FINANCIAL COMMISSIONER, ASHWANI KUMAR v. PARAMJIT KUMAR
2001-10-09
S.S.NEGI
body2001
DigiLaw.ai
ORDER S.S. Negi, J. :- This revision petition preferred by S/Shri Ashwani Kumar and Vipan Kumar both sons of Shri Paras Ram residents of Village Shantla. Tehsil Dehra. Distt. Kangra. is directed against the order dated 7.5.1999 passed by the Divisional Commissioner. Kangra Division in revision petition No.321/97 whereby the revision petition filed by the present petitioners was dismissed. 2. The facts of the case in brief are that S/Shri Paramjit Kumar. Vinod Kumar and Surender Kumar, the present respondents applied to the Assistant Collector 1st Grade Dehra seeking partition of land bearing khewat No.28. Khatoni No.48 and 49, khasra Nos. 131.137.138.179.180.184.187,193.196.199.200.210.211. 7.275.275/1. 278.280.282.283.284.288, 302 and 277 kita 24 measuring 3-57-59 Hects. jointly possessed by both the parties, situated in Mohal Shantla. Mauza Gumbar. Tehsil Dehra. Distt. Kangra. 3. The learned Assistant Collector 1st Grade after commencing proceedings on the said application formulated mode of partition vide order dated 16.05.1984. Partition was carried out on the spot but parties raised objections on the partition. Resultantly the Assistant Collector called the parties and eventually parties arrived at a compromise on the basis of which the partition was finally sanctioned by the Assistant Collector. 1st Grade vide order dated 09.04.1988. This order was challenged by the present petitioners S/Shri Ashwani Kumar and Vipan Kumar before the collector Dehra in an appeal on the grounds that they had not,been given any opportunity to raise their objections in regard to acceptance of the partition and that no proper notice had been issued to their learned counsel or to the guardian of the minors regarding spot inspection so fixed by the Assistant Collector 1st Grade Dehra and that they had not been provided any approach to Khasra No.284 allotted to the present petitioners and that the mode of partition had not been followed, at the time of actual partition. 4. After hearing both the parties and going through the record the learned Sub-Divisional Collector found that one of the present petitioners Shri Vipan Kumar had encroached upon to a part of Khasra No.284/1 allotted to Shri Paramjit Kumar. In view of this the learned Collector remanded the case to the Assistant Collector 1st Grade vide order dated 28.02.1989. 5. In compliance of order dated 28.02.1989 of the Collector. Dehra the Assistant Collector 1st Grade. Dehra passed fresh orders vide order dated 28.09.1992.
In view of this the learned Collector remanded the case to the Assistant Collector 1st Grade vide order dated 28.02.1989. 5. In compliance of order dated 28.02.1989 of the Collector. Dehra the Assistant Collector 1st Grade. Dehra passed fresh orders vide order dated 28.09.1992. This order was also assailed by one of the present petitioners Shri Ashwani Kumar on a new ground that he had become major on 28.9.1992 but he was not called by the Assistant Collector 1st Grade and the impugned order was passed in his absence and further that the learned Assistant Collector 1st Grade had not inspected the spot. He neither heard the objections nor implemented the compromise arrived at between the parties in regard to khasra No.275. 6. The learned collector Dehra after have heard both the parties and perusal of record observed that the orders dated 28.2.1989 passed by his predecessor had also been implemented in the presence of the parties which had been agreed to by them to their satisfaction and dismissed the appeal vide order dated 02.06.1997. 7. Aggrieved of this order of the Collector dated 02.06.1997. the present petitioners filed revision petition before the Divisional Commissioner Kangra on the grounds that the revenue authorities were not competent to partition the Abadies denoted by khasra No.288 and that in khasra No.284 no provision of path had been made and that the change/correction so effected carried a miscarriage of justice without inspecting the spot by the Assistant Collector 1st Grade below. 8. The learned Divisional Commissioner Kangra Division after hearing both the parties and perusal of the case record minutely concluded that the present petitioners had been raising new issues at various stages which are of no consequence and intend to delay and prolong the partition proceedings and accordingly dismissed the revision petition vide order dated 07.05.1999. 9. Dis-satisfied with this order, the present petitioners have filed this revision petition before us. 10. The records were requisitioned and the parties afforded opportunity to address their claims in the Court. 11. The learned counsel or petitioners in his written arguments has reiterated his stand on various plea and has prayed that the revision petition be accepted. 12. The learned counsel for respondents has controverted the averments made for the petitioners and has prayed that revision petition against concurrent facts and orders be dismissed. 13.
11. The learned counsel or petitioners in his written arguments has reiterated his stand on various plea and has prayed that the revision petition be accepted. 12. The learned counsel for respondents has controverted the averments made for the petitioners and has prayed that revision petition against concurrent facts and orders be dismissed. 13. It has been averred on behalf of the petitioners that the partition of land has been conducted without preparing list of possession i.e. Fard Kabza. The objection with regard to preparation list of possession essentially pertains to the mode of partition which has to be raised before the mode of partition, but the present revision has been preferred against the final order of partition and as such, such an objection is not maintainable at this stage when final partition has been done in pursuance of the mode of partition. Secondly the petitioners have not shown as to what prejudice has caused to them by nonpreparation of the Fard Kabza. Therefore this contention lacks merit. 14. The petitioners have also impugned the partition that Abadies under Khasra No.288 has been partitioned and no approach has been given to the petitioners between their house and cattle shed. Perusal of the file of the Assistant Collector show that the parties substantively agreed to the partition by way of a compromise on 09.04.1998 on which date the Assistant Collector also recorded statement of the parties to that effect, and the Assistant Collector ordered to partition of various khasra Nos. as per agreement between the parties and no objection was raised by any of the parties with regard to khasra No.288. Secondly provision for partition of Abadi has been made in the mode of partition vide item 4 thereof wherein it has been provided that Abadies would be allotted to the share holder in possession thereof. Therefore the allotment of Abadies to the parties have been effected in accordance with the mode of partition and by agreement of parties. It is not the case of the petitioners that houses or Abadies built up by them have been allotted to respondents in violation of the mode of partition. Therefore this plea also lacks any force and deserve to be dismissed. 15. The plea of the petitioners for providing approach to various khasra Nos.. house etc.
It is not the case of the petitioners that houses or Abadies built up by them have been allotted to respondents in violation of the mode of partition. Therefore this plea also lacks any force and deserve to be dismissed. 15. The plea of the petitioners for providing approach to various khasra Nos.. house etc. cannot be considered at this stag- when no specific provision therefor has been made in the mode of partition. 16. It has also been submitted on behalf of the petitioners that the land comprising khasra Nos. 193. 196.179 is valuable land and deserves to be partitioned as a separate block as per shares of the parties. This plea also cannot be accepted in absence of any specific provision therefor in the mode of partition. Secondly the petitioners have not taken the plea for allotment of land in these khasra Nos. in any of the Court below and they thus cannot be allowed to set up a new case/plea at this stage. Consequently, in view of the discussion here-in-above the revision petition is without any merit and is therefore dismissed. 17. Orders be communicated to the parties and case file of this Court be consigned to the record room after due completion.