Civil Writ Petition No. 19172 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 19172 of 2007 Date of Order: 5th July, 2010 Tara Singh and others ....Petitioners Versus Financial Commissioner, Appeals-I, Punjab, Chandigarh and others ..Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. R.S.Chauhan, Advocate for the petitioners Mr. S.S.Sahu, Assistant Advocate General,Punjab for respondents No.1 to 4. Mr. Sarwan Singh, Senior Advocate with Mr. N.S.Rapri, Advocate for respondents No.5 to 7. RAJIVE BHALLA, J (Oral). This order shall dispose of CWP No.19172 of 2007 and CWP No.238 of 2008 as they arise from the same proceeding for partition and lay challenge to the same impugned orders. For the sake of convenience facts are being taken from Civil Writ Petition No.19172 of 2007. The petitioners pray for issuance of a writ in the nature of certiorari for quashing the orders dated 29.11.2007, 25.07.2002 and 25.02.1999, passed by The Financial Commissioner, Appeals-I, Punjab, Chandigarh, the Commissioner, Patiala Division, Patiala, and the Collector, Sub Division, Patiala, respectively. It is further prayed that while setting aside these orders the order dated 27.10.1997 Civil Writ Petition No. 19172 of 2007 -2- passed by the Assistant Collector Grade-I, Patiala, may be affirmed. Assa Singh father of petitioners no.1 to 4 and husband of petitioner no.5-Inder Kaur (since deceased) filed an application on 25.02.1988 before the Assistant Collector Ist Grade, Patiala, for partition of the joint holding. The Assistant Collector Ist Grade, Patiala, sanctioned a mode of partition on 07.11.1988. The revenue officers prepared nakshas 'A' and 'B', which were approved by the Assistant Collector Ist Grade. Respondents no.4 and 5 filed an appeal before the Collector, Sub Division, Patiala. The Collector, Sub Division,Patiala, accepted the appeal and vide order dated 25.02.1999 remitted the matter to the Assistant Collector Ist Grade, Patiala, to prepare documents of partition, by keeping in view the construction existing on the date of filing of the application of partition i.e. on 25.02.1988. Aggrieved by this order, the petitioners filed an appeal. In the meanwhile, the Assistant Collector Ist Grade concluded partition proceedings by drawing up the sanad takseem (the instrument of partition) in accordance with the directions issued by the Collector. The Commissioner, Patiala, dismissed the appeal on the ground that he has no jurisdiction to entertain an appeal after sanction of the instrument of partition. The petitioners thereafter filed a revision before the Financial Commissioner without appending a copy of the order passed by the Commissioner. The Financial Commissioner entertained the revision and directed the Commissioner to provide a certified copy of his order. The petitioners thereafter filed a second revision. The Financial Commissioner, Appeals-I, dismissed both the Civil Writ Petition No. 19172 of 2007 -3- revisions by holding that construction raised by the petitioners, after the filing of the application for partition could not be taken into consideration. Counsel for the petitioners submits that the Assistant Collector Ist Grade inspected the spot before he sanctioned Nakshas 'A and B' and held that as the petitioners have constructed a house in khasra no.584 and enclosed it with a boundary wall, Khasra No.584 has to be allotted to Assa Singh. The Collector and the Financial Commissioner, on the other hand, have committed an error by holding that only such construction can be excluded as existed on the date of filing of the application for partition. It is argued that revenue authorities have no jurisdiction to partition houses as their jurisdiction to do so is explicitly barred. In case, the orders passed by the Collector and the Financial Commissioner are allowed to stand the petitioners would be deprived of the construction raised in khasra no.584. It is also contended that as the mode of partition has attained finality, the Collector and the Financial Commissioner had no jurisdiction to direct the Assistant Collector Ist Grade to exclude construction raised after the filing of the application for partition. Counsel for the contesting respondents, on the other hand, submits that the application for partition was filed on 25.02.1988. The Collector rightly directed the Assistant Collector Ist Grade to exclude only such of the construction that existed on the date of the application i.e. on 25.02.1988. It is further submitted that the petitioners made an attempt to raise construction on khasra no.584, during partition proceedings. The contesting respondents filed suit No.371 of 1987 on 10.10.1987 for grant of a permanent injunction. Civil Writ Petition No. 19172 of 2007 -4- As Assa Singh made a statement, on 29.01.1988, that he will not raise any construction in khasra nos.576 and 584, the suit was disposed of. Despite this statement, Assa Singh made another attempt to raise construction in khasra nos. 576 and 584, compelling the contesting respondents to file an application under Order 21 Rule 32 of the Code of Civil Procedure. Assa Singh made another statement on 24.08.1991 that he would not raise any construction in khasra nos.576 and 584, till the conclusion of partition proceedings but promptly constructed a boundary wall, around khasra no.584, on 02.11.1992. The Collector and the Financial Commissioner, therefore, rightly directed the Assistant Collector Ist Grade to exclude only such of the construction as existed on 25.02.1988 and to partition rest of the land equally. It is further argued that as khasra no.584 abuts the G.T. road and is more valuable, it has to be divided equally amongst the co-sharers. I have heard counsel for the parties and perused the impugned orders. Proceedings for partition commenced on 25.02.1988. Clause-II of the mode of partition sanctioned on 07.11.1988 reads as follows:- “2. The parties have constructed their houses in khasra no.584, 564, 563 which are sought to be partitioned. This area will be allotted to the parties according to their possession” The bone of contention between the parties is whether khasra no.584 in its entirety, or a part thereof has to be allotted to the petitioners. The petitioners urge that as Assa Singh has Civil Writ Petition No. 19172 of 2007 -5- constructed a house and enclosed khasra no.584 with a boundary wall, the entire land of khasra no.584, has to be allotted to them whereas the private respondents urge that only such construction can be excluded as existed on 25.02.1988. Khasra no.584 measures 3 bighas 2 biswas and admittedly abuts the G.T. Road. If divided equally, 15½ biswas would fall to the share of each set of co-sharers. On the date the application for partition, Assa Singh had constructed a house in 3 biswas, his courtyard occupied 6 biswas whereas he had sold 6 biswas to Mohinder Singh, who has constructed a house. The boundary wall, surrounding khasra no.584 was constructed during partition proceedings on 02.11.1992, in blatant violation of statements made by Assa Singh. The private respondents filed a suit to restrain Assa Singh from raising construction in khasra no.584. On 29.01.1988, Assa Singh made the following statement:- “Stated that I will not alienate the common land bearing Khasra no.576, 584 without getting it partitioned. I will not raise any construction on these khasra numbers till partition is done.” Despite this statement, Assa Singh made another attempt to raise construction in khasra nos.576 and 584. The private respondents filed an application under Order 21 Rule 32 of the Code of Civil Procedure. On 24.08.1991 Assa Singh made another statement that he would not raise any construction in khasra no.576 and 584, till partition but true to his conduct immediately violated this statement and constructed a boundary wall around Khasra No.584, on 02.11.1992. The petitioners plea that they should be allotted Civil Writ Petition No. 19172 of 2007 -6- khasra no.584, cannot be accepted as the boundary wall and other construction was raised during pendency of partition proceedings. At this stage, it would be appropriate to make a reference to Clause- II of the mode of partition, which provides that houses have been constructed in khasra nos. 584, 564, 563 and these khasra numbers, will be allotted to the parties, according to their possession. The mode of partition does not state khasra no.584 will be allotted to the petitioners, in its entirety. The construction raised during partition has to be excluded. Before parting with the order, it would be appropriate to mention that partition has to be carried out in accordance with the situation reflected in the jamabandi and on the spot on the date of filing of the application for partition. The Collector and the Financial Commissioner rightly directed the Assistant Collector Ist Grade to partition khasra no.584 in accordance with the construction existing on the date of the application for partition. In view of what has been stated hereinabove, I find no error of law in the orders passed by the Collector, the Commissioner, Patiala Division, Patiala and the Financial Commissioner, Appeals-I, Punjab, Chandigarh, as would require interference. The writ petitions are therefore, dismissed with no order as to costs. July 5, 2010 (RAJIVE BHALLA) nt JUDGE Civil Writ Petition No. 19172 of 2007 -7- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 238 of 2008 Date of Order: July, 2010 Tara Singh and others ....Petitioners Versus Financial Commissioner, Appeals-I, Punjab, Chandigarh and others ..Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. R.S.Chauhan, Advocate for the petitioners Mr. S.S.Sahu, Assistant Advocate General,Punjab for respondents No.1 to 4. Mr. Sarwan Singh, Senior Advocate with Mr. N.S.Rapri, Advocate for respondents No.5 to 7. RAJIVE BHALLA, J (Oral). For orders, see Civil Writ Petition No.19172 of 2007, titled as Tara Singh and others V. Financial Commissioner, Appeals-I, Punjab,Chandigarh and others, decided on even date. July , 2010 (RAJIVE BHALLA) nt JUDGE