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2001 DIGILAW 112 (HP)

BHAGWAN DASS THROUGH LRS v. HARI SINGH

2001-06-11

S.S.NEGI

body2001
ORDER This revision petition has come up for hearing on the recommendations of the learned Divisional Commissioner Kangra 28.10.1988 whereby he has recommended that the final partition announced by the Assistant Collector 1st Grade on 23.8.1987 may be changed to the effect that khasra No. 1023 should be kept joint and all the petitioners may be allotted separate khatas. 2. Facts of the case briefly stated are that one Smt. Prabhi wd/o Sh. Mussadi s/o Nihala resident of Trindi Mauza Nagraoa Tehsil Kangra applied to the Assistant Collector 1st Grade Kangra for partition of land pertaining to khata No. 31 khatoni No. 65 to 73, kita 95 measuring 2-6-30 Hects jointly held by the parties situated in Mohal Trindi Tehsil Kangra. The learned Assistant Collector 1st Grade commenced the proceedings and vide order dated 23.6.1983 sanctioned the mode of partition. The plea of question of title was raised but was rejected. 3. This order was challenged by the present petitioners S/Sh. Bhagwan Dass and Others before the Sub-Divisional Collector Kangra on the grounds that there was a question of title involved in this case as such without deciding the same, by the competent court, the partition proceedings could not proceed before Assistant Collector 1st Grade. After hearing both the parties and going through the record, the Learned Collector dismissed the appeal vide order dated 29.5.1994 with the directions to proceed further with the partition. In compliance of this order of the Collector dated 29.5.1984, the learned Assistant Collector 1st Grade continued the partition proceedings and finally vide order dated 21.8.1987 approved the partition and subsequently vide order dated 26.9.1987 also sanctioned the instrument of partition. 4. Feeling aggrieved of the order dated 21.8.1987 of the Assistant Collector 1st Grtade ordering the partition, the present petitioner S/Shri Bhagwan Dass and others preferred a revision petition before the Divisional Commissioner Kangra on the grounds that the learned Assistant Collector as per statement of the parties, had not carved out the separate khatas to each of the applicants/ respondent and made departure from the sanctioned mode of partition. Secondly it was stated that khasra No. 1023 was to be kept in joint ownership of all the co-sharers but it was not done so and the same was allotted to one Sh. Secondly it was stated that khasra No. 1023 was to be kept in joint ownership of all the co-sharers but it was not done so and the same was allotted to one Sh. Partap Singh who was recorded in unauthorized possession of this khasra No. Thirdly it was contended that no notice was issued to the present petitioners at the time of sanctioning the partition and objections had not been entertained. Fourthly the present petitioners were allotted inferior land and the principle of consolidation had not been kept in view while making the partition in the final order. It had been alleged that one Sh. Rikhi Ram respondent had died during the pendency of the proceedings and his legal representative had been shown as share holders in his place without any proper application or notice and the opportunity to file an objection against the partition papers had been denied to the present petitioners. 5. The learned Divisional Commissioner after hearing both the parties and perusal of record, observed that the Assistant Collector h3s violated his own order and partitioned Kh. No. 1023 which was to be kept under joint ownership as per mode of partition and separate khatas have not been carved out as provided for in the mode of partition. He has accordingly recommended that final partition be carried out as per approved mode of partition by setting aside the order of Assistant Collector 1st grade. The matter has been heard and the records have also gone into. 6. The learned Commissioner has sought the indulgence of this court to accept the recommendation on two grounds viz the separate khatas have not been carved out as per mode of partition be carved out now and secondly kh. No. 1023, to be kept common as per mode of partition, has been given to Partap Chand who is not even share holder in the joint holdings, be ordered to be recorded in joint ownership. 7. The first contention with regard to carving out the separate khatas to each share holder as per mode of partition has been substantially complied with by the Assistant Collector as separate khatas have been carved out by him vide his orders dated 21.8.1997. 7. The first contention with regard to carving out the separate khatas to each share holder as per mode of partition has been substantially complied with by the Assistant Collector as separate khatas have been carved out by him vide his orders dated 21.8.1997. The learned counsel for petitioner has not pointed out any specific deviation which has resulted into any prejudice against the petitioners as a result of separation of various khatas by the order of the Assistant Collector. Therefore this contention does not merit any consideration. 8. The second contention pertain to the provision in the mode of partition in regard to Khasara No. 1023 to be kept joint deserve consideration in as much as there has been infraction of the mode of partition as this khasra No. has not been kept joint. Shri Partap Chand has been recorded in possession of this khasra No. in revenue record prior to partition and he continues to be reflected in possession in the orders of partition. Therefore he has deviated from the mode of partition and has omitted to record the land under this kh. No. as joint. Therefore, the only modification warranted under these circumstances at this state is to order that kh. No. 1023 be recorded in joint ownership as per mode of partition. 9. Consequently, the revision petition and recommendations are partly allowed and the orders of the Assistant Collector are affirmed with the aforesaid modification i.e. kh. No. 1023 be recorded in joint ownership. 10. Orders be communicated to the parties and the case file of this court be consigned to the record room after due completion.