Kiran Dev Singh vs Dhanvir Singh

B.K. Srivastava, FC.

This revision petition assails orders dated 8.11.2004 and 22.11.2004 vide which ACI, Dera Bassi, District Patiala approved table B (Naksha Aira) and table C (Naksha Iri) respectively in a portion which started in 1964 on the application of Arjun Singh, grandfather of the present petitioner. These orders were upheld by the Collector/SDM on 28.2.2005 and the Divisional Commissioner on 18.5.2005. The petitioner has said that his uncle Dhanvir Singh, one of the respondents, got a portion of his land through a collusive decree passed in his favour with the consent of the petitioner's power of attorney holder, Chet Kaur, his grandmother whose power of attorney he had cancelled long ago. His contention is that there is a question of title as he has filed a civil suit for setting aside the collusive decree but this plea was not treated properly by the ACI, Collector and Commissioner, all of whom rejected this plea on a wrong ground that the question of title had already been decided upto the Supreme Court whereas the Supreme Court's decision was in relation to claim of tenants to ownership on the plea of occupancy tenancy, not this question of title between him and Dhanvir Singh with reference to the collusive decree.

While this is true that the Supreme Court's decision related to the proprietory claim of the tenants, partition cannot be stopped on the aforesaid plea of collusive decree because it is not the stage for entertaining such a plea. The plea to stop partition on question of title is to be raised at the very beginning of partition proceedings so that it is seen whether the co sharer seeking partition had no interest in the property to entitle him to seek partition. Here that is not the case at all. The case before the ACI was in the stage of final partition whereby he confirmed Naksha Aira, being in conformity with the mode of partition.

This land comprising of 1018 Bighas and 5 Biswas belonged to Mehma Singh whose five sons and further grandsons constituted the body of cosharers plus certain vendees to whom some of the cosharers had sold the land in the meanwhile. Arjun Singh, grandfather of the present petitioner, Kiran Dev Singh, had moved partition application. His share was inherited in equal part by Kiran Dev Singh, the grandson and Dhanvir Singh, the son. Partition of such as judge property, coshared by large number of persons cannot be stopped on question of title at this stage. There may arise many disputes among the co sharers after partition proceedings are taken up, but on each such objection partition proceedings cannot be stopped. If it is allowed to be done so, partition will never fructify. In subsequent disputes, resettlement of ownership arising from litigation will affect the concerned parties, but on that reason, partition proceedings cannot be stalled.

The question of title can be entertained at initial stage only. In the instant case the aforesaid collusive decree is dated 29.7.95 and the civil suit was filed against this by the petitioner on 12.6.02 after 7 years, whereas partition proceedings were started in 1964. Moreover, the land in question pertains only to a part (32 Bighas) of the share belonging to the original applicant for partition namely Arjun Singh who was one of the five sons of the original owners Mehma Singh. His share was 1/5th of 1018 bighas.

The entire land comprises of two portions, 715 Bighas in cultivation of cosharers plus 324 Bighas which is under tenancy. The tenants over the second portion had earlier claimed ownership on account of occupancy rights but they failed. Partition application was originally made for 715 Bighas, but later, on an objection of certain parties, Mr. Fletcher, Financial Commissioner remanded it vide his order dated 9.3.68 that the entire land including portion under tenancy be subjected to the partition. After this remand order the case was restarted, but it was later dismissed in default. It was restored about 10 years later by the Financial Commissioner Sh. A.S. Pooni. The case again came up to the Financial Commissioner Appeals, Mrs. Rupal Deol Bajaj for adjudication against orders dated 27.9.95, 28.8.96 and 23.5.98 of ACI, Collector and Commissioner respectively regarding Naksha Urha and mode of partition. She dismissed the petition vide order dated 23.9.02 describing in 15 pages chequered history of this partition case. The case went back to ACI who passed Naksha Aira after taking objections etc. but certain parties again travelled upto Financial Commissioner via the prescribed appellate route of Collector and Commissioner on the plea that they were not provided with Naksha Aira. The case was remanded by Smt. Asha Attri, Financial Commissioner with the direction that Nakha Aira be provided to them and objections be taken afresh. The same was done and now Kiran Dev Singh, petitioner has come up with the present petition against the concurrent findings of ACI, Collector and Commissioner with the main plea of the aforesaid question of title.

All though the arguments, question of title was pleaded by the counsel for the petitioner emphasizing that it would materially prejudice his rights and interests while the counsels for the other party said that the chequered history of litigation was at the behest of the tenants who brought up litigation in one form or the other to prevent partition so that they continued to enjoy their tenancy. They had also tried their best to claim occupancy rights which was rejected upto the Supreme Court. Mr. Mittal, counsel for Dhanvir Singh said that he was arguing on behalf of all the landowners. He opposed petitioner's objections maintaining that the petition was actually a proxy petition on behalf of the tenants to stall the partition. A letter of petitioner, Kiran Dev Singh, was shown vide which he had expressed desire to give his remaining land to the tenants rather than let if go to his uncle. The petitioner is an NRI settled in Spain and this petition has been filed on his behalf by his present power of attorney holder, Faqir Chand who is one of the tenants.

Many things were said from either side on the disputed point of cancellation of power of attorney by Kiran Dev Singh, petitioner which was made in favour of his grandmother Chet Kaur whose consent enabled his uncle Dhanvir Singh to get the collusive decree. The controversy on facts relating to cancellation of power of attorney, notice of cancellation, long delay in institution of civil suit against the collusive decree, nonembossing of his earlier power of attorney as per the rules, Kiran Dev Singh's earlier defeat in the civil suit which he lost against the present respondent Dhanvir Singh in specific performance of an agreement in which civil Court had held that there was no proof of a valid or proper concellation of power of attorney made by Kiran Dev Singh in favour of his grandmother Chet Kaur etc. these are of title relevance before me because it is for the civil Court to examine and adjudicate the collusive decree. The question before me is whether the question of title raised by the petitioner on the basis of collusive decree and institution of civil suit by him in the year 2002 should stop the partition proceedings at this stage.

As I have already observed, it is no stage for stoppage of partition on the plea of aforesaid question of title. On other issues raised by the petitioner, I must say that these are frivolous and have already been dealt properly by the Collector in his order dated 28.2.2005. I have perused petitioner's grounds of appeal before the Collector and those in the present revision petition which are identical. His other arguments are that while the original application was for partition of 715 Bighas, ACI dealt with partition of 1018 Bighas 5 Biswas. It has already been explained that the remaining land of the cosharers (324 Bighas under tenancy) was included on the direction of Financial Commissioner Mr. Fletcher in 1968 on the plea that the entire holding should be subjected to partition. The petitioner's other objections such as those in Paras 7 and 9 of grounds of appeal before the Collector are too vague and frivolous. He had also pointed out certain small errors in calculation which the Collector clarified that they were very small errors which occurred in calculation and should be corrected while issuing the certificate of partition. ACI may ensure this.

Nothing relevant or of substance was raised before me on petitioner's behalf to show how table B (Naksha Aira) was against the Mode of Partition or how its approval was wrong. These are relevant aspects in assailing approval of Naksha Aira. The matter before the ACI in the impugned order was the re approval of Naksha Aira after the remand order of Mrs. Asha Attri. Neither the Naksha Aira nor the Naksha Iri was placed before me by the petitioner. In the absence of anything to bring out incongruity between the approach spelt out in the MOP and the Naksha Aira, no need was felt to examine the MOP or the Naksha Aira. So far as Naksha Iri is concerned that was not in the picture at all either during the arguments or in the ground of revision, although the order dated 22.11.04 vide which Naksha Iri was passed is also impugned alongwith the main speaking order dated 8.11.01 vide which Naksha Aira was approved. It is this order which is actually assailed and argued upon because once this order approving Naksha Aira is disallowed, Naksha Iri would become irrelevant. The order passing Naksha Iri is a small four lines order.

I had to hear this case on day to day basis in three sittings because the counsel for the respondent who appeared as a caveater opposed admission of the petition and grant of stay, while on the other hand, petitioner pressed for stay, admission and consideration of the case after getting lower Court file. As already mentioned, the petitioner appeared to be a proxy for the tenants who were fearing dispossession. In the last hearing dated 14th June, one Smt. Daljit Kaur, advocate also joined. She said that she was one of the successorsininterest of original landowners. She was also heard. During arguments, petitioner's counsel. Mr. Bawa was supplemented by Mr. Saini, advocate, who had appeared before the Commissioner and was interested in the tenants.

In view of the above reasons I do not find any merit in this revision petition. The petition is in final stage with the passage of Naksha Aira. Many cosharers and the vendees including Dhanvir Singh, the main respondent were, present during the argument. They were allowed to speak from time to time. While they were impatient to take possession of the land as per the partition, some of the tenants who were also present and were represented in proxy by the petitioner were interested in retaining their possession. This scenario gave me an impression as if the cosharers and tenants had assumed that tenant's possession was liable to be taken over by the cosharers/owners in the course of implementation of partition order but this is not the correct legal position. I must clarify that the Punjab Security of Land Tenure Act, 1953/Pepsu Tenancy and Agricultural Land Act, 1955 protect tenancies which cannot be trampled upon in the garb of partition order. Partition order is merely a division of ownership of cosharers and it cannot adversely affect the tenancies; and to the extent it does, it is illegal.

The partition was done in two chunks of land one without tenancy (715 bighas) and the other chunk of 324 bighas and 15 biswas under tenancy which were clubbed together as per Mr. Fletcher's remand order of 1968. None of the cosharers/owners ever raised any objection or controversy at any such stage or before the lower Courts regarding allocation of land to cosharers between these two types. Vendees who have become owners do not get better title than their vendors. Even though some of the tenants purchased a portion of shares of owner/cosharers and became thereby cosharers to that extent, their tenancies did not cease with respect to the remaining land under their tenancy. The argument that cosharer cannot be a tenant qua other cosharer is not applicable here. This argument applies to a situation where in joint holding one cosharer cultivates the entire land on behalf of other co sharers, as happens amongst brothers or cosharers in joint family system where a cosharer who cultivates the land in excess of his share is prohibited to claim tenancy over this excess portion qua the other cosharers. Here the tenants have remained tenants since a very long time and even if they purchased certain portion of land belonging to the cosharers, the tenancy over the remaining land remains intact and that cannot be taken away due to the provisions of the aforesaid Punjab or Pepsu Act, as the case may be.

Persons who have been so far shown as Gair Marusi (tenants) shall continue to be shown as such in the record of rights unaffected. This is the legal consequence of the aforesaid protenancy laws. A partition order cannot extinguish tenancy rights in the records or on the ground. Alteration in specific location of tenancies could be possibly made if either the cosharers agreed to it or the ACI adjudicated it so after making a provision to that effect in the Mode of Partition, in either case with the consent of the tenants. Unlike the Consolidation Act where its Section 25 creates a statutory compulsion to direct the tenancies to follow the owners in readjustment, in a partition case under Land Revenue Act, location of tenancies cannot be disturbed without their consent. It is clear position of law, vide Section 4(7) of Punjab Tenancy Act 1887, that the term tenant and landlord include the predecessors and successors in interest. Therefore, the tenants remain tenants under whosoever receives ownership of the land.

With the above observations I reject the revision petition with a clarification that tenants are not to be dispossessed except in due course of law.

Announced.