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 2falling 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 5partition 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 6partition 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