High Court Punjab-Haryana High Court

Harbhajan Singh And Others vs Financial Commissioner on 31 October, 2008

Punjab-Haryana High Court
Harbhajan Singh And Others vs Financial Commissioner on 31 October, 2008
Civil Writ Petition No. 15932 of 2006                                     1


     IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                     CHANDIGARH
                                       --

                                 Civil Writ Petition No. 15932 of 2006
                                 Date of decision: 31.10.2008

Harbhajan Singh and others                                ........Petitioners

              Versus

Financial Commissioner, Co-operation, Punjab, Chandigarh and others

                                                           .....Respondents

Coram:        Hon'ble Mr. Justice J.S.Khehar
              Hon'ble Ms Justice Nirmaljit Kaur
                               -.-

Present:      Mr. G S Nagra, Advocate
              for the petitioners

              Mr. Parveen Chander Goyal, Sr. DAG, Punjab
              for respondents No. 1 to 4

              Mr. G S Gandhi , Advocate
              for respondents 5 and 6
                     -.-

Nirmaljit Kaur, J.

Petitioners filed an application under Section 11 of the Punjab

Land Revenue Act, 1887 (hereinafter to be referred as ‘the Act’) for

partition of the land measuring 455 kanals 10 marlas, situated in the

revenue estate of village Jiwan Nangal, Hadbast No. 138 in the court of

Assistant Collector, Ist Grade, Nakodar on 06.11.2001. The proposed

mode of partition was prepared on 08.07.2003, which included the

following Clause 2:-

“The partition will be effected keeping in view the

possession intact as far as the same is possible. But the land
Civil Writ Petition No. 15932 of 2006 2

falling on Nakodar-Jalandhar road will be partitioned

proportionately between all the co sharers.”

The Assistant Collector Ist Grade, Nakodar, approved the aforesaid mode

of partition vide order dated 28.07.2003. Thereafter, on an appeal filed

before the Collector by respondents No. 5 and 6, the matter was remanded

back to the Assistant Collector Ist Grade, Nakodar. The Assistant Collector

Ist Grade, once again, approved the mode of partition after visiting the spot

and hearing the parties vide order dated 09.03.2005 (Annexure P-6). The

revision preferred by the petitioners against the aforesaid order was also

dismissed by the Commissioner, Jalandhar Division, Jalandhar, vide order

dated 04.05.2006 (Annexure P-8). The Financial Commissioner Co-

operation, Punjab also dismissed the revision petition preferred by the

petitioners, in limine.

Learned counsel for the petitioners has mainly pleaded that the

Assistant Grade Ist Grade, Nakodar, has amended the clause 2 of the

previous mode of partition to the extent that the partition will be effected

after keeping the possession intact, and the remaining part of the Clause 2,

i.e. “this land is most valuable and should be partitioned according to the

shares of the parties” was deleted and out of the total land, 7 ½ acres of

land falls on the main metallic road, is most valuable land. Secondly, it is

vehemently contended by the learned counsel for the petitioners that the

finding of the Assistant Collector Ist Grade as also of the Appellate

Authority that there was a family partition between the parties, is totally

against the law and record of the case. The family partition so arrived at

between the parties, becomes valid only if the same is brought to the notice
Civil Writ Petition No. 15932 of 2006 3

of the revenue authorities and sanction is obtained in terms of Section 123

of the Punjab Land Revenue Act, 1887.

In order to support his arguments, learned counsel for the

petitioners has relied upon the judgements rendered in the cases of ‘Banta

Singh and others v. Hardeep Singh and others‘, 1987(2) PLR-329 and

Chander Bhan v. Hari Ram and others‘, 1996(PLJ) 69. The aforesaid

judgements do not help the petitioners in the facts and circumstances of the

present case.

Learned counsel for respondents No. 5 and 6 has disputed the

same and denied that the land in question is in joint possession between the

parties, rather each of the shareholders is in possession of the respective

shares, as demarcated and settled by Gurbax Singh, original owner, way

back in the year 1985 between each of his sons. This partition has been

accepted and given effect to. This contention of the learned counsel for

respondents No. 5 and 6 finds support from the rapt No. 581 dated

16.10.1985 (Annexure R-5/1). Vide rapat No. 232 dated 17.03.1993,

petitioner-Harbhajan Singh gave statement to the effect that earlier khasra

girdawari in respect of killa No. 7/21, be got recorded in favour of

Kulwinder Pal Singh son of Surjit Singh, who is on the spot cultivating this

khasra number. This statement was made before Jaspal Singh, Numberdar

of Village Nangal Jiwan and Surinderpal Singh, Chowkidar. The aforesaid

statement of Harbhajan Singh is annexed as Annexure R-5/2. Other

petitioner, Paramjit Singh, moved an application dated 02.12.1993

(Annexure R 5/3) before the Sub Divisional Officer (C), Nakodar, praying
Civil Writ Petition No. 15932 of 2006 4

for change of electric motor connection bearing No. SD-124 in favour of

Harbhajan Singh son of Gurbax Singh. Paramjit Singh was given electric

connection bearing No. SD1/124, whereas Harbhajan Singh was given

electric connection bearing No. SD1/125, which were installed in No. 286

and 287 of their respective holdings. Thus, the petitioner cannot deny the

family partition having been arrived at between the parties.

Learned counsel for the parties have been heard.

Section 123 of the Act reads as under:-

“123. Affirmation of partition privately affected- (1) in any

case in which a partition has been made without the

intervention of a Revenue Officer, any part thereto may

apply to a Revenue Officer for an order affirming the

partition. (2) On receiving the application, the Revenue

Officer shall inquire into the case, and if he finds that the

partition has in fact been made, he may make an order

affirming it and proceed under Sections 119, 120, 121 and

122, or any of those sections, as circumstances may

require, in the same manner as if the partition had been

made on an application to himself under this Chapter.”

Section 123 of the Act has already been interpreted by the

learned Single Judge of this Court in Regular First Appeal titled as

Ajmer Singh v. Dharam Singh’, 2006(2) RCR (Civil) 541 in the

following terms:-

“16. A perusal of the said provision would show that

Section 123 of the Act is a provision for affirmation of
Civil Writ Petition No. 15932 of 2006 5

partition privately affected. Chapter IX of the Act deals

with both situation, i.e., where intervention is sought of

the revenue authority for partition of the land and for a

situation where the parties effect partition privately. A

further reading of Section 123 of the Act shows that

liberty is given to any party who “may” apply to a

revenue officer for an order confirming partition. Sub-

section (2) contemplates an enquiry to find out whether

the partition, in fact, has been made. If partition has

been made, the revenue officer has to distribute the

revenue and the rent after partition and draw the

instrument of partition.

18. In view of the above binding precedents, it is

apparent that the revenue record by itself neither create

or extinguish title. Since co-owners by mutual consent

have entered into separate portions of land and are in the

enjoyment of their respect portions, merely the said

private partition has not been formally affirmed will not

relegate the parties to pre-partition status. The role of

the revenue officer in section 123 of the Act is that of

“affirmation” of partition. The said affirmation is subject

to verification of the factum of partition only. The

inquiry in terms of sub-section (2) of Section 123 of the

Act is restricted to the effect to point out that, in fact,

partition has been made. Therefore, non affirmation of
Civil Writ Petition No. 15932 of 2006 6

partition by the revenue officer will not render a private

partition redundant but such affirmation will only

determine the rights of an owner in respect of their

obligations to pay land revenue to the State in terms of

the provisions of the Act.”

While holding the same, learned Single Judge has relied upon judgements

rendered by Hon’ble Supreme Court in the cases of ‘Sankalchan

Jaychandbhai Patel and others v. Vithalbhai Jaychandbhaii Patel and

others‘, (1997) 1 RCR (Civil) 565 and ‘Baleshwar Tewari (dead) by Lrs

and others v. Sheo Jatan Tiwary and others,’ (1997) 5 Supreme Court

Cases 112.

Thus, in the present case also documents R5/1 to R5/4 shows

that the family partition had been given effect to from the time when the

original owner, Gurbax Singh, was alive. Further, on an appeal filed by

respondents No. 5 and 6 against the order dated 28.07.2003, the Collector,

Nakodar, vide order dated 27.02.2004 (Annexure P-2), remanded the

matter back to the Assistant Collector, Ist Grade with a direction to assess

the value of the land after visiting the spot and to prepare a mode of

partition again after hearing the parties. Pursuant thereto, the Assistant

Collector, Ist grade had prepared a fresh mode of partition after visiting the

spot, as well as, hearing the parties on 20.01.2005 (Annexure P-3). At that

time, only Daljit Singh-petitioner No.3 had filed objections. Even

otherwise, the mode of partition is correctly approved, as per the

possession at the spot and keeping in mind that all the co-sharers are

already in possession of the land of their respective shares. The parties
Civil Writ Petition No. 15932 of 2006 7

have installed their separate tubewells for irrigation of the land; have also

separate residence and are separately in possession in equal share. As

such, the present mode of partition is only an affirmation of the partition

privately effected between the parties. The revenue authorities will now

give sanction, in terms of Section 123 of the Act, referred to above.

In this view of the matter, we find no ground to interfere with

the impugned orders passed by the revenue authorities and the mode of

partition so approved by the Assistant Collector, Ist Grade, Nakodar, which

has been affirmed up to the Financial Commissioner.

Dismissed.

[Nirmaljit Kaur]
Judge

[J.S.Khehar]
Judge
October 31, 2008
mohan