Ankur Kalra And Anr. vs Anil Suri And Ors.
2007 Latest Caselaw 1971 Del

JUDGMENT

Mukundakam Sharma, C.J.

1. The order dated 7.10.2004 passed by the learned Single Judge in Writ Petition No. 4440/2003 is under challenge in this appeal whereby the writ petition was allowed and the order dated 27.6.2003 passed by the Financial Commissioner on a review filed by the appellants herein was quashed. While disposing of the writ petition the learned Single Judge held that the Financial Commissioner was not justified in upsetting his earlier order dated 28.11.2002 by exercising the powers of review in terms of which he has passed the order dated 27.6.2003, which according to the learned Single Judge was directly in conflict with the earlier order dated 28.11.2002. In order to appreciate the findings recorded by the learned Single Judge, which are under challenge in this appeal, we have to narrate the background facts leading to filing of the aforesaid writ petition in this Court.

2. The appellant herein filed an application which was undated in the office of the S.D.M., Najafgarh contending, inter alia, that they are the joint recorded owners of the land comprising in khasra Nos. 149/3,149/8 and 149/13/1 along with Shri Anil Suri and Vivek Suri, who are the respondents herein. It was also stated that the appellants being minors were not in position to get their land properly cultivated due to the factum of joint ownership of the aforesaid land and, therefore, they intended to get the said land separated from the other co-owners, namely, Shri Anil Suri and Vivek Suri in order to avoid any dispute and, therefore, requested that the division of the above mentioned fields be made and new khasra numbers be assigned to the land of the appellants as also to the land of Shri Anil Suri and Vivek Suri. In paragraph No. 5 of the said application it was stated as follows:

That the above said land is in the joint ownership of the parties and after separation both parties shall be in a position to cultivate the same.

3. The prayer in the said application was in the following terms:

It is, therefore, requested to you that Tehsildar be directed to make the division of above mentioned fields of Tatima be made comprising in Kh. No. 149/3,149/8 and 149/13/1 situated in Revenue Estate of Village Dichaon Kalan, Delhi and new Khasra numbers be assigned to the portions of the applicants as well as to Sh. Anil Suri and Sh. Vivek Suri and accordingly the possession of the applicants be separated from Sh. Anil Suri and Sh. Vivek Suri and thereafter both the parties be put in their respective land.

4. On the said application, an order was passed by the learned SDM on 24.5.2002 directing the Tehsildar to make the division of the fields and separate the possession of the parties. Incidentally, while filing the said application and while passing the aforesaid order no notice was given to the respondents, namely, Shri Anil Suri and Vivek Suri. In view of the aforesaid order passed, the Tehsildar went to the spot on 29.5.2002 to execute the order and it was observed that the area was not accessable as there was a boundary wall and there was apprehension of breach of peace. Therefore, police help was sought for implementing the orders of the SDM. The Tehsildar prepared a report recording completion of demarcation on 7.6.2002. The respondents, thereafter, moved the SDM on 12.6.2002 seeking review of the aforesaid order but the said prayer for review was dismissed by the SDM on 13.6.2002.

5. The aforesaid order passed by the SDM was challenged by filing a revision petition before the learned Financial Commissioner under Section 187 of the Delhi Land Reforms Act against the order dated 24.5.2002 passed by the SDM/R.A., Najafgarh directing the Tehsildar to effect the division of fields. The main contention of the respondents herein was that the proceedings before the SDM should have been treated as a prayer for partition of the joint land in terms of the provisions of Section 55 of the Delhi Land Reforms Act read with Rule 403 of the said Act. It was also contended that new khasra numbers could be assigned only in a consolidation operation and not otherwise and that the order passed by the SDM was beyond his jurisdiction. The stand taken by the appellant before the Financial Commissioner at that stage was that the land was not held jointly by them with the respondents and that the parties have separate possession of land which are distinct and separate and, therefore, the case was for division of the property meaning thereby that it was a case of demarcation and that no partition was at all involved.

6. The Financial Commissioner while disposing of the said appeal held that the appellants and the respondents are joint owners. He also observed that the land belonging to the two appellants was not as separate or distinct as was sought to be made out and the said aspect is clear from the report of Tehsildar wherein even police help was sought to implement the orders of the SDM. The learned Financial Commissioner also held that the SDM acted in hurry and in a matter where it was an admitted position that some of the khasras were jointly owned by the parties. He also observed that the appellants had very cleverly used the word division instead of demarcation or partition in their application before the SDM/R.A. It was also held that the appellant ought to have made a correct statement within the framework of law and that mere play with the words cannot alter the fundamental character of the proceedings and defeat the due process of law. Consequently, the order dated 28.11.2002 was passed by allowing the appeal and remanding the matter back to the SDM/RA with the direction to take up partition proceedings and dispose of the matter on merits after hearing both the parties.

7. The sum and substance of the aforesaid order is that the Financial Commissioner in so many words held that the case would be a case of partition and not of demarcation as sought to be made out by the appellants as the dispute between the parties was particularly with regard to separation of possession and also in view of the fact that there is a joint ownership of the land. The appellant had in order to confuse the issue used the word 'division' but in fact what was sought and prayed for was partition. Surprisingly, however, after passing of the said order the learned Financial Commissioner entertained a fresh application from the appellants herein which was termed as a review application and he passed a fresh order on 27.6.2003 treating the said application as a review application. In the order dated 27.6.2003 the learned Financial Commissioner has reiterated his earlier order that it was a case of partition and not of demarcation/division. But having observed thus, he proceeded to state that in order to remove any scope for ambiguity and for the sake of clarity, it is directed that so far as the factum of the possession is concerned, the holdings of the parties in the concerned khasras shall be treated as separate and distinct for all purposes. He also stated that by way of clarification it should be understood that respective possession of the two parties on the said land would be maintained as it actually existed when the revision petition was filed by the respondent Anil Suri and that if the same was in any manner disturbed, it shall be restored to the original position prevailing on that day. He again reiterated that the aforesaid position with regard to the respective possession of the two parties would remain unchanged until decided otherwise by the SDM/RA on the conclusion of remand proceedings.

8. The said order passed by the Financial Commissioner on review was challenged in the writ petition. The learned Single Judge held that the learned Financial Commissioner exceeded his jurisdiction in passing an absolutely contradictory order from what was passed by him on 28.11.2002. The learned Single Judge referred to the various orders passed by the SDM/RA and also of the Financial Commissioner on the basis of the applications filed before them and on appreciation thereof held that the partition has to be effected when a bhumidar sues for partition of his holding keeping in view the Section 57 of the Delhi Land Reforms Act, 1954. It was also held by him that in a proceeding for partition, gaon sabha has to be made a party and it is also to be considered as to whether or not partition of a holding would not fall below the minimum holding. The learned Single Judge observed that the findings of the learned Financial Commissioner in order dated 27.6.2003 and the order dated 28.11.2002 are mutually contradictory.

9. On consideration of the records, we find that the prayer in the application before the SDM was that the appellants should be put in possession of their land by giving them separate holdings. The findings recorded by the Financial Commissioner in his order dated 27.6.2003 are, therefore, contradictory and in conflict with the earlier order dated 28.11.2002. When there was a prayer of the appellants that they should be put in possession of their holdings, there could not have been an order and observation by the Financial Commissioner that the appellants were already in possession and separation had taken place. It was also submitted by the counsel appearing for the appellants that it was a case of division and not of partition. However, the Financial Commissioner rejected and negated the said contention and held, in our opinion rightly, that there is no distinction between division and partition in the present case. The said findings of the Financial Commissioner has attained finality, as the said order passed by the Financial Commissioner on 28.11.2002 was not challenged by any party. The said findings cannot be re- opened by the appellants with the present appeal as the appeal arises only out of the writ petition which was filed against the order dated 27.6.2003 and not against the order dated 28.12.2002. It may also be stated that review jurisdiction is limited and cannot be equated with appellate jurisdiction. What the Financial Commissioner did in his order dated 27.6.2003 is to completely undo and set aside his earlier order dated 28.11.2002.

10. In our considered opinion, the order passed by the learned Financial Commissioner on 27.6.2003 was in excess of his jurisdiction. The order dated 28.11.2002 passed by the Financial Commissioner, therefore, remains in the field. The aforesaid order has to be given effect to. We also hold that the application which was filed by the appellants could not have been treated as an application for division/demarcation but it was an application seeking for partition of the said property and the same should be treated accordingly in terms of Section 55 of the Delhi Land Reforms Act read with Rule 403 of the said Rules in terms of the order of the Financial Commissioner passed on 28.11.2002.

11. In our considered opinion there is no infirmity in the order passed by the learned Single Judge. The appeal has no merit and is dismissed accordingly.