L.P.A. No.1783 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH L.P.A. No.1783 of 2011 (O&M) DATE OF DECISION: SEPTEMBER 22, 2011 Mehar Singh …APPELLANT VERSUS Commissioner (Appeals), Patiala Division, Patiala and others …RESPONDENTS CORAM: HON’BLE MR.JUSTICE SATISH KUMAR MITTAL HON’BLE MR.JUSTICE ARVIND KUMAR --- PRESENT: Mr. Hardip Singh Advocate, for the appellant. … SATISH KUMAR MITTAL, J. This Letters Patent Appeal is directed against the judgment dated September 12, 2011 passed by the learned Single Judge, whereby the writ petition (CWP No.16955 of 2011) filed by the appellant challenging the order dated 15.2.2011 passed by respondent No.1, has been dismissed. We have heard the learned counsel for the appellant and gone through the impugned order passed by the learned Single Judge as well as the Commissioner (Appeals). The present case pertains to partition of 127 Kanals 5 Marlas of land situated in two villages namely, Mothapur and Rouli, jointly owned by both the parties. As per the ``Mode of Partition'' dated 18.10.2007, which became final between the parties, the partition of the total land situated in L.P.A. No.1783 of 2011 (O&M) -2- both the villages is to be done collectively, and while partitioning the land between the co-sharers, the possession of the party is to be kept in view, but if necessity arises, possession can be disturbed also. According to the said `Mode of Partition' the Naksha `Arra' and `Irri' prepared by the field staff were placed before the Assistant Collector Ist Grade for approval. At that time, an objection was raised about allotment of the entire land in village Mothapur to appellant Mehar Singh, but while taking into consideration the fact that in the reply filed by Gurbax Singh, Jai Ram, Dharam Singh, Mohinder Singh, Gurmit Singh and Karam Singh, appellant Mehar Singh was stated to be in possession of the land situated in village Mothapur, the objections were rejected and Naksha `Arra' and `Irri' were confirmed by the Assistant Collector Ist Grade. Feeling aggrieved against the aforesaid order, Gurbax Singh filed an appeal alleging that as per the `Mode of Partition' the land of both the villages is to be partitioned amongst the co-sharers, but the entire land in village Mothapur was given to appellant Mehar Singh. It is argued that it was not admitted by them. The Collector vide its order dated 15.6.2009 accepted the appeal and set aside the order passed by the Assistant Collector Ist Grade after coming to the conclusion that the partition was not according to the `Mode of Partition', and then remanded the case to the Assistant Collector Ist Grade with the direction to decide the same afresh, after giving opportunity to both the parties. Feeling aggrieved against that order, appellant Mehar Singh filed revision which was disposed of by the Commissioner vide order dated 15.2.2011 while making the following L.P.A. No.1783 of 2011 (O&M) -3- observations:- “I have heard both the counsels and have also gone through the record of the lower courts. In this case the A.C. Ist Grade has approved Naksha `Arra' and `Irri' for both the villages vide orders dated 29.12.2008 but in the appeals filed by the respondent No.1 the Collector has remanded the case back to Tehsildar, Anandpur Sahib with the directions to decide the case afresh vide orders dated 15.6.2009. Now the present appellant has filed the present two appeals on the grounds that the respondents had given the consent to consolidate the partition applications and had given the consent to take the land falling in village Rauli as the land in question had already partitioned between the parties almost 40 years way back. In my opinion, the Collector has wrongly remanded the case to Tehsildar, Anandpur Sahib for fresh decision after hearing both the parties as the ``Mode of Partition'' which was approved after consolidation the land falling in both the villages, and, the present respondents had not filed any appeal against the sanctioned ``Mode of Partition'' if they were aggrieved from the same and now at this stage when Naksha `Arra' and `Irri' have been approved as per sanctioned ``Mode of Partition'' then they have raised objection that they had never given any consent to consolidate the land falling in both the villages and they should have been given land in both the villages as per their entitlement. These averments of the respondents are not acceptable and as such both the appeals filed in this case are hereby accepted. However, the case is remanded back to Tehsildar, Anandpur Sahib with specific direction for just looking at the fact as to whether the respondents No.1 and 2 have any possession on any part of the land falling in village Mothapur and if it is proved that they did not have any land in village Mothapur then exclusive rights be given to the appellant.” L.P.A. No.1783 of 2011 (O&M) -4- Against that order, the writ petition filed by the appellant was dismissed by the learned Single Judge while observing as under:- “.....The petitioner filed two appeals against order dated 15.6.2009, whereby the case was remanded. The Commissioner, however, has allowed the appeals but with a rider that the case would go back to Tehsildar with a specific direction for just looking at the fact as to whether respondents No.4 and 5 have any possession on any part of the land falling in village Mothapur and if it is proved that they did not have any land in village Mothapur, then exclusive rights be given to the petitioner-appellant. The petitioner, who was appellant, accordingly has challenged this order through the present writ petition with a grievance that once the appeal was accepted, the Commissioner was not justified in remanding the case back to the Tehsildar with the directions as noted above. The counsel for the petitioner contends that it would amount to re-opening the entire partition proceedings. I am not prepared to accept the line of submissions as made. The appeal filed by the petitioner has been accepted. A limited direction was given to Tehsildar to look into if respondents Nos. 4 and 5 have any possession on any part of the land in village Mothapur. Tehsildar is only to find the factual position and it does not amount to re-opening of the entire proceedings. If respondent Nos.4 and 5 have (not) (sic) possession of any land in village Mothapur, then exclusive rights can be given to the petitioner-appellant. It is to find out this fact that these directions have been issued and if it is ultimately found that respondent Nos.4 and 5 do not possess any part of land in village Mothapur, then the petitioner would get exclusive right over the land. No case for interference, therefore, is made out.” Learned counsel for the appellant argued that when the learned Commissioner arrived at the conclusion that once the Collector had L.P.A. No.1783 of 2011 (O&M) -5- accepted the appeal then there was no justification to remand the case back to the Tehsildar with specific direction for just looking at the fact as to whether respondents have any possession on any part of the land falling in village Mothapur, and if it is proved that they did not have any land in village Mothapur, then exclusive rights be given to the appellant. In our opinion, the learned Single Judge has rightly not accepted this contention of the appellant because the limited remand order passed by the Commissioner is not going to cause any prejudice to the appellant. The appellant is claiming that the entire land of village Mothapur is in his possession as so admitted by the respondents in their reply before the Assistant Collector Ist Grade. On the other hand, the respondents are claiming that they are also in possession and are entitled to the land in the said village as per their share in view of the `Mode of Partition'. The Commissioner has only directed the Assistant Collector Ist Grade to look into the fact whether the respondents are in possession of any land in village Mothapur. If they are found in possession of the land in village Mothapur, they can be given that land to the extent of their share, but in case the appellant is found in possession of the entire land in village Mothapur, then the same will be given to him. In our opinion, the said direction is reasonable and justified, particularly when the `Mode of Partition' specifies that respective possession of the parties is to be kept in mind while making partition. Therefore, without going into any alleged admission by the respondents with regard to possession of the appellant on entire land in village Mothapur, the Collector has rightly directed the Assistant Collector Ist Grade to determine as a fact that who is actually in possession of the land in village Mothapur, and if so, to what L.P.A. No.1783 of 2011 (O&M) -6- extent so that the land in village Mothapur can be partitioned according to their share while keeping in view the possession of the respective parties. Thus, we do not find any illegality in the impugned judgment passed by the learned Single Judge. Hence, the appeal is dismissed. ( SATISH KUMAR MITTAL ) JUDGE September 22, 2011 ( ARVIND KUMAR ) vkg JUDGE