MUNSHI RAM Vs. FINANCIAL COMMISSIONER

JUDGEMENT

(1.) THE petitioner and respondents Nos. 2 to 13 in this writ petition were co -sharers in respect of certain land situate in village Chhandaw Tahsil Udhampur. Being dissatisfied with his continued co -sharership in the aforesaid land the petitioner applied under Section 105 of the Land Revenue Act to the Tehsildar, Udhampur, in the year 1956 for partition of the holdings jointly owned by the petitioner and the respondents Nos. 2 to 13. One of the pleas taken in defence to this application was that land had been mortgaged by the common ancestors of the parties and that the mortgage had been redeemed on payment of a sum of Rs. 4383,14.3 as mortgage money which had been paid by the respondents Nos. 2 to 13 only. It was further stated that as the petitioner who was in Army service, had not paid his share of the mortgage money he had no right to seek partition of the .mortgaged holdings so long as he did not pay his share of the mortgage money. The Tehsildar on the basis of the material before him gave a finding that the parties were jointly entitled to certain offerings from Shri Vaishno Devi Ji and the share of petitioner out of the offerings also was received by respondents Nos. 2 to 13 during period the Petitioner was in the army service and that the amount of mortgage money was paid by respondents Nos. 2 to 13 out of the income from the offerings. He, therefore, disallowed the plea, granted the application for partition and laid down the mode of partition by his order dated 8 -9 -1956. This order of the Tehsildar was challenged in revision before the Settlement Commissioner. It was argued before him that the plea taken by the respondents regarding the redemption of the mortgage by them and the competence of the petitioner to seek partition without paying the proportionate share the mortgage money raised a question of title, and such a question could be decided the Revenue Officer, only in one of the three ways mentioned in Section 111 -A of the Land Revenue Act. It was therefore, contended before him that the Tehsildar not having taken resort to the remedies mentioned in that section the order allowing the application and disallowing the plea was bad in law and so not sustainable. The argument prevailed with the Settlement Commissioner who allowed the revision and set aside the order of the Tehsildar and directed him to proceed in accordance with the provisions of that section. This order of" the Settlement commissioner is dated 27 -10 -1959 and a copy thereof is Annexure "D" to this petition. Consistently with the directions given in this order the Tehsildar chose to proceed under clause (b) of sub -section (1) of S. 111 -A of the Land Revenue Act and vide his order dated 18 -3 -1960 directed the respondents to institute a suit within a period of three months in a civil court for the determination of the question of title. On the expiry of the period of three months the file came up before the Tehsildar on 20 -6 -1960. On that date Badri Nath one of the respondents in this petition and a non -applicant before the Tehsildar submitted that no suit for determination of the question of title in the land had been instituted as directed by the Tehsildar vide his order dated 18 -3 -1960. A prayer for extension of time was, however, made on behalf of the respondents for the institution of the suit, The Tehsildar was not at the Head quarter on that date and the file was therefore ordered to be put up before him on 20 -9 -1960, for orders. On that date also it was submitted before him that the suit had not been filed in the Civil Court and farther time was prayed for which was granted till 19 -10 -1968. Before proceeding further I may say that there was no question of granting extension in time as there was no provision in the Land Revenue Act for the extension of time prescribed by S. 111 -A of the Land Revenue Act. The period of three months was the statutory period and the Revenue Officer had absolutely no jurisdiction to grant any extension in the period. Be that as it may the case was again adjourned and no judgment of the Civil Court was obtained and it appears that no suit was filed by the respondents in the Civil Court for the determination of the question of title in regard to the land in dispute. The result of the failure on the part of tie respondents to institute the aforesaid suit was that the Tehsildar proceeded with the partition proceedings and ultimately vide his order dated 6 -3 -1969 directed that the partition statements Nos. 4 to 8 in accordance with the rules framed under t Land Revenue Act be prepared. The sequential action followed and the instrument of partition was ultimately sanctioned and a direction was issued by the Tehsildar that Nishandehi be given to the petitioner on spot and the possession of the land which had fallen to his share be delivered to him. After the order dated 26 -6 -1969 it appears that the respondents filed an appeal before the Deputy Commissioner, Udhampur, against the order of the Tehsildar dated 6 -3 -1969, who allowed the appeal and set aside the order of the Tehsildar on two grounds. First ground was that one Mst. Punna who was also a respondent in the application had died before the passing of the order dated 6 -3 -1969 and her legal representatives had not been brought on the record before the passing of the order. The second ground taken was that there were certain interpolations in the order dated 6 -3 -1969 which did not bear the signatures of the officer concerned. This order passed in appeal by the Deputy Commissioner was challenged before the Divisional Commissioner who dismissed the revision application. A further revision was then brought to the Financial Commissioner who allowed the same and set aside the order of the Divisional Commissioner. The reasons given for the. acceptance of the revision were that according to the entries made in the Death Register, Mst. Punna had died on 8 -3 -1969 whereas the order was passed by the Tehsildar on 6 -3 -1969. The death of one of the respondents according to the Financial Commissioner after the order was not at all a circumstance which could affect the validity of the order passed by the Tehsildar on 6 -3 -1969. On the second question also the Financial Commissioner gave a finding that the absence of the signature on the interpolations in the order of the Tehsildar was of no consequence as the order dated 6 -3 -1969 had been reproduced in the subsequent order dated 26 -6 -1969 by the Tehsildar. With the disposal of the revision application therefore the order passed by the Tehsildar on 6 -3 -1969 became absolute. Some time later however the respondent filed a review petition before the Financial Commissioner. In this petition it was brought to the notice of the Financial Commissioner that the Settlement Commissioner vide his order dated 27 -10 -1959 had directed the Tehsildar to have the question of title determined consistently with the provisions of Section 111 -A of the Land Revenue Act and that this direction of the Settlement Commissioner had not been complied with by the Tehsildar while passing the order dated 6 -3 -1969. Regarding Mst. Punna it was argued that she had made a separate application for partition before the Tehsildar in which her legal representatives had not been brought. Both these grounds were accepted by the Financial Commissioner and he held, that his earlier order was vitiated and was patently erroneous. He, therefore, set aside his own order and allowed the review petition. He remanded the case to the Tehsildar for further proceedings consistently with the directions of the Settlement Commissioner contained in his order dated 27 -10 -1959.

(2.) IT is the order of the Financial Commissioner passed by him in review whereby he set aside his own order passed in revision which is the -subject -matter of a challenge in this writ petition.

(3.) I have heard Mr. Sharma and Mr. Bali counsel for the parties in this petition for a fairly long time. For the reasons which follow I am of the opinion that the order passed by the Financial Commissioner in review cannot be allowed to stand.