CIVIL WRIT PETITION NO.298 OF 2007 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: MAY 11, 2009 Nirbhai Singh @ Narjit Singh and others .....Petitioners VERSUS Financial Commissioner (Appeals)-I, Chandigarh and others ....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. Ashok Singla, Advocate, for the petitioners. Mr. P. C. Goyal, Addl.A.G., Punjab, for respondent Nos.1 to 4. Mr. J. S. Toor, Advocate, for respondent No.5. **** RANJIT SINGH, J. This order will dispose of Civil Writ Petition Nos.298 and 324 of 2007 (Nirbhai Singh @ Narjit Singh and others Vs. Financial Commissioner (Appeals)-I, chandigarh and others). Claiming that the land has been wrongly mutated on the name of Manjit Singh, respondent No.5, on the basis of which he has sought partition of the land, the petitioners have filed the present writ CIVIL WRIT PETITION NO.298 OF 2007 :{ 2 }: petitions to challenge the said partition proceedings. It is alleged that Manjit Singh taking advantage of mutation entry, wrongly made in his favour qua the share which is in excess, has applied for partition of the land on 2.10.2001. The petitioners objected to the said partition application on the ground that wrong share has been claimed by said Manjit Singh. The petitioners accordingly pleaded that first share in regard to the estate of Harnam Singh be determined to see as to how it is to be inherited by the parties. This, as per the petitioners, would show that question of title is involved in this case. The petitioners accordingly has prayed that first the question of title be decided before partition application is dealt with. Reference is also made to a civil suit filed (Annexure P-4), which is pending and the issues have been framed. Relying upon the provisions of Section 117 of the Punjab Land Revenue Act, it is pleaded that first question of title be decided before proceedings with the partition application. In his order dated 26.9.2002, Assistant Collector Ist Grade, however, viewed that no question of title is involved. The petitioners filed an appeal against the same, which was accepted on 22.4.2003 by the Collector, who stayed the partition petition with liberty to the parties to get the same restored after the decision of the title suit by the Civil Court. Manjit Singh, respondent No.5 appealed against this order before the Commissioner, who has set-aside this order on 11.6.2004. The petitioners would term this order to be illegal and wrong. They accordingly challenged the same before the Financial Commissioner, who has upheld the order passed by the Commissioner. This is how the petitioners have challenged the order passed by the Financial Commissioner through the present writ CIVIL WRIT PETITION NO.298 OF 2007 :{ 3 }: petitions. Notice of motion was issued and further proceedings before the Assistant Collector were stayed. Reply has been filed by respondent No.5 wherein he has raised preliminary objections. A perusal of the reply would show that Harnam Singh had validly adopted respondent No.5. He is a natural son of Joginder Singh. Joginder Singh had executed a will in favour of the petitioners on 4.12.1961 and did not give any share to respondent No.5. In this will, there is a specific recital that respondent No.5 stood adopted by Harnam Singh. So obviously, he was deprived of property of his natural father. The petitioners accepted the will and got the mutation sanctioned in their favour on the basis of said will in the year 1962. They have, thus, been enjoying the property left by Joginder Singh, their father, to the exclusion of respondent No.5, who is being taken as adopted son of Sh.Harnam Singh. Harnam Singh died on 24.7.1975. Respondent No.5, thus, inherited the property of Harnam Singh, he being his adopted son. Harnam Singh had otherwise no issue. Respondent No.5 has, thus, been mentioned in the revenue record as owner of half share in the Khewat. Jamabandies were also prepared, to which no challenge was made by the petitioners. It is only now, when respondent No.5 has filed an application for partition that the objection in regard to right of respondent No.5 is raised and a civil suit is filed in this regard. So far no suit for correcting the entries standing in favour of respondent No.5 is filed. The plea raised by the petitioners in response to the partition application that even if the will pleaded by respondent No.5 in his favour is proved on record, it will not effect the right of CIVIL WRIT PETITION NO.298 OF 2007 :{ 4 }: answering respondent is certainly farfetched and misconceived one. If respondent No.5 is able to show that he is adopted son of Harnam Singh, then he will be legally entitled to inherit his property. In any case, he has a will in his favour. The background as noticed would clearly shows that the petitioners are being unfair to respondent No.5. He is none else but their natural brother. The petitioners did not give him any share on the ground that he is an adopted son of Harnam Singh, when their father died. Now when Harnam Singh has died, the petitioners seem to have become greedy and have challenged the right of respondent No.5 to inherit the property left by his adopted father. The petitioners, thus, have no case in equity. Even in law, the view taken by the Commissioner that no stay has been granted by the Civil Court and that the partition proceedings on the basis of share of the parties as per the jamabandi can continue, is legally sound and would not call for interference in exercise of writ jurisdiction. The Financial Commissioner rightly declined to interfere in the order passed by the Commissioner. As observed by him, mutation of inheritance in favour of respondent No.5 was sanctioned and is reflected in the jamabandi. He has also noticed that there is no proof available that the petitioners had even opposed this inheritance at the time of mutation. The partition proceedings, thus, can not be brought to a stand still merely on the basis that a civil suit has been filed. The objection raised by the petitioners were otherwise also found to be frivolous as they are shown as co-sharers since 1975. The action of the petitioners in filing the civil suit once they had deprived respondent CIVIL WRIT PETITION NO.298 OF 2007 :{ 5 }: No.5 of his share coming from natural father on the ground that he was adopted obviously would invite attention of the authorities while deciding this case as well as the Civil Court. I do not see any infirmity in the view taken by the commissioner and the Financial Commissioner, whereby they had upheld the order passed by the Assistant Collector Ist Grade. The writ petitions are accordingly dismissed. May 11, 2009 ( RANJIT SINGH ) khurmi JUDGE