Punjab-Haryana High Court
Bhagwant Singh And Ors vs Financial Commissioner (Appeal) ... on 31 August, 2022
CWP-2132-2018 (O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Sr. No.239
CWP-2132-2018 (O&M)
Reserved on : 17.08.2022
Pronounced on: 31.08.2022
Bhagwant Singh and others ..... Petitioners
VERSUS
Financial Commissioner (Appeals) Punjab, Chandigarh and others
..... Respondents
CORAM: HON'BLE MR. JUSTICE SUDHIR MITTAL
Present: Mr. S.K. Singla, Advocate, for the petitioners.
Mr. Arun K. Kaundal, DAG, Punjab
Mr. Sanjiv Gupta, Advocate, for respondents No.6 and 7.
*****
SUDHIR MITTAL, J.
A large parcel of land measuring 4128 kanals and 08 marlas
was shown in the revenue record as owned by the Nagar Panchayat.
Mutation Nos.627 and 629 were sanctioned, whereby, a large chunk of
this land was mutated in favour of the proprietors of the village.
Subsequent mutations also seem to have been entered resulting in the
entire chunk of 4128 kanals and 08 marlas being mutated in favour of the
proprietors. The reason for entering these mutations is not forthcoming
from the record. Thereafter, some of the co-sharers sold their shares to
third parties including the petitioners herein. On 22.11.1995, respondents
No.3 to 5 filed an application for partition of the land measuring 4128
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kanals and 08 marlas. The petitioners were not impleaded as parties. On
completion of proceedings, sanad was issued on 28.08.1996. Vide two
separate sale deeds dated 28.05.2008 respondents No.3 and 5 sold a total
of 264 kanals in favour of respondent No.6 and 7. These respondents
sought implementation of the sanad resulting in issuance of warrants of
possession dated 05.06.2008. Allegedly, it was then that the petitioners
realized that joint land had been partitioned and that proceedings had been
conducted behind their back. Thus, they filed CWP-12737-2008 for
quashing of the sanad. The writ petition was disposed of with a direction
to the petitioners therein to avail alternative remedy of revision provided
by Section 16 of the Punjab Land Revenue Act, 1887. Accordingly, the
revision was filed on 19.05.2009. Grounds of revision are on record as
Annexure P-8. This revision petition was, however, dismissed vide order
dated 06.11.2017 resulting in filing of the present writ petition.
Written statement has been filed only on behalf of
respondents No.6 and 7. They have objected to the maintainability of the
writ petition on the ground of dismissal of a civil suit allegedly filed for
the same purpose. On merits, the filing of the partition application has
been admitted. Non-impleadment of the petitioners has been blamed
upon the revenue record, wherein allegedly, their names did not figure.
The vendors have been stated to be parties and thus, allegedly, no
prejudice was caused to the petitioners. Other averments made in the writ
petition have been denied.
Learned counsel for the petitioners has argued that the
revenue record in the shape of jamabandies for the year 1989-90 and
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1994-95 clearly establishes that the petitioners were vendees of part of the
land sought to be partitioned. In the jamabandi for the year 1989-90, their
names were mentioned in the remarks column, whereas, in the jamabandi
for the year 1994-95, their names find mention in the column of
cultivation. Thus, they should have been impleaded in the partition
application. The partition proceedings are vitiated as all co-sharers were
not made party. There are reports on record, according to which, the
shares mentioned in the sanad do not match the shares mentioned in the
revenue record. Thus, transfer of physical possession is not possible. On
this ground also, the writ petition deserves to succeed. The Financial
Commissioner has failed to take these aspects into consideration and
accordingly, his order as well as the sanad deserve to be quashed and the
matter deserves to be remanded to the Assistant Collector, 1st Grade for a
fresh decision after hearing all the parties.
Learned counsel for respondents No.6 and 7 has submitted
that sanad was challenged by way of an appeal in the year 1998. Vide
order dated 28.05.1998, the Collector had set aside the same. This order
was set aside by the Commissioner vide his order dated 25.07.2006 and
this order was never challenged any further. Thus, the petitioners are not
entitled to maintain the present writ petition. It has been next argued that
a civil suit filed by the petitioners was dismissed vide judgment and
decree dated 01.02.2017 and the dismissal thereof also bars the filing of
the present writ petition. The vendors of the petitioners were parties in
the partition application and thus, no prejudice has been caused to them.
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The sanad does not contain any defects and does not call for any
interference.
In rebuttal, learned counsel for the petitioners has submitted
that the petitioners were not parties in either the appeal or the revision
filed earlier. They were not aware of the said proceedings and their rights
cannot be prejudicially affected by them. The civil Court's decree dated
01.02.2017 was passed in a suit for declaration regarding possession of
specific khasra numbers by the plaintiffs therein. Sanad was not under
challenge and the judgment and decree passed therein does not affect the
rights of the petitioners to maintain the present writ petition.
During the course of arguments, a copy of memo of parties in
the revision petition decided vide order dated 25.07.2006 has been handed
over across the bar without objection from learned counsel for
respondents No.6 and 7. The same is marked as Annexure-X and is taken
on record. A perusal thereof shows that none of the petitioners were
parties to the said proceedings. Orders passed therein do not bind the
petitioners in any manner. Even, the fact that the order passed therein
attained finality, does not affect their rights to either file a revision
petition before the Financial Commissioner or the present writ petition.
The judgment and decree of the civil suit referred to by
learned counsel for respondents No.6 and 7 is on record as Annexure
R-6/1. The suit was filed for grant of a decree of declaration and
permanent injunction. The relief prayed for was that the plaintiffs therein
be declared owners in possession of specific khasra numbers purchased
by them by way of registered sale deeds and the defendants be restrained
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from interfering in their physical possession. In view of the settled legal
position that sale of specific khasra numbers out of joint land is sale of a
share only, the relief was declined. No challenge was laid to sanad dated
28.08.2006 and thus, the dismissal of the suit also does not bar filing of
the present writ petition.
For the foregoing reasons, the arguments regarding
non-maintainability of the writ petition are rejected.
The next question to be examined is, whether,
non-impleadment of the petitioners as parties in the partition application
has resulted in vitiation of the proceedings? If so, was the defect curable
by impleadment of the vendors of the petitioners? Respondents No.6 and
7 admit that the petitioners were not made parties. Explanation for the
same is that the revenue record did not reflect their names as co-sharers.
Jamabandi for the year 1989-90 is on record as Annexure P-3. The names
of the petitioners are clearly recorded in the remarks column thereof as
vendees. In the jamabandi for the year 1994-95, copy of which is on
record as Annexure P-2, their names find mention as vendees in the
column of cultivation. Thus, the explanation given is false.
It is settled law that every co-sharer is owner of every inch of
joint land. The petitioners had become co-sharers by virtue of the sales in
their favour and were entitled to participate in proceedings for partition of
the joint land and claim their right for allotment of specific khasra
numbers based upon value and quality of land. Having been denied this
opportunity, the partition proceedings stand vitiated as a whole. Partition
proceedings are vitiated, even if, a single co-sharer is not made a party or
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is not served in accordance with law. Thus, the first question, whether,
the partition proceedings stand vitiated, is answered in the affirmative.
Impleadment of the vendors would not cure the defect nor
would it validate the proceedings. A vendor having sold his share in joint
land would lose interest therein and would not make adequate efforts to
claim his lawful rights. This would adversely affect the interests of the
vendee.
No other argument is being considered as it is unnecessary.
For the foregoing reasons, the writ petition is allowed.
Impugned order dated 06.11.2017 passed by the Financial Commissioner
as well as sanad dated 28.08.1996 are quashed. The matter is remitted to
the Assistant Collector, First Grade for a fresh decision of the partition
proceedings in accordance with law.
(SUDHIR MITTAL)
JUDGE
31.08.2022
Ramandeep Singh
Whether speaking / reasoned Yes
Whether Reportable Yes
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