Revision against trial court order modifying partition instructions. Court held considering possession of some co-owners excludes others from proportionate frontage; order modified.
Revision petition dismissed; trial court order stood.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Civil Revision No. 7322 of 2011 --1--
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Civil Revision No. 7322 of 2011 (O&M) Date of decision. 29.11.2011
Chand Singh and others .... Petitioners
Versus
Jagmal and others ...... Respondents
CORAM: HON'BLE MR. JUSTICE VIJENDER SINGH MALIK
1. Whether Reporters of Local Newspapers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present:
Mr.Sanjay Mittal, Advocate for the petitioners.
Vijender Singh Malik, J.
Chand Singh and two others, the legal representatives of Bhoop Singh, plaintiff have brought this revision petition under the provisions of Article 227 of the Constitution of India for setting aside the order dated 28.09.2011 passed by learned Additional Civil Judge (Senior Division), Jhajjar (Annexure P-8) vide which the objections raised by the contesting respondents to the report of local commissioner were partly allowed. The facts necessary to grasp the controversy between the parties are as under:-
Civil Revision No. 7322 of 2011 --2--
In a suit for possession by way of partition brought by Bhagwan Singh and continued by his legal heirs after his death, against Jagmal and others, a preliminary decree for partition was passed by the court of Sub Judge Ist Class, Jhajjar, vide judgment and decree dated 17.08.1993. In the appeal, the said judgment and decree were partly modified by learned Additional District Judge, Rohtak, vide judgment and decree dated 20.11.1995. Thereafter, legal representatives of Bhagwan Singh, plaintiff applied for passing of final decree. Learned trial court appointed Shri Tara Chand, Naib Tehsildar as Local Commissioner to suggest the mode of partition of the suit land. Shri Tara Chand submitted his report as Ex.C-1 with site plan annexed thereto as Ex.C-2 suggesting the mode of partition of the joint land. Vide order dated 18.04.2009, learned trial court passed a final decree in terms of Ex.C-1 and C-2. Wakf Board filed an appeal against the said judgment and decree which was decided on 6.6.2011 by learned Additional District Judge, Jhajjar. The order dated 18.04.2009 was held illegal and the final decree was set aside and the trial court was directed to give definite findings to the specific objections as raised by the respondents. The trial court was also given the liberty to take evidence or to appoint a fresh local commissioner, if found appropriate. The parties, however, refused to lead any evidence after the remand.
Objection petition was filed by the respondents to the report of Local Commissioner. Their objection was that the area allotted to Umrao and others was under the occupation of respondents Parmanand
Civil Revision No. 7322 of 2011 --3--
and others. According to them, the area allotted to Parmanand and others was actually under the possession of Umrao and others, respondents. Therefore they prayed for interchanging of the area. Respondent no.23 had claimed that his area was wrongly clubbed with the share of Wakf Board. According to him, Bhoop Singh was given a front of 192.5 feet on the PWD road. Respondent no.24 had, however, claimed that the local commissioner has wrongly shown the front of the suit land adjoining the land as 100 karams. According to him, respondents no. 23 and 24 have been allotted substantial part of their shares away from the road. He has also challenged the grant of 35 karams wide front to Bhoop Singh on the road. Similarly other objectors had also raised objections. Bhoop Singh and the legal representatives of Bhagwan Singh have contested the objection petitions and had filed replies thereto. The report of local commissioner was defended by them as legal and valid. They prayed for dismissal of objections.
Hearing learned counsel for the parties, learned trial court has allowed the objections and appointed a fresh local commissioner with the directions to suggest mode of partition keeping in view the following:-
Civil Revision No. 7322 of 2011 --4--
(iv) Wakf Board shall also be awarded proportionate better valued portion.”
Aggrieved by the aforesaid order, the present revision petition has been filed by the petitioners.
I have heard Mr. Sanjay Mittal, learned counsel for the petitioners and have gone through the record.
Learned counsel for the petitioners has assailed the mode of partition settled by learned trial court for guidance of the local commissioner. According to him, the possession of Parmanand and Umrao as per the jamabandi on the date of application of the petitioners has to be kept in view, while Bhoop Singh was held not entitled to retain the property in his possession. According to him, partition is to be effected keeping in view the three aspects i.e. value, kind and possession of the land. According to him, if possession could be ordered to be kept in view in case of Parmanand and Umrao, it should have also been ordered to be kept in view in case of Bhoop Singh.
Learned counsel for the petitioners has further submitted that the total area of the land under partition is 32 kanals 16 marlas while the share of Bhoop Singh in the same is about 3 kanals 14 marlas. He has submitted that the area in possession of Bhoop Singh comes on calculation to about 2250 square yards and he is not in possession of an area in excess of the same. He then drew my attention to Annexure P-4 , a site plan of the land in question where the possession of Bhoop Singh is shown over a piece of land having a front of 35 karams on the pucca road
Civil Revision No. 7322 of 2011 --5--
between Rohtak and Kosli . He has submitted that when the land in possession of Bhoop Singh is not in excess of his share, the partition should have been ordered to be suggested keeping in view the possession of the parties. He has, therefore, submitted that the mode of partition suggested by learned trial court to the local commissioner is wrong and is liable to be set aside.
It is true that while partitioning the property, the considerations are value, kind and possession. It may also be true that the share of Bhoop Singh may not be less than the area in his possession at the spot. However, if the possession is to be maintained while suggesting partition, the other co-owners in the property would not get proportionate frontage of the road because Bhoop Singh has occupied a large portion of the frontage. Therefore, the possession alone could not be kept in view while suggesting the mode of partition.
Learned trial court does not appear to have erred in suggesting the mode of partition. There is no parallel between the cases of Umrao and Parmanand, who only wanted to exchange the properties falling to their shares and therefore, Bhoop Singh or his heirs were not entitled to be dealt with in that manner. The local commissioner is an officer of the rank of Naib Tehsildar and he would suggest after visiting the spot, the mode of partition to which the petitioners would still have a right to take objections.
Civil Revision No. 7322 of 2011 --6--
So in the given circumstances, I do not find any illegality having been committed by learned trial court in making the impugned order. The revision petition is, consequently, found to have no merit and
is dismissed.
29.11.2011 (VIJENDER SINGH MALIK) dinesh JUDGE
2 issues framed by the court
Whether the trial court erred in directing the local commissioner to consider possession of co-owners while suggesting mode of partition.
Whether the mode of partition suggested by the trial court violates the principles of value, kind and possession.
1 provisions across 1 enactments
Chand Singh and others
Jagmal and others
Vijender Singh Malik
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
