Kishna alias Kishan Singh vs Mata Din and Others

Dulat and Grover, JJ.—In this appeal under clause 10 of the Letters Patent it is common ground that after the findings which have been recorded by the Courts below, the only question which requires determination and which has been urged before us is whether Partition Commissioner under the Patiala & East Punjab States Union Abolition of Biswedari Ordinance, 2006 Bk. (to be called the Ordinance) can determine disputes relating to title inter se between occupancy tenants. The facts are not in dispute and are set out fully in the judgment of the learned Single Judge and need not be recapitulated. It would suffice to mention that by virtue of a decree passed in favour of the appellant on 8 Poh 1989 Bk. he was held to be entitled to one-third share of land consisting of two parcels measuring 128 bighas 7 biswas and 17 bighas 5 biswas. There was another disputed property which was land measuring 146 bighas 4 biswas but that was, according to the finding given by the leaned District Judge, not the subject-matter of litigation nor did it form a part of the property in respect of which the aforesaid decree was granted. Subsequently, however, the Partition Commissioner appointed under the Ordinance sanctioned mutations in respect of that land also in favour of the appellant Kishna and Mata Din in proportion of one third and two third shares.

According to the appellant, the Partition Commissioner appointed under the Ordinance had the power and the jurisdiction to determine the rights, title and interest not only of the landlords and the occupancy tenants but also of the occupancy tenants inter se and thus the entries made pursuant to the orders of the Partition Commissioner were final. In the suit of which the present appeal has arisen, the claim of Kishna was based on those entries.

After considering the relevant provisions of the Ordinance, the learned Single Judge came to the conclusion that the Partition Commissioner was not competent to deal with a dispute inter se between the occupancy tenants. The preamble states that a machinery is being set up for settling all disputes between occupancy tenants and landlords. Clauses (f) and (h) of Section 2(1) define the words "holding" and "Landlord" respectively. Section 8(1) provides that the Partition Commissioner shall enquire and determine whether or not any holding in any village or estate is a holding within the meaning of the Ordinance. Sub section (2) provides that before holding the enquiry the Partition Commissioner shall cause to be published in the village or estate a notice requiring all persons whether as landlords or occupancy tenants or otherwise claiming an interest in the said holding to file before him a statement of their interests, According to sub-section (3), the Partition Commissioner has to hear the parties and give his decision in writing. Section 9 makes it quite clear that the Partition Commissioner has to determine and declare the respective shares of the landlord and the occupancy tenant in the holding in the manner indicated in the section. Section 10 gives an option to the occupancy tenant to acquire the share of the landlord. According to section 12, where the occupancy tenant elects to purchase the landlord''s share of the holding the Partition Commissioner has to determine the amount of compensation payable to the landlord.

The learned counsel for the appellant has relied largely on sub-section (2) of section 8 and has pointed out that all the parties interested apart from the landlord or the occupancy tenant have to be given a notice and the Partition Commissioner has to hear them as provided by sub-section (3) of section 8 before giving any decision about the holding.

It is further pointed on that according to the other provisions contained in the Ordinance, the decision of the Partition Commissioner subject to any decision by the appellate authority, namely, the Financial Commissioner; would be final. But the declaration of shares is to be made u/s 9 and that provides only for declaration of shares of occupancy tenant and landlord in a holding. There is no provision in the Ordinance which confers any power on the Partition Commissioner or the Financial Commissioner on appeal to fix the shares or adjudicate upon the rights, title and interest of the occupancy tenants inter se, if there is a dispute between them. It is not possible, therefore, to accede to the contention of the learned counsel for the appellant that merely because the parties other than the landlord and the occupancy tenant had to be heard u/s 8 by the Partition Commissioner for giving a decision with regard to a holding which is defined by section 2(1)(f) to mean a share or portion of an estate held by one landlord or jointly by two or more such landlords, the Partition Commissioner was given the power to decide dispute relating to title between the occupancy tenants inter se. There seems to be no error whatsoever in the decision given by the learned Single Judge on the aforesaid point.

In the result, the appeal is dismissed but in the circumstances the parties are left to bear their own costs.