Harjit Singh and Another vs The Financial Commissioner and Others

Jasbir Singh, J.—This appeal has been filed against an order dated 31.8.2012, passed by the learned Single Judge of this Court, dismissing Civil Writ Petition No. 14384 of 2010 filed by the appellants. Appellant No. 1 and respondent No. 5 are real brothers. Dispute is regarding partition of joint land measuring 84 kanals 13 marlas. The Assistant Collector 1st Grade, Ajnala, vide order dated 30.1.2004, accepted application for partition as per the prepared Naksha Be-zeem. That order reads thus:-

File put up. Counsel for the applicant and counsel for respondent No. 1 is present. The counsel for the parties has orally made statement that they have no objection to the prepared Naksha Bey-Zeem. Accordingly the application for partition is hereby accepted as per the prepared Naksha Zeem. The instrument of partition be issued after the expiry of period of limitation. Order announced. The file be consigned to record room.

Reading of the above order shows that no objection was raised to the proposed partition by both the parties. The above order was challenged by the appellants before the Collector, Sub Division Ajnala, District Amritsar. The appeal was dismissed vide order dated 24.5.2005. It is specifically mentioned therein that as per Naksha Be-zeem prepared, instrument of partition has been issued. It is further stated that gair mumkin land has been allotted to both the parties as per their possession. It is averred by counsel for the respondents that in the said piece of gair mumkin land, houses of both the parties are in existence. The appellants went in revision which was also dismissed by the Commissioner, Jalandhar Division, Jalandhar on 2.5.2006. Finding given regarding allotment of gair mumkin land as per Naksha Be-zeem was affirmed by the revisional authority. It was also noticed that despite opportunities given, both the parties did not file any objection against the proposed partition. The appellants went to the Financial Commissioner Revenue, Punjab, who, vide order dated 22.4.2008, called factual report at the spot from the Sub Divisional Magistrate-Collector concerned. On getting the report and after perusing it, revision petition was dismissed on 9.3.2010. The above order was passed primarily by taking note of a fact that before appeal was filed by the appellants in the Court of Collector, instrument of partition had already been issued. It was further noted that at the spot, order of partition stands implemented.

The appellants approached this Court by filing Civil Writ Petition No. 14384 of 2010, which was dismissed by the learned Single Judge of this Court vide order dated 31.8.2012. Relevant portion of that order is reproduced hereunder:-

After hearing counsel for the parties, it is viewed that the impugned order may not call for any interference except to the extent that path has not been provided to the petitioners from the land, which has come to their share in the partition. Counsel for respondent No. 5 was required to have instructions in this regard. On the adjourned date, the counsel joined issue in regard to the right of the petitioners to maintain this petition as they had sold the entire land. Misstatements were made by both the counsel. It has ultimately transpired that the petitioners still hold some land to the extent of 4 marlas. Some portion of land has also been sold by respondent No. 5. At that time of partition, the path may not have been needed as the land of each co-sharer was well connected. Now after selling some portion of land, the prayer for providing path to the portion of the land left with co-sharers can not be claimed. No interference, thus, in exercise of writ jurisdiction is made out.

After hearing counsel for the parties, we are satisfied that concurrent finding of facts given by all the revenue authorities have rightly been affirmed by the learned Single Judge after noting that partition has been effected as per mode of partition. Against the proposed partition, no objection was raised by both the parties. We have seen the site map showing land allotted to both the parties. Land shown in blue colour has gone to the share of appellants and that shown in pink colour has fallen to the share of respondent No. 5. The appellants appear to be beneficially placed. Their tak adjoins the main metaled road leading from Ajnala to Fatehgarh Churian. Land allotted to respondent No. 5 does not adjoin the said road. No defect has been indicated in the order passed by the learned Single Judge of this Court. Dismissed.