Judgment:
ORDER
J.S. Sekhon, J.
1. Munshi, Hukami and Manohar, Petitioners, are brothers inter se and first cousins of Bhup Singh and Jai Bhagwan, respondents No. 5 and 6. Respondents No. 5 and 6 filed an application for partition of joint holdings of land against the petitioners before the Assistant Collector Ist Grade, Rohtak. Both the parties agreed that their respective possession of the land should be respected while drafting the mode of partition. The Assistant Collector proposed the mode of partition on July 18, 1978 and approved the same vide order dated August 4, 1978. It is admitted case that the petitioners did not avail the right of appeal against the proposed mode of partition under Section 118 of the Punjab Land Revenue Act (hereinafter referred to as 'the Act'), but simply raised written objections against the order dated August 4, 1978, which were dismissed by the Assistant Collector while passing the final order dated November 6, 1978 (Annexure 'P-l). Against that order , the petitioners went in appeal before the Collector, which were dismissed vide order dated December 28, 1978 (Annexure 'P-2'). Thereafter, the petitioners approached the Commissioner by filing a revision petition, which was accepted by the Commissioner vide order dated September 21, 1979 (Annexure 'P-3'). The Commissioner made a reference to the Financial Commissioner for setting aside the orders passed by the Assistant Collector and Collector and determining the fresh mode of partition on the basis of respective possession of the land of the parties. The Financial Commissioner, however, vide order dated February 8, 1980 (Annexure 'P-4') declined the said reference.
2. Under these circumstances, the petitioners have invoked the extraordinary jurisdiction of this Court under Articles 226/227 of the Constitution through this writ petition inter-alia alleging that the Assistant Collector Ist Grade, while passing the final order of partition, had not taken into consideration the written objections of the petitioners regarding the mode of partition.
3. The private respondents had only resisted this writ petition by filing reply inter-alia contending that none of the parties was in possession of the land forming part of Shamlat Deh and that the petitioners having not challenged the proposed mode of partition or the approved mode of partition under Section 118 of the Act, the Assistant Collector had rightly dismissed their objections while passing the final order of partition.
4. I have heard the learned counsel for the parties besides perusing the record.
5. During the course of arguments, Mr. CM. Chopra, the learned counsel for the private respondents had given an open offer to the petitioners that his clients are willing to exchange the Kurrahs with the petitioners in order to restore healthy relations between the close relations. Mr. H.S. Hooda, the learned counsel for the petitioner, then sent a registered letter to the petitioners for obtaining the instructions in this regard, but the petitioners failed to respond to that letter. Under these circumstances, there is no option but to dispose of this writ petition on merits.
6. The law is well-settled on the point that if a party does not challenge the mode of partition of land through appeal provided under Section 118 of Act, it cannot do so in appeal against the final order of partition of the Assistant Collector, The decision of the Single Bench of this Court in Lala Ram v. Financial Commissioner, Haryana, A.I.R. 1992 Punjab and Haryana 62 can be safely referred in this regard. In the said judgment, in the later portion of para No. 6, after distinguishing the decision of the Himachal Pradesh High Court in Kham Dutt v. Palika, A.I.R. 1983 Him. Para. 23 and the decision reported as Kartar Singh v. Kapur Singh, 1971 P.L.J. 677. it was observed as under:-
'A perusal of the schemes of partition contained in Chapter IX would manifest that after the mode of partition is determined, the partition proceedings come to an end, and in so far as the preparation of instrument of partition is concerned, it is only an executory act. An appeal has been specifically provided against an order dealt with by Section 118, i.e. the mode of partition. In case such an appeal is filed within 15 days from the date of determination of the mode of partition and the institution of such an appeal has been certified to the Revenue Officer, it amounts to an automatic stay of proceedings pending disposal of the appeal. If the orders specifically dealt with in the Act against which an appeal is provided or which otherwise determine the rights of the parties, like an order refusing petition, order determining title of the parties, are not appealed against and the partition proceedings are permitted to go on till finalisation of the mode of partition then the consequential orders which only implement what has been determined earlier cannot be the subject-matter or appeals.
XX XX XX XXXX XX XX XX It is, no doubt, true that the instrument of partition has necessarily to be prepared but the fact remains that the said instrument only records what has already been determined. It is a formal document that has to be prepared only to recognise the fact of partition. The very fact that it has to be necessarily drawn does not mean that it is applicable. A perusal of various sections that have been referred to above would manifest that the instrument of partition is a step in execution of partition which has already taken place. Once all the necessary steps in effecting partition have been taken then a party to proceedings cannot raise objections in drawing the instrument of partition. It is just like a decree which is to follow the judgment. It is only those orders which affect the rights of the parties that are appealable and the documents viz. the 'instrument of partition which is only a step towards execution of the order of partition shall not be appealable.
XX XX XX XXXX XX XX XXIn order to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, the petitioner must, in order to entitle himself to any relief, show that manifest injustice has been caused to him as a result of the impugned orders. When nothing at all has been either stated or show that any injustice, much less manifest injustice has occurred to the petitioner no relief can be granted to him.'
7. It is note-worthy that while partitioning the joint holdings of land of the shareholders, some portion of the land in possession of the one party has to be given to the other side, if the first party is in possession of more than its due share. Thus, the disturbing of the possession on the land to some extent between the parties cannot be said to have resulted in miscarriage of justice. Consequently, no case is made out for interference with the orders of the Assistant Collector Ist Grade, Collector or the Financial Commissioner while exercising the extraordinary jurisdiction of this Court under Article 226 of the constitution. The writ petition is, therefore, dismissed but without any order as to costs.