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Himachal Pradesh High Court · body

2001 DIGILAW 199 (HP)

ATMA RAM v. RAKESH

2001-08-20

S.S.NEGI

body2001
ORDER 1. This revision petition under section 17 of HP. land Revenue Act, 1954 preferred by the petitioner Shri Atma Ram son of Maghi Ram resident of village Malpur, Pargana Dharampur, Tehsil Nalagarah, Distt. Solan, is directed against the order dated 27.6.1997 passed by the Commissioner Shimla Division in revenue appeal No. 45/97 whereby he accepted the appeal filed before him by the present respondent Sh. Rakha alias Ram Rakha by setting aside the order of the Collector Nalagarah dated 31.01.1997. 2. The facts giving rise to this case are that Sh. Atma Ram the present petitioner filed two separate applications both dated 4.2.1993 before the Assistant Collector 1st Grade Nalagarh seeking partition of land jointly held with the respondents comprising Khewat/ Khatoni No. 89/104, Khasra Nos. 1054,1120, 1053 kita 3 area measuring 3 Bighas 7 Biswas as per Jamabandi 1987-88 situated in Mauza Malpur to the extent of his 1/6th share i.e. 0-11 Biswas and Khewat/Khatoni No. 88/105, Khasra No. 1121 area measuring 1-4 Bighas as per Jamabandi 1987-88 situated in Mauza Malpur to the extent of his 1/6th share in the land. The Assistant Collector 1st Grade with the consent of both the parties formulated the mode of partition vide oprder dated 9.3.1994. This order was challenged by the present respondents before the Sub-Divisional Collector 1st Grade below had erred by keeping a passage in the aforesaid mode of partition which did not exist before and that the mode of partition disturbed the existing possession of the parties. 3. The learned Sub-Divisional Collector after hearing both the parties and going through the record accepted the appeal vide order dated 18.8.1994and remanded the case to the Assistant Collector 1st Grade for deciding the mode of partition afresh after hearing the present respondent No. 2 Shri pritam Chand. Later, the Assistant Collector 1st Grade sanctioned mode of partition again vide order dated 28.9.1994. Against this order, Shri Rakha alias Ram Rakha respondent filed an appeal before the Collector Nalagarh on the grounds that the learned Assistant collector 1st Grade while sanctioning the fresh mode of partition, he was not heard and secondly he contended that the present petitioner Shri Atma Ram had purchased 15 biswas of land out of Kh. No. 1121 measuring 1-04 Bighas from one Smt. Savitri this land should have been allotted to petitioner Atma Ram. No. 1121 measuring 1-04 Bighas from one Smt. Savitri this land should have been allotted to petitioner Atma Ram. The sub-Divisional Collector accepted the appeal vide order dated 31-8-1995 and remanded the case to the Assistant Collector 1st Grade for deciding the mode of partition afresh. On remand, the Assistant Collector after hearing both the parties and going through the record held that Shri Atma Ram the present petitioner had sought the partial partition which according to law, is not permissible and therefore rejected the applications vide his order dated 30.10,1996. 4. Aggrieved of this order, Shri Atma Ram the present petitioner filed an appeal before the Collector Nalagarh on the grounds that the petitioner did not seek the partial partition and as such the findings of the learned Revenue Officer below was not tenable and the authority cited by the present respondent i.e. SLC-1986-87 and relied upon by the learned Revenue Officer below was not applicable in his case. 5. The learned Collector after hearing the arguments of both the parties and going through the record, accepted the appeal vide order dated 31.1.1997 and quashed the order of the Assistant collector 1st Grade holding that the present petitioner Shri Atma Ram was entitled to get the partition of his share. 6. Dis-satisfied with this order of the Collector Nalagarh dated 31.1.1997, Shr. Rakha alias Ram Rakha the present respondent No. 1 filed an appeal before the Commissioner Shimla Division on the grounds that the court below had erred in accepting the appeal of the Atma Ram by quashing ht orders of the trial court and the Collector had ignored the facts and law. 7. The learned Commissioner after hearing both the parties and going through the case records, accepted the appeal of the present respondent No. 1 Shri Rakha alias Ram Rakha and set-aside the order of the Sub-Divisional Collector dated 31.01.1997 by arriving at the conclusion that the partition sought is partial. 8. It is against this order of the learned Divisional Commissioner dated 27.6.1997, the petitioner Shri Atma Ram has preferred the revision petition before us. 9. The records have been perused and the arguments addressed by the parties have been considered. 10. The learned counsel for petitioner urged that the lower court have committed grave illegality by holding the application of the petitioner to be an application for partial partition. 9. The records have been perused and the arguments addressed by the parties have been considered. 10. The learned counsel for petitioner urged that the lower court have committed grave illegality by holding the application of the petitioner to be an application for partial partition. According to the learned counsel, the petitioner has applied for partition in the lands which have been jointly held by the parties as per the revenue record and there is no other land owned by the petitioner with the respondents jointly. The learned counsel for respondents has opposed the submissions made in favour of petitioner and asserted that the applications made partition is not maintainable in the present form. 11. On careful consideration of the submissions made for both the sides and scrutiny of revenue records, it appears that the conclusion of the learned Commissioner that the application for partition filed by the petitioner Atma Ram constitute an application for partial partition, is not correct. The Jamabandi for the year 1992-93 appended with the file show the petitioner to be a co-owner with the respondents in khata No. 88/105 and 89/106. The inference of the learned Commissioner that the petitioner also holds share in other khasra numbers which constitute khata No. 75 of Jamabandi, 1972-73, out of which khata nos. 88/105 and 89/106 have been carved out of in the subsequent records/Jmabandi, is not borne out of the records available on the case file. The petitioner claims that he does not have any share in other khata emerging from khata no. 75, wherein respondents are the exclusive owners. The respondents, at no stage have produced any revenue records, which show the petitioner in joint ownership with the respondents except for which he has applied for1 partition in the application impugned before us. In view of these facts, the application cannot be said to constitute an application for partial partition. Consequently, the revision petition is allowed and the orders passed by the learned Commissioner dated 27.6.1997 is set-aside. The Assistant Collector 1st grade, Nalagarh is directed to proceed ahead with the partition proceedings and complete the same expeditiously. Orders be communicated to the parties and case file of this court be consigned to the record room after due completion.