Subject:-    Procedure in partition cases – amendment in Chapter IX of the Punjab Land Revenue Act 1887.

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                   The partition u/s 111 of Punjab Land Records Act is a very lengthy procedure and various orders have to be passed by the R.O. (and appeals/revisions to be entertained by the higher courts) before final partition is sanctioned. Under chapter IX of the Act, there is no time limit prescribed for the disposal of partition cases. 7791 partition case are pending with the Tehsildars in the State on 31-12-2008. While it is a cause of harassment to the litigant public, it is also deterrent to the process of computerization of land record.

                   We need to amend on Act/Rules to simplify and expedite the partition procedure and make our records simple, candid and public friendly.

          Chapter IX of the Punjab Land Revenue Act 1887 provides for the partition of joint holdings by executive procedure without the necessity of a suit in the Civil Court. Section 158 of the Act bars the jurisdiction of the Civil Court.  As per the existing procedure, the Revenue Officer is required to pass the following orders before ordering final partition :-

         

          i).       to pass order to decide question of title;

          ii).      to pass order to sanction Naksha A ;

          iii).     to pass order to sanction mode of partition;

          iv).     to pass order to sanction Naksha Bey (final partition);

          v).      to pass order to sanction Naksha ‘e’ Zeem, before the instrument of partition is prepared under Section 121 of the Act.

                  

2.                All these orders are challenged in Appeal before the collector by the aggrieved party at the relevant stages. But Section 118 of the Punjab Land Revenue Act 1887 provides Appeal at only two stages of partition as under:-

          a).      order sanctioning question of title;

          b).      order sanctioning mode of partition;

 

3.                But as per law laid down in 1972 PLJ-404 (F.C.) Smt. Katori Vs. Smt. Raj Bala and others, order sanctioning final partition (Naksha Bey) is also appealable.

4.                In order to expedite disposal of partition cases and to give timely justice to the parties seeking partition, it is considered imperative to change the present system and procedure, as contained in Chapter IX of the Act.

5.                Incidentally, it may be stated here that the Punjab Land Revenue Act 1887, is a very old enactment. The number of partition cases, when this Act came into being in 1887, might be negligible with the Revenue Officers, but with the improvement of land and the prices touching sky, the institution of partition cases has tremendously increased and the Revenue Officers, with other multifarious duties to perform and the existing procedure being lengthy and complicated one, are not in a position to properly handle the partition cases, resulting delays of years together. Therefore, it is the need of the hour that the odd and lengthy procedure in partition cases may be shortened by making amendment in the existing law and procedure.  

 

6.                The amendments of Chapter IX, as required are as proposed:-

Section 111. Application for partition: -Any joint owner of land, or any joint tenant of a tenancy in which a right of occupancy subsists, may apply to a Revenue-officer for partition of his share in the land or tenancy, as the case may be, if—

 

                   (a)      at the date of the application the share is recorded under Chapter IV as belonging to him; or

 

                   (b)     his right to the share has been established by a decree which is still subsisting at the date; or

 

(c)       a written acknowledgement of that right has been executed by all persons interested in the admission or denial thereof.

 

Proposed amendment

                   Section 111. Application for partition: -Any joint owner of land, may apply in a prescribed performa, to a Revenue-officer for partition of his share in the land, if—

 

                   (a)      at the date of the application the share is recorded under Chapter IV as belonging to him; or

 

                   (b)     his right to the share has been established by a decree which is still subsisting at the date; or

 

(d)      a written acknowledgement of that right has been executed by all persons interested in the admission or     denial thereof.

 

              Provided that a revenue officer shall suo-moto initiate action and order partition of land as per the provisions of the Act,

 

(a)         where land is sold in specific fields out of joint holdings,

(b)        for large joint holdings where the shares are not equal to unity and cannot be corrected through fard badrs

(c)        where colonization has taken place or is likely to come up to the extent possible as per the approved scheme of colonization.

 

Section.113. Notice of application for partition:-The Revenue-officer, on receiving the application under section 111, shall, if it is in order and not open to objection on the face of it, fix a day for the hearing thereof; and—

 

                   (a)      cause notice of the application and of the day so fixed to be served on such of the recorded co-shares as have not joined in the application, and, if the share of which partition is applied for is a share in a tenancy, on the landlord also; and

 

(b)       if he thinks fit, cause the notice to be served on or proclaimed for the information of any other persons whom he may deem to be directly or indirectly interested in the application.

 

 

Proposed amendment

 

Section.113. Notice of application for partition:-The Revenue-officer, on receiving the application under section 111, shall, if it is in order and not open to objection on the face of it, fix a visit to the site/village for hearing of the parties thereof (within a month of the receipt of the application); and—

 

(a)  cause notice of the application and of the day and place so fixed to be served (alongwith through regd post) on such of the recorded co-shares as have not joined in the application,

(b)  effect proclamation in the village/locality where the land is situated, announcing the names of parties, details of land to be partitioned and date of spot inspection for effecting partition.

 

Section 114 - Addition of parties to application : - On the day fixed for the hearing, or on any day to which the hearing may be adjourned the Revenue Officer, shall ascertain whether any of the other co-sharers desire the partition of their shares also and, if any of them so desire, he shall add them as applicants for partition.

 

Section 115 – Absolute disallowance of partition: - After examining such of the co sharers and other persons as may be present on that day, the Revenue Officer may if he is of opinion that there is good and sufficient cause why partition should be absolutely disallowed, refuse the application, recording the grounds of his refusal.

 

Section 116 – Procedure on admission of application: - If the Revenue Officer, does not refuse the application under the last foregoing section, he shall ascertain the question, if any, in dispute between any of the persons interested distinguishing between: -

(a)              question as to title in the property of which partition is sought; and

(b)              questions as to the property to be divided, of the mode of making the partition. 

 

Section 114. 115 & 116 to be Deleted

 

Section – 117 Disposal of questions as to title in property to be divided:-

        (1)                 When there is a question as to title in any of the property of which partition is sought, the Revenue Officer may decline to grant the application for partition until the question has been determined by a competent court or he may himself proceed to determine the question as though he were such a court.

 

          (2)     Where the revenue officer himself proceeds to determine the question the following rules shall apply, namely;

(a)      If the question is one over which a Revenue Court has jurisdiction, the Revenue-officer shall proceed as a Revenue Court under the provisions of the Punjab Tenancy Act, 1887.

 

(b)     If the question is one over which a Civil Court has jurisdiction, the cedure of the Revenue-officer shall be that applicable to the trial of any original suit by a Civil Court and he shall record a judgment and decree containing the particulars required by the Code of Civil Procedure to be specified therein.

 

(c)               An appeal shall like from the decree of the  Revenue-officer under clause (b) as though that decree were a decree of a 1[Subordinate Judge] in an original suit.

 

(d)              Upon such an appeal being made, the 2[District Court] or 3[High Court], as the case may be, may issue an injunction to the Revenue-officer requiring him to stay proceeding pending the disposal of appeal.

 

(e)              From the appellate decree of a 4[District Court] upon such an appeal, a further appeal shall lie to the 5[High Court] if such a further appeal is allowed by the law for the time being in force.

 

 

Proposed Amendment in section 117(1)

 

Section 117 Disposal of questions as to title in property to be divided:- (1) During spot inspection, if the revenue officer considers that there is a question as to title in any of the property of which partition is sought,, he will himself proceed to determine the question within three months, as though he were a civil court

 

Section 118. Disposal of other questions  (1) When there is a question as to the property to be divided or the mode of making a partition, the Revenue-officer shall, after such inquiry as he deems necessary, record an order stating his decision on the question and his reasons for the decision.

(2)     An appeal may be preferred 1[-] from an order under sub-section (1) within fifteen days from the date thereof, and, when such an appeal is preferred and the institution thereof has been certified to the Revenue-officer by the 2[authority to whom the appeal has been preferred] the Revenue-officers shall stay proceedings pending the disposal of the appeal.

(3)     If an applicant for partition is dissatisfied with an original or appellate order under this section, and applies for permission to withdraw from the proceedings in so far as they relate to the partition of his shares, he shall be permitted to withdraw therefrom on such terms as the Revenue-officer things fit.

(4)     When an applicant withdraws under the last foregoing sub-section the Revenue-officer may where the other applicants if any desire the continuance of the proceedings, continue them in so far they relate to the partition of the shares of those other applicants.

 

Proposed Amendment

 

Section 118. Partition order (1) During spot inspection, the R.O. should record attendance, the statements (if need be), examine the RoR, alongwith field situation; discuss with the parties as to how to justifiably effect partition keeping in view the general guidelines for the mode of partition. Then the R.O. should frame a proposal for partition, describing the ground situation (actual cultivating possession) in the form of a map; the position in jamabandi; the reasoning for deviation from the general guidelines and concluding the proposed partition (in the form of a colored map as well as khatonis).

          (2) The shares of all cosharers should be divided unless asked specifically  for a joint holding.

          (3) If a co-sharer has sold more than his/her share in a khewat, then other co-sharers affected thereby can be compensated from some other Khewats in the same village, patwar circle or the tehsil in order of preference, where the share of the vendor exists.

          (4)  The proposed partition should be posted to the parties within 7 days of the spot inspection seeking their objections, if any, at a specified time, date and within 15 days. On the said date, after hearing the parties, the R.O. should frame the partition order and post it to the parties within a week, also directing them to appear before the appellate authority, if they want to prefer appeal, on a specific date (within 30 days of the date of passing of partition order).

          (5) The appellate authority may either uphold the impugned order or pass an amended/fresh partition order within a month. If deemed fit, spot may be inspected.

          (6) If appeal lies from the order under subsection (3), then the parties must be directed to appear before the appellate authority, if they want to prefer appeal, on  specific date (within the period of Limitation of appeal). If no appeal lies, i.e. the partition order has been upheld, and then the appellate authority must ask the R.O. to draw the instrument of partition.

 

Section.121.Instrument of Partition. – When a partition is completed, the Revenue Officer shall cause an instrument of partition to be prepared and the date on which the partition is to take effect to be recorded therein. 

 

Proposed Amendment

 

Section.121.Instrument of Partition. – When the partition order is received back from the appellate authority (even when no appeal is filed), the Revenue Officer shall cause an instrument of partition to be prepared and posted to the parties within seven days, the date on which the partition is to take effect and possession delivered ( within 21 days) to be recorded therein. 

 

Section.122.Delivery of possession of property allotted, on partition.- An owner or tenant to whom any land or portion of a tenancy , as the case may be, is allotted in proceedings for partition shall be entitled to possession thereof as against the other parties to the proceedings and their legal representatives, and a Revenue Officer shall, on application made to him for the purpose by any such owner or tenant at any time within three years from the date recorded in the instrument of partition under the last forgoing section, give effect to that instrument so far as it concerns the applicant as if it were a decree for immovable property.

 

Proposed Amendment

Section.122.Delivery of possession of property allotted, on partition.- (1) An owner to whom any land is allotted in proceedings for partition shall be entitled to possession thereof as against the other parties to the proceedings and their legal representatives. After delivery of possession on the day fixed under the last foregoing section to any such owner, the R.O. should get the mutation incorporated in the record.

          (2) Notwithstanding subsection(1), Any such owner at any time within three years from the date recorded in the instrument of partition, may apply to the revenue officer to give effect to that instrument so far as it concerns the applicant as if it were a decree for immovable property.

 

126. Officers who may be empowered to act under this Chapter: - The Revenue-officer by whom proceedings may be taken under this Chapter shall be a Revenue-officer of a class not below that of Assistant Collector of the first grade.

 

Proposed Amendment

126. Officers who may be empowered to act under this Chapter: - The Revenue-officer by whom proceedings may be taken under this Chapter shall be a Revenue-officer of a class not below that of Assistant Collector of the second grade.