singh as well. It would be pertinent to mention that although, Mohinder Singh and Mann Singh relied on the family settlement dated 10.6.1985, they could not produce the same before the Assistant Collector, First Grade, Patiala. There is no material on the record of this case to show that any secondary evidence was led by Mohinder Singh and Mann Singh in order to establish the veracity of the alleged C.W.P No.5962 of 2008 5 family settlement dated 10.6.1985, or the contents thereof. The Assistant Collector, First Grade, Patiala, by his order dated 12.6.2000, accepted the claim of Balbir Kaur and Jatinder Singh for the partition of the land in question so as to assign 1/5th share of the land of Kirpal Singh. In arriving at the aforesaid conclusion, the Assistant Collector, First Grade, Patiala, inter-alia, arrived at the conclusions summarised hereinafter. Firstly, that the family partition dated 10.6.1985 was not produced before the Assistant Collector, First Grade, Patiala, by Mohinder Singh and Mann Singh. Secondly, the judgement and decree of the Sub Judge, Patiala, dated 15.6.1983 recorded a clear and categoric finding to the effect that the four sons of Kirpal Singh and his widow Balbir Kaur, were to share the land in question in equal shares. Thirdly, the Jamabandi for the year 1991–92 reflected that Mohinder Singh, Surinder Singh, Mann Singh and Jatinder Singh have 4/5th share, whereas Balbir Kaur had 1/5th share. As such, each of the rival parties had 1/5th share. Fourthly, that the family partition executed on 10.6.1985 had never been given effect to in the revenue records, and as such, had no sanctity in the eyes of law. Dissatisfied with the order rendered by the Assistant Collector, First Grade, Patiala, dated 12.6.2000, Mohinder Singh and Mann Singh preferred an appeal before the Collector, Patiala. The primary plank for assailing the order passed by the Assistant Collector, First Grade, Patiala, in their appeal, was that after the judgement and decree dated 15.6.1983, a written family partition was executed on 10.6.1985, and that, the Assistant Collector, First Grade, Patiala, had not taken the same into consideration while adjudicating upon the controversy. The Collector, Patiala, dismissed C.W.P No.5962 of 2008 6 the aforesaid appeal by an order dated 25.7.2001. In his aforesaid determination, the Collector, Patiala, categorically arrived at the conclusion that the judgement rendered by the Civil Court dated 15.6.1983 and the consequential decree, was binding on the parties, wherein the land in question was distributed amongst the co-sharers equally. In rejecting the contention of the appellants Mohinder Singh and Mann Singh based on the family partition allegedly executed on 10.6.1985, the Collector, Patiala, recorded that the same had not been proved on the basis of any authentic evidence. Aggrieved with the order passed by the Collector, Patiala, dated 25.7.2001, Mohinder Singh and Mann Singh (the petitioners herein) preferred a revision petition. In the aforesaid revision petition, the primary contention of Mohinder Singh and Mann Singh was on the basis of the alleged written partition dated 10.6.1985. Yet again, it was asserted that excess land was assigned to Mohinder Singh and Mann Singh on account of the fact, that the other three co-sharers had been assigned better land, whereas Mohinder Singh and Mann Singh had been assigned inferior land, and further that, the land assigned to Mohinder Singh and Mann Singh was far away from the “abadi” of the village. The Commissioner, Patiala Division, Patiala, arrived at the conclusion that an affidavit dated 21.9.1999 filed by Jatinder Singh respondent No.2 acknowledging, that the land in question had been divided amongst the sons and widow of Kirpal Singh on the basis of a memorandum of partition dated 10.6.1985, and that, all the five co-sharers were in possession of their shares in terms of the aforesaid memorandum of partition dated 10.6.1985, had not been taken into consideration. On the basis of the affidavit of Jatinder Singh dated C.W.P No.5962 of 2008 7 21.9.1999, the Commissioner, Patiala Division, Patiala on 13.5.2002 accepted the revision petition filed by Mohinder Singh and Mann Singh, and having done so, dismissed the application for partition preferred by Balbir Kaur and Jatinder Singh. Balbir Kaur then filed a revision petition before the Financial Commissioner, Appeals-I, Punjab (ROR No.526/2002). The aforesaid revision petition was accepted by the Financial Commissioner, Appeals-I, Punjab, on 8.1.2008. In doing so, the revisional authority approved the orders passed by the Assistant Collector, First Grade, Patiala, dated 12.6.2000 and by the Collector, Patiala, dated 25.7.2001. The order passed by the Commissioner, Patiala Division, Patiala, was set aside. In so far as the affidavit of Jatinder Singh dated 21.9.1999 is concerned, the revisional authority rejected the authenticity thereof for two reasons. Firstly, that a mere assertion about the authenticity of the family partition dated 10.6.1985 in the affidavit of Jatinder Singh would not establish the same. In this behalf, the revisional authority also noticed that Jatinder Singh never appeared before the Assistant Collector, First Grade, Patiala, for making any statement. Secondly, the alleged family settlement dated 10.6.1985 was not given effect to, in as much as, the entries in the revenue records clearly depicted that 4/5th of the land of Kirpal Singh fell to the shares of Mohinder Singh, Mann Singh, Surinder Singh and Jatinder Singh, whereas 1/5th share of the land of Kirpal Singh fell to the share of his widow Balbir Kaur. Dissatisfied with the order passed by the Financial Commissioner, Appeals-I, Punjab, dated 8.1.2008, Mohinder Singh and Mann Singh have filed the instant writ petition. The two submissions advanced on behalf of Mohinder Singh C.W.P No.5962 of 2008 8 and Mann Singh before the revenue authorities have been pressed before us as well. The first contention advanced at the hands of the learned counsel for the petitioners, is that a written family settlement was executed on 10.6.1985, wherein one acre extra land was given to Mohinder Singh and Mann Singh i.e. the petitioners herein on account of the fact, that the land assigned to them was of inferior quality, as also, on account of the fact that the same was situated far away from the “abadi” of the village as compared to the land assigned to the other co-sharers. The second contention advanced by the learned counsel for the petitioners, is based on the affidavit of Jatinder Singh dated 21.9.1999. The instant controversy is between Mohinder Singh, Surinder Singh and Mann Singh, on the one hand who are the sons of Kirpal Singh from his first marriage; and Jatinder Singh son of Kirpal Singh from his second marriage, as also, the widow of Kirpal Singh i.e. Balbir Kaur, on the other. We were desirous of disposing of the matter through a negotiated settlement in view of the close relationship between the parties. Accordingly, the parties were directed to be present in Court in person on 23.10.2008. During the course of hearing, and in our effort to settle the matter amicably between the parties, it became apparent that each one of the parties, was desirous of pressing his/her own claim. This attitude at the hands of the rival parties, is understandable after having faced one another in long drawn legal battle, before four different revenue authorities. We should not have expected them to settle the matter at their own. It is necessary for us to notice the demeanor of Balbir Kaur respondent No.5 before us. Balbir Kaur is the stepmother of Mohinder Singh and Mann Singh, on whose behalf the instant writ petition has been filed. She is also C.W.P No.5962 of 2008 9 the stepmother of Surinder Singh respondent No.7. She is also the natural mother of Jatinder Singh respondent No.6. During the course of hearing, she asserted that none of her children was looking after her, and that, she was fending for herself. Finding no possibility of a settlement between the parties, we heard the learned counsel for the rival parties and proceeded to adjudicate upon the matter on its merits. The first contention of the learned counsel for the petitioners, was based on the alleged written family settlement dated 10.6.1985. During the course of hearing, learned counsel for the petitioners very fairly acknowledged, that the petitioners had failed to place the original family settlement dated 10.6.1985 on the record of the case, as the same was allegedly in possession of Balbir Kaur respondent No.5. It is, therefore, apparent that the petitioners’ claim is based on document which has never been produced before the revenue authorities, as also, has not been produced before this Court. No secondary evidence had been led by the petitioners to substantiate the execution of the family settlement dated 10.6.1985, or for that matter, even to establish the contents thereof. In the absence of the aforesaid, it is impossible for us to accept the claim of the petitioners based on the alleged family partition dated 10.6.1985. It is not possible even to arrive at the conclusion, that the family partition dated 10.6.1985 had indeed been executed, and given effect to by the rival parties. For the reasons recorded hereinabove, we find no merit in the first contention advanced by the learned counsel for the petitioners. In so far as the second contention advanced by the learned counsel for the petitioners, is concerned, namely, the veracity of the C.W.P No.5962 of 2008 10 affidavit dated 21.9.1999 (allegedly executed by Jatinder Singh respondent No.6) it is surprising to note, that the petitioners have even failed to place the said affidavit on the record of the case. Learned counsel for the petitioners invited this Court’s attention to the observations recorded in the order passed by the Commissioner, Patiala Division, Patiala, to the effect, that according to the affidavit filed by Jatinder Singh, the land in dispute had been partitioned amongst the rival parties through a memorandum of partition dated 10.6.1985, and that, the parties were in continuous possession of the land in terms of the aforesaid memorandum of partition. The second contention advanced by the learned counsel for the petitioners, is unacceptable for the same reasons, as have been depicted in the foregoing paragraph for rejecting the first contention advanced by the learned counsel for the petitioners. It is not possible for us to render any decision on the basis of the alleged memorandum of partition dated 10.6.1985 in the absence of the aforesaid memorandum of partition, as also, in the absence of any evidence depicting the contents thereof. The observations recorded by the Financial Commissioner, Appeals-I, Punjab, in rejecting the claim made by the petitioners herein on the basis of the aforesaid family settlement, are fully justified, in as much as, it is not a matter of dispute that Jatinder Singh, though filed an application before the Assistant Collector, First Grade, Patiala, did not participate in the proceedings before the Assistant Collector, First Grade, Patiala. In fact, a statement at his behest was made before the Assistant Collector, First Grade, Patiala, to the effect that he was desirous to adopt the deposition of Balbir Kaur (before the Assistant Collector, First Grade, Patiala) and as such, the statement of Balbir Kaur tendered before the Assistant Collector, First Grade, Patiala, was taken to be the statement C.W.P No.5962 of 2008 11 of Jatinder Singh, as well. The aforesaid factual position has not been disputed before us, nor has it been the claim of Jatinder Singh, that the statement on his behalf before the Assistant Collector, First Grade, Patiala, had not been authorised by him. Thus viewed, it is apparent that two contradictory stances were adopted by Jatinder Singh. The affidavit of Jatinder Singh dated 21.9.1999 is, therefore, totally unreliable, and as such, cannot be the foundational basis for determining the present controversy. It would also be pertinent to mention, that there is no challenge to the veracity of the Civil Court judgement dated 15.6.1983 (Annexure R5/4). Relevant extract of the aforesaid judgement has been reproduced hereinabove. The determination rendered by the Civil Court categorically establishes equal share of Balbir Kaur in the land under reference. It is also not a matter of dispute, that the Jamabandi for the year 1991-92 clearly demonstrates that 1/5th share of the suit land was under the ownership of Balbir Kaur. A copy of the aforesaid Jamabandi has been placed on the record of the written statement filed on behalf of respondent No.5 as Annexure R-5/4. It is also pertinent to mention, that in the mutation (copy whereof has been appended to the written statement filed by respondent No.5 as Annexure R-5/3) 4/5th share of the land of Kirpal Singh was shown in the ownership of Mohinder Singh, Surinder Singh, Mann Singh and Jatinder Singh, whereas 1/5th share of the land of Kirpal Singh was shown in the name of Balbir Kaur. The aforesaid mutation entry made on 23.1.1992, was never contested by the petitioners. For the reasons recorded hereinabove (rejecting the pleas advanced on behalf of the petitioners) as also, noticing the pleas affirming the claim for partition raised through application dated 22.11.1994, we are of the view that the orders passed by C.W.P No.5962 of 2008 12 the Assistant Collector, First Grade, Patiala, dated 12.6.2000, the Collector, Patiala, dated 25.7.2001, as also, the Financial Commissioner, Appeals-I, Punjab, dated 8.1.2008, were fully justified and deserve to be upheld. The instant writ petition being devoid of merit, is hereby dismissed. ( J.S. Khehar ) Judge ( Nirmaljit Kaur ) Judge. 08.01.2009 sk.