ONKAR SINGH Vs. STATE

JUDGEMENT

(1.) Ms. Parwati widow of Wazir Mehar Singh through Wazir Mansa Ram on 6.4.1961 instituted a suit for partition of the property detailed in the plaint against Wazir Beli Ram and others. The suit was registered as Civil Original Suit No. 1/1961. The preliminary decree was passed on 19.3.1964 and a commission issued for effecting partition by metes and bounds to the extent of the Plaintiff's share out of the suit property detailed in Annexure-A to the preliminary decree. The commissioners went on spot and carried out mandate of their commission and on 14.3.1972 submitted their report/partition plan. The commissioners opined that a chunk of land measuring 6 kanals and 4 marlas comprising khasra No. 2 estate Nawabad, though part of the joint property between the parties, had not found mention in the suit property and that the said plot of land must be included in the suit property while effecting partition. The High Court on 26.4.1974 on application of the Plaintiff for final decree, after hearing counsel for the parties, passed a final decree for separation of 1/5 share of the Plaintiff by partition of the suit property mentioned in Annexure-A to the final decree. The court while giving details of the property allotted to the Plaintiff as per the partition plan included plot of land measuring 6 kanals 4 marlas khasra No. 2 estate Nawabad (hereinafter referred to as 'disputed land') in the total of 81 kanals and 4 marlas allotted to the Plaintiff out of 406 kanals and 18 marlas falling within limits of khasra No. 1 at Nawabad. The Annexure-A to the order dated 26.4.1974 as also to the judgment and final decree, however, did not make mention of the 'disputed land'. Tehsildar Jammu vide mutation order No. 1418 dated 30.9.1997, in execution of the final decree dated 26.4.1974 attested mutation of ''disputed land'' measuring 6 kanal and 4 marlas in favour of Wazir Mansa Ram who on demise of the original Plaintiff, was substituted as Plaintiff vide order dated 20.11.1969. Shri Om Parkash Dalmotra ? Respondent No. 6 herein claiming to be lessee of the ''disputed land'', questioned the mutation order No. 1418 to the extent it related to the ''disputed land'' before Director Land Records, Jammu with the powers of Settlement Officer. The challenge thrown to the mutation order succeeded and vide order dated 21.10.2004 the mutation order in question was modified and ''disputed land'' deleted from its operation. However, in the meantime the ''disputed land'' was transferred by Shri Wazir Mansa Ram vide sale deed dated 1.6.2001 in favour of Petitioner No. 3 herein, consequent where upon mutation order No. 2762 came to be passed in favour of Petitioner No. 3 on 2.1.2003. The aforesaid mutation order was also questioned before Director Land Records with powers of Settlement Officer, through medium of an appeal. The appeal was allowed and mutation order set aside vide order dated 8.1.2005 on the ground that the ''disputed land'' having not been included in the schedule of joint property set out in the plaint nor included in the preliminary decree and Annexure ? A to the final decree, was not subject to the partition.

(2.) The order of Director Land Records with powers of Settlement Officer dated 8.1.2005 was assailed by the Petitioners before the Settlement Commissioner. However, appeal was dismissed vide order dated 10.11.2005 and a revision before the Financial Commissioner against the order of Settlement Commissioner, dated 10.11.2005 met the same fate and was dismissed vide order dated 6.10.2006.

(3.) The Petitioners throw challenge to the judgment and order dated 6.10.2006 of the Financial Commissioner (Revenue) Jammu - Respondent No. 1 herein as also judgment and orders dated 10.11.2005 and 18.1.2005 passed by Joint Settlement Commissioner with the power of Settlement Commissioner and the Director Land records Jammu with the power of Settlement Officer whereby mutation order No. 1418 dated 30.9.1997 and mutation order No. 2762 dated 2.1.2003 have been set aside.