GURDIAL SINGH Vs. GURDIAL SINGH

JUDGEMENT

(1.) THIS is a reference dated 7.1.1997 from Commissioner, Patiala Division, Patiala recommending that the orders of Collector, Samrala dated 26.9.1989 and the Assistant Collector Grade-I, Samrala dated 19.5.1989 in partition proceedings relating to land measuring 32 Kanals situated in village Bhari, Tehsil Samrala be set aside.

(2.) IN this case the partition application was filed by the present petitioner Gurdial Singh son of Kirpa Singh on 7.7.19888. The land is comprised in Khewat/Khatauni No. 318/377, Khasra Nos. 18/11/1, 11/2, 11/3, 12/1 and 12/2 as per Jamabandi for 1986-87. The main grounds in revision are as under :- i) The mode of partition provided for respecting possession. The petitioner has been given land bearing Khasra Nos. 9 and 10 whereas he was in possession of Khasra Nos. 11/1, 11/2, 11/3, 12/1 and 12/2. ii) The applicant-petitioner has his tubewell situated in Khasra No. 13 across the road which is quite far from the Khasra Nos. 9 and 10. Moreover, from Khasra No. 13 no Khal has been provided to irrigate the land in Khasra Nos. 9 and 10 from this tubewell. On the other hand the respondents have a tubewell in Khasra No. 8 and if they had been allotted Khasra Nos. 9 and 10 it would have been easier for them to irrigate the land from this tubewell. iii) To facilitate allotment of Khasra Nos. 11 and 12 to the respondent the Tehsildar changed the Khasra Girdawari in their favour on 2.1.1989 i.e. during the pendency of partition proceedings, although for a number of years the possession had been shown as that of the petitioner.

(3.) CLAUSE 2 of the mode of partition which was framed on 14.2.1989 provided for keeping the possession intact (Kabja Bahal) while in Clause 4, it was provided that 'rasta' and 'khal' would be given as per requirement. Considering that the Tehsildar was handling the partition proceedings as Assistant Collector Grade-I and correction of Khasra Girdawaris as Assistant Collector Grade-II his action in changing the Khasra Girdawari during the partition cannot be commended. However, given the facts mentioned in para 3 above it is evident that the Girdawari cannot be taken as a reliable parameter for determining possession. The Assistant Collector Grade-I will have to give due regard to the source of irrigation of the parties and allocate area keeping in view the principles of contiguity, continuity and optimum utilisation of the irrigation sources. None of these considerations have been kept in view and it is for the first time at the Commissioner's level, that the ground situation has been fully appreciated. No doubt the tubewells owned by the parties are not a part of the area to be partitioned but their utility to the parties after partition has to be duly kept in view as the area under partition does not contain any source of irrigation. It should also not be difficult for Assistant Collector Grade-I to check up which tubewell is presently irrigating which area. The naqsha 'Bey' which has been framed shows non-application of mind and lack of appreciation of ground level position. This reference is accordingly accepted and the orders of the Collector dated 26.9.1989 and Assistant Collector Grade-I dated 19.5.1989 are set aside. The case is remanded to Assistant Collector Grade-I, Samrala with the direction that he should prepare revised naqsha 'Bey' which takes into consideration the layout of the land, the contiguous holdings of the parties and the location of their sources of irrigation. Parties are directed to appear before Assistant Collector Grade-I, Samrala on 16.9.1998. Announced. Reference allowed.