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1982 DIGILAW 4 (HP)

DEVI RAM ALIAS DHURU v. TARA

1982-02-10

ANANG PAL

body1982
ORDER These are five- review -petitions filed under Section, 16 ,of the H, P. Land Revenue Act, 1953 against the orders of my learned predecessor dated 7-1-1981 whereby the revision petitions filed by the present petitioners were rejected. Since the parties and the points involved in all these petitions are common, they are being decided through this single order. 2. The brief facts of these cases are that the respondent applied for partition of the land involved in all these petitions, which is jointly owned by the parties. The Assistant Collector T Grade Mandi sanctioned the mode of partition on 6-5-1972. The petitioners appealed against these orders before the Collector, Mandi on the ground that a question, of title was involved in all these cases. The- learned Collector held-that since the respondent was entered as co-sharer with the petitioners in the venue record no, question of title was involved and. dismissed the appeals. The petitioners fifed, revision petitions before, the learned, Commissioner against these orders of the learned Collector, who agreed with the decision of the learned Collector and1 dismissed the revision petitions. The, Revision, petitions filed in this court against the orders of learned Commissioner were also rejected, by my learned predecessor vide his orders dated 7-1-1981 holding that no-question of title was involved. 3. These review petitions have been filed against this order of my learned predecessor on the same ground that a question of title is involved in the partition proceedings. It has also been alleged that the respondent has not got; any possession on the land and even if she is admitted as a co-sharer, the question of title is involved in these case. 4. I have heard the learned counsel for both the parties. The learned counsel for the1 petitioners argued that once a question of title has been raised in partition proceedings, the Revenue Officer must either decide the question of title himself or direct the parties to get it determined by the competent civil court. 4. I have heard the learned counsel for both the parties. The learned counsel for the1 petitioners argued that once a question of title has been raised in partition proceedings, the Revenue Officer must either decide the question of title himself or direct the parties to get it determined by the competent civil court. He referred to Section 129 of the H. P. Land Revenue Act, which provides that when there is 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 court In support of his contention that a question of title was involved, the learned counsel for the petitioners stated that the respondent was not in possession of the land sought to be partitioned. 5. The learned counsel for the respondent argued about the scope of review and quoted the decision of the learned., Financial, Commissioner, Pepsu, Patiala in Gurbux, Singh v. Haqiqat Singh, [LLT 1956, Page 26] that powers of review have to be used sparingly, and, only when it is felt that non-interference at that stage will amount to a denial of, rights to parties to which they are apparently entitled and which had been denied to them on account, of .having been unable to put forward, their case in entirety for reasons beyond their control. He also referred to the decision the learned Financial Commissioner, Punjab in Smt. Dhan Kaur v. Nihal Kaur [Revenue Revision; No- 212 of. ,1961-62,. LLT-1962, Page-21], holding that partition, proceedings can be stayed only if a Revenue Officer, after examining, the facts, ,decides. that a question , of title is involved and not merely on the insistence of a party that such a. question exists. 6. It is admitted that unfer Section 129 of the H. P. Land Revenue Act, if there is a question as to title in any of the property of which partition is sought, the Revenue Officer will either himself proceed to determine the question or refer the parties to get it determined by a competent court. The provisions of Section 129 have, however, to be read in continuation of the previous provisions of Sections f24r F25, 126, 127 and 128 of the H.P. Land Revenue Act. The provisions of Section 129 have, however, to be read in continuation of the previous provisions of Sections f24r F25, 126, 127 and 128 of the H.P. Land Revenue Act. Section 127 of the H. P. Land Revenue Act empowers the Revenue Officer after preliminary enquiry, to absolutely dis-allow the partition if he is so satisfied. Section 128 lays down the procedure on the admission of the application. Under this section it is incumbent upon the Revenue Officer to ascertain the questions, if any, in dispute between any of the persons interested whether there is any question as to title in the property or any question regarding the mode of making the partition. It very clearly Jays down that it is for the Revenue Officer to decide under Section 128 whether a question of title is involved or not. The mere raising of question of title does not make it incumbent upon the Revenue Officer to accept it as such as it is his own responsibility under Section 1^8 to ascertain and determine. It is only after he is satisfied under Section 128 that such a question exists that the provisions of Section 129 will be attracted. 7. It has already been held by the learned Financial Commissioner, Punjab, LLT-1962-P21 that "Partition proceedings can be stayed only if p revenue officer, after examining the frets, decides that a question of title is involved and not merely on the insistence of a party that such a question exists. Neither in law nor in equity is there any warrant for the proposition that partition proceedings must be stayed the moment a litigant utters the magic formula: -that a question of title is involved". It was further held by the learned Financial commissioner, Punjab, LLT-1967-P-114 that "It is well established that merely raising the plea of title does not mean that the question of title is involved. Again it was held by the learned Financial Commissioner, Punjab, TLT-1959-P.7 that "according to law the discretion rests with the Revenue Officer to proceed to determine a "question of title in a partition proceedings, as though_he__were_a_competent court. When such a discretion is exercised according to well-recognised principles, the Financial Commissioner shall not interfere in revision". 8. Again it was held by the learned Financial Commissioner, Punjab, TLT-1959-P.7 that "according to law the discretion rests with the Revenue Officer to proceed to determine a "question of title in a partition proceedings, as though_he__were_a_competent court. When such a discretion is exercised according to well-recognised principles, the Financial Commissioner shall not interfere in revision". 8. It is, thus, amply clear that it is for the Revenue Officer to determine under Section 128 of the H. P. Land Revenue Act whether a question of title in respect of the property of which partition is sought, is involved or not, after preliminary enquiry. 9. The entries in Jamabandi fall within the purview of record of rights and are presumed to be true. These entries have not been challenged earlier in any court by the petitioner and it is too late to allege at this stage that the respondent is not in possession of the land. Moreover it is now an established law that possession of a co-sharer is the possession of all the co-sharers as also held by the Hon’ble High Court of Himachal Pradesh in case Shri Shiam Sunder Gautam and other v. Shri Tara Chand and others. 10. I also uphold the contention of the learned counsel for the respondent that the powers of review have to be used sparingly. In this particular case, there are concurrent findings of the three lower courts and also of my learned predecessor. There is, therefore, no occasion to interfere in the review. The review petitions are accordingly rejected. Announced. Review Petitions rejected.