Jeet Singh vs Commissioner, Patiala Division

Shyama Mann, FC

This is a revision petition under Section 16 of the Punjab Land Revenue Act, 1887 against the order of the Commissioner, Patiala Division, Patiala dated 26.2.1992 vide which he has upheld the order of Collector, Rajpura dated 1.10.1991 and Assistant Collector GradeI, Rajpura dated 24.9.1990.

The arguments in this case were heard on 25.9.1997 and the case was adjourned to 7.10.1997 for orders. On that date the order was not ready for announcement and the case was adjourned to 21.10.1997 for announcement of order.

The facts of the case are that Jeet Singh s/o Ajmer Singh etc. filed an application on 14.1.1988 for partition of land measuring 25 bighas 10 biswas situated in village Akbarpur, Tehsil Rajpura District Patiala. The grounds given in this application were that there had been no consolidation in the village which could enable individual owners to have separate ''taks''. There was no passage to his land and he had to pass through Khasra No. 295. He had purchased some land from Amar Singh s/o Sharda in 1980. In addition, he had exchanged certain land in the joint holding of Harbans Singh and Jaswant Singh and he was interested in getting a contiguous tak, for which purpose he was seeking partition of the joint holding. He also mentioned that earlier his partition application was dismissed on account of the fact that Gurdev Singhrespondent No. 18 had not been made a party.

Against the application of Jeet Singh, one Jaswant Singh s/o Duni Chand, an uncle of Jeet Singh, filed objections. Harinderpal Singh and Baljinderpal Singh s/o Rattan Singh and grandsons of Jaswant Singh filed objections taking the plea of family partition. But these objections were examined and over ruled by Assistant Collector GradeI on 8.7.1988. However, Jaswant Singh etc. went in appeal before the Collector who ordered on 31.7.1989 that the claim regarding private partition should be considered. Thereafter on 21.2.1990, Assistant Collector GrI came to the same conclusion i.e. that there was no private partition.

The mode of partition was framed on 22.5.1990 according to which it was decided that total land under partition would be 25 Bigha 10 Biswas and the partition would be on the basis of the latest jamabandi. It was also decided that in case there had been exchange or sale of any particular khasra No. these would be allotted to the shareholder in whose favour such alienation had taken place. Similarly, in case of mortgage by any cosharer, the mortgaged land would be allotted to his share. Naqsha ''Bey'' was received on 25.6.1990 and objections were filed by various cosharers.

Jeet Singhpetitioner objected stating that possession had not been respected in particular khasra No. 312 was in his possession and he had planted an orchard consisting of guavas, lemons, mangoes and jamun. Eucalyptus trees had also been planted on the northern and eastern boundary of this khasra No. The ''pahi'' had been carved in a lowlying area. Jaswant Singh, Harinderpal and Baljinderpal Singh however agreed with naqsha ''Bey'' and Jaswant Singh stated that he had purchased the entire share of Gian Singh and Hazura Singh sons of Atma Singh and that their khasras should contiguous to his.

On 20.7.1990 Assistant Collector GradeI visited the spot but did not record any inspection note. On 30.7.1990 arguments of the parties were heard and the orders were reserved for 3.8.1990. On this date Assistant Collector GrI recorded that he had seen the site and that the ''taks'' were according to possession. The land of the ''pahi'' was level and was not lowlying. In khasra No. 312, the trees were of small size and less value; it was difficult to assess their value. There was therefore, no need to amend naqsha ''Bey'' and naqsha ''Zeem'' was ordered for 7.8.1990.

On 3.8.1990 itself Jeet Singh put in an application for withdrawal from the partition. He referred to his earlier objections dated 3.7.1990 against naqsha ''Bey'' and stated that by not allotting khasra No. 312 to him, he had been made to suffer irreparable loss. He had mentioned in his application that he had exchanged land with Harbans SinghJaswant Singh and had wanted their land contiguous to him. The ''pahi'' was also lowlying. He had suffered a loss of 5 bigha 14 Biswas in area.

In reply to this application Harinderpal SinghBaljinderpal Singh sons of Rattan Singh and grandsons of Jaswant Singh put in objections on 6.8.1990 stating that khasra No. 312 was excess land with the petitioner and had been rightly taken away from him. He had quite rightly been given khasra No. 299 and 301 min as he had mortgaged these with PLMB. Jaswant Singh denied any exchange by Harbans Singh.

These objections were taken up for consideration by Assistant Collector Gr.I who observed on 24.9.1990 that the partition had already been completed, the respondents had produced photostat copies of two earlier orders dated 22.11.1987 and 27.8.1989 relating to village Akbarpur and village Bhateri, respectively, which showed that the petitioners had on two earlier occasions also applied for partition and withdrawn. The application of petitioner for withdrawal was frivolous and aimed at harassment to the respondents. He rejected the application for withdrawal.

The sanad taqseem was prepared, and on 7.11.1990, Jaswant Singh even applied for possession of the partitioned land. In the meantime, an appeal was filed by Jeet Singh against the order of the Assistant Collector GrI before the Collector in which he repeated the objections which he had filed earlier. The Collector summoned the record of the lower court and after hearing the parties observed that objections seeking withdrawal from partition proceedings had not been gone into by Assistant Collector Gr.I and the application was disallowed only on the ground that it was filed only to harass the cosharers. Even if such was the intention of the applicants, A.C. Gr.I should have given cogent reasons for rejecting the objections raised in the withdrawal application. This alone could have shown as to whether the application was frivolous or not. It was also observed that some of the respondents had stated that an area of 6 bighas 15 biswas had been excluded from partition and this needed to be looked into in detail. The Collector accepted the appeal and set aside the order of Assistant Collector Gr.I, Rajpura and on 28.2.1991, remanded the case for deciding the withdrawal application and for investigating the claim that an area of 6 bighas 15 biswas had been wrongly excluded from partition.

In his order dated 10.7.1991, the Assistant Collector GrI stated that 6 bighas 15 biswas of land which was being mentioned by Jeet Singh could not be included in the partition as it had not been mentioned in the original application for partition. Further, that it was the discretion of the Collector to accept or not to accept the withdrawal application. Assistant Collector GradeI came to the conclusion that since the partition proceedings had been completed in this case and sanad taqseem had also been issued, no useful purpose would be served in accepting the withdrawal application. The applicant had earlier also given application for partition which he had withdrawn. In this way, he was merely wasting the time of the parties without justification. As for the area of 6 bigha 15 biswas alleged to have been left out of the partition proceedings, the jamabandi which had been produced by the respondents showed that all the parties who have been impleaded in the application for partition were not cosharers in this area. In view of this, the application for withdrawal was being rejected.

Jeet Singh again filed an appeal before the Collector. This appeal was summarily rejected by the Collector on 1.10.1991 on the ground that since the final order in partition case had already been passed by Assistant Collector GradeI, appellants should file an appeal against the same. The Collector''s order was appealed against before the Commissioner on 23.11.1991. The first hearing in this case was ordered for 24.12.1991. In the meantime five days before the date of hearing on 19.12.1991 Jaswant Singh etc. took possession of land allotted to their share dispossessing Jeet Singh etc. with police help. A rapat roznamcha was also recorded in this respect. Although possession as per this rapat has been handed over to all the parties, only Jaswant Singh, Harinderpal Singh and Baljinderpal Singh cosharers are signatories to this document. Jeet Singh etc. did not participate in these proceedings and since crop of Jeet Singh was standing in the field the Kanungo made an assessment of Rs. 1,200/ as compensation for the standing crop.

The Commissioner vide his order dated 26.2.1992 dismissed the appeal (revision) on the grounds that partition proceedings had been completed, the land had exchanged hands and compensation had also been paid. He also accepted the arguments of the respondents that the partition application cannot be withdrawn at any time by the applicant especially after the partition had been effected. He also agreed with the argument given by the counsel for the respondents that the land measuring 6 bigha 15 biswas in the same village should not be included in partition proceedings as all the co sharers were not the same. Aggrieved by the orders of the Commissioner, the petitioners have come out with the present revision petition before this court.

There are nearly two dozen cosharers in the partition proceedings. However, the main dispute is between Jeet Singh etc. on the one hand and Jaswant Singh and his grandsons on the other. As per jamabandi for 198586, while Jeet Singh etc. own a little over 1/3rd share in this holding, Jaswant Singh and his grandsons have a little over 1/5th share. In actuality these shares are much more as certain purchases exchanges etc. have not found place in the jamabandi.

The main ground on which Jeet Singh''s application dated 3.8.1990 has been rejected at various levels is that the partition proceedings have been completed. In this connection, the learned counsel for the petitioners has invited my attention to case law 1992 PLR 742 wherein it has been held by the Hon''ble Punjab and Haryana High Court that the parties remain cosharers till such time as possession is not delivered and the partition proceedings cannot be said to be completed as long as possession has not been handed over. On 3.7.1990 Jeet Singh had raised very specific objections against draft naqsha ''Bey'' dated 25.6.1990 but these did not find disposal through a speaking order on 3.8.1990 while finalising naqsha ''Bey''. It is quite natural, therefore, that Jeet Singh should have raised these again on 3.8.1990 and expressed his resentment by saying he was withdrawing from partition proceedings. Assistant Collector GradeI even fixed up a date for considering Jeet Singh''s application but at the last moment summarily rejected it stating that the partition proceedings were over and the application had been merely filed to harass the petitioner as earlier two applications for partition had also been withdrawn by Jeet Singh. Initially, the Collector rightly observed on 28.2.1991 that a speaking order needed to be passed but later on she also came to the erroneous conclusion that the proceedings had been completed. By the time the case was listed for actual hearing the respondents had already dispossessed the petitioners with police help. The Commissioner not only accepted it as a proof that proceedings had been completed but also came to the erroneous conclusion that Jit Singh had received the compensation amount.

Mere finalisation of naqsha ''Bey'' and preparation of Sanad Taqseem does not complete the partition as it does not result in severance of relationship between coowners. The lower revenue officers have gravely erred in rejecting Jit Singh''s objections on this main ground.

A cosharer applies for termination of his status as joint holder only when he feels he is in a disadvantaged position. That is why the right to withdraw from partition proceedings under Section 118(3) of Punjab Land Revenue Act, 1887 has been conferred on the applicant, and the applicant alone, and not the respondents. In this case the applicants Jeet Singh etc. had sought withdrawal from partition proceedings on grounds of injustice. It was incumbent upon Assistant Collector GradeI to satisfy himself that naqsha ''Bey'' did not defeat the purpose for which partition was being sought. In his application for partition itself Jeet Singh had stated that he was seeking partition for consolidating his holding as he had made certain purchases and exchanges with other coowners. He also mentioned that he had planted fruit trees; it is now proved that these fruit trees were in Khasra No. 312. He also wanted proper access to his fields. It was not enough to say that the trees were small and the ''pahi'' was not low lying. Since the petitioner was in possession of the Khasra No. 312 (Jeet Singh has stated before me that he had purchased it from Gurdev Singh) specific reasons for dispossessing him in favour of his main objectors Jaswant Singh etc. should have been recorded. Even regarding ''pahi'' it should have been examined whether a better alternative was available. Full justification for decisions taken is not available on record and since the petitioner has emerged more dissatisfied than before, the purpose sought to be achieved through partition has prima facie been defeated.

The question of partial partition has also been neglected, the Collector specifically desired that the claim that an area of 6 bigha 15 biswas had been wrongly excluded from partition should be investigated. The Assistant Collector GrI dismissed this claim on 7.10.1991 by stating that 6 bigha 15 biswas of land could not be included in partition as it had not been mentioned in the original application for partition, and that the copy of the jamabandi which had been presented by the respondents showed that all the co sharers of the partition application did not figure in this area as owners. A perusal of the Jamabandi attached to Assistant Collector''s order dated 10.7.1991 shows that the coowners Jaswant Singh and Jeet Singh are in equal shares in this parcel. It is not necessary in partition proceedings that every parcel of land should have the same cosharers as owners. But the Commissioner has mechanically endorsed Assistant Collector''s findings. Considering that the main dispute is between Jeet Singh on the one hand and Jaswant Singh on the other and they are cosharers, prima facie, the land measuring 6 bigha 15 biswas needed to be included in partition proceedings. The land is situated in the same village and partial partition is not permissible under the law.

At the time of deciding the mode of partition it was recorded on 22.5.1990 that naqsha ''Alif'' had arrived but the socalled naqsha ''Alif'' does not show either the precise share of the parties or the khasra Nos./total area in possession of each. It is full of cuttings and gives no information whatsoever. There is no attached site plan from which the possession of the parties could be properly appreciated. There are also a number of omissions and errors in the preparation of naqsha ''Bey'' also. The area of Khasra No. 293 has been shown as 2 bigha 12 biswas. It does not corelate with the size of the khasra in the Shajra Aksh. Similar is the position in case of Khasra No. 313. Khasra No. 253 measuring 1 bigha 10 biswas which is a part of the partition proceedings does not figure anywhere on the Shajra Aksh. Similarly, after providing 2 biswas for the passage in Khasra No. 293 its area still remains 2 bigha 12 biswas. The objections of Amar Singh cosharer were overruled on the ground that he had sold all his land; no one noticed that Amar Singh was not impleaded in partition proceedings though he was a shareholder as per jamabandi. He sold his land both to the petitioners and to the respondents but he has been allotted share along with Jaswant Singhrespondent. This shows the casual manner in which the partition proceedings have been handled.

It is evident from the sequence of events and the facts on record that Jeet Singh, the eldest amongst the petitioners is illiterate, has rustic common sense but cannot express it. His applications lack precision and require a patient study of the record to convey sense. Yet the withdrawal of previous two applications has weighed heavily with the courts below in dismissing the objections of the petitioners summarily. Even if there were mistakes in the partition application, it was incumbent upon the revenue officerincharge to see that due procedures were followed, all necessary proformas were completed, all the parties were impleaded, and all land of the cosharers was included.

To sum up; it is quite evident that a number of irregularities were committed during partition proceedings. There was virtually no naqsha ''Alif''. No site plan accompanied this naqsha ''Alif''. No spot inspection was carried out before preparing naqsha ''Bey'' and the inspection that was carried out ultimately was not accompanied by an inspection note. The description of orchard on khasra No. 312 is perfunctory. There are no details relating to the number, variety, age etc. of these trees. The petitioners have alleged in revision before the Commissioner that there were 10 safedas which were 89 years old; three fruit bearing mangoes as also two Tahlis and one kikar. He is alleged to have purchased this khasra number from one of the cosharers. While disposing of this objection which was being raised repeatedly, it should have been mentioned why the respondents could not be accommodated on some other piece of land. Naqsha ''Bey'' was also not prepared with due caution as brought out in para 14 above. A large chunk of land was left out of the partition without making detailed enquiries. No one tried to appreciate why the petitioner was putting in applications, objections and applying for withdrawal of partition proceedings. Had the lower courts tried to look into the various applications with due objectivity, they would have realised that these were not withdrawal applications per se but specific objections to naqsha ''Bey'' which had been raised all through the partition proceedings and had not been dealt with on merits. On the contrary, the haste which has been shown in dispossessing Jeet Singh etc. from the land in the midst of the crop season on 19.12.1991 is a matter which should put any revenue officer to shame. The petitioners were thrown out with police help during the period intervening the filing of the revision petition before the Commissioner and the date fixed for hearing. This is a very unusual step which has been taken in this case. In partition cases normally all proceedings are suspended when a matter is in appeal or revision, even if there is no stay. In this case, it was the petitioners who was raising objections, so the haste was totally unwarranted and apparently mala fide. It is also interesting to note that although the possession has been purported to have been given to all the share holders only the presence of Jaswant Singh and his two grandsons is recorded.

In view of these observations it is immaterial that the possession has changed hands. There are apparent infirmities and there has been miscarriage of justice. The revision petition is accepted and the orders of Commissioner, Collector and Assistant Collector GradeI dated 26.2.1992, 1.10.1991 and 24.9.1990 respectively, are set aside. The case is remanded to Assistant Collector GradeI, Rajpura for fresh decision in the presence of all interested parties. While doing so, he should first give categoric findings on whether the separate parcel of land measuring 6 bigha 15 biswas situated in Khewat No. 60, Khataunis 83 to 86 should be included in partition proceedings or not and whether exclusion of this land will not tantamount to partial partition and be void ab initio. He should also deal with the objections of Jeet Singh through a speaking order. The various sales and exchanges between the cosharers should also find a mention even if they are not reflected in the jamabandi as they are admitted by the concerned parties and are relevant to formalising the ''taks''. In particular, he should give categorical finding on the existence of an orchard on Jeet Singh''s land and also indicate as to whether any of the old trees are still in existence on this khasra. He should thereafter proceed to give categoric reasons why this khasra number should not be allotted to Jeet Singh particularly when he is alleged to have purchased the same from Gurdev Singh. It is alleged that some of the bigger trees were cut and sold. This fact should also be verified. Some details of the trees have been mentioned by the petitioner in partition application; in his appeal before the Commissioner (when possession was still with Jeet Singh) these find mention in greater detail. Since the partition is to be finalised denovo, the location of the ''pahi'' may also be gone into. The present ''pahi'' appears very lengthy and circuitous and it may be examined whether the request of the petitioners seeking a shorter ''pahi'' from the northern side adjoining village Badheri and running northsouth somewhere between Khasra numbers 294 and 295 or Khasra numbers 294 and 292293 would not be shorter and more direct and also occupy less area. Both the parties through their counsels are directed to appear before Assistant Collector GradeI, Rajpura on 10.12.1997.

Announced.