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2001 DIGILAW 222 (HP)

JAGIRI LAL v. HEM RAJ

2001-09-03

S.S.NEGI

body2001
ORDER S.S. Negi, IAS :- This revison petition under Section 17 of H.P. Land Revenue Act preferred by Shri Jagiri Lal and Kashmiri Lal both sons of shri Haria residents of village Rampur Majri. Tehsil Paonta Sahib, distt. Sirmaur. is directed against the order dated 16.02-2001 passed by Collector, Distt. Sirmaur in a case No.07.10 of 2000 whereby the revison petition of the petitioner was dismissed. 2.. The facts of the case briefly stated are that the present petitioners submitted an application to the Assistant Collector 1st Grade Paonta Sahib on 17.06.1998 for partition of land comprised in Khata/Khatauni No.86/153 to 156. kitas 2 measuring 40-18 Bighas. situated in Mauza Rampur-Majri. Tehsil Paonta Sahib, jointly held by both the parties. The Assistant Collector 1st Grade forwarded to the application to Assistant Collector. Ilnd grade Poanta for scrutiny and proposing of mode of partition. The Assistant Collector Ilnd Grade after hearing both the parties returned the case to the Assistant Collector 1st Grade Paonta Sahib vide order dated 04.01.1999 with the observations that a question of title was involved in the matter which was not in his jurisdiction to decide. The Assistant Collector 1st Grade Paonta Sahib called the parties on 18.01.1999 and directed them that they should first get the question of title decided by the competent Civil Court and then to file the application for partition of land in dispute before him accordingly. Against this order dated 18.01.1999 of the Assistant Collector 1st Grade Paonta Sahib. Shri Jagiri Lal and Kashmiri Lal filed appeal before the sub-divisonal Collector. Poanta Sahib on the grounds that the learned Assistant Collector 1st Grade after receiving the case file from the Assistant Collector Ilnd Grade had not heard the parties on the point of question of title and dismissed the same in a summary way and the learned trial Court had not even considered the revenue entries as incorporated in the Jamabandi for the year 1995-96 which carried the presumption of truth by virtue of which the present petitioners were recorded as co-owners in possesison of the impugned land to the extent of 5/12 shares. 3. 3. The learned Collector Poanta Sahib, Sub-division after hearing the arguments advanced by the learned counsels of both the parties and going through the record, concluded that the issue with regard to question of title was not yet decided by the competent Civil Court, therefore Revenue Officers could not go ahead with the partition proceedings until and unless the same is decided, dismissed the appeal on this score vide order dated 29.12.1999. 4. Aggrieved of this order. Shri Jagiri Lal and Kashmiri Lal both present petitioners preferred revison petition before the Distt. Collector Sirmaur exercising the powers of Commissioner with the contentions that he learned courts below had committed a grave error of law in dis-following the application for partition mearly raising a question of title by a party which too have not been susbtantiated according to law. It was further alleged that the contention of the respondents that their shares as recorded in the patta as 2/12 vis-a-vis 5/12 of the petitioners was wrong and consequently there was a question of title. It was further averred that once a patta is granted under the provision of Land Reforms and Tenancy Act by the Compensation Officer, it could only be challenged by way of appeal before the learned distt. Judge or Hon’ble High Court or through a Civil Suit within a period of one year from he grant of the Patta, i.e. 28.02.1968. further more, both the courts below had not afforded any opportunity to the petitioners to negate the contentions raised by the respondents resulting in the mis-carriage of. justice. The learned commissioner after hearing both the parties and going through the record dismissed the revision vide order dated 16.02.2001. 5. It is against this order, the petitioners have filed the present revision petition before us. 6. The records were requisitioned and the parties were afforded opportunity to address their claims in this court. 7. The learned counsel for petitioner has argued that there is no question of title and the share of the petitioner has been duly recorded in the revenue record. The learned counsel for respondent controverted the com ration of the petitioner and submitted that the orders passed by the lower revenue Officers are in order and be maintained. 8. 7. The learned counsel for petitioner has argued that there is no question of title and the share of the petitioner has been duly recorded in the revenue record. The learned counsel for respondent controverted the com ration of the petitioner and submitted that the orders passed by the lower revenue Officers are in order and be maintained. 8. After thoughtful consideration of the submissions made on behalf of both the sides and perusal of records, the position that emerges is that the Assistant Collector 1st Grade Paonta Sahib has mechanically accepted the report of the Assistant Collector Ilnd grade to the effect that question of title is involved in the matter, neither the Assistant Collector 2nd grade himself, nor the Assistant Collector 1st grade has recorded any ,preliminary evidence that may suggest that question of titles involved. No material whatever has been directed by the Assistant Collector 1st grade to be brought on record by the party with regard to question of title. Question of title is riot a magic wand so as to suggest that whenever it is raised, it is incumbent upon the Assistant Collector to treat it as such. without factually verifying the factum of such a question.It is imperative for the Assistant Collector to hold a preliminary enquiry to find out whether such a question really exists or not. No attempt of this sort has been made by the Assistant Collector in this case. Therefore, at this stage. without returning any finding on the merits of the controversy, it is considered appropriate to remit the matter to the Assistant Collector 1st grade for holding a preliminary inquiry to find out whether question of title really exists or not. The parties are at liberty to raise any objection or lead evidence to this effect before the Assistant Collector 1st Grade Paonta Sahib. 9.In view of the discussion and the order, the other contentions raised by the petitioner need not be gone into, the orders passed by the Assistant Collector and affirmed by the Collector and Commissioner are set-aside and the case is remanded to the Assistant Collector Poanta Sahib, in terms of the above. 10. Orders be communicated to the parties and the case file of this court be consigned to the record room after due completion.