The main legal point established in the judgment is that the J&K Land Revenue Act provisions apply to the partition of land, even if covered under the J&K Agrarian Reforms Act.

JUDGMENT :

1. The petitioner has challenged order dated 17.02.2004 passed by the Financial Commissioner (Revenue)/respondent No. 1, whereby the said authority has reviewed its order dated 05.06.1997 and approved the order of respondent No. 2 dated 23.07.1992 and order of respondent No. 3 dated 13.08.1990.

2. The brief facts emanating from the pleadings of the parties are that the petitioner filed an application under Section 105 of the Land Revenue Act against the private respondents before the Collector (Assistant Commissioner Revenue) Jammu (respondent No. 3) seeking partition of land measuring 443 Kanals and 6 Marlas comprised in Khasra Nos. 974, 999, 986 and 988 situated in Village Paloura, Tehsil Jammu and for restoration of possession of the said land after its partition to the extent of respective shares of the parties.

3. As per the case of the petitioner, he along with the non applicants were recorded as co-sharers of the aforesaid land. The Collector i.e. respondent No. 3 herein dismissed the application of the petitioner vide its order dated 13.08.1990 by holding that the said application is not maintainable. It seems that the petitioner assailed the aforesaid order by way of an appeal before the Divisional Commissioner, Jammu/respondent No. 2 herein, but the said appeal was dismissed as withdrawn in terms of order dated 23.07.1992. Thereafter, the petitioner again challenged order dated 13.08.1990 passed by the Assistant Commissioner Revenue/respondent No. 3 by filing a revision petition before respondent No. 1 i.e. the Financial Commissioner (Revenue).

4. The learned Financial Commissioner after hearing the parties passed a detailed order dated 05.06.1997, whereby the revision petition was allowed and both the orders of the Assistant Commissioner Revenue and the Divisional Commissioner were set aside. It is pertinent to mention here that the private respondents had raised a plea before the Financial Commissioner that they were tenants of the land in question and, as such, the same cannot be subjected to partition between the petitioner and the private respondents. The learned Financial Commissioner (Revenue) while passing order dated 05.06.1997 observed that co-sharers hold the land in joint trust and that every co-sharer has a right to claim the share in the joint holding. It was also observed that even if a co-sharer is in cultivating possession of any portion of the land, the same does not become a case of tenancy. Accordingly, it was held that the land in question is liable to be partitioned amongst co-sharers.

5. The aforesaid order of the Financial Commissioner was assailed by the private respondents by filing a review petition before the same authority. By virtue of the impugned order dated 17.02.2004, the learned Financial Commissioner reviewed its order dated 05.06.1997 and upheld order dated 13.08.1990 passed by the Assistant Commissioner Revenue and order dated 13.07.1992 passed by the Divisional Commissioner. While passing the said order, the learned Financial Commissioner observed that the petitioner was not in possession of any portion of the estate and, as such, in terms of Rule 12 of the Partition Rules, 1970, he cannot seek partition of the land without applying for possession of the land. It was also observed that once the appeal against the order of the Assistant Commissioner Revenue was dismissed as withdrawn, no further appeal/revision could have been brought before the Financial Commissioner.

6. The petitioner has challenged the impugned order on the grounds that the learned Financial Commissioner while reviewing its earlier order has travelled beyond the scope of order 47 of CPC, which prescribes the limits within which jurisdiction of review can be exercised. It has been further contended that neither there was any error on the face of the record of the order dated 05.06.1997 nor the private respondents had brought any new fact before the Financial Commissioner (Revenue), so as to persuade the sa