Skip to main content

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.

Comments

Post a Comment

Most viewed this month

One Sided Clauses In Builder-Buyer Agreements Is An Unfair Trade Practice

In CIVIL APPEAL NO. 12238 OF 2018, Pioneer Urban Land & Infrastructure Ltd. vs Govindan Raghavan, an appeal was filed before the Supreme Court  by the builder against the order of the National Consumer Forum. The builder had relied upon various clauses of the Apartment Buyer’s Agreement to refute the claim of the respondent but was rejected by the commission which found the said clauses as wholly one-sided, unfair and unreasonable, and could not be relied upon. The Supreme Court on perusal of the Apartment Buyer’s Agreement found stark incongruities between the remedies available to both the parties. For example, Clause 6.4 (ii) of the Agreement entitles the Appellant – Builder to charge Interest @18% p.a. on account of any delay in payment of installments from the Respondent – Flat Purchaser. Clause 6.4 (iii) of the Agreement entitles the Appellant – Builder to cancel the allotment and terminate the Agreement, if any installment remains in arrears for more than 30 da...
Post a Comment
Read more

Inherited property of childless hindu woman devolve onto heirs of her parents

In Tarabai Dagdu Nitanware vs Narayan Keru Nitanware, quashing an order passed by a joint civil judge junior division, Pune, the Bombay High Court has held that under Section 15 of the Hindu Succession Act, any property inherited by a female Hindu from her father or mother, will devolve upon the heirs of her father/mother, if she dies without any children of her own, and not upon her husband. Justice Shalini Phansalkar Joshi was hearing a writ petition filed by relatives of one Sundarabai, who died issueless more than 45 years ago on June 18, 1962. Article referred:http://www.livelaw.in/property-inherited-female-hindu-parents-shall-devolve-upon-heirs-father-not-husband-dies-childless-bombay-hc-read-judgment/
Post a Comment
Read more

Court approached in the early stages of arbitration will prevail in all other subsequent proceedings

In National Highway Authority of India v. Hindustan Steelworks Construction Limited, the Hon'ble Delhi High Court opined that once the parties have approached a certain court for relief under Act at earlier stages of disputes then it is same court that, parties must return to for all other subsequent proceedings. Language of Section 42 of Act is categorical and brooks no exception. In fact, the language used has the effect of jurisdiction of all courts since it states that once an application has been made in Part I of the Act then ―that Court alone shall have jurisdiction over arbitral proceedings and all subsequent applications arising out of that agreement and arbitral proceedings shall be made in that Court and in no other Court. Court holds that NHAI in present case cannot take advantage of Section 14 of the Limitation Act, 1963 for explaining inordinate delay in filing present petition under Section 34 of this Act in this Court.
Post a Comment
Read more