Sohan Lal Vs. Financial Commissioner (Appeals), Punjab at Chandigarh and Others - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - sarin made an unequivocal offer at the outset that if the petitioner was not satisfied with the piece of land which has fallen to his share, he may exchange it with that of the respondent. 4, the averment of the petitioner that the assistant collector did not offer any opportunity to the petitioner to file objections, has been clearly denied. the learned commissioner had recommended the acceptance of the revision petition but the financial commissioner had erroneously rejected the recommendation with a slight modification in the order. firstly, if the petitioner was not satisfied with the partition of the land as proposed by the field staff, heshould have raised objections before the assistant collector, he did not do so. they are on the spot and are in a better position to appreciate the existence situation.order1. the dispute between the two brothers (the petitioner and respondent no. 4) is over a trifle. it relates to the partition of a piece of land. the claim of the petitioner has been rejected by the assisiant collector grade i, the collector and even the financial commissioner. aggrieved by these orders, the petitioner has filed this writ petition and challenged the findings recorded by the revenue authorities. a few facts may be noticed.2. on an aplication for partition of the land measuring about 53 kanals, the assistant collector sanctioned the mode of partition and sent the papers to the girdawar for preparation of the necessary documents. the petitioner and the respondent were given opportunity to file objections. none were filed. vide order dated january 10, 1989 fa copy of the order is at annexure p-2), the assistant collector recorded that the parties have stated that they have verified the papers to be correct and requested for acceptance of the same. so in the absence of any objection, the partition is accepted. feeling aggrieved by the order, the petitioner filed an appeal before the collector. it was rejected vide order dated june, 12, 1989, a copy of whichhas been produced as annexure p-3 with the writ petition. he filed a revision petition before the commissioner (appeals), jalan-dhar division, jalandhar. the commissioner made a recommendation to the financial commissioner for acceptance of the revision petition. however, vide order dated april 15, 1991, the financial commissioner held that 'the petitioner will get 1 karam more out of khasra no. 927 than the area ordered by a.c. ist'. with this modification, the revision petition was declined. aggrieved by this order, the petitioner has approached this court through the present writ petition. the orders passed by the various revenue authorities have been challenged as being in violation of the accepted mode of partition and the agreement arrived at between the parties.3. in the written statement filed on behalf of respondent no. 4 certain preliminary objections have been raised. the averments made in the petition have been controverted and it has been stated that the order is in strict conformity with the agreement and the settled mode of partition.4. i have heard mr. ashwani chopra, learned counsel for the petitioner, mr. m. l. sarin, has argued the case on behalf of respondent no. 4.5. it deserves notice at the outset that mr. m.l. sarin made an unequivocal offer at the outset that if the petitioner was not satisfied with the piece of land which has fallen to his share, he may exchange it with that of the respondent. this offer was not accepted by the learned counsel for the petitioner. in this situation, it is reasonable to assume that the land of the petitioner is in no way less or inferior to that of the respondent.6. irrespective of the above, it appears that even on merits, the petitioner has no cause for grievance which may be remediable by resort to the present proceedings. the primary argument urged by the learned counsel for the petitioner is that the order passed by the assistant collector, 1st grade was not in conformity with the settled mode of partition or the agreement pleaded by res-pondent no. 4. he has further submitted that even the orders passed by the higher authorities suffer from the same infirmity.7. the contention raised by the learned counsel cannot be accepted. the assistant collector, 1st, grade has categorically observed in his order that no objection had been raised by any of, the parties to the partition papers as prepared by the field staff. even though, this observation has been disputed by the learned counsel for the petitioner, yet nothing has been produced on record to show that any objection had in fact been raised. in fact, if any objection had been raised, the petitioner would have filed a copy thereof along with the writ petition. none has been filed. still further, in the written statement filed on behalf of respondent no. 4, the averment of the petitioner that the assistant collector did not offer any opportunity to the petitioner to file objections, has been clearly denied. no affidavit has been filed to controvert the statement. in such a situation, it has to be assumed that the observation made in the order of the assistant collector is correct. that being so, it has to be held that the petitioner had accepted the correctness of the partition papers and had not raised any objection in that behalf before the assistant collector. the order of the assistant collector, 1st grade, a copy of which has been produced as annexure p-2, was thus legal and valid.8. mr. chopra, however, submits that the petitioner had filed an appeal before the collector and thereafter, a revision before the commissioner. the learned commissioner had recommended the acceptance of the revision petition but the financial commissioner had erroneously rejected the recommendation with a slight modification in the order. he contended that the orders passed by the two authorities were not in conformity with law in as much as the binding terms of the agreement between the parties had been ignored.9. the contention raised by the learned counsel cannot be accepted. firstly, if the petitioner was not satisfied with the partition of the land as proposed by the field staff, heshould have raised objections before the assistant collector, he did not do so. once that had happened, there was no ground to file an appeal. in any event, even if, it is assumed that there was a minor deviation from the original agreement arrived at between the parties, the financial commissioner has in his order recorded that respondent no. 4 had agreed to give 1 karam of land out of khasra no. 927. this having happened, the petitioner had no valid grievance.10. mr. chopra referred to the three plaints which had been produced by him along with civil miscellaneous application no. 1679 of 1992 to contend that the partition should have been carried out in accordance with plan no. ii.11. partition of a holding is a matter for the field staff to carry out. the revenue authorities have the expertise. they are on the spot and are in a better position to appreciate the existence situation. the writ court has neither the expertise nor the benefit of knowing the facts as they exist at the spot. in such a situation, the writ court is not equipped to interfere with the orders passed by the appropriate authorities. it can interfere only when any order is shown to be either apparently arbitrary and unfair or in violation of a provision of law. nothing of the sort appears to have happened. in fact, it appears, as has been stated by the learned counsel for the respondent that the petitioner has actually got more than half the land. it is, thus, no wonder that he is not willing to exchange his land with that of respondent no. 4. in these circumstances, no interference whatsoever with the orders passed by the appropriate authorities, is called for.12. the petition is lacking in merit. it is, accordingly, dismissed. however, even though, it was eminently a case for the award of compensatory costs, yet none are being awarded as the dispute is between the two brothers only.13. petition dismissed.

Judgment:
ORDER

1. The dispute between the two brothers (the petitioner and respondent No. 4) is over a trifle. It relates to the partition of a piece of land. The claim of the petitioner has been rejected by the Assisiant Collector Grade I, the Collector and even the Financial Commissioner. Aggrieved by these orders, the petitioner has filed this writ petition and challenged the findings recorded by the revenue authorities. A few facts may be noticed.

2. On an aplication for partition of the land measuring about 53 Kanals, the Assistant Collector sanctioned the mode of partition and sent the papers to the Girdawar for preparation of the necessary documents. The petitioner and the respondent were given opportunity to file objections. None were filed. Vide order dated January 10, 1989 fa copy of the order is at Annexure P-2), the Assistant Collector recorded that the parties have stated that they have verified the papers to be correct and requested for acceptance of the same. So in the absence of any objection, the partition is accepted. Feeling aggrieved by the order, the petitioner filed an appeal before the Collector. It was rejected vide order dated June, 12, 1989, a copy of whichhas been produced as Annexure P-3 with the writ petition. He filed a revision petition before the Commissioner (Appeals), Jalan-dhar Division, Jalandhar. The Commissioner made a recommendation to the Financial Commissioner for acceptance of the revision petition. However, vide order dated April 15, 1991, the Financial Commissioner held that 'the petitioner will get 1 Karam more out of Khasra No. 927 than the area ordered by A.C. Ist'. With this modification, the revision petition was declined. Aggrieved by this order, the petitioner has approached this Court through the present writ petition. The orders passed by the various revenue authorities have been challenged as being in violation of the accepted mode of partition and the agreement arrived at between the parties.

3. In the written statement filed on behalf of respondent No. 4 certain preliminary objections have been raised. The averments made in the petition have been controverted and it has been stated that the order is in strict conformity with the agreement and the settled mode of partition.

4. I have heard Mr. Ashwani Chopra, learned counsel for the petitioner, Mr. M. L. Sarin, has argued the case on behalf of respondent No. 4.

5. It deserves notice at the outset that Mr. M.L. Sarin made an unequivocal offer at the outset that if the petitioner was not satisfied with the piece of land which has fallen to his share, he may exchange it with that of the respondent. This offer was not accepted by the learned counsel for the petitioner. In this situation, it is reasonable to assume that the land of the petitioner is in no way less or inferior to that of the respondent.

6. Irrespective of the above, it appears that even on merits, the petitioner has no cause for grievance which may be remediable by resort to the present proceedings. The primary argument urged by the learned counsel for the petitioner is that the order passed by the Assistant Collector, 1st Grade was not in conformity with the settled mode of partition or the agreement pleaded by res-pondent No. 4. He has further submitted that even the orders passed by the higher authorities suffer from the same infirmity.

7. The contention raised by the learned counsel cannot be accepted. The Assistant Collector, 1st, Grade has categorically observed in his order that no objection had been raised by any of, the parties to the partition papers as prepared by the field staff. Even though, this observation has been disputed by the learned counsel for the petitioner, yet nothing has been produced on record to show that any objection had in fact been raised. In fact, if any objection had been raised, the petitioner would have filed a copy thereof along with the writ petition. None has been filed. Still further, in the written statement filed on behalf of respondent No. 4, the averment of the petitioner that the Assistant Collector did not offer any opportunity to the petitioner to file objections, has been clearly denied. No affidavit has been filed to controvert the statement. In such a situation, it has to be assumed that the observation made in the order of the Assistant Collector is correct. That being so, it has to be held that the petitioner had accepted the correctness of the partition papers and had not raised any objection in that behalf before the Assistant Collector. The order of the Assistant Collector, 1st Grade, a copy of which has been produced as Annexure P-2, was thus legal and valid.

8. Mr. Chopra, however, submits that the petitioner had filed an appeal before the Collector and thereafter, a revision before the Commissioner. The learned Commissioner had recommended the acceptance of the revision petition but the Financial Commissioner had erroneously rejected the recommendation with a slight modification in the order. He contended that the orders passed by the two authorities were not in conformity with law in as much as the binding terms of the agreement between the parties had been ignored.

9. The contention raised by the learned counsel cannot be accepted. Firstly, if the petitioner was not satisfied with the partition of the land as proposed by the field staff, heshould have raised objections before the Assistant Collector, He did not do so. Once that had happened, there was no ground to file an appeal. In any event, even if, it is assumed that there was a minor deviation from the original agreement arrived at between the parties, the Financial Commissioner has in his order recorded that respondent No. 4 had agreed to give 1 Karam of land out of Khasra No. 927. This having happened, the petitioner had no valid grievance.

10. Mr. Chopra referred to the three plaints which had been produced by him along with Civil Miscellaneous Application No. 1679 of 1992 to contend that the partition should have been carried out in accordance with Plan No. II.

11. Partition of a holding is a matter for the field staff to carry out. The revenue authorities have the expertise. They are on the spot and are in a better position to appreciate the existence situation. The writ Court has neither the expertise nor the benefit of knowing the facts as they exist at the spot. In such a situation, the Writ Court is not equipped to interfere with the orders passed by the appropriate authorities. It can interfere only when any order is shown to be either apparently arbitrary and unfair or in violation of a provision of law. Nothing of the sort appears to have happened. In fact, it appears, as has been stated by the learned counsel for the respondent that the petitioner has actually got more than half the land. It is, thus, no wonder that he is not willing to exchange his land with that of respondent No. 4. In these circumstances, no interference whatsoever with the orders passed by the appropriate authorities, is called for.

12. The petition is lacking in merit. It is, accordingly, dismissed. However, even though, it was eminently a case for the award of compensatory costs, yet none are being awarded as the dispute is between the two brothers only.

13. Petition dismissed.