CHHOTA SINGH Vs. JANG SINGH

JUDGEMENT

(1.) THE present is a revision petition under Section 16 of the Punjab Land Revenue Act, 1887, against the order dated 18.3.1996, passed by the Commissioner (Appeals), Patiala Division, Patiala, in a case of partition of agricultural land.

(2.) THE facts of this case are that, Chhota Singh s/o Marru Singh of village Khetla, Tehsil Sunam, District Sangrur, had applied to the A.C. Ist Grade, Sunam, on 9.11.1989, for the separation of his share, from out of the joint- land, owned by the applicant alongwith Jang Singh and Jarnail Singh - his brothers and Surjit Kaur - sister, measuring 196 kanals 8 marlas, as per the Jamabandi for the year 1986-87. 'Mode of Partition' was decided on 16.4.1990; and the A.C. Ist Grade, Sunam, after completing the partition had prepared the 'Instrument of Partition' on 27.6.1990. Against this order, Jang Singh s/o Marru Singh had filed an appeal before the Sub-Divisional Collector, Sunam, on 11.9.1990, which was accepted vide Collector's order dated 28.1.1991, as per which order of the A.C. Ist Grade dated 27.6.1990, was set aside and the case was remanded to the Tehsildar-cum-A.C. Ist Grade, Sunam. In compliance of this remand order, the A.C. Ist Grade, Sunam, had prepared the 'Mode of Partition'on 10.6.1991. Thereafter, with the orders of the District Collector, Sangrur dated 21.10.1992, this case was transferred to the D.O.R.G.-cum- A.C.lst Grade, Sangrur. On 11.6.92, Surjit Kaur d/o Marru Singh, a co-sharer in the joint-land, had submitted an application to the A.C. Ist Grade, Sunam with a request, that her 1/4 share in the joint-land be set apart in a separate Tak. After following the prescribed procedure, D.O.R.G.-cum-A.C. Ist Grade, Sangrur, had approved 'Naksha Bay' vide his order dated 3.5.1993. Thereafter, 'Naksha Zeem' was approved on 17.5.1993 and the 'Instrument of Partition' was also drawn up on the said date. Against the order dated 3.5.1993, passed by the D.O.R.G.-cum-A.C. Ist Grade Sangrur, vide which 'Naksha Bay' was approved, Jang Singh and Jarnail Singh, had filed an appeal on 28.6.1993, before the Sub-Divisional Collector, Sunam, which was accepted vide Collector's order dated 27.10.1993, as per which the order of the A.C. Ist Grade, dated 3.5.1993, was set aside and the case was remanded with a direction, that, 'Naksha Bay' be prepared afresh, in accordance with the approved 'Mode of Partition'. Aggrieved by this order, Chhota Singh had filed an appeal before the Commissioner (Appeals), Patiala Division, Patiala, which was rejected vide order dated 18.3.1996. The operative part of this order reads as follows :-

(3.) THE issue regarding the 'Mode of Partition' in this case, deserves special comments. As mentioned earlier, the 'Mode of Partition' was decided twice, firstly on 16.4.1990 and for the second time on 10.6.1991. As per clause No. 5 of the 'Mode of Partition', decided on 16.4.1990 and as per clause No. 3 of the 'Mode of Partition', approved on 10.6.1991, 1/4 share of the joint-land falling to the share of Surjit Kaur, was to be apportioned equally amongst her three brothers namely; Jang Singh, Jarnail Singh and Chhota Singh, as per the statement made by her abdicating her share. But legally, she was not competent to relinquish and abdicate her share in the joint-land in favour of her brothers in this fashion; because, the Transfer of Property Act, 1882 does not permit alienation of any immovable property in this way. Thus, this clause in both the 'Mode of Partition' was not legally sound; and, the Revenue Officer, approving the 'Mode of Partition' should have taken judicious note of it and should not have allowed the inclusion of such a clause, while approving the 'Mode of Partition'. Any clause in the 'Mode of Partition', which does not satisfy the parameters of legality or propriety, cannot form a part of the 'Mode of Partition'. This clause in the 'Mode of Partition', being illegal and ultra vires of express law, is to be treated as a nullity. Moreover, Surjit Kaur had changed her mind to give her share in the joint-property to her other three brothers and had asked for setting up of a separate Tak of land, falling to her share, as per her application dated 11.6.1992 (wrongly mentioned as 16.6.1992 in the present revision petition). The D.O.R.G.-cum-A.C. Ist Grade, Sangrur, had rightly taken cognizance of this application and had rightly approved the 'Naksha Bay', vide his order dated 3.5.1993, by ordering the partition of land amongst all the co-sharers by setting up separate Taks. But, the Collector, Sunam, had passed totally an untenable order dated 27.10.93, by setting aside the order dated 3.5.1993 and by directing the preparation of 'Naksha Bay' afresh, in accordance with the approved 'Mode of Partition', besides the other grounds mentioned in paras supra. As mentioned earlier, the ld. Commissioner (Appeals), had wrongly rejected the appeal filed by Chhota Singh, against the Collector's untenable order dated 27.10.1993, by passing yet another untenable, unsustainable and illegal order, by concluding "that 'Sanad Takseem' needs to be prepared in the names of three brothers only and not in favour of four co-sharers in the joint-land."