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2002 DIGILAW 191 (HP)

PURSHOTAM CHAND v. SUBHASH CHAND

2002-07-06

S.S.NEGI

body2002
ORDER S.S. Negi, IAS, FC. - This revision petition preferred by S/Sh. Purshottam Chand and 3 others under Section 17 of H.P. Land Revenue Act, 1953, is directed against the order dated 12.11.1998 passed by the Divisional Commissioner, Kangra Division in appeal case No. 170/95 whereby the revision filed by the present petitioners was dismissed. 2. The facts of the case in brief are that S/Shri Subhash Chand and Suman Kumar both present respondents filed an application to the Assistant Collector 1st Grade Dehra on 2.1.1993 seeking partition of land jointly held by the parties comprised in Khata No. 93 Khautani No. 175, 176, 177, Khasra Nos. 303, 412, 413, 414, 444, 445, 947, 1035, 1036, 1037, 1040, 1041, 415, 390, kita 14 measuring 6256.56 sq. mtr. Situated in up Mohal Amarpuri Mauza Dehra, Tehsil Dehra, Distt. Kangra. They also contended in the application that the field No. 415 was in possession of one Shri Bhangi Ram s/o Sh. Ghasita Ram and another field No. 390 was gair mumkin rasta, be kept joint for common use. The present petitioners objected the application and raised the question of title. The Assistant Collector 1st Grade on consideration, rejected the plea vide order dated 17.5.1993. 3. Aggrieved of this order of the Assistant Collector 1st Grade Dehra dated 17.5.1993, S/Shri Purshottam Chand and 3 others present petitioners filed an appeal before the Collector, Dehra Sub Division on the grounds that the impugned order of the Assistant Collector 1st Grade was based on surmises and conjectures in the eyes of law for the reasons that neither the S/Sh. Subhash and Suman respondents nor their predecessor ever remained in possession of the land as Smt. Ishor from whom the respondents purchased the land never cultivated the land nor she was allowed to cultivate by the present petitioners. It was also pleaded that she was completely ousted from the land and petitioner had become owner of the land falling to her share by adverse possession and that the objection raised by them before the Assistant Collector 1st Grade regarding question of title had not been decided to by the learned Assistant Collector 1st Grade, Dehra. 4. The learned Collector after hearing both the parties and going through the case record dismissed the appeal vide order dated 7.2.1995. 5. 4. The learned Collector after hearing both the parties and going through the case record dismissed the appeal vide order dated 7.2.1995. 5. Aggrieved by this order of the Collector, the present petitioners filed revision petition before the Divisional Commissioner Kangra Division on the grounds that they were in possession of the suit land and the present respondents as well as Smt. Ishro Devi were never in cultivating possession of the suit land. The respondents have also filed a civil suit pertaining to land in dispute in civil court where they have taken the objection as title. 6. The learned Divisional Commissioner after hearing both the parties and going through the record concluded that the plea of adverse possession cannot be admitted in view of jamabandi entries] and the mutation No. 197 sanctioned on 10.6.1992 which remained! Unchallenged, and hence dismissed the revision petition vide order dated 12.11.1998. 7. It is against this order of the Divisional Commissioner; the present petitioners have preferred this revision petition before us. 8. The records were requisitioned and the parties were afforded opportunity to address their arguments in support of their claims. 9. The learned Counsel for petitioners in his written arguments has reiterated that the Assistant Collector 1st Grade committed material illegality in holding that no question of title is involved. It has been submitted that the present petitioners are in possession of land continuously, to the knowledge of respondents and their predecessor for the last more than 30-35 years and have become owners of this land by way of adverse possession. It has been further submitted that the respondents have themselves filed a civil suit for declaration of title in respect of the land in the civil court. It has accordingly been submitted that the orders passed by the lower courts are without jurisdiction and be set aside, by accepting the revision petition. 10. The learned Counsel for respondents in his written arguments has submitted that the predecessor of the respondents were in possession of the land and the jamabandi for the year 1986-87 shows Ishor Devi in possession of the lad as a co-owner. It has also been contended that the possession of a co-sharer is the possession of all and one co-sharer cannot claim adverse possession against other co-sharer. It has also been contended that the possession of a co-sharer is the possession of all and one co-sharer cannot claim adverse possession against other co-sharer. It has been submitted that title of respondents to the extent of 1/7th share is clear on the basis of revenue record. As for pendency of civil suit with regard to title filed by the respondents, it has been contended that the civil suit has been filed by them for permanent prohibitory injunction restraining the present petitioners from changing the nature of land and not for the declaration of title as alleged. It has accordingly been urged that the application for partition is maintainable and be allowed to be proceeded ahead and revision petition be rejected. 11. After careful consideration of the submissions made on behalf of both the sides, the contentions made for the petitioners appears to be without substance for the reasons that the predecessor of the respondents Smt. Ishro Devi has been shown owner in possession of the land in question as per jamabandi of Mohal Amarpuri for the year, 1986-87. The petitioners have not been able to bring on record any evidence to rebut the entries of jamabandi to which presumption of truth is attached. There is no evidence whatsoever on record to show the ouster of said Ishro from her title/ownership. The claim of the petitioners that the respondents themselves have filed a suit for declaration of title is not substantiated; rather to the contrary, the respondents have claimed that they have filed a suit for permanent prohibitory injunction restraining the petitioners from changing the nature of land. Therefore, there is no force in the plea made by the petitioners. In the ultimate the revision petition being devoid of any merit is dismissed. 12. Order be communicated to the parties and the case file of this Court be consigned to the record room after due completion.