Jagdev Singh vs Darbara Singh

Shyama Mann, FC.

This is a revision petition under Section 16 of the Punjab Land Revenue Act, 1887 against the order dated 15.11.1994 of the Commissioner, Ferozepur Division, Ferozepur.

Arguments were heard in this case on 18.11.1997 and orders were reserved for today.

The brief facts of the case are that Darbara Singh and Bachan Kaur residents of village Nagari Gobindpura, Tehsil Sunam, District Sangrur filed an application before Assistant Collector GradeI Mansa on 24.2.1982 for partition of and measuring 178K situated in the revenue estate of village Akalian, tehsil and District Mansa. In the partition application respondents Nos. 4 to 8 were Jagroop Singh, Sukhdev Singh, Baldev Singh, Karnail Singh and Jagdev Singh who are all brothers, and respondent No. 9 Hamir Singh is their father. In their application for partition Darbara Singh and Bachan Kaur specifically mentioned that the respondents were in occupation of land in excess of their entitlement and, therefore, the petitioners were interested in getting the land partitioned.

The application for partition was contested by Jagroop Singh who prayed for its dismissal on grounds of adverse possession. This plea was accepted by Assistant Collector GradeI on 11.10.1982, who observed that since the respondents were in adverse possession for more than 20 years there was a question of title which should be got decided from the civil Court. Aggrieved by this order Darbara Singh and Bachan Kaur filed an appeal before the Collector which was accepted by him on 5.4.1983, the Collector held that the petitioners were cosharers and there could be no question of adverse possession between cosharers. Jagroop Singh filed an appeal against the Collector''s order before the Commissioner. This was also dismissed on 28.2.1985. Thereafter Jagroop Singh filed a revision petition R.O.R. No. 621 of 198485 before the Financial Commissioner (Appeals), Punjab. This was also dismissed on 16.2.1987. Thus the question of title stood finally decided on this date.

Further proceedings were taken up by Assistant Collector GradeI and he approved naqsha Bey on 24.4.1987. Naqsha ''Zeem'' was also called for, and approved on 10.7.1987 and only the transfer of possession remained.

On 24.8.1987 Jagdev Singh the youngest of the five brothers filed an appeal before Collector Sub Division, Mansa against the order dated 10.7.1987 vide which the instrument of partition was prepared. The main ground taken by Jagdev Singh was that he was a minor during the proceedings before Assistant Collector GradeI and his interests has not been properly watched at that level. Now that he had attained majority he was filing an appeal himself. The Collector accepted the appeal and remanded the case to Assistant Collector GradeI on 28.10.1987 with the directions that the petitioner should be given an opportunity to file objections against naqsha Bey.

Against this order of the Collector two appeals were filed before the Commissioner, one by Darbara Singh and Bachan Kaur, and the other by Jagroop Singh elder brother of Jagdev Singh. Darbara Singh and Bachan Kaur challenged the remand ordered by the Collector while Jagroop Singh took the plea that in view of findings given by the Collector the entire proceedings stood vitiated, the case should not have been simply remanded, the partition application should have been rejected in toto, or the partition proceedings should have been stayed de novo. In his order dated 15.11.1994, the Commissioner observed that Jagroop Singh had been actively pursuing the common interest of all the five brothers, therefore, it was difficult to believe that Jagdev Singh''s interests had not been adequately watched in the partition proceedings. The five brothers had a common interest in the partition proceedings; they were in possession of excess land to the extent of 48K 2M which they stood to lose on the completion of the partition proceedings. The Commissioner further observed that the Collector had treated the appeal of Jagdev Singh as an appeal against naqsha ''Bey''. However, naqsha Bey in this case had been approved on 24.4.1987 against which no appeal was filed. The appeal of Jagdev Singh was filed against the order dated 10.7.1987 vide which naqsha ''Zeem'' was approved, and no appeal lies against orders sanctioning naqsha ''Zeem'', and preparing the instrument of partition on the basis of naqsha Bey already approved. The appeal of Jagdev Singh before the Collector was, thus not maintainable. He also observed that Jagroop Singh had no locus standi to file an appeal before him; if Jagdev Singh was aggrieved by the order of the Collector then he should have filed an appeal himself. The Commissioner accepted the appeal of Darbara Singh and Bachan Kaur and set aside the order of the Collector dated 28.10.1987 and restored the order of Assistant CollectorI dated 10.7.1987. Aggrieved by this order Jagdev Singh has come in revision before this Court.

The main grounds in revision are that the petitioner was a minor when the partition proceedings took place before Assistant Collector GradeI. When this fact was brought to the notice of Assistant Collector GradeI he proceeded to appoint his Reader as a Court Guardian. The Court Guardian did not properly watch the interest of the petitioner. On 30.7.1982 S. Inderjit Singh, Advocate who represented respondent Nos. 4 to 7 in the partition application (6 to 9 in the present revision petition), started representing the interest of the petitioner without due authority. Subsequently, on 6.6.1985 this counsel pleaded no instructions and did not defend the case but the trial court on 9.7.1985 illegally passed an exparte order against the petitioner, who was a minor. The objections against naqsha Bey were decided in a very hasty manner. No summons were sent to the petitioners nor any opportunity was given, and, that the petitioner was a student at Patiala during that period. That, on attaining majority the petitioner filed an appeal before the Collector, and the petitioner had no knowledge of the partition proceedings prior to 27.7.1987 as he was a minor and had been studying in Patiala. The Collector had rightly remanded the case to Assistant Collector GradeI for giving a hearing to the petitioner. He has further stated that it is the duty of the court to protect the interests of the minor and the Commissioner has acted contrary to the settled principles of law by reversing the order of the Collector.

I have heard the counsels for the parties and have also gone through the record. The only ground which has been taken in the revision petition is that the interests of the petitioner were not safeguarded either by the Court Guardian, or by his brothers, or by his counsel. It is noticed that originally Harbhajan Singh, Reader, was appointed as a Court Guardian on an application dated 14.5.1982 of Darbara Singh and Bachan Kaur; they had stated in their application that as per report of the process server no one was willing to represent Jagdev Singh. On 22.7.1982, however, there is an application from Jagroop Singh, eldest son of Hamir Singh and brother of Jagdev Singh that Jagdev Singh was under his protection and guardianship and since his interests did not clash with those of Jagdev Singh, he was applying for guardianship of Jagdev Singh minor. After this S. Inderjit Singh, counsel started representing all the five brothers. The brothers resisted the partition successfully by raising the question of title and it took five years, and a revision before the Financial Commissioner, before this issue was settled in favour of Darbara Singh and Bachan Kaur. All through these years, they were able to retain their hold on 48K 2M excess land.

It is the contention of Jagdev Singh that no one, not even his brothers, bothered to safeguard his interests and therefore, he should be given a chance to state his case before Assistant Collector GradeI. In this context the learned counsel for the respondents has invited my attention to Full Bench ruling of the Apex Court cited as 1974 AIR Punjab and Haryana 315 in which it has been held as under :

"The crux of the matter is that it has to be seen whether the minor was effectively represented in the litigation. If he was, then the noncompliance under the provisions of order 32, Rule 3, which is mandatory, would not render the decision bad. But if the noncompliance has caused prejudice to the minor or he as not effectively represented, the decision will be void."

In this case all the five brothers were jointly in possession of land far in excess of their share, and it is now quite evident that the various objections filed from time to time were aimed at stalling the partition proceedings, and remaining in possession of excess land somehow. They have very successfully managed to keep the partition proceedings lingering for the last 15 years and Jagdev Singh has been a beneficiary of this delay alongwith his brothers. Jagroop Singh, quite rightly, claimed in his application dated 22.7.1982 that his interests did not clash with those of Jagdev Singh. There is no force in Jagdev Singh''s plea that his interests were not safeguarded by his brothers. It is now evident that the father, Hamir Singh, though a natural guardian, was kept out of the proceedings deliberately even though he had been impleaded as party by the applicants.

The petitioner has not quoted any instance to show that his interests were adversely affected on account of his being a minor. He has not raised any objection against naqsha ''Bey'' either before the Commissioner or before this Court. The question of his being proceeded against exparte in 1985 has been very aptly dealt with in para 9 of the Commissioner order dated 15.11.1994 and there seems no need to improve upon the same.

The petitioner never filed an appeal before the Commissioner although he had already attained majority, an appeal was only filed by his brother Jagroop Singh, and Jagdev Singh has filed this revision bypassing the Commissioner, while Jagroop Singh has decided not to raise any more objections. It has rightly been observed by the counsel for the respondents that this revision application is not maintainable.

On merits I find that after the case was remanded by the Collector on 28.10.1987 the petitioner was duly represented through his counsel S. Surinder Singh Joga before Assistant Collector GradeI and there is a very comprehensive order dated 15.2.1988 of Assistant Collector GradeI on record which goes into the objections of Jagdev Singh against naqsha ''Bey'' and dismisses them. This fact has been concealed in the revision petition.

It would be seen from the behaviour of the five brothers that they have a common interest in remaining in possession of the disputed land in excess of their entitlement and they have been adopting devious tactics to thwart the partition proceedings from time to time. They managed to delay partition proceedings for five years by agitating the question of title in various courts and when this plea was defeated, they cleverly raised the question of minority of Jagdev Singh immediately after approval of Sanad Taqseem. Neither the date of birth or Jagdev Singh nor the date of his attaining majority was brought on record either in appeal or in revision. Thereafter, Jagdev Singh avoided filing an appeal before the Commissioner and when his brother Jagroop Singh''s appeal was dismissed by the Commissioner, Jagdev Singh filed a revision before this Court. By keeping the question of minority alive the partition proceedings have been kept pending for another 10 years. This delay has operated in favour of the petitioners and against the two respondents Darbara Singh and Bachan Kaur, so the minority of Jagdev Singh has not in any manner prejudiced his interest in partition proceedings. There is no force in the revision petition of Jagdev Singh and it is, therefore, dismissed.

Announced.