Research › Search › Judgment

Himachal Pradesh High Court · body

2001 DIGILAW 90 (HP)

ROSHAN LAL v. VARINDER KAKKAR (D) THROUGH LRS

2001-05-16

S.S.NEGI

body2001
ORDER 1. This is a revision petition filed by Shri Roshan Lal son of Ranjha Ram, resident of Ram Nagar (mant), Tehsil Dharamshal, Distt. Kangra, against the order of the learned commissioner, Kangra Division dated 29.7.94 whereby the revision petition of the petitioner dismissed. 2. The facts of the case are that the respondent Shri Varinder Kakkar presented an application to the Assistant Collector, 1st grade Kangra on 01.10.1984 for partition of land jointly held by both the parties pertaining to Khata No. 220, khatoni No. 470 to 474, khasra No. 1038, 1039, 1041,1023,1024,1025,1026,1040 plots 8, measuring 0-43-68 Hects. And land entered in Khata No. 221, khatoni No. 475 to 482, khasra No.1031 to 1034, 1029,1030, 1035, 963, 1028,964,971 to 974 situated in Mohal Mantkhas, Tehsil Kangra. The Assistant Collector, 1st Grade formulated the mode of partition on 07.04.1986 and-in pursuance thereof sanctioned the partition and instrument of partition vide order dated 4.7.1988. 3. Against the order dated 04.07.198B of the Assistant Collector, 1st Grade sanctioning the instrument of partition, the present petitioner Shri Roshan Lal filed an appeal before the Sub-Divisional collector, Dharamshala on the grounds that he had purchased 2 kanals and 4 marlas of land out of akhasra No. 98 khatoni No. 184, as per the Jamabandi for the year 1966-67 of Tikka and Mauza Mantkhas, Tehisl Dharamshala vide registered sale-dated 21.06.1973, from shri Khazana son of Shri Banka resident of the aforesaid Tika and Mauza. He also purchased another piece of land measuring 0-9 marlas from one Shri Bhullar son of Niranjan resident of Mantkhas vide registered sale deed dated 05-05-1978. During settlement operations, he alleged that his land had been reduced from 2 kanals 9 Marias to 2 Kanals by an order of Settlement Collector dated 6-3-1983. it was contended that on coming to know this order of the Settlement Officer, he filed Civil Suit in the court of Sr. Sub-Judge, Kangra and during the pendency of the Civil suit and stay of the learned Civil Court, the Revenue Officer should not have altered the revenue entries. 4. The learned Sub-Divisional Collector after going through the case and hearing both the parties held that the appeal filed before him was time barred, and rejected the same vide his order dated 27-03-1991. 5. 4. The learned Sub-Divisional Collector after going through the case and hearing both the parties held that the appeal filed before him was time barred, and rejected the same vide his order dated 27-03-1991. 5. This order was further agitated by the present petitioner before the Divisional commissioner, Kangra on the grounds that during pendency of Civil Sit in respect of land in dispute the Revenue Officer should not have proceeded ahead with the partition proceedings while the stay order of Civil Court was in force. 6. It was contended that the petitioner came to know about the impugned order issued by the Assistant Collector on 01-08-1990 when the counsel for respondent No. 2 submitted to the Civil Court the impugned order of the Assistant Collector 1st grade Kangra dated 04-07-1988. 7. The learned Commissioner, Kangra Division after hearing both the parties and going through the record, dismissed the revision petition vide his order dated 29-07-1994. 8. It is against this order, the petitioner has filed the present revision petition before this court. 9. The record were requisitioned and parties were called upon to address their claims ir>*this court. 10. The learned counsel for petitioner urged that the orders passed by the lower revenue courts are illegal, perverse and unjust in as much as the petitioner had sought injunction from the civil court to the effect that the respondents were liable to be restrained from getting the order of Settlement Collector implemented in revenue records and causing interference in the lawful ownership and possession of the petitioner Roshan Lal. He has also submitted that the said civil suit was dismissed by the Sub-Judge, Kangra but an appeal preferred before the Distt. Judge, Kangra against that judgment was decided on 27-08-1993 wherein it was observed by him that the settlement operation of area in question had been ordered to be cancelled by the State Government and fresh Settlement had been ordered and appeal was accordingly allowed. The judgment passed by the Sub-Judge was set-aside and the petitioner was allowed to institute a fresh suit for the same subject matter of the suit of part of the claim. The judgment passed by the Sub-Judge was set-aside and the petitioner was allowed to institute a fresh suit for the same subject matter of the suit of part of the claim. It has further been submitted that the judgment of the civil court prevails over the order of revenue court and therefore the partition order passed by the Assistant collector is liable to be set-aside and fresh partition is required to be carried out on the basis of record prepared during fresh settlement as according to petitioner entire khasra numbers have been changed in the course of fresh settlement. It has also been urged that question of title exists in the matter and the parties are litigating the same in the civil court. 11. The learned counsel appearing on behalf of the respondents submitted that the petitioner has lost in all the revenue courts and concurrent findings of facts can neither be challenged nor interfered in the revisional proceedings and accordingly prayed that the revision petition be dismissed. 12. The contention of the petitioner with regard to question of title at this stage is not tenable as such question has to be raised before framing the mode of partition. The question was since not raised by the petitioner, rather the petitioner in course of proceedings before the Assistant Collector had made a statement that his share be separated from other share-holders, therefore this plea is not tenable and hence rejected. 13. The second submission of the petitioner is that the partition impugned before us has become inconsequential in view of the order of the state government to cancel the settlement record on which the partition was carried out. Our attention was also drawn to the judgment of the Distt. Judge Kangra dated 27-08-1994 in which he has observed the order impugned in these proceedings has ceased to exist and the khasra Nos. and area there-under have under-gone change in terms of are and dimensions and therefore the partition ordered by the Revenue Officer below cannot be executed. Our attention was also drawn to the judgment of the Distt. Judge Kangra dated 27-08-1994 in which he has observed the order impugned in these proceedings has ceased to exist and the khasra Nos. and area there-under have under-gone change in terms of are and dimensions and therefore the partition ordered by the Revenue Officer below cannot be executed. The learned Commissioner while returning findings on this issue has rightly pointed out that if during the process of implementation of the order of partition at the time of actual handing over the possession etc., the revenue officer of 1st instance finds it difficult to execute that order or if he finds by means of suo-motu exercise of powers or on being satisfied at the instance of any of parties to the partition proceedings that the final order of partition is incapable of excution on the spot because of alterations resulting from the revised settlement, he would be at liberty to review the partition proceedings as per procedure prescribed there for by law or the parties would be free to approach the Collector to invoke his revisional jurisdiction to rectify the anomalies, if any resulting there from. The observations of the learned Commissioner are in order and there is no justification to interfere with them. Even otherwise the petitioner has not been able to point out any incongruity in the revised settlement record resulting into any prejudice to his interest. The revised settlement, in any case would not affect the extent of ownership of holding of various share holders in terms of area, dimensions and location of various fields on the spot. In view of this discussion, the revision petition lacks any force and is accordingly dismissed. 14. Order be communicated to the parties and the case file of this courts be consigned to the record room after due completion.