Read Order: M/s Fondant Propbuild Private Limited v. State of Haryana and Others

Monika Rahar

Chandigarh, March 7, 2022: While dealing with a Civil Writ petition in a partition matter, the Punjab and Haryana High Court has held that it is settled law that partition applications wherein the parties are not identical cannot be consolidated. 

While arriving at the above-stated observation, the Bench of Justice Sudhir Mittal also made reference to the judgment of this Court in Fateh Ram and others Vs. State of Haryana and others, 2019 (2) Law Herald 1527 (P&H HC)

Herein, the fifth Respondent filed two separate applications for partition of land comprising khewat No. 32 (owned by petitioner and fifth respondent) and khewat No.33 (owned by petitioner, fifth respondent and M/s Fori Propbuild Private Limited). The petitioner’s representative vouched for consolidation of the two applications on the ground that both parcels of land belonged to the same parties. However, the proposed mode of partition was received and the petitioner submitted objections with the claim that both the partition applications be consolidated. 

The Assistant Collector, First Grade however rejected the objection while holding that the owners of the two khewats were different and thus the applications could not be consolidated. Thereafter, Naksha Bay was summoned, to which also the petitioner filed objections while contending that the land given to it did not adjoin other land owned by it. The objections were rejected, thus the petitioner filed an appeal which was again dismissed. 

The Appellate order was challenged by way of a revision but the same was also dismissed. Meanwhile, sanad takseem was issued. The sanad as well as the order of the Assistant Collector, First Grade rejecting objections to Naksha Bay were challenged by way of second revision before the Financial Commissioner. The appellate and revisional orders passed, meanwhile, were also subjected to challenge. However, the petitioner failed and the revision petition was dismissed by the Financial Commissioner. The Review filed was also rejected and thus, the present writ petition was filed. 

The petitioner’s counsel submitted that considering the fact that the petitioner and M/s Fori Propbuild Private Limited were 100% subsidiary companies of Emaar-MGF Limited, the Courts below were in error in rejecting the prayer for consolidating the two separate partition applications. The counsel further argued that the approved mode of partition was not properly implemented in Naksha Bay and thus, the objections thereto should have been allowed. Also, the counsel submitted that the final partition resulted in inequity as the land given to the petitioner was not contiguous with other land owned by him and which was in the immediate vicinity of the land in dispute. 

In response, the counsel for the fifth respondent submitted that the petitioner could not raise the issue of non-consolidation of the two partition applications as the request for consolidation was rejected by an order whereby, the objections to the mode of partition were dismissed. The Counsel contended that Section 118 of the Punjab Land Revenue Act, 1887 (as applicable to Haryana) provided for an appeal against the order accepting the mode of partition within 15 days from the date of the order and the filing thereof operated as an automatic stay of proceedings before the Assistant Collector. 

It was also the counsel’s case that no second appeal was provided against the appellate order and that this remedy was not availed by the petitioner. 

After considering rival submissions, the Court observed that the argument of the petitioner that the two partition applications should have been consolidated could not be accepted as admittedly, no appeal was preferred by the petitioner against the order by which the objections to the proposed mode of partition filed by the petitioner were rejected.

Then the Court went on to make a reference to Section 118 of the Act which provides that a revenue official carrying out partition must frame a mode of partition after conducting an enquiry as deemed fit and record an order stating his reasons for the same. Sub-Section 2 of Section 118 of the Act provides for a statutory appeal and filing thereof operates as an automatic stay of proceedings before the lower revenue official. Thus, the Court opined that having not availed of this remedy, the petitioner was deemed to have waived any objections that he may have had to the proposed mode of partition. 

“If, the order determining the mode of partition is not challenged in appeal then the subsequent orders cannot be challenged”, adjudged Justice Mittal. 

Moreover, the Court noted that the petitioner and M/s Fori Propbuild Private Limited were distinct entities thus, the two separate partition applications could not have been consolidated as it is settled law that partition applications, wherein, the parties are not identical cannot be consolidated. 

Further, the Court asserted that merely because the petitioner and M/s Fori Propbuild Private Limited were 100% subsidiary companies of Emaar-MGF Limited, it cannot be said that the parties were identical because everybody corporate is a separate entity. 

“Emaar-MGF was not a party to the partition proceedings. Thus, the argument of non-consolidation is rejected being not maintainable at this stage as well as on merits”, added the Court. 

Thus, the writ petition was dismissed for lacking merit. 

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