Thoru Ram vs State Of Jammu & Kashmir And Others

Heard.

The case of the petitioner is that the father of the petitioner, namely, Kapoora Ram and the grandfather of respondent No. 3, namely, Santuwere real brothers and they were in cultivating possession of the land falling under Khasra Nos. 2707-min (03K), 2713-min (05K 09M), 3704 (05K 05M) and 3705 (01K 07M) situated at village Bhalwal, Tehsil, Bhalwal and by operation of law, they had become the owners in possession of the aforesaid land and besides this, they were also allottee of the Evacuee land falling under Khasra Nos. 2782 (10K 03M), 2785 (05K), 2783 (01K)and 2786 (09K 01M) situated at village Bhalwal, Tehsil, Bhalwal and during their life time, a partition had taken place inter se between them and by way of an oral partition, the land measuring 08 Kanals 09 Marlas falling under Khasra Nos. 2702-min and 2713-min situated at village Bhalwal along with land measuring 02 Kanals under Khasra Nos. 3704 and 3705 along with evacuee land falling under Khasra Nos. 2782, 2783, 2785 and 2786 had come in the share of the grandfather of respondent No. 3, namely, Santu and both had settled in the respective portion and started cultivating their share which had come by way of partition.

It is stated that the grandfather of respondent No. 3 had died and survived by his son, namely, PrabhDayal, the only son and after the death of PrabhDayal, he was survived by four sons, two daughters and widow whereas father of the petitioner was survived by the petitioner and his brother, namely, Chuni Lal and after the death of Chuni Lal, he was survived by his wife, namely, Padma Devi and Padma Devi had also died issueless, therefore, the share of the brother of the petitioner had also devolved upon the petitioner and the petitioner had become the owner in possession of the land measuring 08 Kanals 09 Marlas falling under Khasra Nos. 2707-min and 2713-min situated at revenue village Bhalwal and land measuring 02 Kanals falling under Khasra Nos. 3704 and 3705 situated at revenue village Bhalwal whereas the respondent No. 3 along with his brothers, sisters and mother had become owners in possession of the land measuring 04 Kanals 12 Marlas falling under Khasra Nos. 3704 and 3705 and beside this, they have also become allottees in possession of land falling under Khasra Nos. 2782, 2783, 2785 and 2786. The value of the land retained by grandfather of respondent No. 3 is more as compared to the land retained by the father of the petitioner and father of the petitioner had surrendered his right qua the evacuee property falling under Khasra Nos. 2782, 2783, 2785 and 2786 and in lieu thereof, the grandfather of the respondent No. 3, namely, Santu had surrendered his right qua the land measuring 02 Kanals 10 Marlas out of the land which was jointly owned by them, therefore, during the lifetime and after the death of the grandfather of respondent No. 3, the father of respondent No. 3, namely, PrabhDayal, who was the only son of Santu co-sharer had not filed any petition for partition of the land and has accepted the oral partition as true and correct because grandfather of respondent No. 3, namely, Santu and father of the petitioner, namely, Kapoora had settled in their respective sharers after the oral partition. It is not out of place to mention here that respondent No. 3, who is working as village Chowkidar with the Tehsildar, Bhalwal in his office, has moved a false and frivolous application on 10.12.2016 before the Tehsildar Bhalwal for partition of the land falling under Khasra Nos. 2713 and 2707 of village Bhalwal, Tehsil Bhalwal without impleading the petitioner as party respondent in the application and despite the fact that for effecting partition of the land, a proper petition is required to be moved before the Court, i.e., Court of Assistant Collector 1st Class, Bhalwal and it should be verified in accordance with the Code of Civil Procedure despite the fact that it was not filed in accordance with law.

It is further stated that Tehsildar, Bhalwal on 13.12.2016 had taken cognizance of the application moved by respondent No. 3 without adhering to the procedure prescribed under law and had directed the Patwari Halqua and Girdawar concerned to verify and submit the report under rules and pursuant to the order of the Tehsildar as well as Naib-Tehsildar, report was prepared and submit without affording an opportunity of being heard to the petitioner and thereafter petitioner had received a notice from respondent No. 2 and after receiving notice, the petitioner has filed a detailed objections to the aforesaid application challenging the maintainability of the application on various grounds. The petitioner has filed the objections in August, 2017 and had challenged the maintainability of the application moved by respondent No. 3 for effecting the partition inter alia on various grounds but the Tehsildar instead of deciding the application and objections raised by the petitioner had tried the same and had also kept pending petition without deciding it expeditiously and no next date had been given to the petitioner.

It is further stated that petitioner is more than 85 years of age and is also physically handicapped and visiting the office of the Tehsildar (Assistant Collector 1st Class), Bhalwal time and again in order to know the fate of his case but the Tehsildar, Bhalwal-respondent No. 2 herein is sitting over the matter and had not decided the same for the reasons best known to him and even the matter is kept pending without deciding the same and without fixing the next date in it and only to oblige respondent No. 3, who is working with respondent No. 2 as Chowkidar. As per the Jammu and Kashmir Partition Rules, 1970, an application for partition under Section 105 of the Land Revenue Act should be accompanied by an extract from the last Jamabandi together with a copy of decree or mutation whereby the entry of the applicant as co-sharer has been ordered since the Jamabandi was prepared and as per Section 107 of the Land Revenue Act, a notice of the application can only be issued if the application is in order and is not open to objections on the face of it. Since the respondent No. 3 has moved an application without impleading the petitioner as respondent and also without impleading his brother, sisters and mother as party petitioners or proforma-respondents and moreover, the application was not accompanied by the revenue extract, therefore, application was not in order and on the fact of it, it was open to objections thus, no cognizance of the application could be taken and no notice was required to be issued to the petitioner but despite that Tehsildar has taken the cognizance of the application and put the petitioner to notice and beside this, there was private partition and the applicant/respondent No. 3 herein was out of possession, thus, the partition application was not maintainable but till date, the maintainability of the application is not decided and by doing so, the Tehsildar, who is a public authority, has failed to discharge his lawful duty and it has caused a grave injustice to the petitioner, thus, the command is required to be issued as prayed for especially when right to speedy and fair trial is a fundamental right. The Tehsildar, Bhalwal by not deciding the application expeditiously and also by not deciding the objections raised by the petitioner to the maintainability of the application moved by respondent No. 3 before respondent No. 2, had failed to exercise the jurisdiction vested in it and by doing so, a failure of justice has been caused to the petitioner and moreover, respondent No. 2 is bound by law to decide the matter expeditiously in accordance with law particularly the maintainability of the application before proceedings further in the matter but respondent No. 2 without any reason had failed to decide the same only to oblige respondent No. 3, thus, a direction is required to be issued to respondent No. 2 to decide the maintainability of the application of respondent No. 3 filed for effecting partition of the land in a time bound manner or the application itself in a time bound manner especially when the Tehsildar has failed to discharge his lawful duty of deciding the preliminary objections of maintainability of the application of respondent No. 3.

After arguing for a while, learned counsel for the petitioner has stated that petitioner would be satisfied, if respondent No. 2 is directed to decide the petition within some stipulated time. His submission is taken on record. There is no legal impediment in granting such relief.

In view of the submissions made, this petition is disposed of with a direction to respondent No. 2-Tehsildar (Assistant Collector 1st Class), Bhalwal to decide the application/petition moved by respondent No. 3 within four weeks from the date of receipt of copy of this order.

Disposed of.