Mr. K. Kannan, J. (Oral):- The writ petition challenges the order passed by the Financial Commissioner directing that in partition proceedings before the authorities, there had been issue of title and that therefore the matter would require to be examined afresh. The Financial Commissioner was accepting the contention of the respondent that the question of title will be decided by the Assistant Collector, 1st Grade either himself by sitting as a Civil Court or declining to proceed with for taking a decision on partition and allow for a civil court adjudication. The challenge to the first order was subjected to an application for review before the Financial Commissioner, but it was dismissed. The dismissal of the review petition and the order passed originally come up for challenge come by means of this writ petition under the following circumstances.

2. The petitioner claimed himself to be a purchaser of a 1/3rd share from one Pritam Singh. Admittedly, the 5th respondent, who is the private contesting respondent was the brother of Pritam Singh and they had yet another brother, who had another 1/3rd share. The total extent of property which the three brothers was 59 kanals 10 marlas of land. The petitioner claimed as a purchaser through a sale deed executed by Pritam Singh on 21.04.1977 through a registered instrument in respect of 19 kanals 17 marlas which represented, according to the petitioner, a 1/3rd share.

3. After the purchase, non-alienating co-owner Amar Singh, 5th respondent herein filed a suit for an injunction before the Sub Judge, 2nd class, Tarn Taran in Civil Suit No.220 of 1980. His contention was that his possession must be protected and he was apprehending dispossession at the hands of Avtar Singh, the present petitioner. The petitioner, who was the defendant in that case, contended in suit that he had purchased 1/3rd share from Pritam Singh by a sale deed 21.04.1977 and he had also actually taken possession of the property. After framing a question of whether the plaintiff was in possession of the property and another issue whether he was entitled to injunction, the Court held as follows:-

“In these circumstances, it is proved on the record that the defendant has purchased the share of Pritam Singh in the joint khata but the defendant has failed to produce any documentary evidence to establish his possession over the disputed land. From the perusal of the jamabandi Ex.P1 and Khasra girdwari Ex.P2, it is established on the record that the plaintiff is in possession of the suit land as a co-sharer. The defendant is also proved to have purchased the share of Pritam Singh vide registered sale deed Ex.D.1. Pritam Singh vendor had 1/3 share in the joint khata and he was competent to sell his share of his land to any person of his choice but the defendant cannot oust the plaintiff from the suit land forcibly and otherwise than in due course of law. ........”

4. The Court had a legal imperative to find whether the defendant was a purchaser from one of his brothers as claimed by him and it was not merely incidental but necessary legal obligation in order to find whether the plaintiff could maintain an action for injunction. Therefore when the Court was finding that the purchaser from one of the brothers had to file his own suit for partition was acknowledging the truth of the defence that was taken up by the defendant in the suit, who was the present petitioner.

5. The application for partition had come about before the Assistant Collector, 1st grade in 1982 under Section 11 of the Punjab Land Revenue Act. Objection had been called for and it appears that the 5th respondent, who was shown as the respondent, contended that Pritam Singh had actually sold of his land to him vide an agreement of sale, dated 24.05.1964. The Assistant Collector rejected this objection as having been brought at the belated stage and he found that the partition khatauni had actually been prepared as per the revenue record and so the