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Partition proceedings are vitiated even if single co-sharer is not made party or is not served in accordance with law

Cause Title : Bhagwant Singh vs Financial Commissioner (Appeals) Punjab, Chandigarh, CWP-2132-2018 (O&M), High Court Of Punjab & Haryana At Chandigarh

Date of Judgment/Order : 31.08.2022

Corum : Hon’ble Mr. Justice Sudhir Mittal

Background

A large parcel of land was owned by the Nagar Panchayat. Thereafter, some of the co-sharers sold their shares to third parties including the petitioners herein. On 22.11.1995, respondents No.3 to 5 filed an application for partition of the land. The petitioners were not impleaded as parties.  On completion of proceedings, sanad was issued on 28.08.1996. Vide two separate sale deeds dated 28.05.2008 respondents No.3 and 5 sold some portion in favour of respondent No.6 and 7. These respondents sought implementation of the sanad resulting in issuance of warrants of possession dated 05.06.2008. Allegedly, it was then that the petitioners realized that joint land had been partitioned and that proceedings had been conducted behind their back. Thus, they filed CWP-12737-2008 for quashing of the sanad. The writ petition was disposed of with a direction to the petitioners therein to avail alternative remedy of revision provided by Section 16 of the Punjab Land Revenue Act, 1887. Accordingly, the revision was filed on 19.05.2009. This revision petition was, however, dismissed vide order dated 06.11.2017 resulting in filing of the present writ petition.

The petitioners has argued that as their name is in the records, they should have been impleaded in the partition application and that the partition proceedings are vitiated as all co-sharers were not made party.

One of the question before the court was whether, non-impleadment of the petitioners as parties in the partition application has resulted in vitiation of the proceedings? If so, was the defect curable by impleadment of the vendors of the petitioners?

Judgment

The court observed that the names of the petitioners are clearly recorded in the remarks column thereof as vendees. In the jamabandi for the year 1994-95, their names find mention as vendees in the column of cultivation. It is settled law that every co-sharer is owner of every inch of joint land. The petitioners had become co-sharers by virtue of the sales in their favour and were entitled to participate in proceedings for partition of the joint land and claim their right for allotment of specific khasra numbers based upon value and quality of land. Having been denied this opportunity, the partition proceedings stand vitiated as a whole. Partition proceedings are vitiated, even if, a single co-sharer is not made a party or is not served in accordance with law. Thus,  the partition proceedings stand vitiated, is answered in the affirmative.

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