CIVIL WRIT PETITION NO.3979 OF 2009 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: APRIL 24, 2009 Telu .....Petitioner VERSUS Financial Commissioner (Cooperation), Pb., Chandigarh and another ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Vikas Bahl, Advocate, for the petitioner. Mr. Parveen Chander Goyal, Addl.A.G., Punjab, for the State. Mr. M. S. Kang, Advocate for respondent No.2. **** RANJIT SINGH, J. The petitioner has a grievance that impugned order passed by the Financial Commissioner dated 23.12.2008 (Annexure P-15) would lead to reopening of the entire partition proceedings, though the instrument of partition as prepared is upheld by the Collector and Commissioner, which was done after preparation of the mode of partition, which was not challenged by the petitioner. Through the impugned order, the Financial Commissioner has CIVIL WRIT PETITION NO.3979 OF 2009 :{ 2 }: remanded the case back to the Assistant Collector Ist Grade with a direction to call the parties and pass a fresh order after carrying out spot inspection and after making detailed enquiries. Notice of motion was issued, when the counsel for the petitioner had submitted that respondent No.2 have pleaded a private partition for the first time before the Financial Commissioner whereas the respondent himself had moved an application for partition pleading that the land is jointly held and that respondent No.2 had purchased a share therein. In this background, it was pleaded by counsel for the petitioner that the order of remand by the Financial Commissioner was not justified. This aspect of the case apparently was not rightly projected by counsel for the petitioner at the time of issuance of notice of motion. No doubt, the counsel for respondent No.2 had pleaded a private partition before the Financial Commissioner but it can not be said that this was so pleaded for the first time before the Financial Commissioner. In fact, the present petitioner, Telu, who was respondent before the Financial Commissioner, was the one who had pleaded this private partition before Assistant Collector Ist Grade in response to the application of partition filed by the respondents. When confronted with this fact, learned counsel for the petitioner, would submit that private partition though pleaded by the petitioner but it was not accepted as having not been incorporated into the revenue records. Be that as it may, the fact remains that the private partition was not being pleaded by the respondent herein for the first time before the Financial Commissioner. In fact, the petitioner was the one who had pleaded the partial partition and admitted the same between the parties CIVIL WRIT PETITION NO.3979 OF 2009 :{ 3 }: before the Assistant Collector Ist Grade. The impugned order passed by the Financial Commissioner though has noticed this fact but there are no directions issued by Financial Commissioner to effect partition on the basis of this private partition. Rather it is noticed by the Financial Commissioner that though this private partition was admitted by the petitioner but this so called private partition had not found its way into the records of rights. While remanding the case, the Financial Commissioner has noted the submission made by counsel for the respondents that the land consisted of two pieces and measured 46 kanals with 147 karam front on the southern side and 3 kanals 19 marlas with 20 karams front on the northern side of the Rahon Phillaur State Highway. As per the Financial Commissioner, the order passed by the Assistant Collector and Commissioner did not clarify as to what was the total area, which was being partitioned. He accordingly observed that the revenue officers are to take into account the entire land being owned and possessed by the respective co-sharers and then to pass an order of partition accordingly. In this background, the orders have been set-aside and case remanded for fresh consideration. The counsel for the petitioner has very forcefully argued that the mode of partition was not challenged by respondent No.2 and now the instrument of partition has also been prepared. It is, however, the stand of the petitioner that respondent No.2 had purchased a share out of the entire land and in his application, he did not make any reference to Khasra No.4493. As per the counsel, when the papers for partition were prepared, then the respondents CIVIL WRIT PETITION NO.3979 OF 2009 :{ 4 }: moved an application for withdrawing from the partition proceedings, which was rejected. While rejecting the appeal against this, the Collector has held that the same was not maintainable as the instrument of partition was prepared. The Commissioner while dealing with the revision, rejected the same on the ground that respondent No.2 was offered to change his Kura with the petitioner in the Court, which he refused. The Commissioner, thus, did not deal with the issues, which were raised before him, even if , these related to the right of the respondent to seek withdrawal from the partition proceedings. In fact, the Collector also seems to have not attended to this issue and dismissed the appeal on the ground as already noticed. The Financial Commissioner has now remanded the case without taking into account the real issues that were raised before him. One of the ground in the revision filed by respondent No.2 before Financial Commissioner was that he made a prayer for withdrawing the application for partition and as such, there was no reason with the authorities to dismiss the application. The Financial Commissioner and the other officers dealing with the case were expected to deal with this part of the submission and see whether respondent No.2 could do so. On one hand, the respondent was withdrawing the application for partition and on the other he was still coming up with the plea that application for partial partition of the land was not permissible. The private partition having not been reflected in the record was rightly ignored and as such, has appropriately not been taken into consideration. There are no directions in this regard in the CIVIL WRIT PETITION NO.3979 OF 2009 :{ 5 }: impugned order. In fact, it was required to be seen by the authorities whether the request of the petitioner for withdrawing this application could be allowed or not, which has not been dealt with at all by the Collector, Commissioner and the Financial Commissioner. If respondent No.2 was seeking withdrawal of this application and had impugned the order declining this prayer before the authorities concerned, it is then to be seen if he could have asked for reopening of the partition in the background that the petitioner was pleading a private partition. Since the case has been remanded only, it would not call for any interference but it would require an observation that authorities would ask respondent No.2 as to what is his plea and whether he wishes to withdraw his application for partition. The authorities may then consider his plea. At this stage when the instrument of partition has already been prepared, if he can seek withdrawal of his application. The Assistant Collector will also see if it will be permissible for respondent No.2 to so plead after having seeing the partition effected, which was earlier opposed by the petitioner. The writ petition is disposed of with the above observations. April 24 ,2009 ( RANJIT SINGH ) khurmi JUDGE