BALWINDER SINGH Vs. FINANCIAL COMMISSIONER

JUDGEMENT

(1.) IN the present writ petition, challenge is to order dated 19.1.1993 vide which the Financial Commissioner (Appeals), Panjab, Chandigarh after quashing orders dated 14.2.1991 and 27.11.1991 passed by the Assistant Collector and Collector respectively has remanded the acese to the Assistant Collector Ist Grade, Rajpura for hearing and settling the objections of the parties and ensuring that partition conform to the mode of partition. The challenge is on the ground that the order passed by the Financial Commissioner is contrary to the decision given by this Court and the judgment and decree dated 18.1.1990 passed by the Civil Judge.

(2.) IN brief, the facts are that Gopal Singh (since deceased) and now represented by his widow and daughter being co-sharer in joint Khewat filed an application on 22.6.1984 before the Assistant Collector Ist Grade for partition of the joint Khewat. All the co-sharers whose name figured in the revenue record at the time of filing partition application were impleaded as parties. Raj Kumar son of Kachehri Lal, one of the co-sharers in the joint Khewat executed registered sale deed dated 2.7.1984 in favour of the petitioners. In the said sale deed, Raj Kumar alleged to have transferred ownership and possession of Khasra No. 1435(2-0) and 1436(4-0) comprised in Khata No. 682/897 in their favour for a consideration of Rs. 21,000/-. On the basis of sale deed dated 2.7.1984, petitioners filed an application for being impleaded as parties to the partition proceedings. Their application was dismissed by the Assistant Collector Ist Grade. Their appeal and revision too met the same fate. Petitioner filed Civil Writ Petition No. 3294 of 1990 and the same was allowed on 8.8.1990 and it was ordered that the petitioners shall be allowed to join the proceedings from the stage of filing of the written statement. Vide his order dated 14.2.1991, the Assistant Collector Ist Grade adjourned the case to 8.3.1991 for preparation of Naqsha-B. In Naqsha-B, Khasra Nos. 1435 and 1436 were allotted to the petitioners. The allotment of said Khasra Nos. led to the filing of objections by Gopal Singh that Naqsha-B had not been prepared in accordance with order dated 14.2.1991. The Assistant Collector vide order dated 14.5.1991 dismissed the objection and the Collector also dismised the appeal on the ground that the Assistant Collector Ist Grade had approved Naqsha-b and mode of partition and so Gopal Sigh is not entitled to raise objection regarding approval of Naqsha-B. Gopal Singh feeling aggrieved of the orders of the Assistant Collector and the Collector respectively filed civil revision before the Financial Commissioner. As noticed earlier, the Financial Commissioner (Appeals) vide order dated 19.1.1993 remanded the case to the Assistant Collector Ist Grade, Rajpura for hearing and settling the objections of the parties and for ensuring that the partition is conforming to the mode of partition.

(3.) AGAINST this, learned counsel appearing on behalf of the legal representative of Gopal Singh contended that the judgment and decree of the Civil Court vide which the petitioners were found to be in possession and Gopal Singh was restrained from interfering in the possession of the plaintiffs, was taken in appeal by Gopal Singh and during the course of appeal, petitioners filed an application for permission to withdraw the suit. The application was allowed and the judgment and decree of the trial Court was set aside. He contended that in view of order dated 10.1.1994 passed by the Additional District Judge, whereby judgment and decree of the trial Court was set aside, it cannot be said that the petitioners were in possession of Khasra Nos. 1435 and 1436. He thus contended that before allotting Khasra Nos. 1435 and 1436, the Assistant Collector Ist Grade was required to determine as to who was in possession of said Khasra Numbers at the time of filing of the partition application and only thereafter these two Khasra Numbers could have been allotted.