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1997 DIGILAW 269 (HP)

JINDU v. NEEL KAMAL

1997-07-08

R.BHATTACHARYYA

body1997
ORDER R. Bhattacharaya.—By this revision petition preferred under Section 17 of the H.P. Land Revenue Act by Sh. Jindu son of Sh. Dharkoo, resident of Basantpur, PO Basantpur, Pargana Barabal, Tehsil Suni, District Shimla, H.P., the propriety and correctness of order "dated 26.11.1994 passed by learned Divisional Commissioner Shimla in Revision Petition No. 99/94 has been called in to question, by which the revision petition of the petitioner was rejected by confirming the orders of Settlement Collector and Assistant Collector in partition proceedings. 2. The salient facts leading to the present litigation may be recapitulated thus : Smt. Neel Kamal, respondent No. 1 presented an application before Assistant Collector 1st grade Suni sometimes in 1983 requesting therein for partitioning off her share in the lands comprised in Khata/Khatauni No. 78/118-120 measuring 39.1 Bighas situated in village Basantpur Tehsil Suni that she jointly owned with other co-sharers described in the revenue record. The proceedings commenced on the application culminated into an order dated 30.6.1982 passed by the Assistant Collector sanctioning the mode of partition in accordance with the agreement of the parties, according to the order aforementioned. One of the condition approved in the mode of partition was that the possession shall be respected. The mode of partition was sent to the revenue field agency for carrying out actual partition in terms thereof, on the spot. The revenue field agency carried out the actual partition on the spot after taking into consideration the objections of the various co-owners and reported the matter to the Assistant Collector who also again heard the objections of the parties and approved the partition. Subsequently instrument of partition was written in accordance with the duly sanctioned partition by the Assistant Collector vide his orders dated 18.1.1986. Consequently mutation was entered as per the instrument of partition which was attested as mutation No. 458 dated 31.3.1986 by the Assistant Collector thereby giving effect to the partition in the revenue record. Aggrieved thereby one of the co-owners Ram Bahadur Singh (since deceased) filed an appeal before the Sub-Divisional Collector Shimla on 24.7.1986 in which he challenged the order dated 30.6.1983 by which mode of partition was sanctioned and order dated 18.1.1986 vide which instrument of partition was sanctioned as also mutation dated 31.3.1986 by which the said partition was given effect into the revenue record. The Sub-Divisional Collector allowed the appeal and remanded the case to the Assistant Collector who registered the case again and started proceedings afresh. The proceedings culminated into another instrument of partition issued vide number 732 on 22.6.1990 which was reflected in mutation No. 511 attested by the Assistant Collector vide his orders dated 21.6.1990. This mutation was challenged by the present petitioner before the Sub-Divisional Collector Shimla who allowed the appeal and remanded the case to the Assistant Collector for deciding afresh after giving an opportunity of being heard to the parties. The matter again went to the Assistant Collector who forwarded the order to the Settlement Staff, and the Assistant Collector attested mutation No. 545 vide order dated 15.2.1993. The present petitioner again filed an appeal before the Collector (Settlement) Shimla who dismissed the same vide his order dated 5.3.1994. Still dissatisfied the petitioner filed a revision petition before the Divisional Commissioner, Shimla which was dismissed by him by passing the impugned orders. Undaunted, the petitioner has filed another revision petition before us. 3. The grounds taken in revision petition are that order passed on mutation No. 458 was final and appeal against that order was time barred and not maintainable in view of the fact that instrument of partition was not set aside and mutation was just a replication of the instrument of partition. It has also been pleaded that partition proceedings were complete and could not have been called into question. It has also been pointed out that opening of a new case file by the Assistant Collector Suni on first remand was also illegal. 4. The matter has been heard at length. Written statements have also been filed on behalf of the parties. The record of the lower Courts were requisitioned. I have minutely considered the arguments as also perused the written statements filed by the parties. The record of the lower Courts have also been scrutinized. 5. The impugned order has been challenged as unreasonable and a non-speaking order. A perusal of the order shows that it merely reproduces abstracts of the previous orders. This Court has time and again stressed the need for passing reasonable and speaking orders since the orders passed by the quasi-judicial authorities are appealable and all grounds pleaded are required to be disposed of after assigning reasons for acceptance and rejection thereof. A perusal of the order shows that it merely reproduces abstracts of the previous orders. This Court has time and again stressed the need for passing reasonable and speaking orders since the orders passed by the quasi-judicial authorities are appealable and all grounds pleaded are required to be disposed of after assigning reasons for acceptance and rejection thereof. The impugned order lacks in the requisites of a judicial speaking order and is therefore liable to be struck down on this score alone. 6. The contention that the appeal against mutation No. 458 did not lay and was illegally accepted, appears to be well founded. This contention has been resisted by the respondent No. 1 by submitting that the order passed by the Sub-Divisional Collector Shimla dated 29.11.1986 since not appealed against before the competent authority by the petitioner is not open to question now. In my considered view the order passed by the Sub-Divisional Collector on 29.11.1986 is without jurisdiction and deserves to be set aside. Since duly formulated and sanctioned mode of partition was not appealed against and the partition proceedings concluded on the basis of this mode of partition culminating into instrument of partition and attestation of mutation, delivery of possession and taken place, there was nothing to be appealed before the Sub-Divisional Collector. The mode of partition had become final, the instrument of partition stood issued which came into effect from Rabi 1986, and mutation stood attested, are only consequential orders and no appeal is maintainable against these orders if found to be in conformity with the scheme duly approved in mode of partition and there is a specific provision for appeal against the mode of partition. Shri Ram Bahadur Singh (since deceased) allowed the partition proceedings to continue and by not filing an appeal against the mode of partition had disentitled himself from any consequential relief. Even if his appeal is held to be maintainable, though not held, his specific grievance lay against the attorney of present respondent No. 1, in whose favour those specific khasra Numbers were allotted in partition, and he claimed them to be in his possession. Even if his appeal is held to be maintainable, though not held, his specific grievance lay against the attorney of present respondent No. 1, in whose favour those specific khasra Numbers were allotted in partition, and he claimed them to be in his possession. Even if it was felt appropriate to remand the case to the Assistant Collector, it should have been remanded only with reference to those khasra Numbers which were agitated by the appellant and allotted to the respondent No. 1 and partition in respect of other khasra Nos. and share holders had become final. Sh. Ran Bahadur Singh (since deceased) by that appeal had objected to the allotment of khasra Nos. 313, 314, 315, 316 and 317 in favour of Neel Kamal on the ground that he claimed possession over these said khasra Nos. Re-opening the entire partition in respect of the other share holders and lands assigned to them in the course of partition was not called for. It is by now a settled law that if no appeal is preferred against the mode of partition, no appeal is maintainable against the final orders such as instrument of partition, mutation etc. since these orders are made in execution of what has already been determined by the mode of partition provided that there is no infraction of the sanctioned mode of partition. And it is not the case of the parties that the provision of the mode of partition was infringed during the course of the partition. In view of this position of the matter the order dated 29.11.1986 is not sustainable and deserves to be set aside and is accordingly set aside. Needless to make a mention as to the fact that every order passed subsequent to this order does not survive and are therefore set aside. However, it is open to the LRs of Ran Bahadur Singh deceased to agitate their claim with regard to khasra Nos. 313, 314, 315, 316 and 317 allotted to Neel Kamal in the partition, if they so desire, before Assistant Collector, 1st grade. Partition in respect of remaining share holders is final and conclusive. 7. However, it is open to the LRs of Ran Bahadur Singh deceased to agitate their claim with regard to khasra Nos. 313, 314, 315, 316 and 317 allotted to Neel Kamal in the partition, if they so desire, before Assistant Collector, 1st grade. Partition in respect of remaining share holders is final and conclusive. 7. Before parting with the case we intend to bring on record and take serious note of the fact brought out emphatically time and again by the petitioner during the course of hearings as also has been alleged in his memorandum of petition as one of the ground of revision that the Presiding Officer in the case in the Settlement Department during one of hearings in appeal before him, the Attorney of respondent No. 1 was sitting with the Assistant Settlement Officer and was being served with tea in the presence of the petitioner when he was standing and arguing his case. This is an unfortunate and highly uncalled for situation which reflects adversely on the working of quasi-judicial authorities who are enjoined upon by law to adjudicate impartially to impart justice to the poor litigants. Such instances should not be repeated. 8. For these reasons, the revision petition is accepted and the order of the lower Courts are set aside. 9. Orders be communicated to the parties and file be consigned to record room after due completion. Revision allowed. -