Dismissed

Baljit Singh v. State Ofhy.

Punjab & Haryana HC14 Sept 2012CWP/10523/2004

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging partition orders. Relying on a Local Commissioner's report finding no existing path, the court upheld revenue authorities' view that the allocated path was logical and refused to mandate a new route through another co-sharer's land.

What did the court decide?

The writ petition was dismissed; the petitioner was ordered to pay Rs.5000/- as half the fee of the Local Commissioner appointed to verify the existence of the path.

Baljit Singh Vs State Ofhy. — Land Acquisition | Punjab & Haryana HC (2012)

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CWP No.10523 of 2004

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CWP No.10523 of 2004 Date of decision:- 14.09.2012

Baljit Singh

...Petitioner

Versus

State of Haryana and others

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...Respondent

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CORAM: HON'BLE MR. JUSTICE S.S. SARON

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Present:Mr. V.K. Jain, Senior Advocate with Mr. Naresh Kaushal, Advocate for the petitioner

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Mr. Sudhir Makkar, Senior Deputy Advocate General, Haryana for respondents No.1 to 4.

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Mr. Rishi Pal Rana, Advocate for respondents No.34, 36 and 38.

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Mr. D.S. Malik, Advocate for respondent No.35.

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S.S. SARON J.

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The petition has been filed under Articles 226/227 of the Constitution of India seeking quashing of the order dated 13.02.2003 (Annexure P-7) passed by the Collector, Thanesar, District Kurukshetra (respondent No.3) as well as the order dated 19.05.2004 (Annexure P-8) passed by the Commissioner, Ambala Division, Ambala (respondent No.4) and for directing the respondents- authorities to implement the order dated 25.07.2002 (Annexure P-6) passed by the Assistant Collector Grade-I, Thanesar (respondent No.2).

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The case relates to partition of land measuring 1312 Kanals 6 Marlas situated in Village Sudhpur, Tehsil Thanesar District

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Kurukshetra amongst 39 cosharers. The dispute at present primarily relates to providing of a passage to the 'Kurrah' of Baljit Singh (petitioner) now represented by his LRs, Bajrang Singh, Subhash Chand and Hussan Lal sons of Baljit Singh (as per amended memo of parties who have been impleaded vide order dated 30.09.2008 passed in CM No.19529 of 2008).

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The Assistant Collector Ist Grade, Thanesar (respondent No.2) framed the mode of partition 'Naksha-Bey' on 4.8.1995 and invited objections to the same. On 11.08.1995, Ami Singh (respondent No.34), Hukam Singh (respondent No.35), Raj Singh (respondent No.36), Manphool Singh, Jaipal Singh (respondent No.37) and Shish Pal Singh (respondent No.38) submitted their objections in respect of 'Naksha-Bey'. The Assistant Collector Ist Grade Thanesar (respondent No.2) after hearing the objections vide order dated 22.9.1995 (Annexure P-1) dismissed the same and confirmed the 'Naksha-Bey'. The objection raised by the said objectors-respondents regarding giving of a path to Baljit Singh (petitioner) from the metalled road, which it was submitted was wrong because for giving a path from the 'pucca' road six 'Killas' (acres) of land would be utilized and consumed for the path, whereas for going to the fields of Baljit Singh (petitioner) there was a Government 'Gohat' and by giving land from one 'Killa' a path could be provided for the 'Kurrah' of Baljit Singh. Accordingly, it was prayed that 'Naksha-Bey' be amended. This was declined by the Assistant Collector Ist Grade (respondent No.2) and the 'Naksha Bey' was

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accepted as had been prepared.

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Ami Singh and others (respondents No.34 to 38) as also Manphool Singh filed an appeal before the Collector, Thanesar (respondent No.3) against Baljit Singh (petitioner) and others. The Collector, Thanesar (respondent no.3) vide his order dated 28.11.1995 (Annexure P-2) partly accepted the appeal and directed the Assistant Collector Grade-I, Thanesar (respondent no.2) to give a path to the 'Kurrah' of Baljit Singh (petitioner) through Khasra No.1169; besides, it was directed that Bara in Khasra No.451 be given to all the co-sharers and the word 'etc.' be added after the name of Jaipal Singh (respondent No.37) and Hukam Singh (respondent no.38). Accordingly, it was directed that 'Naksha-Bey' be amended and be confirmed after hearing the parties. It was contended by Ami Singh and others (respondents No.34 to 38) as also Manphool Singh before the Collector, Thanesar (respondent No.3) that 'Naksha-Bey' had not been prepared in accordance with mode of partition and that Bara No.451 had not been given in the share of all the co-sharers. It was also submitted that there was no necessity for a path to the 'Kurrah' of Baljit Singh because a path was available for 5 Killas which he had been using for the last 40 years. In any case, if a path was to be given, the same be given from Khasra No.1169 for two 'Kattas' (7). The path in the manner in which it had been given to Baljit Singh (petitioner) would result in more land being utilized. Besides, in case land in khasra Nos.1168 and 1169 was included in the 'Kurrah' of Baljit Singh, then there would be no

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necessity of a new path and by doing this Santosh (respondent No.7) etc. could be given Khasra No.1161 instead of Khasra No.1169. Moreover, Manphool Singh could be given land in khasra No.1153 or 1155 instead of 1161. Manphool Singh in fact had been given 5 kanals 12 marlas in khasra Nos.1150 and 1162, which was not in consonance with the mode of partition. It was also submitted that land could be given to Manphool Singh from khasra No.1156 min and with this no one would be harmed. Ami Singh (respondent No.34) had been given land in khasra No.1124 and Hukam Singh (respondent No.35) in khasra No.1135 which was also against the mode of partition. As already noticed the Collector, Thanesar (respondent No.3), however, had directed that a path be given to 'kurrah' of Baljit Singh (petitioner) through khasra No.1169.

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Ami Singh and others (respondents No.34 to 38) as also Manphool Singh filed an appeal (Executive Appeal No.60 year 199596) against the order dated 28.11.1995 (Annexure P-2) passed by the Collector, Thanesar (respondent No.2) before the Commissioner, Ambala Division, Ambala (respondent No.4). The said appeal was heard along with other executive Appeal No. 45 of 1995-96, which had been filed by Baljit Singh (petitioner) etc. In the said appeals, the Commissioner, Ambala Division, Ambala (respondent No.4) vide order dated 30.1.1996 (Annexure P-3) set aside the order dated 28.11.1995 (Annexure P-2) of the Collector (respondent No.3). The facts of the appeal of Ami Singh and others (respondents No.34 to 38) as also Manphool Singh were also the same and, therefore, their

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appeal was also dismissed vide order dated 30.1.1996 (Annexure P- 3) in terms of the order passed in appeal No.45 of 1995-96.

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Ami Singh and others (respondents No.34 to 38) as also Manphool Singh filed revision petitions i.e. ROR Nos. 262 and 263 of 1995-96 before the Financial Commissioner, Haryana (respondent No.1) against the order dated 30.1.1996 (Annexure P-3) passed by the Commissioner, Ambala Division (respondent No.4), order dated 28.11.1995 (Annexure P-2) passed by the Collector, Thanesar (respondent No.3) and order dated 22.9.1995 (Annexure P-1) passed by Assistant Collector Ist Grade, Thanesar (respondent No.2). It was contended by Ami Singh and others (respondents No. 34 to 38) as also Manphool Singh that the Commissioner, Ambala Division, Ambala (respondent No.4) and the Assistant Collector, Ist Grade Thanesar (respondent No.2) had erred in giving passage through six acres of land from the 'Kurrah' of Hukam Singh (respondent No.5)/Ami Singh (respondent No.4). The Collector, Thanesar (respondent No.3), it was contended had rightly given the passage along Khasra No.1169 because loss of land would be much less in this manner. The Assistant Collector (respondent No.2) had wrongly observed that passage along Khasra No.1169 would be inconvenient to Baljit Singh (petitioner). It was submitted that there were 39 cosharers in the land and many of them had to use the 'Katcha' path to approach their plots. The 'Kurrah' of Ami Singh (respondent No. 34) had been wrongly disturbed. It was also submitted that out of Khasra No.1335 land measuring 3 Kanals 9 Marlas had been given to Jaipal

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Singh (respondent No.37) and Manphool Singh had been given land in Khasra Nos.1156 and 1162. Objections had been raised in this regard but the same had been rejected by the revenue officers. Khasra No.1161, it was submitted, should be given to Santosh Kumar (respondent No.7) and Manphool Singh may be given Khasra No.1156 and the 'Bara' should be given to all the co-sharers. It was urged that the orders of the Commissioner (respondent No.4) and Assistant Collector (respondent No.2) were liable to be set aside and the order of the Collector (respondent No.3) insofar as it goes against them was liable to be revised. According to Baljit Singh (petitioner) and Bharat Singh sons of Inder singh, the objections raised by the petitioners (respondents No.34 to 38 herein as also Manphool Singh) had been gone into at length by the Commissioner (respondent No.4) and the case had been decided keeping in view the position at the spot. The passage in case it was given along Khasra No.1169 as was suggested by the petitioners (respondents No.34 to 38 herein and Manphool Singh), Baljit Singh (petitioner) and others would have to use the path of another village and they would have to cover a long distance to reach the main road. It was emphasized that a tractor cannot be plied on the 'Katcha' path, which would even damage the adjoining land. It was also stated that there were a large number of co-sharers who were satisfied with the proposed ‘Naksha-Bey’ but the unnecessary litigation was holding up the entire partition case. It was also submitted that they had no objection if the ‘Bara’ was given to all the co-sharers in the partition.

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On behalf of Santosh Kumar (respondent No.7) and Vijay Kumar (respondent No.8), it was submitted that Santosh Kumar (respondent No.7) had been given a strip of land and there was even small neck in the proposed ‘kurrah’ for him, which made cultivation of his plot difficult. Despite that he had no objection to the proposed ‘Naksha Bey’ because in the final analysis of all co-sharers had to be adjusted. It was submitted by him that Killa No.1161 was ‘kallar’ (fallow) land and, therefore, Manphool Singh wanted that the said killa No.1161 may be given to Santosh Kumar (respondent No.7), which was not acceptable. The 'kurrahas’ had to be drawn keeping in view the kind of land as well as the possession of each co-sharers. It was submitted that ‘Naksha Bey’ as proposed by the Assistant Collector (respondent No.2) may be approved and the revision petition be dismissed.

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The learned Financial Commissioner (respondent No.1) considered the contentions raised by the parties. In the partition, 13 khewats had been proposed by the Assistant Collector (respondent No.2). A path had been provided from the pucca road along killa Nos.1355/2, 1346, 1342, 1333, 1326 and 1144. It was noticed that the main objection that was raised before him as well as before the Assistant Collector (respondent No.2) and the Commissioner (respondent no.4) was that Baljit Singh (petitioner) should be given a path along Khasra No. 1169. The plea taken was that this would save the total land loss for the path. Baljit Singh (petitioners) and others had objected to this on the ground that the said path was not

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feasible. They would have to cover ‘katcha’ path of 16 Killas (acres), which cannot be used by a tractor. This would damage the adjoining land of other co-sharers. The ‘Naksha-Bey’ had to be prepared keeping in view the mode of partition and situation at the spot. It was observed that the Collector (respondent No.3) had, however, accepted the plea of the shareholders and suggested that the path should be given along khasra No.1169. The Commissioner (respondent no.4), it was held, had rightly come to the conclusion that the partition at the spot was to be kept in view while deciding the lay out of paths to be provided to various co-owners and had accepted the appeal filed by Baljit Singh. The Financial Commissioner (respondent no. 1) was also of the view that the path had been provided by the Assistant Collector (respondent No.2) in ‘Naksha-Bey’, keeping in view the position on the ground and convenience of various co-sharers. Accordingly, no merit was found in the said objection raised by the petitioners before him. Some objections were also raised regarding the shapes of ‘Kurrahs’. Besides, it was submitted that Manphool Singh should have been given rectangular plot and killa No.1161 should be given to Santosh Kumar (respondent No.7). This was contested by the counsel for Santosh Kumar (respondent No.7) who stated that the said Killa No.1161 was ‘Kallar’ (fallow) land and even his ‘kurrah’ was not rectangular and there was a narrow neck also in it. It was observed by the learned Financial Commissioner (respondent No.1) that there were 39 co-sharers in the partition case and every co-sharer could

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not be given ‘kurrah’ in a rectangular shape because the kind of land as well as their possession had also to be kept in view. All the other co-sharers had accepted the ‘Naksha Bey’ prepared by the Assistant Collector (respondent No.2). On studying the ‘Naksha Bey’ proposed by the Assistant Collector (respondent No.2), it was found that there was no merit in the objections raised by the petitioners before him. Another objection that had been taken by the petitioner before the Financial Commissioner was that ‘Bara’ in Killa No.451 should be given to all the concerned co-sharers. The respondents before the Financial Commissioner had no objection to this. Accordingly, it was observed that killa No.451 would not be given only for Hukam Singh (respondent No.35) but would be for all the concerned co-sharers. The revision petitions were accordingly disposed of in terms of order dated 09.06.1998 (Annexure P-4).

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Against the order dated 9.6.1998 (Annexure P.4) passed by the Financial Commissioner, Haryana, CWP No. 18570 of 1998 was filed in this Court by Ami Singh and others (respondent No.34 to 38). The said petition was disposed of by a Division Bench of this Court vide order dated 14.2.2002 (Annexure P.5). The parties were at variance with regard to the sanctity of the site plan produced by them. Mr. C.B. Kaushik. Advocate for some of the private respondents in the writ petition contended that the site plans produced by the petitioners were not correct whereas the plans produced by respondents were correct. This Court held that it was not possible to determine the matter without knowing the factual

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position at the spot. The parties were, however, agreed that the matter be remitted to the Assistant Collector Ist Grade, Thanesar (respondent No.2) who it was ordered shall after examining the site plans produced by the parties pass a fresh order. Accordingly, the impugned orders were quashed and the case was remitted to the Assistant Collector Ist Grade. Thansesar (respondent No.2) to hear the parties and pass a fresh order.

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The partition proceedings were then taken up before the Assistant Collector Ist Grade, Thanesar (respondent No.2) on 25.7.2002 (Annexure P.6). The Assistant Collector Ist Grade, Thanesar (respondent No.2) reached at the conclusion that ‘NakshaBey’ be changed in the manner that Baljit Singh (petitioner) be allotted Khasra Nos. 1161, 1162/1 and 1156/2 from the southern side and the area of Manphool Singh be completed from the Northern side of Khasra Nos. 1156, 1155 Min. and Khasra Nos. 1143/2, 1327/1,1332/2, 1343/2, 1345/2/2 and 1355/2/2 pertaining to the ‘Rasta’ (passage) be kept intact. The popular trees planted in these Khasra Numbers were ordered to be given to those who had planted the trees. The Girdawar, Halqa (Kanungo) was asked to change the ‘Naksha-Bey’ and get it sent to the Assistant Collector Ist Grade, Thanesar (respondent No.2).

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Ami Singh and others (respondent No. 34 to 38) as also Manphool Singh filed an appeal against the order dated 25.07.2002 (Annexure P.6) passed by the Assistant Collector Ist Grade, Thanesar (respondent no.2) whereby changes had been made in

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'Naksha-Bey' in the manner as are mentioned in the order (Annexure P-6) passed by the Assistant Collector Ist Grade (respondent No.2). The same it was submitted was wrong. Besides, Baljit Singh (Petitioner) also filed an appeal against the order dated 25.07.2002 (Annexure P-6) passed by the Assistant Collector Ist Grade, Thanesar (respondent No.2). Both the appeals were disposed of by a common order dated 13.02.2003 (Annexure P-7) passed by the Collector, Thanesar (respondent No.3). After referring to the earlier litigation between the parties, it was found that the Assistant Collector in terms of its order dated 25.07.2002 (Annexure P-6), which was under appeal had ordered that Baljit Singh (petitioner) be provided southern side of khasra Nos.1161, 1162/1 and 1156/2 and the area of Manphool Singh be completed from the northern side of khasra Nos.1156 and 1155 min. The lower Court (Assistant Collector Ist Grade) it was observed had maintained the path which was earlier provided from Khasra nos.1143, 1327, 1332, 1343, 1345/2 and 1355/2. Ami Singh etc. (respondents No.34 to 40) had filed the appeal mainly against the 'Rasta' (passage). It was submitted that the lower Court (Assistant Collector Ist Grade) had provided ‘Rasta’ from 6 killas due to which 50 marlas of land was wasted and in case Baljit Singh (petitioner) was provided ‘Rasta ‘ of two ‘Gathas’ near the northern corner of khasra No.1169 only 6-7 marlas land would be covered in the ‘Rasta’. Baljit Singh (petitioner) had been using this ‘Rasta’ for going to his ‘kurrahs’ for the last 50 years. The ‘kurrahs’ of Baljit Singh had also got 'pacca Gohar' of

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three 'Gathas' in the west which had been taken out of killa numbers of this land; besides, in the south Amar Singh (sic. Ami Singh) etc. had also left 'Gohar' of two 'Gathas' which was being used continuously by Baljit Singh. There was no objection of any one with the partition in the above said manner. It was also submitted that the loss of area of Hukam Singh (respondent No.35) could be fulfilled out of khasra No.1140 because Baljit Singh had already got more area which would be taken out of the same. In this manner, there was no need to touch the area of Ami Singh and his area was already complete. The land of 18 marlas given to Shish Pal in the other 'kurrah', it was submitted, was illegal. All the 'kurrahs' were disturbed by doing this. Shiv Singh had possession of both the 'kurrahs'. If 18 marlas of land was given to Shiv Singh from the second chak of southern land then there would be no loss to anyone. The area of every party could be completed by providing the area of adjoining land. It was prayed that area of Hukam Singh (respondent No.35) be completed out of the 'kurrah' of khasra No.1140 of Baljit Singh. Baljit Singh it was submitted be provided area near southern 'Dol' of khasra Nos.1169 and 1168 and two 'kurrahs' of Shishpal be not prepared and his area be completed from the adjoining area. Baljit Singh (petitioner) it was observed was dissatisfied with the order under appeal i.e. Order dated 25.07.2002 (Annexure P-6) because he had been provided khasra No.1161 and Khasra Nos.1155 and 1156 were given to Manphool Singh. It was submitted that khasra No.1161 from the very beginning was in possession of

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Manphool Singh and the area of Khasra Nos.1155 and 1156 was in his (Baljit Singh's) possession. The partition of land, it was submitted by Baljit Singh had not been made by keeping the possession intact. It was prayed that the order dated 25.07.2002 (Annexure P-6) under appeal be set aside.

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The Collector, Thanesar (respondent No.3) after hearing learned counsel for the parties found that 'Rasta' provided to 'Kurrah' of Baljit Singh from Khasra Nos.1143, 1327, 1332, 1343, 1345/2 and 1355/2 was totally wrong and there was no justification because too much land was wasted by doing so and that 'Rasta' could have been provided from only one khasra No.1169 to connect his 'Kurrah' to 'Gohar'; besides, there was also another 'Rasta' of two 'Gathas' on the southern side to the 'Kurrah' of Baljit Singh which he had been using from the very beginning. This had been left by Amar Singh etc. and there was an entry in the revenue record of this 'Rasta'. Baljit Singh had been using this 'Rasta' for the last too much time. If there had been problem of 'Rasta', the case for partition could have been filed by him (Baljit Singh) whereas the case had been initiated by Ami Singh and Hukam Singh (respondents No.34 and 35) etc. It was observed that 'Rasta' provided to Baljit Singh by the lower Court had been provided keeping in view the 'pucca' road, which was not justified. As such the 'Rasta', it was ordered, be provided from Khasra No.1169 to 'Kurrah' of Baljit Singh. If there was somewhat less area of Hukam Singh (respondent No.35), it was ordered to be completed from the adjoining khasra No.1140. Shishpal had got

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proper land. As such the appeal of Ami Singh etc. (respondents No.34 to 38) was accepted accordingly. The appeal of Baljit Singh was found to be baseless. It was observed that it was wrong to say that khasra No.1161 given to him was 'kallar' (fallow) land whereas as per revenue record, this land was 'chahi'. This khasra was two kilometer away from the 'kurrah' of Manphool Singh and he was facing difficulty in cultivation. There was no force found in the plea of Baljit Singh that the girdhwari of khasra No.1161 was in the name of Manphool Singh because there were wrong entries of girdawaries in the joint khata. Manphool Singh had produced copy of girdawari wherein the entries of cultivation of khasra No.1330/2, 1331 and 1332 had been shown in the name of Baljit Singh but the said land was not in his (Baljit Singh's) possession. Likewise, girdawari of khasra No.1341 was in the name of Jaipal Singh but he was not in possession of this khasra. Therefore, keeping in view the position at the spot, Baljit Singh it was held had rightly been given khasra No.1161 and in the eastern side and southern side of it, there was land of khasra Nos.1162 and 1168 pertaining to Baljit Singh. In terms of the order under appeal i.e. the order dated 25.07.2002 (Annexure P-6) to complete the area of Manphool Singh, the land in Khasra Nos.1155 and 1156 towards North given to him (Manphool Singh) was held to be justified because as per criteria of partition, the difference was to be completed from the adjoining area. As such the appeal of Baljit Singh was found to be baseless and rejected.

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Baljit Singh (petitioner) aggrieved against the order dated

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13.02.2003 (Annexure P-3) of the Collector, Thanesar (respondent No.3) filed two revision petitions before the Commissioner, Ambala Division, Ambala Cantt. (respondent No.4). The Commissioner, Ambala Division, Ambala Cantt. (respondent No.4) after hearing learned counsel for the parties and perusing the record reached the conclusion that the orders under revision i.e. the order dated 13.02.2003 (Annexure P-7) had been passed by the Court below after considering all the facts of the case. It was observed that counsel for Baljit Singh (petitioner) could not produce any such evidence due to which the orders under revision could be proved unjust. The orders under revision were held to be legal and it was observed that there was no infirmity of any kind. Accordingly, no need for interference was held to be made out and the revision petition was dismissed by the Commissioner, Ambala Division, Ambala Cantt. (respondent No.4) vide order dated 19.05.2004 (Annexure P-8).

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Aggrieved against the same, the present petition has been filed by Baljit Singh assailing the order dated 13.02.2003 (Annexure P-7) passed by the Collector, Thanesar (respondent No.3) and the order dated 19.05.2004 (Annexure P-8) passed by the Commissioner, Ambala Divison, Ambala Cantt. (respondent No.4) and for directing the respondent authorities to implement the order dated 25.07.2002 (Annexure P-6) of the Assistant Collector GradeI,Thanesar (respondent No.2).

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During the pendency of this petition, this Court on

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31.08.2004 observed that the learned counsel for the petitioner had contended that there was a path in existence on the entire disputed land including land owned by Hukam Singh (respondent No.35). He further stated that he had been using this path for the last 40 years.

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The said fact was, however, disputed by learned counsel appearing for Hukam Singh (respondent No.35) and it was submitted that there was no path in existence from the land of respondent No.35.

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It was observed by this Court in terms of order dated 31.08.2004 that the basic controversy between the parties and the challenge of the order of the lower authorities was founded on this basic contention. Learned counsel for the parties commonly conceded that a Local Commissioner be appointed to visit the site in question and report whether there was a passage existing on the disputed land, which also passes through the land of respondent No.35 (Hukam Singh). The Commissioner, it was ordered, would also prepare a site plan and if necessary would be at liberty to take photographs. Kanungo of Shahabad was directed to render all the help to the learned Commissioner and produce such record before the learned Commissioner as may be necessary. Ms. Ashima P. Mohindroo, Advocate who was present in Court, was appointed as Local Commissioner with the consent of the parties. The Commissioner, it was ordered, would visit the property in dispute at 11.00 am on 01.09.2004. She was not required to give notice to any of the paties, as the order had been passed in their presence. The

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Kanungo it was ordered shall meet the Commissioner at Rest House, Shahabad and then shall accompany her to the site in question. It was made clear that whichever of the two parties was found to be incorrect to the averments made above, he shall be liable to pay full fee of the Commissioner and would return half of the fee already paid by the other. The Commissioner was asked to file the report with an advance copy to the counsel for the parties.

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Ms. Ashima P. Mohindroo, Advocate, learned Commissioner of the Court visited the site and has submitted her report dated 01.09.2004 along with the site plan and photographs. It was observed by her that in compliance to the orders of this Court, she went to village Shadpur (sic. Sudhpur) in Tehsil Thanesar and not in Tehsil Shahabad on 01.09.2004 at 11.00 am. The petitioner and Jagpal son of respondent No.35 (Hukam Singh) were present at the site and signatures of their presence were taken on the sheet apended as Appendix 'A'. The Kaunungo, Patwari and Lambardar of the Halqa were also present at the site. The parties and the revenue officers were asked to identify the land in question. Photographs of the land had been taken which were appended as Appendix 'B'. It was found by the learned Commissioner that there did not exist any 'Rasta' or even pedestrian path at the site, rather there was a 'pucca' narrow water passage (khal) which was then dry. The passage (khal) was old in construction. Even the grass/small bushes did not show that the area in question has been used as a passage for walking etc. The report was submitted. The signature sheet of those

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who were present at the time of inspection Appendix A, photographs Appendix 'B' and the site plan have been placed on record.

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Baljit Singh petitioner filed an affidavit dated 17.09.2004 as objections to the report of the Commissioner, in which it was inter alia stated that when notice of motion was issued Ami Singh etc. created obstructions from giving passage/Rasta to the petitioner to reach the fields. It was submitted that Civil Misc. No.13101 of 2004 was filed in this Court for allowing the petitioner to use the passage/Rasta which was already being used by him for the last forty years to reach the fields. It was submitted that this Court had appointed a Local Commissioner who after visiting the site on 01.09.2004 had submitted her report, a copy of which had been given to him (petitioner). The said report, it is submitted was full of misstatements and the position had not been properly appreciated. In fact the petitioner and all respondents, it was submitted belonged to one family. When the land was divided amongst all the claimants, the petitioner was in the army and his brother and cousin gave the land to the petitioner at the end of the land in question but it was decided that he would use the 'Rasta' from the land of Hukam Singh (respondent No.35) and Ami Singh (respondent No.34). The petitioner had been using this 'Rasta' to reach his fields for the last 40 years and the respondents had never objected to the same. It is submitted that when the Local Commissioner was appointed, Hukam Singh (respondent No.35) and Ami Singh (respondent No.34) ploughed the fields in order to destroy the 'Rasta' which was being

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used by the petitioner for the last 40 years after the divison of the land. As per the report of the Local Commissioner, there did not exist any 'Rasta' or even pedestrain path at the site, rather there was a 'pucca' narrow water passage (khal) which was then dry. The passage was old in construction. Even the grass/small bushes did not show that the area in question had been used as a passage for walking etc. In fact this was a totally misleading and an incorrect report and the petitioner had got no other passage except the passage claimed by him which was being used by them for the last 40 years. The petitioner was not satisfied with the report of the Local Commissioner because it was not correct and as per record. It was prayed that the original record along with 'Naksha Bey' from the office of Assistant Collector Ist Grade, Thanesar (respondent No.2) may be called for and this Court may go through the record in order to know the factual and correct position in the case. It was submitted that the Financial Commissioner and Secretary to Government of Haryana also held that there is a 'Rasta' from the fields of Ami Singh etc. for Baljit Singh (petitioner) to reach his fields; besides, a reference has been made to the order dated 25.07.2002 (Annexure P-6) of the Assistant Collector, Ist Grade, Thanesar (respondent No.2). It was further submitted that the petitioner had got no other sanctioned passage/Rasta to reach his fields. Besides, the site plan given by the Local Commissioner had shown a passage, which was not actually the Rasta/passage of the petitioner and this land belonged to a third party i.e. Haripal Singh son of Amar Singh and he does not

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allow the petitioner to go to his fields. A perusal of the site plan prepared by the learned Commissioner appointed by this Court shows that there is a proper pathway on the south of the fields of Baljit Singh (petitioner). Besides, it is quite evident that the pathway which Baljit Singh (petitioner) claims, he had been using for the last 40 years through the land of Hukam Singh (respondent No.35), in fact did not exists and there was a water course (khal) which was also dry. The photographs do not in any manner show that the land had been recently ploughed as it is claimed by Baljit Singh (petitioner) in his affidavit dated 17.09.2004 by way of objections to the report of the Local Commissioner.

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Learned counsel for the private respondents has submitted that in order to ascertain the actual position in the case at the site, this Court had appointed a Local Commissioner. A reference has been made to the report dated 01.09.2004 of the Local Commissioner. It is submitted that the said report dated 01.09.2004 of the Local Commissioner contains a site plan, which shows that there exists good quality of path more than 16 feet. The report of the Local Commissioner had made it clear that the stand of the petitioner that there was a path existing through the land of respondent No.35Hukam Singh was totally wrong and the statement of the counsel for the petitioner and the averments made in the writ petition in this regard were proved to be wrong. By making these averments, it is submitted that the petitioner had tried to mislead this Court. Therefore, on this ground alone, the writ petition was liable to be

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dismissed. It is also submitted that there exists good quality path to the plot of the petitioner, which stands established from the report dated 01.09.2004 of the Local Commissioner. The petitioner was using this 'Rasta'/path for the last many decades without any problem. The said position was also proved by the fact that the petitioner had not approached for partition before the competent authority. It were the non-official respondents who had approached the competent authority for partition. Had the petitioner been having any problem qua the path, he ought to have not waited for six decades to approach the competent authority for partition. Even after six decades it were the non-official respondents who had initiated the partition proceedings. The petitioners had tried to get an interim order by wrongly stating that there exists a path through the disputed land; besides, the petitioner also wrongly stated that he was in the army when consolidation of land in question took place. This statement of the petitioner, it is submitted, is also factually incorrect. The petitioner by pleading wrong facts had tried to mislead this Court and the same had been done to gain the sympathy of the Court. At the time of consolidation, it is stated that the petitioner was a minor and was not serving anywhere. The petitioner had joined the army in the year 1967 and had retired about 22 years back in 1982. The petitioner had demanded a path in question against the mode of partition. It is submitted that the mode of partition did not envisage that every shareholder would be connected with the metalled road through the land of other co-sharers. A good quality 16 ½ feet path

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was already there for approaching the land of the petitioner and he could not be given any extra path against the mode of partition. Out of 39 co-sharers of the land, only plots of 4 or 5 co-sharers touched the road which came into existence in 1985 i.e.much after the land was distributed/partitioned by a family settlement amongst all the cosharers. Some of the co-sharers had to travel almost double the distance than the petitioner from the road to their plots. The passage/path to the plots of the other co-sharers is shown in the map attached as Annexure R-1.

¶98

Replication to the written statement of respondents No.34 to 36 and 38 has been filed by the petitioner in which the position mentioned in the petition has been reiterated and that in the written statement had been denied. The averments made in the preliminary objections have been denied.

¶99

After perusing the relevant records and the site plan of the parties, it may be noticed that the basic dispute that survives is regarding the fact as to whether a passage is to be provided to the land of Baljit Singh (petitioner) from the main road from Shahabad to Haripur, Kurukshetra. The land of Baljit Singh (petitioner) is on the southern side of the road and as per the site plan prepared by the learned Commissioner Ms. Ashima P. Mohindroo, Advocate, there was a proper pathway of pucca land near the fields of the petitioner Baljit Singh. The case of the petitioner that he should be provided a passage as per order dated 25.07.2002 (Annexure P-6) passed by the Assistant Collector Ist Grade, Thanesar (respondent No.2) is

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without basis. The Assistant Collector (respondent No.2) allotted khasra No.1161, 1162/1, 1156/2 from the southern side and the area of Manphool Singh was ordered to be completed from the northern side of Khasra Nos. 1156 and 1155 Min. Besides, Khasra Nos. 1143/2, 1327/1,1332/2, 1343/2, 1345/2 and 1355/2/2 pertaining to the ‘Rasta’ were ordered to be kept intact. The popular trees planted in these Khasra Numbers were ordered to be given to those who had planted the trees. The primary reason for the allotment of these khasra numbers was taking into consideration the fact that the petitioner Baljit Singh had been using the passage from the main road to his fields. The Collector, Thanesar (respondent No.3) in his order dated 13.02.2003 (Annexure P-7) dealt with the matter in extenso and held that the 'Rasta' provided to the 'Kurrah' of Baljit Singh from Khasra No.1143, 1327, 1332, 1343, 1345/2, 1355/2 was totally wrong because too much land is wasted by doing so; besides, 'Rasta' could have been provided only from one khasra No.1169 to connect his 'Kurrah' to 'Gohar'. The site plan (Annexure P-11) attached with the writ petition by way of CM No.1441 of 2009 shows that there is a passage from the main road from Points A to B through the land of Hukam singh (respondent No.35). To the east of the said passage as shown in site plan (Annexure P-11) is the land of Hukam Singh (respondent No.35) and on the west is the land of Manphool Singh. Indeed quite substantial land is utilized and consumed for the passage which is shown to pass through Khasra Nos.1143, 1327, 1332, 1343 and 1345/2. This would materially

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affect the rights of Hukam Singh (respondent No.35). Besides, there is nothing to show from the revenue records or from the report of the Commissioner appointed by this court that such a passage had been in existence. However, while providing passage from Khasra No.1169 from the land of Santosh Kumar, substantially less land is consumed. Therefore, not much reliance can be placed on the map (Annexure P-11) filed by the petitioner so as to dislodge the conclusion reached at by the revenue authorities. The site plan (Annexure R-1) attached with the written statement would show that providing of this passage through the land of the other owners was quite inappropriate; besides, as a matter of fact, it was found that Baljit Singh (petitioner) had proper approach to his land. The copy of Shijara (Annexure R-2) of village Sudhpur has also been placed on record. The same does not show that there has been any passage to the east of the land of Manphool Singh comprised in khasra Nos.1355, 1346, 1342, 1333, 1326 and 1144 which are adjacent to the land of Hukam Singh (respondent No.35). The site plan prepared by the learned Commissioner of this Court and the photographs taken in respect of the site completely falsify the stand of the petitioner. There was indeed no passage through the aforesaid khasra numbers which the petitioner had been claiming all along. There is no reason whatsoever to any manner doubt the report prepared by the learned Commissioner appointed by this Court. The learned Commissioner having been appointed with the consent of the parties and she having gone to the spot and examined the place and

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taken photographs of the same, it cannot be said that the said report is in any manner factually incorrect. In fact the petitioner by his affidavit dated 17.09.2004 had sought to assail the report by stating that Hukam Singh (respondent No.35) and Ami Singh (respondent No.34) had ploughed the fields in order to destroy the 'Rasta' which was being used by the petitioner for the last 40 years after the division of the land. The learned Commissioner in her report dated 01.09.2004 has categorically held that there did not exist any 'Rasta' or even a pedestrain path at the site rather there is a 'pucca' narrow water passage (khal) which was at the time of her visit dry. The water passage (khal) was an old construction. Even the grass/small bushes did not show that the area in question had been used as a passage for walking etc.; besides, the photographs show that the trees were growing on the passage in dispute. The photographs do not show any fresh ploughing of the passage.

¶109

The order dated 13.02.2003 (Annexure P-7) passed by the Collector, Thanesar (respondent No.3) is a well-reasoned order and revision petition against the same was dismissed vide order dated 19.05.2004 (Annexure P-8) by the Commissioner, Ambala Division, Ambala (respondent No.4). This Court in its exercise of its supervisory writ jurisdiction is not to re-appreciate the evidence and material on record and on that basis dislodge the concurrent findings of facts recorded by the revenue authorities particularly when such findings could have been reasonably arrived and are not shown to be in any manner illegal or perverse. Therefore, the orders dated

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13.02.2003 (Annexure P-7) and dated 19.05.2004 (Annexure P-8) having been validly passed and the same being in conformity with the report of the learned Commissioner appointed by this Court would not warrant any interference by this Court. The position is that the petitioner wanted that he should get a passage to his fields from the main metalled road which passes through the land of Hukam Singh (respondent No.35). In fact there was no passage and the same is not shown to exist from any revenue records even. The giving of the passage in the manner as proposed by the petitioner results in wastage and over utilization of land. The passage now given is in conformity with the mode of partition and has been upheld by the revenue authorities.

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For the foregoing reasons, no ground for interference with the impugned orders is made out and the writ petition is accordingly dismissed.

¶114

In terms of the order dated 25.08.2004 passed by this Court whereby a Commissioner was appointed, the fee of the Commissioner was fixed at Rs.10000/-. It was made clear that which ever of the two parties was found to be incorrect to the averments made, it shall be liable to pay the full fee of the Commissioner and would return half of the fee already paid by the other. Therefore, the petitioner shall pay half of the fees of the Commissioner i.e. Rs.5000/- to the respondent No.35 (Hukam Singh).

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( S.S. SARON ) JUDGE

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14.09.2012 A. Kaundal

Baljit Singh v. State Ofhy.

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Baljit Singh v. State Ofhy.

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