Karnail Singh vs Swinder Singh

C.L. Bains, FC.

This is a revision filed under Section 16 of the Punjab Land Revenue Act, 1887 against the order dated 31.7.1992 passed by Commissioner (Appeals), Jalandhar Division, Jalandhar.

The brief facts of this case are that Shri Raghubans Singh, Smt. Raj Surinder Kaur and Smt. Kartar Kaur had made an application in the year 1983, under Section 111 of the Punjab Land Revenue Act, 1887 for the partition of land measuring 192K 13M bearing khata Khatauni Nos. 712/1772 to 1785 and measuring 11K 16M bearing khata Khatauni Nos. 713/1786 to 1788 situated in village Bundala, Tehsil and District Amritsar as incorporated in the jamabandi for the year 198081 to the TehsildarcumAssistant Collector Ist Grade, Amritsar claiming that they were cosharers with the respondents as shown in the application and they have got 1/6th share in the land in suit. On the basis of this application A.C. Ist Grade, Amritsar had finalised the partition vide his order dated 24.6.1985. In his order dated 24.6.1985 the A.C. Ist Grade has recorded that the counsel for the parties were present and the papers regarding partition have been shown and explained to the parties and no party has raised any objection. Accordingly the partition was approved and the order was announced. Thereafter S/Sh. Karnail Singh, Harbhajan Singh and Gurdip Singh sons of Shri Sohan Singh being joint holders shown as respondents No. 5 to 7 in the original application for partition, filed an appeal on 12.12.1990 before the Sub Division Officer -cumCollector Amritsar and the appeal was decided on 17.5.1991 by the Collector Amritsar vide which he accepted the appeal of the appellants. Against these orders, the present petitioners filed an appeal before the Commissioner (A), Jalandhar Division, Jalandhar who accepted the appeal and set aside the order of Collector Amritsar dated 17.5.1991. Hence this revision petition before this court.

I have heard the learned counsel for the parties and gone through the record. The counsel for the petitioners argued that on coming to know of the order of partition dated 24.6.85 passed by the Assistant Collector Ist Grade, Amritsar, the petitioners filed a civil suit on 21.3.86 for setting aside the orders of the Assistant Collector Ist Grade; that this suit was dismissed by the Sub Judge, Amritsar on 1.10.87; that the petitioners were advised by their counsel to file the appeal which was dismissed on 8.8.90 by the Additional District Judge, Amritsar on the ground that the Civil Court had no jurisdiction in the matter and the remedy lay to approach the revenue authorities under the Punjab Land Revenue Act, the petitioners filed an application on 27.8.90 under Section 152/153 of the Code of Civil Procedure before the A.C. Ist Grade for correction of clerical and arithmetical mistakes in calculating the lands coming to the shares of the respective parties. However this application was rejected by the A.C. Ist Grade, Amritsar on 7.12.90; that thereafter on 12.12.90 the petitioners filed an appeal against the order dated 24.6.85 of the A.C. Ist Grade, Amritsar before the Collector Amritsar taking the plea that the appellants were misled and misguided by their advocate to file a civil suit and hence the delay in filing an appeal; that the petitioners had filed an application dated 12.12.90 for condonation of delay before the Collector Amritsar and after hearing both the parties the appeal of the petitioners was accepted and the case was remanded to the A.C. Ist Grade Amritsar for fresh decision; and that the Collector proceeded to decide the appeal matter obviously condoning the delay and no objection regarding limitation was raised by the other party before the Collector. He has further argued that the petitioners had not been duly served the summons before the A.C. Ist Grade, Amritsar who passed the order of partition behind their back and without giving them an opportunity of hearing; and that the Commissioner has also ignored the well established legal principle that written application for condonation of delay is not a must, and even oral prayer in this respect can suffice; and that the Commissioner has passed the impugned before merely on technical and formal matters. He quoted 1980 PLJ 214 and 1989 PLJ 260 to emphasize that mistaken advice of advocate can be a valid basis for condoning the delay in filing an appeal.

The respondent''s counsel has argued that the appeal before the Collector was hopelessly barred by time; that it was filed after five years of the order of the A.C. Ist Grade and no sufficient cause was shown and no application for condonation of delay was made which is a mandatory provision of law.

I have assessed the evidence on the file and find that the appellants have a strong case. It is on record that at the time of finalisation and approval of the mode of partition of land, the parties were present alongwith their counsel and no objection whatsoever was raised. The petitioners firstly went to civil court and wasted five years'' time and when they did not succeed they returned to the revenue court by filing an appeal after five years of the order of A.C. Ist Grade. This delay cannot be condoned as rightly pointed out by the Commissioner in his order dated 31.7.92. The Collector passes a non speaking order which is quite unconvincing as it is not based on sound reasoning. No reasons have been recorded for condoning this long delay and specific order condoning this delay had not been passed at all which is quite strange. The partition of land which was ordered in 1985 cannot be allowed to be reopened at the whims and fancies of the shareholders as rightly pointed out by the Commissioner in his order. The order of the Commissioner is well reasoned and the same is upheld and the revision petition is accordingly rejected.

Orders be communicated to the parties.