Gurbachan Singh vs Avtar Singh

S.R. Bunger, F.C.

The present case has been reported by the Additional Commissioner (Appeals), Ferozepur Division, Ferozepur, under section 16 of the Punjab Land Revenue Act, 1887, against the order dated 28.7.1995, passed by the Collector SubDivision, Malout, in a case of partition of joint agriculturalland, with his recommendation, that, the present revision petition be accepted; the order dated 28.7.1995, passed by the Collector, Malout, as well as, the order dated 7.3.1995, passed by the TehsildarcumA.C. Ist Grade, Malout, be set aside, and the case be remanded to the TehsildarcumA.C. Ist Grade, Malout, with a direction that, the share of the petitioners be separated from out of the jointland with the respondents, as per his reference dated 8.10.1997.

The brief facts of this case are, that, Gurbachan Singh etc., have moved an application on 17.5.1994, before the TehsildarcumA.C.Ist Grade, Malout, for the separation of their shares, from out of the jointland, measuring 263 Kanals and 14 Marlas, comprised in Khewat No. 33, 43, 44 and 49, situate at village Khunan Kalan, Tehsil Muktsar, as per the Jamabandi for the year 1987 88. On this application, the respondents No. 15, Avtar Singh etc., had raised an objection, that a civil dispute inter se the respondents 15 (Gurcharan Singh etc. v. Avtar Singh etc.) was pending in the court of the Additional Senior Sub Judge, Muktsar, as such, a ''question of title'', was involved in the land to be partitioned. Besides, the appellantsGurbachan Singh etc., had sought partition of their shares in all the four (4) Khewats by making only one application, which was not permissible under the law, because the cosharers in all the four Khewats were not common. On the basis of these objections, the respondents had prayed that, the application for partition be refused. The A.C. Ist Grade, Malout, while agreeing with the objections on behalf of the respondents, had rejected this application for partition vide his order dated 7.3.1995.

Aggrieved by this order, Gurbachan Singh etc., had filed an appeal before the Collector, SubDivision, Malout, on the grounds, that, so far as the ''title'' of the appellants in the land to be partitioned is concerned, the same had already been finally decided by the Addl. District Judge, Faridkot vide his judgment and decree dated 27.2.1990, and so far as the pending civil suit captioned as : Gurcharan Singh etc. v. Avtar Singh etc. was concerned, it was the inter se dispute between the brothers, and as such, there should be no difficulty in partitioning the share of the appellants, from out of the jointland. A prayer was made to set aside the order passed by the A.C. Ist Grade, Malout. This appeal was rejected by the SubDivisional Officer (Civil)cumCollector, Malout, vide his order dated 28.7.1995. Against this order, the petitionersGurbachan Singh etc., had filed the revision petition before the Additional Commissioner (Appeals), Ferozepur Division, Ferozepur, as a result of which, the present case has been reported by him.

The learned counsel for the petitioners, as well as the learned counsel for respondent No. 1 have been heard. After careful consideration of the facts and circumstances of the case, and after thorough perusal of the record, I am of the opinion, that, the present revision petition deserves to be rejected; and, the reference merits to be declined.

In the given circumstances of the case, both, the TehsildarcumAssistant Collector, Ist Grade, Malout, as well as, the Collector SubDivision, Malout, as per their concurrent orders had rightly rejected the application for partition, moved by the petitioners, because, the title of land to be partitioned was disputed. Now, the Additional Senior SubJudge, Muktsar, vide his order dated 8.8.1995, has settled the dispute inter se the respondent No. 35, regarding the extent of their shares in the land to be partitioned. It may be true that, the title of the petitioners in the land to be partitioned was clear, and the pending dispute of the respondents in the Civil Court was between Gurcharan Singh and his brothers; but, in the jointland, a cosharer is a cosharer, and the relationship of cosharers inter se is immaterial. Under Section 117 of the Act ibid, where there is a question as to title, in any of the property of which partition is sought, the Revenue Officer can decline to grant the application for partition moved under Section 111 of the Act ibid, until the question is determined by a competent court. This implies that title of every sharer in the jointproperty should be clear, as every cosharer has a right to get one''s share separated; and, in fact, the Revenue Officer dealing with the partition application is required under Section 114 of the Act ibid, to ascertain, whether, any of the cosharers other than the applicant, desires the partition of his/her share also, and if any of them so desires, such a cosharer needs to be added as an applicant for partition. In view of this, the observation made by the learned Additional Commissioner (Appeals), that, "Respondents can get their land partitioned amongst themselves in due course", is untenable. Under the law, the title of every cosharer in the joint land is expected to be clear; as, any cosharer can ask for the separation of one''s share, of course at the appropriate time.

Now, in view of the Civil Court Judgment dated 8.8.1995, the titles of the parties in the jointland are clear enough, and the partition application cannot be declined on the ground, that, the ''question of title'' is involved.

However, I notice, that, the jointland is comprised in Khewat No. 33, 43, 44 and 49, and in Khewat No. 33, 43 and 44, the cosharers are not common. So far as Khewat No. 49 is concerned, I have not been able to lay my hand on the copy of the Jamabandi with regard to this Khewat, and probably, this has not been placed on the record; as such, no comments are offered. As regards the other three khewats, the partition of jointland comprised in these Khewats has been sought by making one application only, which it not permissible under the law. It is a settled proposition, that basically, partition of the jointagricultural land through the intervention of the Revenue Officers is required to be done Khewatwise, for which, an application for partition is required to be made; however, more than one Khewat can be combined for partition by making one application, where all the cosharers in such Khewats, irrespective of their shares, are common and not otherwise. As the cosharers in all the Khewats are not common, so, the partition of these Khewats by making a single application is not permissible. On account of this, the application for partition needs rejection. However, any cosharer may seek partition of one''s share in any Khewat, by making separate application for partition. So, the petitioners, if so advised, may seek partition of their shares from these Khewats, by making separate applications for different Khewats.

In view of the above discussion, the present revision petition, is rejected; and the reference dated 8.10.1997, is hereby declined. Announced.

Revision petition rejected.