Chhatar Singh vs State of Haryana and others

Paramjeet Singh, J.—The instant writ petition has been filed by the petitioner under Articles 226/227 of the Constitution of India for quashing of order dated 02.01.2009 (Annexure P/9) passed by the Financial Commissioner, Haryana, order dated 08.11.2007 (Annexure. P/8) passed by respondent No. 2 - Commissioner, Rohtak Division (Camp at Sonepat) and order dated 12.04.2006 (Annexure P/4) passed by respondent No. 4 - Assistant Collector 1st Grade, Kharkhoda, District Sonepat arising out of the partition proceedings. This is an unfortunate case where two brothers are fighting for partition of land.

Brief facts of the case are that the petitioner - Chhatar Singh filed an application for partition of land measuring 60 kanals 7 marlas situated in Village Firojpur Bangar, Tehsil Kharkhoda, District Sonepat. The mode of partition was approved in this case on 07.02.2001 (Annexure P/1). As per the mode of partition, the land was to be partitioned khewatwise and it was also one of the clauses of the mode of partition that the area where the tubwell is installed, will be given to the person who has installed the tubewell. It is also one of the clauses of the mode of partition that land is to be partitioned qualitywise and the khurra can be disturbed to that extent. The Assistant Collector 1st Grade called Naksha ''Kha'' and approved the same vide order dated 12.04.2006 (Annexure P/4), while rejecting objections raised by the petitioner. Thereafter, the petitioner filed an appeal before the Collector, specifically stating therein that the land situated on the Delhi-Kharkhoda road is more valuable and has commercial potential. The said land should be allotted according to share of the parties, whereas the petitioner has only been allotted 1 kanal 18 marlas out of Khasra No. 37//13, respondent No. 5 - Om Parkash has been allotted khasra No. 37//13/1 (1-3), 14 (6-4). The partition is not an equitable partition and is violative of Clauses 1 and 3 of the mode of partition. The Collector vide order dated 14.07.2006 (Annexure P/6) accepted the appeal and remanded the case to the Assistant Collector 1st Grade, Kharkhoda, with a direction to call Nakhsa ''Kha'' again. Respondent No. 5 - Om Parkash preferred an appeal before the Commissioner. The Commissioner vide order dated 08.11.2007 (Annexure P/8), set aside the order of the Collector. Aggrieved against that order, the petitioner filed revision before the Financial Commissioner, that has been dismissed by the Financial Commissioner vide order dated 02.01.2009 (Annexure P/9).-Hence, this writ petition.

On notice of the present writ petition, respondent No. 5 - Om Parkash filed written statement stating therein that possession cannot be disturbed. He is entitled to the land which is in his possession.

I have heard learned counsel for the parties and perused the documents on record.

It would be appropriate to reproduce Clauses 1 and 3 of the Mode of Partition (Annexure P/1), which read as under:-

Land under partition will be prepared as per khewat wise and all the khewat will be taken into consideration while partitioning the land.

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Partition will be taken place after taken into consideration the intact possession and the ''kha'' ''kurra'' will be given as per quality of land and as per this khura can be disturbed.

Perusal of the site plan (Annexure P/10) shows that Khasra No. 37//13, 14 are touching the mettled road known as Delhi-Kharkhoda road. The learned counsel for the petitioner has submitted that this road is a National Highway. The land abutting it is very valuable. The petitioner is entitled to land on the road according to his share and the front touching road should also be equally partitioned. The partition conducted by the Assistant Collector 1st Grade is against the clauses of the Mode of Partition specifically clauses 1 and 3. The order of the learned Collector was in accordance with the terms of the mode of partition.

Learned counsel for respondent No. 5 opposed the contention of the learned counsel for the petitioner.

I have considered the rival contentions of the learned counsel for the parties.

A bare look at Annexure P/10 (site plan) makes it clear that the land consisting of Khasra No. 37//13, 14 abuts the mettled road. Learned counsel for respondent No. 5 could not deny that this is not on Delhi-Kharkhoda road. It is a fact that width of khasra No. 37//14 touching the road is 39 karam that of khasra no. 37//13 is 41 karam touching the road. Some more land is also behind khasra No. 37//13, 14 which also touches a passage. The petitioner has been given 1 kanal 18 marla out of Khasra No. 37//13; whereas, respondent No. 5 has been given 7 kanal 7 marla of land abuting mettled road which is apparently not an equitable partition. The partition has not been carried out in accordance with the value of the property. The order of the Collector remanding the case to the Assistant Collector Ist Grade to partition the land according to its value was legal and valid which has been wrongly set aside by the Commissioner and the Financial Commissioner. It is settled principle of law that the land abutting the road is valuable piece of land which the respondent is trying to take in his exclusive possession on the basis of order of the Commissioner and the Financial Commissioner. Valuable piece of land should have been partitioned as one block to all parties as per their entitlement/share. The situation and the location is always taken care when making partition as the value depends upon the location and situation of the property. In view of the above, I set aside orders dated 12.04.2006 (Annexure P/4) passed by the Assistant Collector Ist Grade, order dated 08.11.2007 (Annexure P/8) passed by the Commissioner and order dated 02.01.2009 (Annexure P/9) passed by the Financial Commissioner and uphold the order dated 14.07.2006 (Annexure P/7) passed by the Collector. Accordingly, the case stands remanded to the Assistant Collector Ist Grade with a direction that the land abutting road should be given to both the parties i.e. the petitioner and respondent No. 5 equally in such a manner that the parties get almost identical length touching the road. Apparently Khasra Nos. 13 and 14 appear to be touching the road to almost same length i.e. 41 karams and 39 karams respectively and land behind Khasra No. 37//13, 8/2 be given either to the petitioner or to respondent No. 5 as one and equivalent area be given out of khasra No. 37//14 and 7. Rest of the land touching on the passage should also be proportionately divided. Regarding the other tuk which is on the other side, the parties should be given land according to their share. Deficiency of any party should be compensated in the tuk of Rect. No. 27 and 24. The parties through their counsel are directed to appear before the Assistant Collector Ist Grade on 26.03.2012. The Assistant Collector Ist Grade is directed to dispose of the matter within three months after the'' appearance of the parties, so that litigation may come to an end. I hope that wiser sense will prevail among the parties and they will not further indulge into litigation for partition purpose.

With the above observation, the instant writ petition is disposed of.