Nazar Singh & Anr. v. Commissioner, Faridkot Division, Faridkot & Ors.

partition the land by clubbing all the three taks of the parties as same are adjoining to each other. Otherwise, it may lead to fragmentation. A written statement on behalf of respondent No.3 is filed. As per the said respondent, the present writ petition is not maintainable as mode of partition became final between the parties after accepting the objections. As per respondent No.3, there is no dispute regarding ownership of the land in question. The petitioners statedly has pleaded the family settlement and the fact that respondent No.3 got `1,25,000/- from the petitioners in order to give better land. This fact is statedly not proved before the authorities concerned and the Naksha Ara was passed as per Clause-4 of the mode of partition. Otherwise, the respondents have justified the impugned orders. Counsel for the petitioners has referred to Annexure P-3 to urge that land is in three taks and the way it has been partitioned, good quality land has gone to the respondent. The counsel made a laboured attempt to show that the lands are adjoining to each other and it would be appropriate to partition this land together. Concededly, there were three separate applications filed for partition CIVIL WRIT PETITION NO.10727 OF 2011 :{ 5 }: of this land. The land is situated in two different villages and are separate taks. They may be adjoining to each other, but whether these three applications could be joined together to partition the land jointly would be the question. The Collector Rampura Phool had directed the joint partition on these three separate applications by observing that it would be better but this was on the basis of the consent which is so recorded in his order. The counsel for the petitioners, however, ignores this fact of the consent, but still has insisted to argue that Collector had ordered joint partition, it being better and not on the basis of consent. I cannot subscribe to this line of argument. The counsel for the respondents has referred to the grounds of appeal filed by him before the Commissioner, where he has specifically disputed to have consented to the joint partition and ground No.9 of the grounds of appeal can be referred to in this regard, which is as follows:- “That learned lower court wrongly mentioned in the impugned order that all the parties agreed to the joint partition”. There is no document or evidence produced on record to contest this part. Taking this aspect into consideration and the other aspects involved, the Commissioner had considered the pleas raised by the respondents in their appeal. The Commissioner has clearly noticed that the parties had not applied to the Assistant Collector Ist Grade for making the partition of the land by clubbing all the three khewats. He has also noticed that the parties to all the three cases are not the same and the land to be partitioned is also not situated in CIVIL WRIT PETITION NO.10727 OF 2011 :{ 6 }: one village. The Commissioner accordingly has held that the order passed by the Collector was so passed by exercising a jurisdiction which did not vest in the Collector. He accordingly found that the order was not legal or valid and accepted the appeal filed by the respondents. The counsel for the petitioners could not contest the observations recorded by the Commissioner except for urging that the joint partition would be better and the lands may be situated in three different taks in two different villages, but they are adjoining each other. He, however, could not show any legal provision that three separate applications filed for partition could be joined together, especially so when the parties in the three cases are not the same and land is also not the same and is situated in different villages. The counsel for the petitioners has placed before me a case of Civil Writ Petition No.16941 of 2010 (Amin Chand Vs. Financial Commissioner (Appeals II), Punjab and others, decided on 20.9.2010. The observations made in this case, in my view, would not help the cause of the petitioners. The court in this case has observed that a fundamental principle that governs the partition of joint land is that where different khewats are owned by different co sharers a common mode of partition cannot be prepared. The court accordingly observed that the Commissioner and the Financial Commissioner were right in setting aside the common mode of partition. The passing observation that co-sharers in two khewats are the same and on that count Assistant Collector was asked to prepare the fresh mode of partition would not mean to lay down any law that common mode of partition can be prepared in those cases CIVIL WRIT PETITION NO.10727 OF 2011 :{ 7 }: where three separate applications are filed and the co-sharers are different. The counsel has also referred to Kulwant Singh and others Vs. The Assistant Collector Second Grade, Nathusari Chopta and others, 2002 (3) R.C.R. (Civil) 207. This case was a case where issue was of maintainability of a single application for a partition of two khewats, which was stated to be not permissible. The court has viewed that at the time of moving the applications, land was part and parcel of one hadbast and so one application would be maintainable. That is not the position in the present case. The ratio of law in Kulwant Singh's case (supra), therefore, is clearly not attracted to the facts of the present case. I find that there is no merit in the pleas raised by the petitioners. The order passed by the Commissioner upholding the order passed by the Collector is just and reasonable and is in accordance with the legal provisions. The Collector's order was apparently passed on the basis of a consent, which fact is not born out by the record and rather is seriously disputed. If the aspect of consent is taken out of consideration, then the order of the Collector obviously cannot be sustained on the basis of any legal principle or on the basis of any law. There is no merit in the writ petitions and these are accordingly dismissed. November 22, 2012 ramesh (RANJIT SINGH ) JUDGE