Punjab-Haryana High Court
Sarla vs Financial Commissioner, Haryana ... on 13 April, 2023
Neutral Citation No:=2023:PHHC:054807
CWP-4079-2023 (O&M) -1- 2023:PHHC:054807
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(109)
CWP-4079-2023 (O&M)
Date of decision: - 13.04.2023
Sarla
...Petitioner
Versus
Financial Commissioner, Haryana and others
.....Respondents
CORAM : HON'BLE MR. JUSTICE VIKAS BAHL
Present:- Mr. D.S. Matya, Advocate, for the petitioner.
Ms. Upasana Dhawan, AAG, Haryana
for respondents No.1 to 5.
****
VIKAS BAHL, J. (ORAL)
1. The present writ petition has been filed under Article 226 of
the Constitution of India for issuance of an appropriate writ in the nature
of certiorari for quashing the impugned order dated 31.03.2022
(Annexure P-15) passed by respondent No.1 vide which the revision
petition filed by the petitioner against the order dated 25.06.2014
(Annexure P-13) passed by respondent No.2 was dismissed. Challenge is
also to the order dated 27.12.2013 (Annexure P-11) passed by respondent
No.3 as well as to the order dated 30.05.2013 (Annexure P-9), order
dated 13.06.2013 (Annexure P-10) and order dated 25.06.2014 (Annexure
P-13).
2. Brief facts of the case are that an application for partition of
land measuring 81 K - 16 M comprised in Khewat No.959, Khata
No.1385, situated at village Muana Tehsil Safidon, District Jind as per
jamabandi for the year 2005-2006 was filed by Mamu (respondent No.6),
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Ombir (respondent No.7), Rameshwar (respondent No.8) and Deepak
Kumar (respondent No.9). A copy of the said application for partition has
been annexed as Annexure P-1. The present petitioner was impleaded as
respondent No.6 in the said application. In the said application, it was
averred that it was necessary to partition the land after taking into
consideration the passages etc. and also the nature/kind of land i.e., land
abutting the road and the land situated away from the road and the same
be partitioned equally between the parties and share of the
applicants/respondents No.6 to 9 herein be separated by making one
chunk. The present petitioner was initially proceeded against ex-parte, but
on an application of the petitioner for setting aside the said exparte order,
the same was set aside. After hearing the parties, the Assistant Collector
IInd Grade, Safidon, vide order dated 16.05.2013 (Annexure P-7) passed
the mode of partition. Objections were filed by the original
applicants/respondents No.6 to 9 (herein) against the said mode of
partition and after considering their objections and hearing the parties,
vide order dated 30.05.2013, (Annexure P-9) a fresh mode of partition
was prepared. (The correct copy of the said mode of partition dated
30.05.2013 (Anenxure P-9) has been placed on record by counsel for the
petitioner by filing an application bearing CRM-6176-2023, as the
original order dated 30.05.2013 (Annexure P-9) filed alongwith the writ
petition was not correctly translated). Paragraph 5 of the said mode of
partition (Annexure P-9) is reproduced herein below: -
"5. The partition of the above said land will be done
keeping in view the value, road front. If the possession of the land is
disturbed by giving equal road front then it should be done."
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A perusal of the above-said clause would show that it was
specifically ordered that the partition of the said land will be done
keeping in view the value of the land as well as the road front and in case
the possession of the land is disturbed for giving equal road front, then,
the same should be done. No appeal against the said order was filed
within a period of 15 days as is mandated under Section 118(2) of the
Haryana Land Revenue Act, 1887. No objections were filed against the
said mode of partition by the petitioner. The matter was proceeded further
and vide order dated 13.06.2013 (Annexure P-10), it was ordered that the
Naksha Bay be prepared. The zimni orders thereafter have not been
placed on record. After the passing of order dated 13.06.2013, an appeal
was filed by the present petitioner in which challenge was also made to
the order dated 30.05.2013. The said appeal was dismissed vide order
dated 27.12.2013 (It would be relevant to note that the date of institution
of the said appeal has been mentioned as 10.01.2013 in the translated
copy annexed as Annexure P-11, but the said date is apparently incorrect
as the appeal had been filed against the order dated 13.06.2013 as well as
order dated 30.05.2013 and even the vernacular which has been annexed
alongwith the writ petition at page 76 is illegible and the date of
institution cannot be made out). At any rate, it has been fairly submitted
by the learned counsel for the petitioner that the said appeal was filed
after the order dated 13.06.2013 and thus, was not within a period of 15
days from the passing of the order dated 30.05.2013. The Collector, Sub
Division, Safidon while dismissing the appeal had noted the argument of
the counsel for the respondents to the effect that no objection was raised
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by the petitioner against the amended mode of partition dated 30.05.2013
and the land in front of the road was of a higher value and all the co-
sharers should be given their share in the said land as per their share in
the total land. The revision petition filed by the petitioner was dismissed
by the Commissioner vide order dated 25.06.2014 (Annexure P-13). It
was observed by the Commissioner that the land must be partitioned as
per the valuation of the land and merely because one co-sharer has been
able to cheat the other co-sharers by selling land on the road front, the
purchaser could not be permitted to claim exclusive right of the said land.
The revision petition filed by the petitioner before the Financial
Commissioner was also dismissed vide order dated 31.03.2022 (Annexure
P-15). The argument of the petitioner before the Financial Commissioner
was to the effect that she had purchased land in specific Khasra numbers
and had taken the possession of the same and thus should be given the
said land, was rejected by the Financial Commissioner by relying upon
various judgments of this Court. It was also observed that in the amended
mode of partition i.e. 30.05.2013, it was specifically observed that the
land adjoining the road should be allotted to the owner as per his/her
share and that it is settled law that even if specific khasra numbers have
been purchased in a joint land holding, the area sold would be deemed to
be a sale of a share of the land and not of a specific khasra number. It was
further observed that the land adjoining the road should be allotted to the
co-sharers in proportion to their share in the land holding which would
result in a fair and equitable partition. Aggrieved against the said orders,
the petitioner has filed the present writ petition.
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3. Learned counsel for the petitioner has submitted that in the
present case, land abutting the road has a front of 198 feet and the share
of the petitioner is 17 kanals and 18 marlas and thus, the petitioner would
get a share of approximately 43 feet on the said road and the same would
not be sufficient for her to cultivate the land and has, thus, submitted that
the land situated on the road should be allotted to the petitioner in its
entirety. It is further submitted that the petitioner had purchased specific
khasra numbers as per the sale deed and the said land should be allotted to
her in the partition.
4. This Court has heard the learned counsel for the petitioner
and has perused the paper book.
5. Respondents No.6 to 9 had filed an application for partition
of land with respect to land measuring 81 K - 16 M comprised in Khewat
No.959, Khata No.1385, situated at village Muana Tehsil Safidon,
District Jind as per jamabandi for the year 2005-2006. The present
petitioner was impleaded as respondent No.6 in the said application.
Specific averment was made in the said application to the effect that the
partition be done keeping in view the nature/kind of land and that the
parties be given share on the land abutting the road, according to their
share in the total land holding. Although, reply to the said application was
filed by the petitioner, but the same has not been placed on record. The
mode of partition was initially prepared on 16.05.2013 (Annexure P-7),
but after considering the objections raised by the respondents No.6 to 9
and hearing the parties, the same was amended and the correctly
translated copy of the said amended mode of partition has been annexed
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as Annexure P-9, alongwith CM-6179-2023. (The mode of partition
dated 30.05.2013 (Annexure P-9) at page 27 alongwith the writ petition
is not correctly translated). Clause 5 of the said mode of partition dated
30.05.2013 has been reproduced herein-above in paragraph 2 of the
present order and a perusal of the same would show that the partition was
to be carried out after taking into consideration the road front as well as
the value of the land and it was specifically ordered that if the possession
of the land was to be disturbed while giving the road front in accordance
with the share of the co-sharer, then, the same be disturbed. No objection
was filed against the said mode of partition dated 30.05.2013. No appeal
against the said order was filed within a period of 15 days as envisaged in
Section 118(2) of Haryana Land Revenue Act, 1887. Section 118 of the
Haryana Land Revenue Act, 1887 is reproduced as under:-
"118. Disposal of other questions.- (1) When there is a
question as to the property to be divided or the mode of making a
partition, the Revenue-officer shall after such inquiry, as he deems
necessary, record an order stating his decision on the question and the
reasons for the decision.
(2) An appeal may be preferred against an order under sub-
section (1) within fifteen days from the date thereof and when such an
appeal is preferred and the institution thereof has been certified to the
Revenue-officer by the authority to whom the appeal has been
preferred, the Revenue-officer shall stay proceedings pending the
disposal of the appeal. The appellate authority shall pass final order
in the matter and shall not remand the case in any manner. There
shall be no second appeal of revision."
Since, neither any appeal was filed nor any objections were
raised against the said mode of partition dated 30.05.2013, thus, the
matter proceeded further and a subsequent order dated 13.06.2013 was
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passed in the partition proceedings. The zimni orders subsequent to
13.06.2013 have not been placed on record, but it is not disputed that the
appeal (Annexure P-11) before the Collector was filed by the petitioner
after the order dated 13.06.2013 as, in the said appeal (Annexure P-11)
challenge was made to the order dated 13.06.2013 as well as the order
dated 30.05.2013. (It would be relevant to note that the date of institution
of the said appeal has been mentioned as 10.01.2013 at page 29
(Annexure P-11) but the said date is apparently incorrect as the appeal
had been filed against the order dated 13.06.2013 as well as order dated
30.05.2013 and even the vernacular which has been annexed alongwith
the writ petition at page 76 is illegible and the date of institution cannot
be made out). Moreover, it has been fairly submitted by the learned
counsel for the petitioner that the said appeal was filed after the order
dated 13.06.2013 and thus, was not within a period of 15 days from the
passing of the order dated 30.05.2013.
6. The Collector, Sub Division, Safidon had dismissed the
appeal of the petitioner and the revision filed by the petitioner before the
Commissioner as well as before the Financial Commissioner were also
dismissed. It was concurrently held that the amended mode of partition
dated 30.05.2013 stipulated that the land on the road is to be equally
divided amongst the various co-sharers as per their share. It was also
observed that as per settled law, a sale of a specific khasra number by a
co-sharer from a joint khewat would be deemed to be a sale of the share
of land from the joint khewat and the vendee would be deemed to be a co-
owner/co-sharer in the entire joint khewat, irrespective of the artificial
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divisions of the joint land and cannot claim exclusive right to any specific
khasra/kila number. It is not the case of the petitioner that the partition
proceedings are being carried out in violation of the amended mode of
partition dated 30.05.2013. It is a matter of settled law that land on the
road should be divided amongst all the co-sharers in proportion to their
share in the total land holding and thus, the amended mode of partition
dated 30.05.2013 as well as the orders passed by the authorities are in
accordance with law and do not call for any interference.
7. The argument raised by the learned counsel for the
petitioner to the effect that the petitioner has purchased specific kila
numbers from the joint land and thus, the petitioner should be allotted
the said kila numbers is misconceived for the following reasons:-
(i) Hon'ble Full bench of this Court in case titled as "Ram
Chander Vs. Bhim Singh and others", reported as 2008(3) R.C.R.
(Civil) 685, has held as under: -
"xxx xxx xxx xxx xxx xxx xxx xxx
16. A joint owner/co-owner, just as an individual owner,
has an inherent right to alienate the joint property, limited to the
extent and the nature of his share holding. Upon transfer of his share
or a part thereof, a co-sharer transfers only such rights as vest in him
as a joint owner, namely, his specified share or a part thereof in the
community of joint owners with commonality of possession. A vendee
from such a joint owner or a co-sharer would, therefore, receive the
property so transferred, with all the rights and liabilities that vested in
his vendor, namely, a right to assert a community of interest
(ownership) and a commonality of possession in the entire joint estate
and along with the entire body of joint/co-owners. Our above
conclusion draws sustenance from Section 44 of the Transfer of
Property Act and a reproduction thereof would place our conclusions
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in perspective, as under :-
"44. Transfer by one co-owner.- Where one or two or
more co-owners of immovable property legally competent in that
behalf transfers his share of such property or any interest therein,
the transferee acquires as to such share or interest, and so far as
is necessary to give, effect to the transfer, the transferor's right to
joint possession or other common or part enjoyment of the
property, and to enforce a partition of the same, but subject to the
conditions and liabilities affecting at the date of the transfer, the
share or interest so transferred."
xxx xxx xxx xxx xxx xxx xxx xxx
18. It is, therefore, apparent that a co-owner has an interest
in the entire property and also in every parcel of the joint land. When
a co-sharer alienates his share or a part thereof in the joint holding
what he brings forth for sale is what he owns .i.e .a joint undivided
interest in the joint property. A sale, therefore, of land from a specific
khasra/killa number, forming part of a specific rectangle number, but
being a part of a joint khewat, would, in view of the nature of the
rights conferred upon a co-sharer, be deemed to be the sale of a share
from the joint khewat and such a vendee would be deemed to be a co-
owner/co-sharer in the entire joint khewat, irrespective of the artificial
divisions of the joint land into different rectangles, khasra and killa
numbers."
A perusal of the above judgment would show that when a co-
sharer alienates his share in a joint holding then he sells what he owns
i.e., a joint undivided interest in the joint property thus, a sale mentioning
specific khasra numbers/killa numbers forming part of a specific rectangle
number but being a part of the joint khewat would be deemed to be a sale
of a share from the joint khewat and the purchaser would be deemed to be
a co-sharer in the entire joint khewat. From the above judgment, it would
necessarily follow that the purchaser cannot claim exclusive rights over
the khasra numbers mentioned in his/her sale deed to the exclusion of the
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other co-sharers.
The Commissioner, Hisar Division, in his order dated
25.06.2014 (Annexure P-13) has correctly observed that in case a co-
sharer is permitted to sell land close to the road by mentioning specific
khasra numbers in the sale deed and the Courts were to give rights on the
basis of the recitals of the said sale deed, to which the other co-sharers are
not a party, then, the same would amount to injustice to the other co-
sharers who also have every right to get a share of land close to the road
in proportion to their share in the total land holding.
(ii) The amended mode of partition 30.05.2013 specifically
stipulated that the partition of the land be done keeping in view the road
front which was to be allotted as per the shares of the various co-sharers
in proportion to their share in the total land.
(iii) A perusal of the sale deed dated 19.05.2011 (Annexure P-18)
in favour of the petitioner would show that it has been specifically
mentioned in the same that the sellers are co-sharers to the extent of
87/409 in the total land measuring 81 kanals 16 marlas and it is the said
share/rights which have been sold to the petitioner. In the sale deed
(Annexure P-18), there is no reference to any specific khasra numbers
which has been sold or of which, the possession has been given. In the
affidavit (page 53) dated 19.05.2011, although specific khasra numbers
have been mentioned, but even in the same, the sellers have, in paragraph
1, stated that they had sold the land which belonged to their share i.e.,
87/409 from the total land holding measuring 81 kanals 61 marlas and
thus, the sale is apparently a sale of a share from the entire joint holding.
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Moreover, the affidavit (at page 53) cannot override the contents of the
sale deed which is a registered document. At any rate, the averments in
the affidavit and also in the sale deed cannot be held to be binding upon
co-sharers who are not even party to the same.
8. The second argument of the learned counsel for the petitioner
to the effect that on account of the impugned orders, the petitioner will
get 43 feet approximately on the land abutting the road and would not be
able to carry out agricultural activity is also misconceived for the
following reasons:-
(i) On a pointed query raised by this Court, learned counsel for
the petitioner has not been able to refer to any document which is a part of
the record before the authorities below to show that the width of the total
land is 198 feet.
(ii) Learned counsel for the petitioner has not been able to show
that the said argument was raised before the authorities. Moreover, even
in case the width of the abutting the road is taken to be 198 feet, it cannot
be suggested that the entire front portion should be given to the petitioner,
more so, in view of Clause 5 of the mode of partition dated 30.05.2013
and in view of the law laid in the above reproduced judgment.
(iv) Further, there is no material to suggest that in case a person is
given 43 feet of the land abutting the road, then, he/she would not be able
to cultivate his/her land.
9. Keeping in view the above-said facts and circumstances, this
Court is of the opinion that the present writ petition is sans merits and
misconceived and is accordingly, dismissed.
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10. Pending application, if any, stands disposed in view of the
above.
( VIKAS BAHL )
April 13, 2023 JUDGE
naresh.k
Whether reasoned/speaking? Yes
Whether reportable? Yes
Neutral Citation No:=2023:PHHC:054807
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