2016 Supreme(P&H) 606

IN THE HIGH COURT OF PUNJAB AND HARYANA
[DIVISION BENCH]
Before
The Hon’ble Mr. Justice Rajive Bhalla
The Hon’ble Mr. Justice Amol Rattan Singh
Civil Writ Petition No.696 of 2014
Mir Singh & Anr.
v.
State of Haryana & Ors.
{Decided on 02/03/2016}

Headnote:(A) Punjab Land Revenue Act, 1887, S.14--Partition Proceedings--Plea of fraud--Divergent views--Petitioner challenged partition proceedings and final order of partition called ‘Sanad Taksim’ by alleging fraud, manipulation of the record, inequitable allotment of land etc. and a hurried conclusion of partition proceedings--In view of divergent views of both the judges; one setting aside the objections and other quashing the partition proceedings; matter referred to chief justice.

       As per Mr. Justice Rajiv Bhalla:

       The petitioners had been appearing but did not file any objections to any of the Nakshas(maps) or to the mode of partition, and though, the haste with which the Assistant Collector Ist Grade concluded partition proceedings may raise an eye-brow, the fact that the petitioners have been appearing before the Assistant Collector Ist Grade, but did not file any appeal or revision against the various maps prepared during partition, and only challenged partition proceedings when they were nearing finality indicates the conduct of the petitioners--The argument regarding the haste with which the Assistant Collector Ist Grade concluded partition proceedings, must raise a doubt about the bonafides of the Assistant Collector but in the absence of any objection at any stage of partition proceedings regarding any illegality in the documents prepared during partition or the mode of partition, the petitioners cannot be heard to raise such a plea--The Assistant Collector Ist Grade had already concluded proceedings relating to partition and was only required to draw a “Sanad Taksim”--We, therefore, find no merits in this and other contentions raised by the petitioners.

       As per Mr. Justice Amol Rattan Singh:

       in view of the fact that the entire case of the petitioners was that the order of partition (Sanad Takseem) was obtained by way of a fraud having been committed upon them. Whether or not such fraud had actually been committed, or whether the orders passed were completely valid and legal, was something which she needed to go into in detail, and thereafter record her findings and reasons, accordingly in detail--Financial Commissioner had not gone into issue of fraud in details but in view of the fact that the entire case of the petitioners was that the order of partition (Sanad Takseem) was obtained by way of a fraud having been committed upon them. Whether or not such fraud had actually been committed, or whether the orders passed were completely valid and legal, was something which she needed to go into in detail, and thereafter record her findings and reasons, accordingly in detail--Simply stating that there appeared to be, prima-facie, no question of committing any fraud--What she was required to go into, was whether, ex-facie, a fraud had been committed or not--Very strangely, she further observed that “even if any criminality is presumed to have been committed”--The petitioners would be within their jurisdiction to take up the same at an appropriate forum--That not having been done, I quash the impugned order of the Financial Commissioner dated 04.12.2013 (Annexure P-18) and remand the matter back to that authority, to consider the matter afresh, in the light of what has been observed hereinabove and to pass a detailed reasoning order thereafter.

       (B) Punjab Land Revenue Act, 1887, S.20 & S.121--Partition Proceedings--Non service on each co-sharer--In instant case, petitioners were residing in different villages--Proclamation was made in village and notice was posted outside the house of brother of petitioner--Both the Judges gave divergent view.

       As per Mr. Justice Rajive Bhalla:

       A defect in service may be sufficient to set aside ex-parte proceedings, but if the order of partition does not disclose an inequitable distribution of land whether regarding proprietary or possessory rights and the party alleging defect in service or no service is unable to point out any prejudice, the defect in service would be a mere irregularity--The petitioners, we are confident, were all along aware of the pendency of the partition proceedings but have been set up by other co-sharers to delay partition proceedings apparent from facts. (Para 58)

       As per Mr. Justice Amol Rattan Singh:

       In view of the fact that, admittedly, petitioners No.2 to 5 do not reside in the same village, and it cannot be presumed in todays’ environment, as to whether their interest is being looked after by their brother (petitioner No.1) or not, to a complete extent, and in any case, it is not even certain whether any affixation was made or proclamation was made, in view of the affidavits filed to the contrary, by the village Lambardar and Members of the Panchayat, I would allow the writ petition to the extent that the petitioners would have a right to be heard, as with no proof of actual service of notice of the proceedings upon them, they cannot be deemed to have been served. (Para 125)