Sahib Singh v. Joginder Singh & anr.

Judgment

1. The present petition has been filed by the petitioner under Article-227 of the Constitution of India seeking setting aside of the order dated

15.10.2022 passed by the Tehsildar Khour in a petition titled Sahib Singh vs Joginder Singh & anr. by virtue of which, the case for partition was dismissed.

Mr. Ajay Bakshi, learned counsel appearing on behalf of the petitioner submits that the petitioner and the respondents are the successor of Amar Nath and the father of the petitioner and the respondents was owner in possession of the land falling under Khasra no.223 measuring 7 kanal 16 marla situate at village Dawal Tehsil Khour District Jammu and Khasra no.135 measuring 2 kanal 15 marla, Khasra no. 311 measuring 1 kanal 5 marla, Khasra no.503 measuring 1 kanal 4 marla, Khasra no.545 measuring 1 kanal 3 marla, Khasra no.583 measuring 4 marla, Khasra no.902 measuring 1 kanal 10 marla and Khasra no. 1021 measuring 4 kanal 1 marla situated at Mattoo Tehsil Khour District Jammu. 2

3. Learned counsel further submits that after the death of father of petitioner and the respondents, they become the joint owners of the aforesaid land and till date, the same has not been partitioned between the parties and the nature of the land is agricultural and possession of one co-sharer is deemed to be the possession of other co-sharer. He further submits that the petitioner made number of requests to the respondents to partition the land in equal shares as the land is ancestral land left by their father but the respondent did not pay any heed towards the petitioner’s request and finally the petitioner had filed the suit for partition.

4. The specific case of the petitioner is that the respondents are in the process of alienating the land without partition and the petitioner is under the belief that they will sell the land at prime location which are nearby the road and which may fall in the share of the petitioner herein and when the respondents openly refused to give the consent for the partition, the petitioner had filed the suit for partition under section 105 of the Land Revenue Act and the same was not decided in accordance with law.

5. It is further specific case of the petitioner that the act of the respondent/co-owner, alienating the joint property affects the rights of the petitioner and the property subject matter to the partition petition before the revenue court is required to be partitioned in terms of Section 105 of the Land Revenue Act and Tehsildar Khour had failed to understand the spirit and objective of Section 105 of the Act and had disposed of the petition without giving any reason and merely on the basis of the report of field staff that the petitioner is not in the possession of the suit property.

6. Learned counsel appearing on behalf of the petitioner has argued that the concerned Tehsildar has relied upon the report of the Naib-Tehsildar and 3 Patwari concerned where it has been mentioned that the petitioner is not in the possession of land and on the basis of the report, Tehsildar has passed the impugned order which is not maintainable in the eyes of law and also has passed the order without application of mind, as such, the impugned order is contrary to the settled position of law, wherein, the Hon’ble Supreme Court had clearly held that the possession of one co-sharer is deemed to be the possession of other co-sharer.

7. Learned counsel appearing on behalf of the petitioner has vehemently argued that Tehsildar has not given any finding over the petition filed by the petitioner and had passed the sacrosanct order which is required to be set aside and also concerned Tehsildar has failed to exercise the jurisdiction vested with him under law and passed the stereotyped order without giving any reason.

8. Lastly, learned counsel appearing on behalf of the petitioner has argued that the co-sharer has full right to enjoy, use the fruit of the property in his exclusive possession to the extent of his share, however, this right is subject to partition and the co-sharer is liable to return the excess share on partition of the land and concerned Tehsildar has failed to record the satisfactory reasons while passing the impugned order.

9. With a view to support the case of the petitioner, learned counsel appearing on behalf of the petitioner has placed reliance on a judgment of Allahabad high Court titled Maluyi & anr. vs. Deputy Director of Consolidation & ors. wherein it has been held as under:- “From a bare reading of this section, it would crystallise that an arithmetical and clerical mistake could be corrected in exercise of powers under Section 42A of the U.P. Consolidation of Holdings Act. From a perusal of the impugned order passed by the Deputy Director of 4 Consolidation qua the aforestated provisions, it is too patent to be ignored that he did not apply his mind to the matter at issue before him and jumped to the conclusions that recommendations made by the Settlement Officer, Consolidation commended for acceptance. Mere mention in the impugned order that parties were heard does not meet the exacting requirements of the provisions. Besides, there is conspicuous absence of discussion of the arguments advanced across the bar as also the findings for converging to the conclusions for acceptance of the report of Settlement Officer, Consolidation and by this reckoning, the order is impaired and cannot be sustained for want of finding and discussion of arguments advanced on behalf of the parties. From a composite reading of provisions contained in Sections 48 (1), (2) and (8) of the Act, it leaves no manner of doubt that while dealing with the proceeding under Section 48 (3), i.e., proceeding referred by any subordinate authority, the Deputy Director of Consolidation will proceed in the matter in accordance with the provisions of Section 48 (1), i.e., in order to pass an order under Section 48 (3), he is called upon to call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings; or as to the correctness, legality pr propriety of any order passed by such authority in the case of proceedings and may, after allowing the parties concerned an opportunity of being heard, make such order in-the case of proceedings as he thinks fit. The necessary implication of the provisions aforestated is that the Deputy Director of Consolidation has to record finding so as to indicate that he has satisfied himself as to the regularity of the proceedings; or as to the correctness, legality or propriety of matter in his seisin. As stated supra, the order of the Deputy Director of Consolidation is bereft of finding or the reason so as to indicate that he has satisfied himself as to the regularity of the proceedings or as to the correctness, legality or propriety of the matter in his seisin and by this reckoning, the order suffers from the taint of having been passed without proper application of mind and without assigning any reason for his satisfaction as to the regularity, correctness legality or propriety of the matter. It would not be beside the point to observe here that functions envisaged under the provisions of the Consolidation of Holdings Act are the Quasi-judicial functions which entails recording of reasons comprising considerations of material and relevant factors with concomitant duties to see that justice has been done between the parties and failure to do so would be occasioning failure of justice and such an order would be vitiated in law and the same cannot be sustained.” 5

10. Learned counsel has also laid stress upon Section 105 of the Jammu and Kashmir Land Revenue Act, Svt. 1996, which reads as under; “105. Application for partition. – Any joint holder of land or any joint tenant of a tenancy in which 3 [a right of occupancy or protected tenancy subsists,] or any mortgagee with possession of the share of such holder or tenant, may apply to a Revenue Officer for partition of his share in the land or tenancy, as the case may be, if– (a) at the date of the application the share is recorded under Chapter IV as belonging to him, or (b) his right to the share has been established by a decree which is still subsisting at that date, or (c) a written acknowledgement of that right has been executed by all persons interested in the admission or denial thereof.”

11. Heard learned counsel appearing on behalf of the petitioner at length and perused the record.

12. While perusing the petition filed by the petitioner under Article-227 of the Constitution of India, it has come to fore that the petitioner is challenging the order passed by the Tehsildar Khour dated 15th October, 2022 whereby the partition suit filed by the petitioner has been dismissed/disposed of with further direction to the Tehsildar Khour to decide the partition application in accordance with law but the petitioner has failed to array the concerned Tehsildar Khour as party respondent in the present petition and accordingly, the present petition suffers from serious lacuna and in absence of the Tehsildar Khour, being a party respondent, the present petition is not maintainable and is required to be dismissed on technical grounds.

13. Accordingly, the present petition is dismissed on technical grounds. However, the petitioner is at liberty to file fresh petition, if cause still survives. JAMMU 17.04.2023 RAM MURTI (Wasim Sadiq Nargal) Judge Whether the judgment is reportable ? Whether the judgment is speaking ? Yes/No Yes/No