MANJIT SINGH Vs. SHAMSHER SINGH

JUDGEMENT

(1.) THE presenter petition filed application for partition. Mode of Partition was approved on 9.9.1997 in which constructed portions were to be adjusted against agricultural land. Appeal against this Mode of Partition filed by the respondent, Shamsher was dismissed on 15.4.1998 and no further revision was filed by him against this. Thus, the Mode of Partition dated 9.9.1997 became final. Naksha 'Be' was approved by the Assistant Collector on 4.5.1998 in violation of this Mode of Partition by not accounting for constructed portions. Therefore the petitioner filed appeal before the Collector who instead of examining whether impugned Naksha 'Be' was as per the approved Mode of Partition dated 9.9.1997 or not, went beyond his jurisdiction to set aside the Mode of Partition itself which had been upheld earlier by his predecessor, dismissing the appeal of the present respondent. Against this order dated 10.7.1998 of the Collector, the petitioner moved in revision before the Additional Commissioner (Appeals), Patiala Division who dismissed the same vide order dated 12.10.2000 with the following sketchy conclusion :-

(2.) MY view is that the Collector had no power to revise the order dated 15.4.1998 of his predecessor vide which Mode of Partition dated 9.9.1997 was upheld. As no appeal/revision had been filed by the respondents against this order, it became final. Therefore, merits of petitioner's appeal should have been examined by the Collector in the light of this Mode of Partition which was not done. The Collector's order was, therefore, liable to be set aside. The Commissioner overlooked this aspect and dismissed the appeal by the aforesaid non-speaking order.

(3.) THESE days, people have to construct houses in fields due to limitation of space within the limit of Lal Lakir. The land in the Lal Lakir is non- agricultural and beyond jurisdiction of Revenue Officer to consider such a land for the purpose of partition. But constructed portion in agricultural land can be taken into consideration during the partition for adjustment against any other agricultural land of the co-sharers without subjecting the built-up portion as such to partition unless the parties mutually agree for partition of such built-up area as part of the deal. In this case, the stipulation in the Mode of Partition dated 9.9.1997 was not for the built-up area as such; it only stipulated adjustment of agricultural land against the land partly built up. Such an arrangement is fair and legitimate. I may illustrate this point through an example. If the agricultural land to be partitioned between two co-sharers is 10 kanals and if one co-sharer constructed over one kanal, there are two options in partitioning such agricultural land : (a) 9 kanals of un-built-up agricultural land is partitioned by the Revenue Officer leaving one kanal of built-up portion; and (b) including the entire 10 kanals for partition without disturbing possession of the co-sharer who invested and constructed the built-up portion. In the first option 4-1/2 kanals of agricultural land will come to share of each co- sharer while the other co-sharer who constructed over one kanal will continue to retain extra one kanal constructed portion in addition to the 4-1/2 kanals. In such a case the former co-sharer will have to apply to the civil Court for partition of the built-up portion which he may not at all require because he may be having some other house and thus partition of such built-up area will be unnecessary and it would be against the interest of both the co-sharers because even the other co-sharers would not like the house etc. built up by him as per his design to be disturbed in partition. In the second option, each co-sharer gets 5 kanals without disturbing the built-up portion by allotting the same to the co-sharer who invested or constructed this portion. This second option was applied in the instant case as it did not involve partition of built-up portion as such. Thus, there is difference between partition of built-up portion as such and merely accounting for such land for apportionment during partition so that co-sharers get the land as per their share without disturbing each other's possession.