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IN THE HIGH COURT OF PUNJAB AND HARYANA
RAKESH KUMAR JAIN, J.
Kuldeep Singh – Appellant
Versus
State of Punjab – Respondent
CWP No. 22264 of 2015
Decided On : 03-08-2017
Partition - Punjab Land Revenue Act,1887 - Section 111 - Mode of Partition - 04.12.2009, 13.8.2010, 05.8.2015 - The court discussed the provisions of Section 111 of the Punjab Land Revenue Act,1887 and emphasized the requirement to implead all co-sharers in partition proceedings. The court set aside the impugned order and restored the case back to the Assistant Collector Ist Grade, Patiala, to decide about the question raised by him in his order in regard to the partition proceedings.
Fact of the Case:
The petitioners sought a writ in the nature of certiorari for quashing orders related to the approval of the 'Mode of Partition' and dismissal of their appeal. The private respondents filed an application for partition of land, and the petitioners objected to the application on the grounds of non-maintainability and lack of opportunity for objections.
Finding of the Court:
The court found that the partition proceedings were carried out without complying with the provisions of law, including the failure to implead all co-sharers and the approval of the 'Mode of Partition' without giving an opportunity for objections.
Issues: The issues included the maintainability of the partition application, lack of opportunity for objections, and non-compliance with the provisions of law regarding impleading all co-sharers in partition proceedings.
Ratio Decidendi: The court emphasized the requirement to implead all co-sharers in partition proceedings and set aside the impugned order, restoring the case back to the Assistant Collector Ist Grade, Patiala, to decide about the question raised in regard to the partition proceedings.
Final Decision: The court allowed the petition, quashed the impugned order, and restored the case back to the Assistant Collector Ist Grade, Patiala, for further decision.
RAKESH KUMAR JAIN, J.
1. This petition is filed for seeking a writ in the nature of certiorari for quashing the order dated 04.12.2009 by which the Assistant Collector Ist Grade, Patiala, had approved the "Mode of Partition"; the order dated 13.8.2010 passed by the Collector by which the appeal filed by the petitioners has been wrongly dismissed and also the order dated 05.8.2015 of the Financial Commissioner, Punjab, by which the revision petition filed by the private respondents has been allowed.
2. In brief, the private respondents filed an application under Section 111 of the Punjab Land Revenue Act,1887 (for short, 'the Act') for partition of land measuring 604 kanals 7 marlas and 6 kanals 14 marlas situated at village Harigarh, Tehsil and District Patiala, falling in two different khewats.
3. The petitioners filed reply to the application, inter-alia, alleging that the application is not maintainable because the application has been filed for two different khewats in which there are different co-sharers and therefore, two separate applications should have been filed.
4. However, the Assistant Collector Ist Grade, Patiala, proposed the "Mode of Partition" vide his order dated 04.12.2009 and approved the same on the same day without giving an opportunity of hearing to the petitioners to file objections to the "Mode of Partition".
5. Aggrieved against that order, the petitioner filed an appeal before the Collector, Sub Division, Patiala, in which it was, inter-alia, urged that the revenue authorities, seized of the partition application, should have issued summons to all the co-sharers but in this case, notices have not been issued to all the co-sharers and without their service, ex-parte proceedings have wrongly and illegally been conducted. It is also averred that 'Naksha Urra' was wrongly prepared and approved without notice to the affected parties and the names and addresses of some of the co-sharers have been wrongly mentioned.
6. The objections were not allowed against which the petitioners filed a revision petition before the Collector, Sub Division, Patiala, which was dismissed on 13.8.2010. This order was challenged by the petitioners by way of revision under Section 16 of the Act, before the Commissioner, Patiala Division, Patiala, who allowed the revision observing that "In this case, the A.C. Ist Grade has approved "Mode of Partition" vide order dated 4.12.2009 and the appeal filed against this order has been rejected by Collector Sub Division, Patiala vide order dated 13.8.2010. Now the petitioners are emphasizing on the point that they have not been afforded any opportunity to file objections on proposed 'Mode of Partition' and that all the co-sharers have not been impleaded as party and the partition has been sought for two khewats in one application whereas the co-sharers are not common in both the khewats. I am in agreement with the contentions of the petitioners as it is well settled law that every co-sharer should have been impleaded as party in partition proceedings and as such the revision filed in this case is hereby accepted".
With these observations, the case was remanded back to the A.C. Ist Grade, Patiala, with a direction to implead the remaining parties and after giving them opportunity of hearing to lead evidence, decide fresh "Mode of Partition".
7. The A.C. Ist Grade, Patiala, after the remand did not give opportunity of hearing to the parties, as directed and approved "Mode of Partition" on 03.1.2012 and called for the "Naksha Arra" on 20.1.2012. This led to the filing of another revision at the hands of the petitioners before the Commissioner of the Division. The Commissioner again allowed the revision petition observing that "The partition case can be disposed off khewat wise unless the co-sharers are same in the common khewats and no body have objection for disposal of partition proceedings keeping the khewats common for partition proceedings. The A.C.Ist grade also to send his clarifica
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