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2002 DIGILAW 362 (HP)

BALBIR SINGH v. PARTAP SINGH

2002-12-31

S.S.NEGI

body2002
ORDER S.S. Negi, IAS, FC. - These revision petitions filed by Shri Balbir Singh son of Shri Het Ram resident of village Tikkar, Pargna Bharoli, Tehsil Kandaghat, Distt. Sofen, are directed against the order dated 31.12.1998 passed by the Commissioner, Shimla Division in revision petitions Nos. 55/98, 56/98 and 57/98. The facts and question of law in all the three petitions are same, therefore all the three have been clubbed together for adjudication and are disposed of by this single order. 2. The facts of the case in brief are that one Shri Surat Ram the predecessor-in-interest of the present respondent No. 1 Partap Singh filed three separate applications before the Assistant Collector 1st Grade (Tehsildar) Kandaghat seeking partition of land held jointly by the parties in three different villages namely (i) comprised in Khewat No. 3/4 to 6, 4/7 to 13, 5/14, 6/15, 7/16-17 situated in village Banota, Pargna Bharoli (ii) Khewat No. 3/4 to 10, 4/11, 5/12, 6/13 to 36, 7/37 to 39, 8/40 to 43, 9/44, 10/45, 11/46, 12/47 and 20/62 to 64 situated in village Kote, Pargna Bharoli and (iii) Khewat No. 2/5 to 11, 3/12, 4/13 to 16, 4/17 to 20, 5/21, 6/22 and 7/23 situated in village Tikkar, Pargna Bharoli, Tehsil Kandaghat, Distt. Solan. The Assistant Collector 1st Grade Kandaghat after commencing the proceedings the cases proposed mode of partition vide order dated 1.11.1975. Against this order, S/Shri Balbir Singh and Man Singh filed an appeal before the Collector, Kandaghat on the grounds that they had not been given opportunity to produce their evidence in support of their case and the mode of partition prepared by the Assistant Collector 1st Grade was thus illegal and void. It was further contended that the objections raised by them were not heard by the learned Assistant Collector below, therefore the order passed by him was bad in the eyes of law. 3. The learned Collector after hearing both the parties and going through the record of the case, accepted the appeal vide order dated 25.6.1977 by setting aside the order dated 1.11.1975 of the Assistant Collector 1st Grade and remanded the case to the Assistant Collector 1st Grade for deciding the case afresh after affording proper opportunity to all the interested persons. The learned Collector after hearing both the parties and going through the record of the case, accepted the appeal vide order dated 25.6.1977 by setting aside the order dated 1.11.1975 of the Assistant Collector 1st Grade and remanded the case to the Assistant Collector 1st Grade for deciding the case afresh after affording proper opportunity to all the interested persons. The learned Collector while accepting the appeal observed that the learned Assistant Collector 1st Grade had not heard the objections raised by S/Shri Balbir Singh and Man Singh with regard to issues of private partition between the parties that took place as back as 58 years, improvement of land and sanction of mutation of inheritance in favour of Surat Ram ignoring the rest of Co-sharers. On remand, the Assistant Collector 1st Grade again processed the partition proceedings. After hearing both the parties again, going through the record and considering the objections raised by the present petitioner, the learned Assistant Collector 1st Grade held that no private partition had taken place amongst the co-sharers and that no evidence was adduced regarding mutation of inheritance of Ganga Ram in favour of Surat Ram co-sharer. He also held that question of title as raised was not involved in the matter, vide order dated 5.6.1980. This order was further challenged by S/Shri Balbir Singh and Man Singh in an appeal before the Collector Kandaghat who after hearing the case dismissed the appeal vide order dated 28.12.1981 with the direction to the Assistant Collector 1st Grade to proceed ahead with the partition proceedings in the case. Not satisfied with this order of the Collector Kandaghat, Shri Balbir Singh, the present petitioner filed revision petition before the Commissioner, Shimla Division reiterating the grounds/objections as was pleaded before the lower courts. The learned Commissioner after hearing both the parties and going through the record of the case and the grounds taken before him, observed that the objections/grounds as taken by the petitioner before him had been adequately dealt with by the lower courts and found no ground for interfering with the concurrent findings of the courts below. He also held that no partition had been effected between the parties and no question of title was involved and as a result he rejected the revision petition vide order dated 17.6.1986 with further direction to the Assistant Collector to proceed with partition proceedings in accordance with law. He also held that no partition had been effected between the parties and no question of title was involved and as a result he rejected the revision petition vide order dated 17.6.1986 with further direction to the Assistant Collector to proceed with partition proceedings in accordance with law. Shri Balbir Singh the present petitioner assailed this order of Commissioner Shimla Division dated 17.6.1986 before the Financial Commissioner (Revenue and Appeals) H.P. The learned Financial Commissioner (Revenue and Appeals) who after hearing the parties rejected the plea of private partition and dismissed the revision petition vide his .order dated 27.8.1987. 4. In pursuance to this order, the Assistant Collector started the partition proceedings and formulated the mode of partition vide order dated 5.5.1989. This order was further challenged by Shri Balbir Singh and five other appellants before the Collector, Kandaghat and raised question of title. They also claimed that necessary parties were not impleaded and proper opportunity to lead the evidence was not afforded to them. The Collector Kandaghat accepted the appeal vide order dated 24.9.1993 and set side the order dated 5.6.1989 of the Assistant Collector 1st Grade, formulating the mode of partition, with the observation that though the question of title was not involved in the cases, yet list of possession (Fard Kabza) need be prepared. In compliance of the order dated 24.9.1993 of the Collector, the learned Assistant Collector 1st Grade Kandaghat formulated the mode of partition again keeping in view the Fard Kabza vide order dated 31.5.1995. Against this order Shri Balbir Singh present petitioner filed an appeal before the Collector Kandaghat on the grounds that the Assistant Collector 1st Grade below did not consider the objections raised by the petitioner while preparing the mode of partition and that he had not been given sufficient opportunity to plead his case and that there was no mention in the order of mode of partition in respect of the tenancy land and the land under garden, house, well etc. The learned Collector after hearing the parties and going through the case record accepted the appeal vide order dated 29.12.1995 and remanded the case to the Assistant Collector 1st Grade for modification of the mode of partition dated 31.3.1995 to the extent that the land under tenancy in partition should be kept in the share of a shareholder under whom the tenancy was created and the land which had been improved by any shareholder, should be kept in his share. In compliance of above order of the Collector Kandaghat dated 29.12.1995, the Assistant Collector 1st Grade amended mode of partition on 30.3.1996 and approved the same vide order dated 6.6.1996. Against this order of the present petitioner went in appeal before the Collector Kandaghat on the grounds that the Assistant Collector 1st Grade had not-complied with the order dated 29.12.1995 and had passed the order similar to one he had passed on 31.3.1994 and that the objections raised, had not been decided nor the fact of question of title had been decided and further contended that as per impugned mode of partition, it envisaged a separate share for Shri Arjun Singh which was illegal and void as he had never appeared in the court nor applied for separation of his share,. It was alleged that the court below had ignored the fact .that the parties in this case were involved in Civil litigation over question of title. The Collector after hearing the parties and going through the case dismissed the appeal vide order dated 6.1.1998. . 5. Aggrieved by this order of the Collector dated 6.1.1998, Shri Balbir Singh the present petitioner filed revision petition before the Commissioner Shimla Division who after hearing the parties dismissed the same vide the impugned order. Hence, the present revision Petition. The records were requisitioned and the parties were afforded. Opportunity to address their arguments in the matter. 6. Parties, in addition to oral arguments have submitted written arguments, which have been placed on record of the case. 7. It has been submitted for the petitioner that the Assistant Collector did not enquire into the matter in detail while approving the mode of partition and no provision has been kept by him with respect to the development of land and allotment thereof to the concerned shareholder. 7. It has been submitted for the petitioner that the Assistant Collector did not enquire into the matter in detail while approving the mode of partition and no provision has been kept by him with respect to the development of land and allotment thereof to the concerned shareholder. It has been submitted that the Fard Kabza which is required to be made before the mode of partition, was not revised at the time of modification of mode of partition. It has also been submitted that one Sh. Basti Ram was adopted about 119 years ago by one Smt. Tyloo and as such he extinguished his rights in the land in question and therefore his successors are not entitled to any share in the joint property. It has also been averred that title of one Arjun Singh is in question and a suit therefore is pending in the court of Additional Distt. Judge, Solan. It has accordingly been submitted that the revision petition be accepted. 8. The learned Counsel for respondent has submitted that the partition application of respondent is hanging fire for the last more than 35 years and the petitioners are getting the process stalled on one count or other, Fard Kabza and question of titled sought to be raised by the petitioner have already been gone into various times by various courts including the Financial Commissioner. 9. The learned Counsel for petitioner has urged that Fard Kabza has not been prepared and no provision for improvement of land for allotment to the share holder who has made improvement has been made. . 10. These objections pertain to the stage prior to the formulation and approval of mode of partition. Fard Kabza has been prepared that reflects the classification of land and possession Thereon. Therefore it cannot be said that Fard Kabza has riot been duly prepared. The learned Counsel for petitioner has not pointed out any error in the said Fard Kabza. The learned Counsel has also not pointed out specifically as to what improvements have been made by the petitioner on the land in his possession. In any case, the mode of partition envisage the provision for allotment of the improved land to the shareholder who has improved the land. Therefore petitioners can press for allotment of land improved by them at the time of actual partition on the spot. In any case, the mode of partition envisage the provision for allotment of the improved land to the shareholder who has improved the land. Therefore petitioners can press for allotment of land improved by them at the time of actual partition on the spot. Therefore, this-contention lacks any force and is therefore dismissed. 11. The next contention with regard to the provision for a separate khata in the name of Arjun Singh as a civil litigation is stated to be pending in which his .title has been challenged and therefore no share should have been proposed for him in the mode of partition. The learned Counsel has not substantiated his submission by any evidence on record with regard to pendency of civil litigation, much less any injunction restraining the revenue authorities to stay the partition proceedings. As of now, his share stands recorded in the revenue record and he is entitled to get his share partitioned. Therefore, this plea also lacks force. The question of adoption of one Shri Basti Ram about 119 years ago and his consequent dis-entitlement from any share in the joint lands in his ancestral property is to be decided by the civil Court and a case is purported to be pending in the Court of Additional Distt. Judge Solan in this regard, but no embargo or stay etc. has been given in the matter, so as to stay the partition proceedings pending before the lower courts. Therefore this plea has no bearing on the partition proceedings pending before the revenue authorities. 12. In view of the above discussions the revision petitions have no merits and are therefore dismissed accordingly. 13. Orders be communicated to the parties and the case file of this Court be consigned to the record room after due completion.