JAGAT SINGH Vs. FINANCIAL COMMISSIONER, J&K GOVT

JUDGEMENT

(1.) I . This reference by D., D. Thakur J. arises in the following circumstances: Shiv Shankar, the father of the petitioners, and Brij Nath respondent No. 3 herein were co -sharers in a -joint Khewat in village Kot, Tehsil Jammu, which measured several thousand kanals. Somewhere in 2002 (Samvat): 1945 (AD) respondent No. 3 brought an application for partition of the Khewat but the same was consigned to records in the disturbances of 2004 (Samvat) 1947 (AD). On the coming into force of the Big Landed Estates Abolition Act, Act XVII of 2007, (hereinafter referred to as the Act) Shiv Shankar made a selection of the unit of land mentioned in Sect. 4 (2) (a) of the Act in compliance with the notice received by him under section 14 of the Act. After the demarcation of the land Shiv Shankar and after his death the petitioners held the aforesaid land exclusively. Respondent No. 3 on whom a notice was also served as required by section 14(1) of the Act, however, failed to make the selection of the land as aforesaid with the result that the Special Tehsildar, Jammu, himself reserved the unit of 182 kanals of land out of the aforesaid Khewat for the former under clause (b) of Section 14 (1) of the Act, vide his order dated Katik 25, 2009 (Svt). Pursuant to the aforesaid selection (in which there was no overlapping of khasra Nos.) mutations were attested in favour of respondent No. 3 and Shiv Shankar. On November 20, 1956, respondent No. 3 made an application to the Assistant Commissioner, Jammu, for partition of the land held by Shiv Shankar and himself. This application was resisted by Shiv Shankar inter alia on the grounds that there had been a private partition of the joint khewat between the parties in consequence of which he occupied the land which fell to his share, that on the coming into force of the Act he made the selection of his unit of 182 kanals on the basis of the private partition that had already taken place between the parties, that he made a lot of improvement in the land selected by him and that the respondent was not entitled to claim partition of the land in his possession. He further contended that in the event of the pleas raised by him not prevailing the partition be affected on the basis of the Khasra Nos. in the possession of the parties. The Assistant Commissioner vides his order dated January 23, 1958. held that though the application for partition could not be thrown out the parties were bound by the reservation and selection made under section 14 of the Act, that the reservation made by the Special Tehsildar, Jammu. for respondent No: 3 would be treated as the unit selected by him and that the allotment of Khasra Nos. would be made to the parties on that basis. Accordingly he proceeded to sanction the mode of partition on that basis.

(2.) AGAINST this order of the Assistant Commissioner respondent No.

(3.) WENT up in appeal to the Deputy Commissioner Jammu, who by his order dated August 16, 1958, over act the order passed by the Assistant Commissioner. Against the order of the Deputy Commissioner and dismissed the revision, to the Settlement Commissioner, Jammu, who upheld the order of the Deputy Commissioner and dismissed the revision. The order of the Deputy Commissioner was also upheld by the Financial Commissioner, respondent No: 1 herein in further revision by his order dated June, 23, 1972. The financial Commissioner was of the view that -the selection of the suit of 182 kanals by different co -sharers of a joint khewat under the provisions of the Act would not operate as partition of the khewat as there was nothing in Section 14 of the Act to show that the selection of the prescribed units by the proprietors or in case of failure of any one of them by a Revenue Officer authorized in that behalf would operate as partition of the holding if it happened to be owned by more than one proprietors. 3. The parties remained in litigation thereafter as well and finally respondent No. 1 vide his order dated Feb: 16, 73 held that the land included by the father of the petitioners in his unit of 182 kanals was subject to partition.