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Raja Ram & Another v/s Tehsildar Cum-Assistant Collector, IInd Grade, Hissar & Others

    C.W.P. No. 11150 of 1999

    Decided On, 01 August 2000

    At, High Court of Punjab and Haryana


    For the Appellants: Vinod Gupta, Advocate. For the Respondents: Shailender Jain, Advocate.

Judgment Text

K.S. Garewal, J.Raja Ram alias Rajender and Het Ram are the Petitioners before this Court, who have sought questing of the order of the Tehsildar-cum-Assistant Collector, I Ind Grade, Hissar, passed on April 28,1999( Annexure P-3) whereby the objections filed by the Petitioners were rejected and as a consequence the instrument of partition was drawn up.2. Mohan Lal and Raja Ram, Respondents 2 and 3, had applied for partition of 240 kanals of the land situated in village Chikanwas, Tehsil and District Hissar, and impleaded all the co-sharers including the Petitioners. The application was entertained by the Tehsildar-cum-Assistant Collector, I Ind Grade, Hissar and notice were issued to all the co-sharers. Only the Petitioners elected to file objections against Naksha "K"(mode of partition). Their objections were that some co-sharers had not been impleaded and they should be given separate lots(kurras) and a suit for possession against the applicants and other co-sharers was pending in the court of Civil Judge, Hissar, which involved a question of title. Therefore, unless and until the question of title was decided, the mode of partition should not be approved. The objections were rejected by the Revenue officer and thereafter the modified mode of partition was issued on November 3, 1998, to which the Petitioners again filed objections dated March 12, 1999 (Annexure p-2). These objections were also rejected by the impugned order Annexure P-3 and the Revenue Officer directed preparation of the instrument of partition.3. The Petitioners have challenged the proceedings primarily on the ground that order Annexure P-3, was without jurisdiction, Assistant Collector, I Ind Grade, had violated the principles of natural justice by not affording an opportunity of hearing to the co-sharers and the application for partition was liable to be set aside on the ground that all the co-sharers had not been impleaded.4. The petition was contested by Respondents 2 and 3, who filed written statement raising certain preliminary objections as regards suppression of material facts from the court. According to the Respondents the petition was liable to be dismissed as after filing the same on August 10,1999, on the following day during motion hearing before the admitting Bench, learned Counsel for the Petitioner had stated that no appeal was competent against the order Annexure P-3, which stand was reiterated on September 27,1999, where upon status quo regarding possession was directed to be maintained and notice was issued, but in fact the Petitioners lodged an appeal before the Collector, Hissar on September 15,1999,along with an application u/s 5 of the Limitation Act (Copies of the affidavit of the Petitioners and the grounds of Appeal have been annexed as Annexures A-1) and A-2 with Civil misc. application No. 27581 of 1999). From this it appears that on the date when a notice of the writ petition was issued to the Respondents, an appeal of the Petitioners was in fact pending before the collector, Hissar. The Petitioners suppressed this important fact and contended that the order was not an appealable one.5. Moreover, it was argued that no right of the Petitioners has been infringed, which may entitled them to invoke the writ jurisdiction of this Court because the Petitioners as well as the answering Respondents along with other co-sharers were owners in possession of 240 Kanals of land which was the subject matter of the partition proceedings, which had been instituted on the application of Respondents 2 and 3 filed on December 12.13.1995. It was further submitted that the Petitioners were given a full hearing before the Tehsildar-cum-Assistant Collector, I Ind Grade, Hissar. Their objections were considered and rejected on October 28,1997 vide order Annexure R-2/10. This order was never challenged by the Petitioners before any higher forum and had become final. Thereafter the mode of partition was prepared and Petitioners again objected thereto. These objections were also considered and rejected vide the impugned order Annexure P-3. Consequently, the final step in the partition proceedings was taken vide order dated May 31,1999 (Annexure P-6) and the instrument of partition was directed to be drawn.6. The scheme of chapter IX of The Punjab Land Revenue Act, 1887 (hereinafter referred to as the 'Act') (Sections 110 to 126) provides for a very elaborate procedure for partition of estate and tenancies. u/s 111 an application for partition can be filed by any joint owner of land. This step was taken by Respondents 2 and 3 when they presented an application for partition on December 12/13.1995 (Annexure R-2/3). Thereafter the Revenue Officer issued notices to all the co-sharers and proceeded to ascertain the questions in dispute, if any, between the parties as required by Section 1 !6 of the Act. The Petitioners presented objections dated December 20, 1996 (Annexure R-2/4). These objections were considered and rejected on July 1,1997 when their application for supply of certain documents was rejected and the Revenue Officer proceeded to consider the mode of partition as required by Sub-section (b) of Section 116 of the Act. It is obvious that the 'Petitioners had not raised any real question as to title in the property, for which partition was sought or any question as to the property to be divided. Even in the writ petition the Petitioners have not mentioned the facts, which may enable this Court to conclude that there was indeed a question of title involved in the case and that the question of title was required to be determined before the partition proceedings continued. The provisions of law require that when a question of title exists, the Revenue Officer may decline to grant the application of partition until the question has been determined by a competent court or in the alternative he may himself proceed to determine the question as though he was such a court, (reference may be made to Section 117 of the Act). The elaborate procedure for determination of the question of title could only have been followed if there was indeed a dispute as to title. The Petitioners have hopelessly failed to inform this Court as regards the dispute of title, which they claim exists. The Petitioners could have done this by describing the facts supported by the revenue record or conveyance deeds and if a suit was pending, the Petitioners could have filed copies of pleadings and orders of the trial court, but having failed to do so, it must be concluded that there was no question of title at all involved in this case and the Revenue Officer had rightly rejected the objections.7. Section 118 of the Act also requires the Revenue Officer to decide all questions as to the property to be divided or the mode of partition. Quite clearly the revenue officer had by his order dated October 28,1997, Annexure R-2/10 exercised his jurisdiction and disposed of all other questions. Thereafter the mode of partition remained to be drawn up as per Section 121 of the Act. Not being content with the various opportunities given to them and the indulgence shown by the Revenue Officer, the Petitioners presented yet another petition containing objections regarding mode of partition. This objection petition is date March 12,1999, Annexure P-2 and although there was no provision for filing this petition, yet the Revenue Officer entertained it and by a well reasoned order dismissed the same where after he proceeded to draw the instrument of partition. The order in this regard in Annexure P-3. The instrument of partition was finalised by the Tehsildar on May 31,1999 copy Annexure P.-6.8. Law does not provide an appeal against the order u/s 121 of the Act, through which the Revenue Officer prepares an instrument of partition after the partition proceedings have been completed. Therefore, the only forum for the Petitioner to challenge the partition proceedings was this Court exercising the jurisdiction under Articles 226/227 of the Constitution of India, but in order to invoke this jurisdiction, the Petitioners should have honestly stated that the order was not an appealable one and that they did not propose to file an appeal. The conduct of the Petitioners in filing the writ petition and in trying to obtain an order regarding status quo with regard to possession shows that they misled the court on September 27, 1999 by stating that the impugned order, Annexure P-3, was not an appealable one, knowing fully well that an appeal had been lodged before the Collector on September 15, 1999 along with an application u/s 5 of the Limitation Act. which has been referred to above. The Petitioners managed to secure the order of status quo with regard to possession by misstating the facts.9. The Petitioners fail

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ed to place on record any material to show that there was a dispute with regard to title. The petition is totally devoid of merit because the Petitioners had a full opportunity to raise all questions before the Revenue Officer under Sections 116,117 and 118 of the Act. Indeed the Petitioners did file objection petition at various stages, which were considered and rejected. The partition proceedings must necessarily come to an end when the instrument of partition has been drawn up. Law requires that parties be given all opportunity to raise various questions before the final stage is reached. In the present case the Petitioners availed this opportunity, but their objections were rejected on valid grounds. The partition has now become final and calls for no interference whatsoever.10. In view of the above discussion, there is no merit in this writ petition and the same is hereby dismissed. Respondents 2 and 3 are entitled to costs, which are assessed at Rs. 2.000/-.