Civil Writ Petition No. 607 of 1992 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 607 of 1992 Date of decision:17th May, 2011 Milkha Singh and others .......Petitioners Versus Darshan Lal and others ........Respondents BEFORE: HON'BLE MR. JUSTICE AJAY TEWARI Present: Mr. Amar Vivek, Advocate for the petitioners. Mr. Gaurav Chopra, Advocate for the respondents. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No 2. To be referred to the Reporters or not?Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No Ajay Tewari, J.(Oral) By this petition the petitioners have challenged the order dated 27.08.1990 passed by the Financial Commissioner, Revenue, Punjab, Chandigarh. The admitted facts are that 113 kanals and 7 marlas of land was being partitioned. The parties agreed on the following mode of partition:- Civil Writ Petition No. 607 of 1992 2 “Mode of Partition 1. Total area requiring partition 113 kanals 7 marlas. 2. The partition be made after keeping and preserving respective possession over the land. 3. The principles of consolidation be kept in view. 4. Every co-sharer be given land in partition keeping in view the quality/value of land. 5. The trees will be kept on the land.” After the partition orders, the petitioners filed a appeal/review/revision which was dismissed and that is how the matter is before this Court. Learned counsel for the petitioners has raised three arguments. The first argument is that the petitioners originally had possession of land in khewat No. 55 but parties were given land in khewat NOs. 55 and 56 and the portion where they had sunk tubewell and grown trees and had made various improvements was not given to them. As per learned counsel, the final partition was against the agreed mode of partition. The second argument of the learned counsel for the petitioners is that the Financial Commissioner before whom the revision was argued, kept it reserved for 7 to 8 months and ultimately while passing the order did not deal with the contentions raised before him. The third argument is that a review which was filed Civil Writ Petition No. 607 of 1992 3 was heard by Financial Commissioner who subsequently retired and his successor Financial Commissioner decided the petition. A perusal of the order of the Financial Commissioner reveals that the vendor of the petitioners who was owner of only 56 kanals and 13 marlas had sold more than 90 kanals of land and it was this excess holding which had resulted into a reduction of the share of the petitioners and the fact that instead of getting their entire possession in Khewat No. 55 were given land in both of khewat nos. 55 and 56. I find that no challenge has been made to this either before this Court or even in the grounds of revision which have been annexed with the writ petition. Once this is so, it has to be held that the petitioners were in possession of land which was more than the share and thus, their possession of land which was more than their share could not have been protected in any case. In the circumstances, the first argument that the actual partition was against the mode of partition, is misconceived. Once that is so, the second and the third argument pale into insignificance. The fact that the Financial Commissioner reserved the order for 7 months or that the successor Fincancial Commissioner dismissed the review petition without hearing the petitioners are of course procedural lacunae but in extraordinary jurisdiction this court is not trammeled by procedural niceties and can cut to the heart of the matter. As noted above, the crux is the un-rebutted finding that the petitioners sold land which did not belong to them. Once that is Civil Writ Petition No. 607 of 1992 4 so, any improvement which may have been made by the petitioners can obviously not inure to their benefit. Consequently. this petition is dismissed. [AJAY TEWARI] JUDGE 17th May, 2011 Shivani Kaushik