Kashmir Singh v. State of Punjab & Ors.

Ms. Amandeep Soni, Advocate for the caveator-respondent No.3. ..... S.S. Saron, J. Jaspal Singh and Avtar Singh (respondents No.2 and 3) filed an application for partition of land as detailed in para 2 of the petition situated in revenue estate of Village Sathiala, Tehsil Baba Bakala, District Amritsar which is as per Jamabandi for the year 1995-96 (Annexure-P.2). In the said proceedings the petitioner was proceeded against ex parte. It is alleged that the petitioner was not duly served either by way of registered cover or any other means of public proclamation (Munadi). No procedure for effective summoning was followed in terms of Section 20 of the Punjab Land Revenue Act, 1887 (`Act' – for short). On 26.3.2003, counsel for respondents No.2 and 3 did not appear before the revenue Court as a result of which the application for partition was dismissed in default. On an application filed by counsel for respondents No.2 and 3 the case was restored vide order dated 21.4.2003. It is alleged that the application for restoration was allowed without giving the right of appearance to the C.W.P. No.13420 of 2009 [2] respondents in the partition proceedings and without taking into consideration any objection of the respondents to the partition proceedings to the said restoration. Thereafter, the Assistant Collector Ist Grade, Baba Bakala vide order dated 11.9.2003 (Annexure-P.3) approved `Naksha-Eedi' prepared by the field staff. The petitioners in the application were ordered to file stamp duty for `Sanad Takseem' and the case was ordered to be consigned to the record room. The petitioner and Sukhchain Singh (respondent No.11) aggrieved against the order dated 11.9.2003 (Annexure- P.3) filed an appeal (Annexure-P.4) before the Collector which was dismissed by the learned Collector vide order dated 3.3.2005 (Annexure- P.5). The learned Collector, Baba Bakala after perusing the record came to the conclusion that Kashmir Singh (petitioner) has refused acceptance of summons whereas Sukhchain Singh (respondent No.11) was informed at his home. Both of them did not appear before the lower Court despite `Mustri Munadi' having been conducted. Besides, it was noticed that the appellants had no where stated that they had been wronged by the partition proceedings and they had exaggerated the facts to get the case remanded back. Aggrieved against the order dated 3.3.2005 (Annexure-P.5) passed by the Collector, Jagjeet Singh (respondent No.12) and Kashmir Singh (petitioner) filed a revision petition (Annexure-P.6) before the Commissioner, Jalandhar Division, Jalandhar. The learned Commissioner in terms of order dated 25.2.2008 (Annexure-P.7) dismissed the revision petition. It was observed that in the partition application summons were issued for effecting service on the respondents in the partition proceedings. In terms of the report of the Process Server, Kashmir Singh (petitioner) had C.W.P. No.13420 of 2009 [3] refused service. It was, therefore, observed that he had no right to come in appeal and revision. Moreover, `Mustri Munadi' was conducted in the village and despite that none of the petitioners appeared or participated in the partition proceedings. Besides, instrument of partition had been drawn up and possession has been transferred as per partition order. Aggrieved against the order dated 25.2.2008 (Annexure-P.7) the petitioner Kashmir Singh filed a revision petition before the learned Financial Commissioner, Punjab, Chandigarh which has been dismissed vide impugned order dated

28.4.2009 (Annexure-P.1). It was observed that after the final partition the `Sanad Takseem' had already been issued and possession had been transferred to the parties accordingly. Accordingly, the revision petition was dismissed in limine. Aggrieved against the same the petitioner has filed the present petition in this Court. Learned counsel for the petitioner has contended that the petitioner was wrongly proceeded against ex parte and in fact no effective hearing was given to the petitioner. It is submitted that the petitioner has purchased land measuring 4 Kanals 6 Marlas comprised in rectangle No.30, Khasra No.18/2/2. Besides, it is submitted that some other land was also purchased, however, he is not aware of the necessary particulars. In any case, it is submitted that the possession of the petitioner in respect of land comprised in rectangle No.30, Khasra No.18/2/2 is liable to be protected. In response, learned counsel for the caveator has submitted that the partition proceedings has been finalized and `Sanad Takseem' issued, therefore, the petitioner has no right to challenge the same as no prejudice has been shown. It is also submitted that in case of purchase of specific khasra number the petitioner would only be entitled to the share in the joint C.W.P. No.13420 of 2009 [4] land. I have given my thoughtful consideration to the matter. It may be noticed that all the revenue authorities have held that the petitioner was duly served. He had in fact refused to accept service which was effected on him. Thereafter, `Mustri Munadi' was also conducted and he did not appear. Besides, `Sanad Takseem' has been issued and the possession of land has also been transferred in accordance with the `Sanad Takseem'. It is not shown by the petitioner as to how he is aggrieved against the `Sanad Takseem'. In fact, the `Sanad Takseem' that has been prepared has not even been filed or placed on record from which it could be ascertained that the petitioner is, in any manner, aggrieved against the same. As regards the contention that the petitioner has purchased land comprised in rectangle No.30, Khasra No.18/2/2 and therefore, he is entitled to the said khasra numbers is devoid of any merit. A Full Bench of this Court in Bhartu v. Ram Sarup, 1981 PLJ 204 has observed that sale of a specific portion of land described by particular khasra numbers by a co-owner out of the joint khewat would be sale of share out of the joint land. The said Full Bench was reiterated by a larger Bench of 5 Judges in the case of Ram Chander v. Bhim Singh and others, 2008 (3) RCR (Civil) 685 wherein it was held that where a co-owner in possession of a specific portion of the joint holding and recorded as such in the revenue record, transfers any right, title or interest, from the portion in his specific possession, his vendee would be entitled to protect the portion so transferred, without, however, asserting exclusive ownership to the portion transferred and possessed, till such time as the joint estate is not partitioned. Therefore, even though the sale deed by which the land is purchased by the petitioner is not on record, however, C.W.P. No.13420 of 2009 [5] in case the petitioner has purchased specific khasra numbers the same in view of the aforesaid dictum would be only transfer of share of the co- sharer in the joint holding and the petitioner could claim exclusive ownership till such time the joint estate was not partitioned. Therefore, the said contention of the learned counsel for the petitioner is devoid of any merit. The partition proceedings have been finalized and land also transferred. The partition was effected according to the learned for the petitioner of land measuring 30 Kanals 7 Marlas. The petitioner is not shown to be, in any manner, aggrieved against the said partition. This Court in the case of Jagraj Singh and others v. The Financial Commissioner, Revenue, Punjab and others, 2008 (1) Local Acts Reporter 340 held that where petitioners failed to show through documents or other material that they had been seriously prejudiced by the partition or that in a fresh partition the result would be much different it would be grossly unjust and unfair to undo everything and send the case back for a fresh partition, if the result is likely to be the same. Therefore, in the absence of `Sanad Takseem' and other documents it is not shown by the learned counsel for the petitioner as to how the rights of the petitioner, in any manner, are prejudiced in the final partition. Consequently, there is no merit in this petition and the same is accordingly dismissed. October 21, 2009. *hsp* (S.S. Saron) Judge NOTE: Whether to be referred to the Reporter or not:Yes