Panjab Singh vs The Financial Commissioner and Others

R.L. Anand, J.—Punjab Singh and others have filed the present writ petition against the respondents under Articles 226/27 of the Constitution of India, praying for the issuance of a writ of certiorari/mandamus or any other directions to the respondents to the effect that the orders Annexures P6, P8, P9 of the Assistant Collector 2nd Grade. Radaur, Commissioner, Ambala Division; and Financial Commissioner, Haryana; respectively, be declared as illegal, unlawful null and void, void ab initio, being contrary to law and be quashed. Directions have also been sought to the effect that in the mode of partition prepared by respondent No. 4 a clause be inserted that agricultural land measuring 84 Kanals 8 Marias comprised in two plots ''A'' and ''B'', as shown in Annexure P3, be partitioned as per their shares, keeping in view the market value situation, nature, and by taking into consideration the merits and demerits of the plots by ignoring the possession of one party or the other on any Khasra number and the case set up by the petitioners is that they are the owners collectively to the extent of one-half share in the land measuring 84 kanals 8 Marias and the remaining half share belongs to respondents Nos. 5 to 8, as shown in Annexure P3, AKs Sazra.

In brief the case set up by the petitioners is that the mode of partition done by the revenue authorities vide Annexure P6, P8 and P9 is illegal because unequitable distribution of the land has been made, which is not in accordance with the provisions of Sections 116 and 118 of the Punjab Land Revenue-Act. The revenue authorities wrongly took into consideration that the factum of possession alone would be the determining factor for the purpose of partition of the land. Rather the value of the land, its location, utility should have been the guiding factors for determining the mode of partition.

The claim of the petitioners has been resisted by the private respondents Nos. 5 to 8, who alleged that the petitioners are estopped by their own act and conduct from challenging the impugned orders passed by the revenue authorities. Punjab Singh (petitioner No. 1), who is the father of the remaining petitioners, himself agreed to the partition of the land by writing Annexure R1 dated 21.11.1973. According to this agreement the parties agreed to partition the land of their own free will. The petitioners with their mutual consent agreed to partition the land and selected the land of their own choice. Thus they have no equitable right to again seek partition of the land in view of the fact that they themselves agreed to partition the land by mutual consent and also selected the land of their own choice. Moreover the findings of the revenue authorities are based on spot inspection done by the Assistant Collector in the presence of both the parties and, therefore, the writ petition is liable to be dismissed.

On merits stand taken by the said respondents is that the plots ''A'' and ''B", shown in Annexure P3, adjoin to the village Abadi. The petitioners themselves selected the land of their own choice, and the parties are in settled possession for the last more than 20 years and it would be unjust to unsettle the possession of the parties at this stage. The revenue authorities rightly came to the conclusion by recording a firm finding of fact that both the plots are situated near the village Abadi having the same value. It has also been pleaded that the tubewells of the petitioners as well as of the answering respondents are in existence on the land. They have also constructed Ghair and houses even earlier to the filing of the partition application. The value of the land recorded in the consolidation proceedings have no relevancy to decide the present controversy.

In short the defence of the respondents is that the use of the entire holding is for agricultural purposes; a new partition is not viable; the land is not situated near any city of Haryana. There is no commercial activity near the land and the partition which has been done by the revenue authorities, after the inspection of the spot and by expert hands, should not be interfered with as there is no violation of any provision of law of the Punjab Land Revenue Act.

An additional affidavit has also been permitted to be filed by the respondents, by which they have given challenge to Annexure P3, and it has been pleaded that Annexure P3 was passed on old revenue record, whereas the actual pacca village road has been shifted and now only a corner of Killa No. 10/1 touches the metalled road and in this manner the allegation of the petitioners that valuable land has been given to the contesting respondents is also wrong.

I have heard Shri Bhoop Singh, Advocate on behalf of the petitioners, and Shri Anil Khetarpal, Advocate, on behalf of respondents Nos. 5 to 8, and with their assistance have gone through the record of this case.

The background of this case is that Punjab Singh and others filed an application before the Assistant Collector 2nd Grade, Radaur, to the effect that the disputed land measuring 83 Kanals 8 Marias, of which the private respondents are the joint owners, be partitioned. The Assistant Collector 2nd Grade, Radaur, vide order dated 22.9.1992 disposed of the application. Feeling aggrieved by the order of the Assistant Collector 2nd Grade, Punjab Singh petitioner filed an appeal before the Collector, who allowed the appeal and came to the conclusion that Punjab Singh should be given the land out of the plot adjoining the village. Aggrieved by the decision of the Collector, Krishan son of Sube Ram and others filed the appeal before the Commissioner, Ambala Division, who vide order dated 24.8.1993 allowed the appeal and remanded the case to the Assistant Collector by giving directions to him that he would see that at the spot out of the plots adjoining to the Abadi, who was in possession, and what was the nature of the land and out of that plot if Punjab Singh and others (now petitioners in this petition) could be given land as per their share. If that plot is lying vacant, then Punjab Singh and others could be adjusted towards their share. In pursuance of this order Assistant Collector 2nd Grade inspected the site in the presence of all concerned and came to the conclusion that Punjab Singh (petitioner No. 1) had installed his tubewell in Killa No. 18/19 and adjoining to this, Khasra Nos. 20 and 21 were in possession of Punjab Singh, which is at a distance of one acre from the village Abadi. In the similar manner Khasra No. 37/15/2 was in possession of Krishan Chand and there was a Ghair for cattle and Khasra Nos. 9 and 10/1 tubewell of Krishan Chand was installed in one corner. The Assistant Collector also came to the conclusion that the possession of Krishan Chand and others on Khasra No. 37/15/2 was an old one. He also came to the definite conclusion that both the plots are situated near the village and the land of both the plots was clubbed. Aggrieved by this decision dated 20.1.1994 Punjab Singh and others filed an appeal u/s 118 of the Punjab Land Revenue Act before the Collector, who accepted the appeal and gave directions that the land be not partitioned in view of the possession; rather out of the plot adjoining to the Abadi and excluding the constructed portion, the share be given to Punjab Singh and others. Aggrieved by this order, Krishan Chand and others went in appeal u/s 13 of the Punjab Land Revenue Act before the Commissioner, who accepted the appeal and set aside the decision of the Collector and restored that of the Assistant Collector 2nd Grade and the operative portion of the order of the Commissioner can be reproduced as follows:-

"4.I have heard the id. counsel of both sides in detail and also gone through the relevant record on the file carefully. The moot point in this case is that the respondents want a share in both the Kurras on the ground that one Kurra is situated near the Abadi Deh and is of more value. They should, therefore, get a share in a valuable land as well. But it is evident from the spot inspection of the Assistant Collector that both the Kurras are situated near the Abadi and are of the same value. The parties have also been found to be in possession of their respective shares on this land. The respondents have got possession over Khasra Nos. 18/19,20,21 and have also installed a tubewell on this land. This land is just one acre away from the village Abadi. Likewise the appellants have got their possession on the other part i.e. Khasra Nos. 37/5/2,9,10/1. In view of the above, I do not find any valid reasons for the Collector to disagree with the report of the Assistant Collector. I, therefore, set aside the impugned order of the Collector and restore the order of the Assistant Collector dated 20.1.1994. The file is sent back to the Assistant Collector Ist Grade, Radaur, for taking up further proceedings in this case."

This time Punjab Singh was aggrieved by the order of the Commissioner and he filed a revision before the Financial Commissioner, who dismissed this revision vide order dated 14.2.1995.

Vide order dated 13.5.1996 passed by the Assistant Collector 2nd Grade, Jagadhari, partition was sanctioned according to Naksha Jeem. In appeal this order was confirmed by the Collector vide order dated 5.8.1996. I will make a brief reference of the relevant orders in the subsequent portion of this judgment, but first of all I would like to refer to a document dated 21.11.1973 (Annexure R1), written between Punjab Singh, petitioner No. 1, and Krishan Chand, respondent No. 5, when these two real brothers agreed to a mode of partition by clearly admitting that they were cultivating the land till then jointly and that of their own free will and consent had partitioned the land in-between. Advantage has been taken by the learned counsel for the respondents of this document by pleading that once a partition between the parties had taken place voluntarily in the year 1973, that partition should not be disturbed because such agreement and arrangement was respected to even by the revenue authorities. This submission of the learned counsel for the respondents has been refuted by the learned counsel for the petitioners on the grounds that it has not been proved that Punjab Singh was signatory of this document; that he was even competent to enter into any partition arrangement on behalf of his other brothers and that this document was never reported to the revenue authorities nor was ever acted upon or entered into in any of the revenue records and, therefore, Annexure R1 has to be ignored. The submission of the learned counsel for the respondents is partly correct in view of the citation reported as Suba Singh v. Mohinder Singh and Ors. (1983)85 P.L.R. 613; and Chander Bhan v. Hari Ram and Ors. 1996 P.L.J. 69; but advantage cannot be availed of by the learned counsel for the petitioners in totality because I have perused the impugned orders passed by the Assistant Collector, Commissioner and the Financial Commissioner, who had taken into consideration that the mode of partition suggested by the Assistant Collector was based on the settled possession of respective parties with regard to their shares and it should not be disturbed keeping in view the nature of the land.

Learned counsel for the petitioners submitted that after the remand of the case by the learned Commissioner vide order (Annexure P5) dated 24.8.1993, the Assistant Collector 2nd Grade did not take into consideration the directions which were given to him; rather he has ignored those directions. I do not find any substance in the submission of Mr. Bhoop Singh, learned counsel for the petitioners. The learned Commissioner in his order dated 24.8.1993 had given directions to the Assistant Collector to ensure about the possession of the parties and those directions were duly respected in the order (Annexure P6) dated 20.1.1994. it has been observed by the Assistant Collector as follows;-

".... As per spot inspection Punjab Singh has installed his tubewell in Khasra No. 18/19 and adjoining to this the Khasra Nos. 20 & 21 are in possession of Punjab Singh, which is at a distance of one acre of the village Abadi. In the similar manner Khasra No. 37/15/2 is in the possession of Krishan Chand and there is a Gher for cattle and in Khasra No. 9 and 10/1 tubewell of Krishan is installed in one corner. Hence it seems to be the old possession of Krishan etc. on Khasra No. 37/15/2. Therefore, I have reached the conclusion that while keeping the possession in view, the land be partitioned because both the plots are situated near the village and the land of both the plots is the same. Now the file for Naksha-Bay as per the mode of partition be produced on 2.2.1994."

Learned counsel for the petitioners has attached too much importance to the order (Annexure P7) dated 26.4.1994 passed by the Collector and submitted that it has been acknowledged by this officer that the land denoted by the letter ''A'' is more valuable than the one denoted by the letter ''B'' mentioned in Annexure P3. For this reason the appeal was accepted. This submission of the learned counsel for the petitioners does not cut ice in view of the categorical findings given by the learned Commissioner, Ambala, in his order (Annexure P8) dated 26.7.1994 and in para No. 4 of the order it has been held rightly that both the Kurras are situated near the Abadi and are of the same value. It was also observed by the learned Commissioner that parties were even put in possession of their respective shares. The petitioners, i.e., Punjab Singh and Ors. have got the possession of Khasra Nos. 18/19, 20 and 21 and have also installed a tubewell on this land, which is just one acre away from the village abadi. Likewise respondents Krishan Chand and Ors. (appellants before the Commissioner) have taken their possession on the other part, i.e., Khasra Nos. 37/5/2, 9, 10/1. Learned Commissioner finally came to the conclusion that the learned Collector had no valid grounds before him to differ with the report of the Assistant Collector. If the site plan (Annexure P3)now relied upon by the petitioner, is read and perused along with the site plan (Annexure R3) annexed with the additional affidavit of the respondents, the submission of the learned counsel for the petitioners would fall on the ground because the location of the land denoted by letters ''A'' and ''B'' (plots) more or less becomes the Same and for this reason even the Financial Commissioner vide order dated 14.2.1995 (Annexure P9) did not consider it necessary to interfere with the findings of the Assistant Collector and of the Commissioner.

The entire stress of the argument of the learned counsel for the petitioners is that the land denoted by letter ''A'' is at advantageous position as it is situated near the village Abadi. It may be mentioned here that the area of plot ''A'' is 26 Kanals 9 Marias while the area of plot ''B'' is 57 Kanals 9 Marias. Some portion of the land from plot ''B'' has also to go to the share of Krishan Chand. It is also the common case of the parties that they have installed their tubewells. The metalled road running from North to South adjoining Plot ''A'' has been straightened so as to proceed ahead with road coming from West and proceeding towards Sought-East. In this manner the land of plot ''A'' does not stand on any advantageous situation. Only the straightened road would touch one corner of Khasra No. 10/1 as is depicted in Annexure R3. The nearest point according to Annexure P3 of the land in possession of Punjab Singh is hardly at a distance of one Killa. It is also the common case of the parties that the use of the entire area is nothing but for agricultural purpose. This Court cannot sit as a Court of Appeal over the decisions of the revenue authorities, though an effort has been made by the learned counsel for the petitioners to establish that the orders contained in Annexure P6, P8 and P9 were unjust and require reconsideration by the Commissioner and Financial Commissioner and that it is a fit case for remand. I am not in a position to agree with the submissions made by the learned counsel for the petitioners. While determining the mode of partition, the respect to the agreement arrived at between the parties, their settled possession since 1973, nature of the construction, installation of the tubewells, nature of cultivation, quality of the land, were duly taken note of. No violation has been shown of any of the provisions of the Punjab Land Revenue Act on the part of the Assistant Col- lector, Commissioner and the Financial Commissioner, and in the absence of that this Court would be slow in interfering with the well considered orders, especially Annexures P8 and P9. Even the petitioner cannot take the advantage of the order dated 5.8.1996 passed by the Collector, Jagadhri, because the appeal was dismissed giving no right to the respondents Krishan Chand and others to take up the matter further. It has been held in Mohan Singh and Others Vs. Lachhman Singh, , that family partition and nature if possession can be proved by oral as well as documentary evidence. Partition given effect to and accepted by parties for some time; such partition normally should be given effect to and if the alleged family partition is not reflected in the revenue record, this omission, is not of much effect. In Joginder Singh and Ors. v. The Director, Consolidation of Holdings Punjab and Ors. 1988 P.L.J. 535, it was held that "error of fact however grave it may appear to be, cannot be agitated in writ jurisdiction. Only error of law apparent on the face of record can be corrected by a writ" This Court while dealing with the present writ petition cannot assume the role of an appellate Court, as held in Sohan Lal v. Financial Commissioner Punjab 1994(1) R.R.R. 183. No violation of rules or law has been shown. Only it is shown that the partition was apparently unfair. The High Court cannot in exercises of writ jurisdiction go into the facts in the partition matter.

In view of the aforesaid discussions, this Court is of the opinion that there is no merit in this petition, which is hereby dismissed, leaving the parties to bear their own costs.