Hari Dass and another vs Nasib Chand alias Nasib Singh

R.C. Kapila, F.C.

This is reference dated the 22nd November, 1979 by the Additional Commissioner, Jullundur Division with the recommendation that the orders of the Tehsildar Nakodar and Collector jullundur may be set aside and the parties may be left to seek their remedy in the civil Court of competent jurisdiction. The facts of the case have been given in the reference which may be read as part of this order.

The counsel for the petitioner supports the reference. He pleads that Hari Dass, Bhag Mal, Nasib Chand and Baru Ram, are four brothers and Naranjan Kaur is wife of Nasib Chand. Bhag Mal and other respondents are living in England. They appointed one Gurbachan dass as their general attorney to look after their property in their absence. Nasib Chand came to India on a casual visit. He and his general attorney Gurbachan Dass, who was also an attorney for petitioner No.2 and respondents No. 2 and 3 reached a settlement for the partition of land along with other property with petitioner No.1 orally in the presence of relations which was later on reduced to writing on 3.3.1977 in the presence of the panchayat of village Qabolwali. According to this deed of family settlement Gurbachan Dass and petitioner No. 1 were authorised to get the entries made in the revenue record. According to the document 30 karams wide strip of land starting from Sohal Khurd Road and upto the end of the land along with a tubewell was given to the respondents and the rest of the land was given to the petitioners. The family partition was given effect to and mutation Nos. 8038, 9517 and 9518 were sanctioned by Assistant Collector IInd Grade on the 22nd June, 1978. Later on the petitioners sold their share of land to M/s Friends Godowns, Nakodar, who have constructed buildings there. He further states that respondent No. 1 filed an application before Assistant Collector IInd Grade, Nakodar who after recording his statement recommended to the Collector for review of the mutations. Counsel contends that partition was made by the general attorney in the presence of all the relations and the Panchayat to which respondent No. 1 was also signatory and now when the petitioners have made improvement on the land and have also sold it to the third party, Nasib Chand made an application to the Tehsildar who after recording his statement recommended review of the mutations and this was illegal and void. He, therefore, pleads that no review was competent and it was recommended much after the period of limitation.

Counsel for the respondents on the other hand pleads that general attorney was not authorised to make partition on the land on their behalf and that he was in Saudi Arabia at the time of making partition. He further pleads that respondents were given inferior land whereas good quality of land was retained by the petitioner. He, therefore, prays that the review already sanctioned by the Collector may be allowed to stand.

I have carefully considered the arguments of the learned counsel and have gone through the record. There is no doubt considerable force in the reasoning of the learned Commissioner that in a partition case where partition has been effected and possession changed and godowns have been constructed by one of the parties, it would be futile to reopen the case through a review of the order and it may be more purposeful if the parties went to the civil Court. However, I am unable to accept the reference for interfering in revision in a case where an officer wished to review the orders of the predecessor after taking due permission from the Collector. For one thing nothing prevents the parties from going to a civil Court if they find it purposeful. Secondly, it is a matter of subjective satisfaction of the officer who wishes to review an order because he feels that he or his predecessor has passed a patently incorrect order. In the present case fraud is alleged and if the officer wishes to review the order he would no doubt do so by hearing both parties and the futility of the litigation and the act of partition having been put through with the consent of all concerned can be urged before him. And finally, interference in revision has to be restricted to cases where there has been grave miscarriage of justice or the procedure being followed has material irregularity or there is want of jurisdiction. interference would not seem to be justified in order to stop an officer from reviewing his orders because it seems to a superior officer that the parties were better advised to approach a civil Court. In the light of this discussion I decline the reference and dismiss the petition.

Announced.

Reference declined. Petition dismissed.