Tara Singh & Ors. v. Financial Commissioner, Appeals-i, Punjab & Ors.

CORAM:HON’BLE MR. JUSTICE JASBIR SINGH HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Arun Jain, Sr. Advocate, with Mr. Vishal Garg, Advocate, for the appellants. *** Jasbir Singh, J. (Oral) C.M. Nos. 4782 and 4786 of 2010 For the reasons mentioned in the applications, the same are allowed. Delay of 18 days in filing the appeals is condoned. C.M. No. 4782 of 2010 LPA No. 1581 of 2010 and another connected case 2 LPA Nos. 1581 and 1582 of 2010 This order will dispose of LPA No. 1581 of 2010 titled as Tara Singh and others vs. Financial Commissioner, Appeals-I, Punjab and others and LPA No. 1582 of 2010 titled as Tara Singh and others vs. Financial Commissioner, Appeals-I, Punjab and others. To dictate order, the facts are being taken from LPA No. 1581 of 2010. The appellants have filed this appeal against judgment passed by the learned Single Judge on 05.07.2010 dismissing CWP No. 19172 of 2007 filed by them. Dispute herein pertains to partition of joint land owned by the appellants and the private respondents. The parties are closely related to each other. Partition proceedings were initiated in the year 1988. Main dispute is regarding partition of land falling in Khasra No. 584, which consists of 3 Bighas and 2 Biswas of land.. By making reference to copy of a Jamabandi on record, It is contention of counsel for the appellants that way back in the 1980's, the land was privately partitioned, however, it was not reflected in the revenue record. Be that as it may, none of the authorities below have accepted the factum of private partition between the parties. Further more, it is an admitted fact that the respondents have filed a civil suit by alleging that the land owned by the parties was joint and a prayer was made that father of the appellants (Sh. Assa Singh) be restrained from raising any construction in the joint land. The suit was disposed of on a statement made by Sh. Assa Singh on 29.01.1988, stating that he will not alienate the common land falling in Khasra Nos. 575, 584 without getting it partitioned. It was C.M. No. 4782 of 2010 LPA No. 1581 of 2010 and another connected case 3 further stated by Sh. Assa Singh that he will not raise any construction on these khasra numbers. A perusal of the statement clearly indicates that even Sh. Assa Singh had admitted that the land was joint between the parties. Now, at this stage, it does not lie in the mouth of the appellants to say to the contrary. The learned Single Bench has noted the above-said facts and observed as under:- “Proceedings for partition commenced on 25.02.1988. Clause- II of the mode of partition sanctioned on 07.11.1988 reads as follows:- “2. The parties have constructed their houses in khasra no.584, 564, 563 which are sought to be partitioned. This area will be allotted to the parties according to their possession” The bone of contention between the parties is whether khasra no.584 in its entirety, or a part thereof has to be allotted to the petitioners. The petitioners urge that as Assa Singh has constructed a house and enclosed khasra no.584 with a boundary wall, the entire land of khasra no.584, has to be allotted to them whereas the private respondents urge that only such construction can be excluded as existed on

25.02.1988. Khasra no.584 measures 3 bighas 2 biswas and admittedly abuts the G.T. Road. If divided equally, 15½ biswas would fall to the share of each set of co-sharers. On the date the application for partition, Assa Singh had constructed a house in 3 biswas, his courtyard occupied 6 biswas whereas C.M. No. 4782 of 2010 LPA No. 1581 of 2010 and another connected case 4 he had sold 6 biswas to Mohinder Singh, who has constructed a house. The boundary wall, surrounding khasra no.584 was constructed during partition proceedings on 02.11.1992, in blatant violation of statements made by Assa Singh. The private respondents filed a suit to restrain Assa Singh from raising construction in khasra no.584. On 29.01.1988, Assa Singh made the following statement:- “Stated that I will not alienate the common land bearing Khasra no.576, 584 without getting it partitioned. I will not raise any construction on these khasra numbers till partition is done.” Despite this statement, Assa Singh made another attempt to raise construction in khasra nos.576 and 584. The private respondents filed an application under Order 21 Rule 32 of the Code of Civil Procedure. On 24.08.1991 Assa Singh made another statement that he would not raise any construction in khasra no.576 and 584, till partition but true to his conduct immediately violated this statement and constructed a boundary wall around Khasra No.584, on

02.11.1992. The petitioners plea that they should be allotted khasra no.584, cannot be accepted as the boundary wall and other construction was raised during pendency of partition proceedings. At this stage, it would be appropriate to make a reference to Clause-II of the mode of partition, which provides that houses have been constructed in khasra nos. 584, 564, 563 and these khasra numbers, will be allotted to the parties, according to their possession. The mode of partition does not state khasra no.584 will be allotted to the petitioners, in its entirety. The construction raised during partition has to be C.M. No. 4782 of 2010 LPA No. 1581 of 2010 and another connected case 5 excluded. Before parting with the order, it would be appropriate to mention that partition has to be carried out in accordance with the situation reflected in the jamabandi and on the spot on the date of filing of the application for partition. The Collector and the Financial Commissioner rightly directed the Assistant Collector Ist Grade to partition khasra no.584 in accordance with the construction existing on the date of the application for partition. “ It is a case where an attempt has been made to misuse the process of law. Partition proceedings are pending since 1988. Earlier Sh. Assa Singh and now the appellants are trying to drag the pending litigation to the unlimited extent. No case is made out for interference. Dismissed. ( JASBIR SINGH ) JUDGE ( AUGUSTINE GEORGE MASIH ) JUDGE November 25, 2010 C.M. No. 4782 of 2010 LPA No. 1581 of 2010 and another connected case 6