Dewan Singh etc. vs Bur Singh etc.

J. P. Guta, F.C.

This is a revision petition under Section 16 of the Punjab Land Revenue Act against the order of learned Additional Commissioner dated 28th December, 1979 whereby he dismissed appeal against the order of the Collector.

The brief facts of the case have been incorporated in para 2 of the impugned order and are not being repeated.

The appellants (now petitioners) took the plea before the learned Additional Commissioner that the land in dispute comprised in two blocks, one near the village and the other on the Khal. Although the land at both the places is Chahi and Barani yet the value of land at these two places differs. The Chahi land near village is of higher value than that of Chahi land situated near the Khal. In the revision petition the petitioners have by and large taken the same pleas as taken before the learned Commissioner and prayed that modification in the order of Assistant Collector Grade I, Gurdaspur dated 16th June, 1977 by the Collector has given an undue advantage to the respondents and that the Commissioner has erred in dismissing the appeal.

The Collector vide his order dated 14th August, 1978, amended the scheme for partition as follows :

"Every cosharer will be allowed to retain possession of the land according to the quality of land he is entitled to get. The land in question is of two kinds and every cosharer will be given land according to the share in both kinds of land."

The learned counsel for the petitioner pleaded that partition should be blockwise, keeping in view the quality of land, on 50 : 50 basis including the land near "abadi". As held in 1941 LLT 21, land near abadi becomes valuable as it can be used even for building purposes and its advantage should not accrue to only one of the cosharers who happens to be in possession of it but the advantage should accrue to the entire proprietary body. He further stated that the land in dispute is of two kinds i.e. Chahi and Barani and both kinds of land are situated in both the blocks. The counsel for the petitioners argued that Chattar Singh sold onehalf of joint khewat to Bur Singh and Dalbir Singh as a matter of right but this right is subject to the right of other cosharers and it would remain so even after the transfer, as held in 1971 PLJ 656. Joginder Singh, the other cosharer had sold onehalf of joint holding to one Diwan Singh and Hardev Singh but without passing possession of any specific area to them as the land was in cultivating possession of the respondents. He further submitted that if a cosharer is in possession of land, it is deemed to be in possession of other cosharers till land is partitioned, as held in 1977 PLJ 346. He pointed out that the plea taken by the respondents that they had made improvements in the land by levelling etc. cannot be thrust upon the other cosharers. This can be done only with the consent of the other cosharers, as held in 1974 PLJ 45. He, therefore, prayed that the finding of learned Commissioner may be overruled and the order passed by Assistant Collector Grade I on 16th June, 1977 upheld.

The learned counsel for respondents submitted that the land stands divided through a private partition and that is why Chattar Singh sold specific Khasra numbers; and referred to 1939 LLT 10, wherein it is held that question of title is involved when there is a private partition. The perusal of the record does not prove partition between Chattar Singh and Joginder Singh, the original landowners except the one which is in conveyance deed according to which the former sold specific Khasra numbers. No other point was urged by the counsel for the respondent except a request to uphold the order of the learned Additional Commissioner.

I have heard the learned counsel for the parties and gone through the record carefully. There is no doubt that the benefit in the incremental value of the land near abadi has to go to all the cosharers. In addition, the partition should be blockwise keeping in view the quality of land in each case. Also, there is no question of benefit being given for an improvement to a cosharer without the consent of other cosharers. The mere fact that vendees of Chattar Singh are in possession of the land, cannot put the vendees of Joginder Singh to a disadvantage. The plea of the respondent that private partition has already taken place, is without any substance and therefore cannot be taken note of, as the socalled private partition has not found its way in the revenue record. As a consequence of this discussion, I accept the revision and remand the case to the Assistant Collector Grade I, Gurdaspur to prepare a fresh scheme for partition in the light of above observations.

To be communicated.