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2002 DIGILAW 307 (HP)

KISHORI LAL v. GIAN CHAND

2002-11-13

S.S.NEGI

body2002
ORDER S.S. Negi, IAS, FC. - The present revision petition has come up for hearing on the recommendations of the learned Commissioner Kangra who vide his recommendations dated 28.2.1992 has recommended that the orders passed by the lower Revenue Officers may be quashed and the case be remanded to the Assistant Collector 1st Grade Palampur for decision on the fresh application of partition, according to law. 2. The case of the petitioner is that he submitted an application on 26.9.1986 to the Assistant Collector 1st Grade Palampur seeking partition of his share in land comprised in Khata No. 100, Khatoni Nos. 351 to 354 khasra Nos. 1591-1593-1594-1595-1735-1744-1592-1598-1736-1596-1597-1741-1743 kitas 13 land measuring 0-49-17 Hects situated in Mohal Pror, Tehsil Palampur Distt. Kangra vide Jamabandi for the year 1979-80. 3. The learned Assistant Collector after going through the partition proceedings and hearing both the parties, proposed mode of partition vide order dated 21.11.1987. 4. Against this mode of partition, Shri Amin Chand respondent filed objections vide application dated 3.5.1988 stating that the land comprising khasra Nos. 1741-1743 was recoded in his ownership at Hisadar, Mushtri (purchaser) and he had raised structure on this land as he purchased 20/50 share of this land from S/Shri Jharoo Ram s/o Jongal, Balanda son of Darshnoo, Makholi son of Durga and Smt. Tarabati daughter of Karodhu vide registered sale deed dated 10.4.1974 and S/Shri Makholi Ram and Gian Chand vendors who sold their alleged 109/204 share to the present petitioner had only 9/20 share and hence could not transfer 0-01-69 Hect. To the present petitioner through sale. He accordingly requested that the mutation already sanctioned in favour of present petitioner, be also reviewed. 5. After considering the objections raised by Shri Amin Chand respondent and having perused the record of the case, the Assistant Collector held that S/Shri Gian Chand and Makholi Ram co-sharers had sold the land to the present petitioner in the excess of their share, and rejected the application of partition vide order dated 4.11.1988. 6. Aggrieved of this order of the Assistant Collector 1st Grade, Sh. Kishori Lai filed an appeal before the Collector Palampur on the grounds that he had purchased 0-02-01 Hects. of land in khasra Nos. 6. Aggrieved of this order of the Assistant Collector 1st Grade, Sh. Kishori Lai filed an appeal before the Collector Palampur on the grounds that he had purchased 0-02-01 Hects. of land in khasra Nos. 1741 and 1743 from its co-sharers for a valid consideration through a registered sale deed within the share of the vendors and the respondents Shri Amin Chand was co-sharers of 2/5 share in the land and that the respondent neither appealed against the mutation order nor was entitled to purchase any specific portion of a joint holding before partition amongst all the co-sharers. 7. The learned Collector after hearing both the parties and going through the record observed that the second sale was not valid as the sellers had sold in excess of their share and dismissed the appeal vide order dated 26.7.1990 directing the parties to seek their remedy from the civil Court. 8. Dis-satisfied with this order of the Collector Palampur dated 26.7.1990, Shri Kishori Lal the present petitioner preferred revision petition before the Divisional Commissioner Kangra who after hearing the parties and going through the entire record has referred the matter to this court appropriate orders. 9. The matter has been heard and the relevant records have also been gone into. 10. On consideration of the material on record, it is brought out that the matter was litigated by the parties in the civil Court i.e. Sub Judge Palampur Distt. Kangra by way of a civil suit filed by respondent No. 5 for declaration that the sale deed dated 23.4.1986 executed by Mukholi Ram son of Sh. Durga and Gian Chand of 109/204 share in the land comprising in Khata No. 100 Kh. No. 359 khasra No. 1741 and 1743 measuring 0-3-1976 Hects. And the mutation attested in favour of Kishori Lal petitioner before us was null and void. The learned Sub Judge vide judgment and decree dated 25.6.1993 held that the aforesaid sale deed did not convey any title on the present petitioner and he accordingly set aside the sale executed in favour of the present petitioner and as also the mutation attested on the basis of the said sale deed. The learned Judge thus decreed the suit in favour of the respondent No. 5 and also restrained the present petitioner permanently from interfering in the peaceful possession of the, respondent No. 5. The learned Judge thus decreed the suit in favour of the respondent No. 5 and also restrained the present petitioner permanently from interfering in the peaceful possession of the, respondent No. 5. In view of the categorical findings returned by the learned Sub Judge Palampur, the application preferred by the petitioner Kishori Lal before Assistant Collector 1st Grade for partition | cannot be allowed and thus the recommendations made by the learned Commissioner cannot be accepted. Consequently the recommendations are turned down and the orders passed by the Assistant Collector and Collector are affirmed and the revision petition is dismissed. 11. Orders be communicated to the parties and the case file of this court be consigned to the record room after due completion.