GIRWAR Vs. FINANCIAL COMMISSIONER

JUDGEMENT

(1.) IN this petition under Article 226 of the Constitution of India, challenge is to order dated 24-5-1994 passed by the Financial Commissioner, Haryana, whereby he has set aside order dated 13-12-1991 passed by the Commissioner, Hisar Division, Hisar, and restored the order dated 29-11-1990 of Collector, Dadri, remanding the case to the Assistant Collector II Grade for drawing up Naksha-Be afresh.

(2.) IN brief, the facts are that respondents 3 and 4, namely, Smt. Shanti and Geeta Devi, widow and daughter respectively of Ram Kumar, filed an application for partition before the Assistant Collector II Grade. Petitioner and his brother namely, Ish-war, filed written statement to the same in which they stated that they are in cultivating possession of their share according to the mutual partition and in the alternative, they submitted that in case the court comes to the conclusion that partition is necessary, then the partition be effected in accordance with the possession of the parties as the petitioner and his brother had made the land cultivable by their hard labour and by spending money. Vide order dated 16-6-1989, the Assistant Collector sanctioned the mode of partition. The criteria according to which the land between the share-holders had to be partitioned was as follows :-

(3.) AFTER hearing the learned counsel for the parties, we are of the view that there is no merit in the writ petition. As per the finding of the Collector and the Financial Commissioner, the land which had come to the share of respondents No. 3 and 4 in final partition is Barani, whereas the land given to the petitioner and his brother is Nehri. In this regard, reference may be made to concluding paragraph of the order passed by Financial Commissioner :- "4-2. In the present case the mode of partition contained inter-alia the statement that partition was to proceed honouring the nature of possession and the nature and quality of land. It followed therefore that as far as practicable the irrigated and unirrigated Land should have been shared by the petitioner and the respondents in proportionate to their rights. Admittedly the petitioner has been given only barani land, no irrigated land has come to her share. The partition order, therefore, files in the face of the mode of partition and is inequitable, illegal and void ab initio.