“file Is Presented. Parties Were Called. Respondent and Applicant Are Vs. Financial Commissioner Haryana and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1139561
CourtPunjab and Haryana High Court
Decided OnMay-05-2014
Appellant“file Is Presented. Parties Were Called. Respondent and Applicant Are
RespondentFinancial Commissioner Haryana and Others
Excerpt:
lpa no.722 of 2014 1 in the high court of punjab and haryana at chandigarh lpa no.722 of 2014 date of decision:5.5.2014 maha singh ….appellant versus financial commissioner, haryana and others .....respondents coram: hon'ble mr.justice hemant gupta hon’ble mr.justice fateh deep singh present: mr.jasdev singh mehndiratta, advocate for the appellant. ****** hemant gupta, j.(oral) the present letters patent appeal under clause x of the letters patent is directed against an order passed by learned single bench of this court on 14.04.2014 whereby the challenge to the instrument of partition remained unsuccessful. the mode of partition was sanctioned on 29.10.2002. the assistant collector directed the illaqa girdawar to prepare naksha ‘baa’ in terms of the order of mode of partition. naksha ‘baa’ was prepared and received by the assistant collector on 17.07.2003. the petitioner objected to the proposed naksha ‘baa’ vide his objections (annexure p-3) on 28.08.2003. the said objections were considered by the assistant collector and naksha ‘baa’ modified on 08.08.2005, when the following order was passed:- “file is presented. parties were called. respondent and applicant are present. on the request of the ld. counsel for the applicant, spot inspection was done. objections received on naksha ‘baa’ were considered. objections were heard. the parties have been given share on the road side as per their share. naksha ‘baa’ has been prepared rightly as diwakar gulati 2014.05.09 11:52 i attest to the accuracy and integrity of this document lpa no.722 of 2014 2 per type, share, and the possession. objection raised by respondent regarding naksha ‘baa’ are devoid of merits and the same are dismissed. only killa no.13/1/1 and 18/2 of mustil no.71, has been given to subhash respondent no.1. in the middle of above said both killa numbers.the killa no.13/1/3 of mustil no.71, has also been given to lal singh respondent. but as per spot inspection, killa no.13/1 of mustil no.71 on the north side 26 x 20, subhash, respondent was found to be in possession. adjoining that area, lal singh is in possession. so killa no.18/2 of (1-15) of mustil no.71 is given to subhash be given to lal singh and area of lal singh in killa no.13/1/1 of mustil no.71 be given to subhash respondent. rest of naksha ‘baa’ shall remain same. after partition, the naksha ‘baa’ be called after sending a message to girdawar. the file after preparation of amended naksha ‘baa’ be presented on 29.08.2005.”. consequent to the said order, the instrument of partition was prepared on 07.03.2006. after instrument of partition was prepared, the appellant filed an appeal against the order passed by the assistant collector on 08.08.2005 along with the application for condonation of delay of 22 months in filing an appeal. such application was dismissed by the collector on 07.03.2008. it was found that the naksha ‘baa’ was ordered to be prepared in the presence of the appellant and that there is no explanation of delay in filing of appeal. further revision before the commissioner was dismissed on 14.10.2010 and the second revision on 28.01.2014. such orders were not interfered by the learned single bench. learned counsel for the appellant has vehemently argued that the instrument of partition has been finalized without adhering to the mode of partition sanctioned on 29.10.2002. we do not find any merit in the said argument. the assistant collector has considered the contentions of all the co-sharers and passed an order of preparing an instrument of partition. there is bound to be discontentment amongst the co-sharers whenever an instrument of partition is prepared but the fact that the appellant did not file any appeal for 22 diwakar gulati 2014.05.09 11:52 i attest to the accuracy and integrity of this document lpa no.722 of 2014 3 months shows that he consented to the order of preparing of naksha ‘baa’ but subsequently thought of challenging the order of preparing of instrument of partition. the instrument of partition is in terms of the mode of partition giving equal shares to the co-sharers on the road side. we do not find any illegality in the orders passed by the authorities under the act which may warrant interference in the present letters patent appeal. dismissed. (hemant gupta) judge may5 2014 (fateh deep singh) ‘d. gulati’ judge diwakar gulati 2014.05.09 11:52 i attest to the accuracy and integrity of this document
Judgment:

LPA No.722 of 2014 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No.722 of 2014 Date of decision:5.5.2014 Maha Singh ….Appellant VERSUS Financial Commissioner, Haryana and others .....Respondents CORAM: HON'BLE Mr.JUSTICE HEMANT GUPTA HON’BLE Mr.JUSTICE FATEH DEEP SINGH Present: Mr.Jasdev Singh Mehndiratta, Advocate for the appellant.

****** HEMANT GUPTA, J.(Oral) The present Letters Patent Appeal under Clause X of the Letters Patent is directed against an order passed by learned Single Bench of this Court on 14.04.2014 whereby the challenge to the Instrument of partition remained unsuccessful.

The mode of partition was sanctioned on 29.10.2002.

The Assistant Collector directed the Illaqa Girdawar to prepare Naksha ‘baa’ in terms of the order of mode of partition.

Naksha ‘baa’ was prepared and received by the Assistant Collector on 17.07.2003.

The petitioner objected to the proposed Naksha ‘baa’ vide his objections (Annexure P-3) on 28.08.2003.

The said objections were considered by the Assistant Collector and Naksha ‘baa’ modified on 08.08.2005, when the following order was passed:- “File is presented.

Parties were called.

Respondent and applicant are present.

On the request of the Ld.

Counsel for the applicant, spot inspection was done.

Objections received on Naksha ‘baa’ were considered.

Objections were heard.

The parties have been given share on the road side as per their share.

Naksha ‘baa’ has been prepared rightly as Diwakar Gulati 2014.05.09 11:52 I attest to the accuracy and integrity of this document LPA No.722 of 2014 2 per type, share, and the possession.

Objection raised by respondent regarding Naksha ‘baa’ are devoid of merits and the same are dismissed.

Only killa No.13/1/1 and 18/2 of Mustil No.71, has been given to Subhash respondent No.1.

In the middle of above said both Killa numbeRs.the Killa No.13/1/3 of Mustil No.71, has also been given to Lal Singh respondent.

But as per spot inspection, Killa No.13/1 of Mustil No.71 on the north side 26 x 20, Subhash, respondent was found to be in possession.

Adjoining that area, Lal Singh is in possession.

So Killa No.18/2 of (1-15) of mustil No.71 is given to Subhash be given to Lal Singh and area of Lal Singh in Killa No.13/1/1 of Mustil No.71 be given to Subhash respondent.

Rest of Naksha ‘baa’ shall remain same.

After partition, the naksha ‘baa’ be called after sending a message to girdawar.

The file after preparation of amended naksha ‘baa’ be presented on 29.08.2005.”

.

Consequent to the said order, the Instrument of partition was prepared on 07.03.2006.

After Instrument of partition was prepared, the appellant filed an appeal against the order passed by the Assistant Collector on 08.08.2005 along with the application for condonation of delay of 22 months in filing an appeal.

Such application was dismissed by the Collector on 07.03.2008.

It was found that the Naksha ‘baa’ was ordered to be prepared in the presence of the appellant and that there is no explanation of delay in filing of appeal.

Further revision before the Commissioner was dismissed on 14.10.2010 and the second revision on 28.01.2014.

Such orders were not interfered by the learned Single Bench.

Learned counsel for the appellant has vehemently argued that the Instrument of partition has been finalized without adhering to the mode of partition sanctioned on 29.10.2002.

We do not find any merit in the said argument.

The Assistant Collector has considered the contentions of all the co-sharers and passed an order of preparing an Instrument of partition.

There is bound to be discontentment amongst the co-sharers whenever an Instrument of partition is prepared but the fact that the appellant did not file any appeal for 22 Diwakar Gulati 2014.05.09 11:52 I attest to the accuracy and integrity of this document LPA No.722 of 2014 3 months shows that he consented to the order of preparing of Naksha ‘baa’ but subsequently thought of challenging the order of preparing of Instrument of partition.

The Instrument of partition is in terms of the mode of partition giving equal shares to the co-sharers on the road side.

We do not find any illegality in the orders passed by the authorities under the Act which may warrant interference in the present Letters Patent Appeal.

Dismissed.

(HEMANT GUPTA) JUDGE MAY5 2014 (FATEH DEEP SINGH) ‘D.

Gulati’ JUDGE Diwakar Gulati 2014.05.09 11:52 I attest to the accuracy and integrity of this document