DHARAM SINGH Vs. FINANCIAL COMMISSIONER

JUDGEMENT

(1.) THE petitioners and respondent No. 4 are close relatives and were joint holders of land measuring 161 Kanals 2 Marlas in village Shingariwala, Hadbast No. 345, Tehsil Kharar, District Ropar. Respondent No. 4 filed an application before the Assistant Collector 1st Grade-cum-Tehsildar, Kharar, for partition of his share from the total joint land holding. The Assistant Collector Ist Grade, Kharar, vide order dated 28.9.1994, decided the mode of partition. Except the suggestion made by respondent No. 4 that the tubewell be kept common, no objection to the mode of partition was made by any party. The petitioners even consented to the suggestion of keeping the tubewell joint. Accordingly, the Assistant Collector finalised the partition vide order dated 16.11.1995. Thereafter on finding that no appeal had been filed within the period of limitation by any party, he issued the instrument of partition (Sanad Taqseem) on 21.12.1995. Copies of his orders dated 28.9.1994, 16.11.1995 and 21.12.1995, have been filed as Annexures P-2, P-1 and P-3, respectively.

(2.) THE petitioners, thereafter, filed an appeal before the Collector against the order of partition dated 6.11.1995 on the ground that the partition was against the mode of partition inasmuch as the possession of the parties had been changed; all the good quality land in one Tak had been given to respondent No. 4; all the bad land had been given to the petitioners; the land near the houses of the petitioners had been given to respondent No. 4; land given to the petitioners was less than their entitlement; objections of the petitioners had not been considered and the tubewell could not be kept in joint ownership as it had been installed exclusively by the petitioner-Dharam Singh. During the appellate proceedings, the parties made some statements about partition before the Assistant Collector on 18.3.1997. The Collector vide his order dated 21.3.1997 partly allowed the appeal. He duly noticed that no objections had been raised by the petitioners against the mode of partition nor had they filed any appeal. Yet, by referring to the statements of the parties made on 18.3.1998, he directed certain modifications in the partition and for this purpose, he directed the parties to appear before the Assistant Collector on 22.4.1997. A copy of the order of the Collector dated 21.3.1997 has been filed as Annexure P-7.

(3.) FEELING aggrieved by the order of the Commissioner, Patiala Division, Patiala, the petitioners filed a revision petition before the Financial Commissioner, Appeals-II, Punjab. In the grounds of revision, the petitioners once again contended that the mode of partition had not been properly followed as all the good quality land in one Tak had been given to respondent No. 4 whereas the petitioners were given fragmented land in four Taks which was of bad quality and the land near the built-up houses of the petitioners ought to have been given to them. A dispute was also raised about the ownership of the tube-well. The petitioners also contended that the Collector had rightly directed the modification of the order of partition in view of the compromise to which respondent No. 4 had agreed before him. According to the petitioners, respondent No. 4 could not be allowed to resile from that agreement. The Financial Commissioner vide his order dated 2.3.2001 dismissed the revision petition. He concurred with the findings of the Commissioner that since no objections had been filed against the mode of partition which had become final and as no appeal had been filed against the order of partition within the period of limitation, the petitioners could not be allowed to challenge the order of partition. It was further found that the order of partition was strictly in accordance with the mode of partition. The Financial Commissioner also found that there was no agreement before the Collector as alleged by the petitioners. By referring to the statements of the parties, the Financial Commissioner pointed out that the proposal put forward by respondent No. 4 was not accepted by the petitioner-Dharam Singh and the corresponding proposal given by the petitioner Dharam Singh was not accepted by respondent No. 4. Thus, the Financial Commissioner held that the Collector had wrongly confused the issue by treating the statements of the parties as an agreement. A copy of the order of the Financial Commissioner has been filed as Annexure P-11. It is in this background that the present writ petition has been filed and the petitioners pray that the order of the Commissioner dated 31.8.1998 (Annexure P-10) and that of the Financial Commissioner dated 2.3.2001 (Annexure P-11) be quashed.