P L D 1957 W (PLP)

H. A. MAJID.‑

The present revision proceeding has emanated from the order of the Assistant Collector, 1st Grade, dated 8th June 1955, sanctioning a partition proceeding which had been carried out between the two parties. The present respondent appealed to the Collector and his appeal was accepted to the extent that the partition proceeding was set aside and the lower Officers were required to take action de novo. The present petitioner went in second appeal to the Commissioner, who, however, dismissed his appeal. The order of the Assistant Collector, 1st Grade, was passed on the basis of an application of the present respondent for the partition of a joint holding which he had instituted on 4th January 1954. The Assistant Collector found out that the present respondent had previously put in a petition for the same partition and that a mode of partition had been sanctioned in the previous case, and further that the actual process of the partition at the spot has almost been com pleted in accordance with the mode of partition. The present respondent had absented himself from the Assistant Collector's Court with the result that the partition papers had been consigned to the Record Room. The second petition, dated 4th January 1954 did not indicate the previous history of litigation between the parties. The reason why the present respondent followed this practice was that he learnt sometimes after the mode of partition had been sanctioned that he would be a loser at the stage of the actual partition. He cannot be allowed to seek an advantage which the law does not permit him. He had not appealed against the mode of partition during the allotted time. He must, therefore, consider himself bound to that extent. The question, however, does arise whether there is any thing inherently wrong in the sanctioned mode of partition. The Collector in his current judgment has referred to an inspection which had been carried out by a Kanungo on 2nd July 1954, as a result of which it had been reported that the fields at the spot were of a quality different from that recorded in the jamabandi. The present petitioner's counsel has shown me a certified copy of the Kanungo's report and the following two things are mentioned in it:-- (i) That the present petitioner's house is situated in one of the fields of the joint holding and that four fields situated near that house are described in the revenue records as Maira whereas they are in fact Lepara; and (ii) That field No. 1555 is shown in the papers as Banjar Qadim whereas in fact a considerable part of it has been broken and has become Maira. Regarding (i), it is quite clear that Maira cannot become Lepara during the term of a Settlement. Lepara is only the vernacular name for lands situated for their habitation. If the C habitation is that of the present petitioner it is only fair that the fields next to that house should fall into his share. Field No. 1555 had already fallen into two parts one was jointly held and the other was in the possession of the present petitioner. It is only fair that what was in the present petitioner's possession should not be disturbed. It was shown in the papers as Maira in one part and Banjar Qadim in the other. These two parts will of course be taken into account as they are and not as a joint piece. In the above circumstances I am satisfied that I should not allow the partition proceedings to start afresh. The principle in deciding these revision petitions should be to reduce the litigation between the parties to the minimum. I accordingly accept this petition for revision and direct that the order of the Collector passed on 19th March 1956, and confirmed by the Commissioner on 8th May 1956, should be set aside and partition proceedings in this dispute should be considered to have been duly sanctioned. K.M.A. Petition accepted.