CWP No.12133 of 1991 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.12133 of 1991 Date of decision:08.07.2011 Mohinder Kaur (deceased) represented through her LRs ..... Petitioner Versus The Financial Commissioner (Appeals), Punjab, Chandigarh and others ..... Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr.Sarwan Singh, Senior Advocate with Mr.N.S.Rapri, Advocate for the petitioner. ***** RAJIVE BHALLA, J. (Oral) This order shall dispose of CWP Nos.12133, 12132, 12134, 12135, 12136, 12137, 12138 and 12139 as they involve adjudication of common questions of fact and law. Mohinder Kaur wife of Pakhar Sintgh (since deceased) represented by her legal representatives, prays for issuance of a writ in the nature of certiorari for quashing orders dated 28.10.1987, 29.01.1988 and 13.05.1991, passed by the Assistant Collector, Ist Grade, Nawanshahr, the Collector, Nawanshahr and the Financial Commissioner (Appeals), Punjab, respectively. Admittedly, Smt.Mohinder Kaur was a co-sharer to the extent of 5 kanals and 13 marlas in land held jointly by her with her husband Pakhar Singh and her husbands's brothers Bhagat Singh and Ram CWP No.12133 of 1991 -2- Singh. Mohinder Kaur and the other co-sharers filed separate applications for partition of this land before the Assistant Collector, Ist Grade. During pendency of these proceedings, an agreement dated 14.05.1987 was placed before the Assistant Collector, Ist Grade. Upon consideration of the agreement, the Assistant Collector, Ist Grade, ordered that the land be partitioned on the basis of the agreement and the sanad takseem be drawn up in accordance with the agreement. Aggrieved by this order, Mohinder Kaur and Pakhar Singh filed separate appeals. Mohinder Kaur claimed that as she is not a signatory to the agreement dated 14.05.1987, the Assistant Collector, Ist Grade, had no jurisdiction to accept the agreement and direct the Kanungo to draw up partition papers in accordance with the agreement. The Collector, Nawanshahr dismissed the appeal on the ground that the Assistant Collector has passed an order in accordance with the agreement. Aggrieved by this order, Mohinder Kaur and others filed separate appeals before the Commissioner, Jalandhar Division, Jalandhar. The Commissioner, Jalandhar Division, Jalandhar, held that as Mohinder Kaur, who is admittedly a co-sharer, is not a signatory to the agreement, the Assistant Collector, Ist Grade, had no jurisdiction to direct that the mode of partition be drawn up in accordance with the agreement. The Commissioner, therefore, forwarded a reference to the Financial Commissioner, Revenue, recommending that orders passed by the Collector and the Assistant Collector, Ist Grade, should be set CWP No.12133 of 1991 -3- aside. The Financial Commissioner, declined the reference on the ground that Mohinder Kaur's husband Pakhar Singh is a signatory to the agreement and that she did not raise any objection before the Collector or the Commissioner. Counsel for the petitioner submits that the Assistant Collector, Ist Grade, has passed an order under Section 123 of the Punjab Land Revenue Act, 1887 (hereinafter referred to as the Act) but while doing so, has failed to consider that the agreement does not bear the signatures of Mohinder Kaur. It is further submitted that though an Assistant Collector, Ist Grade, is empowered to record a mode of partition and issue directions that documents of partition be drawn up on the basis of an agreement, but only if the agreement is signed or acknowledged by all co-sharers. It is further argued that as the petitioner is admittedly not a party to the agreement, the reference forwarded by the Commissioner should have been accepted by the Financial Commissioner. No-one is present on behalf of the contesting respondents. I have heard counsel for the petitioner and perused the impugned orders. Mohinder Kaur is admittedly a co-sharer of the land in dispute. Mohinder Kaur and other co-sharers filed separate applications for partition of the land. As it is apparent from the impugned orders, the Assistant Collector, Ist Grade, directed the framing of a mode of partition on the basis of an agreement dated 14.05.1987. The agreement is not signed by Mohinder Kaur. The CWP No.12133 of 1991 -4- private respondents do not deny that the agreement is not signed by Mohinder Kaur as is apparent from an extract from para-4 of the reply filed by respondents no.3 and 4, which reads as under: - “She was party before the Assistant Collector Ist Grade Nawanshahar in the partition proceedings and being the wife of Pakhar Singh other co-sharer, she had not signed the agreement but she had also not raised any objection to the agreement Annexure P-1 making partition before the Assistant Collector, Ist Grade, Nawanshar as well as before the Collector, Nawanshahr.” The reply contains a categoric admission, that Mohinder Kaur is a co-sharer and has not signed the agreement. For an agreement to be valid and binding on all co-sharers, particularly when it relates to partition of land, it must be signed or acknowledged by all co-sharers. The Assistant Collector, Ist Grade, apparently, failed to peruse the agreement and discern that it does not bear the signatures of Mohinder Kaur. The error committed by the Assistant Collector, Ist Grade, was repeated by the Collector and though noticed by the Commissioner, was held to be insufficient by the Financial Commissioner, to set aside the order passed by the Assistant Collector, Ist Grade. The Financial Commissioner has dismissed the reference on irrelevant and untenable ground. The rejection of the reference made by the Commissioner is entirely unwarranted and reveals a failure on the part of the Financial Commissioner to exercise his jurisdiction. Section 123 of the Act, empowers an Assistant Collector, Ist Grade, to order partition of land, in accordance with an agreement or a settlement between co-sharers. Before doing so, an Assistant Collector, CWP No.12133 of 1991 -5- Ist Grade, has to satisfy himself as to the bonafides and legality of an agreement, the rights of parties, the equitable distribution of the joint property and whether the agreement is signed by all concerned. In the absence of any such consideration by the Assistant Collector, Ist Grade, and the fact that the agreement is not signed by Mohinder Kaur, the order passed by the Assistant Collector, Ist Grade was illegal. The reference forwarded by the Commissioner for setting aside the orders passed by the Assistant Collector and the Collector should have been accepted by the the Financial Commissioner. In view of what has been stated hereinabove, the writ petitions are allowed, orders dated 28.10.1987, 29.01.1988 and 13.05.1991, are set aside and the matter is remitted to the Assistant Collector, Ist Grade, Nawanshahr for adjudication afresh and in accordance with law. Parties are directed to appear before the Assistant Collector, Ist Grade, Nawanshahr, on 05.09.2011. 08.07.2011 [RAJIVE BHALLA] shamsher JUDGE