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2002 DIGILAW 93 (HP)

TARA CHAND v. PUSHPA DEVI

2002-04-06

S.S.NEGI

body2002
ORDER S.S. Negi, IAS :- The present revision petition has come up for hearing on the recommendations of the Commissioner Mandi Division whereby the learned Commissioner has recommended that order passed by Assistant Collector and Collector deserve to be set- aside as these have been passed in violation of mode of partition. 2. The facts of the case in brief are that Smt. Pushpa Devi the present respondent No.1 applied before the Assistant Collector 1st Grade Hamirpur for partition of her share in land comprised in Khata No. 27 Khatauni No. 28 Khasra Nos. 1208 and 1210 land measuring 4 Kanals as per Jambandi for the year 1984-85 situated in Tikka Daruhi. Mouza Bajuri Tehsil and District Hamirpur. 3. The Assistant Collector 1st grade Hamirpur after commencing proceeding on the application approved the mode of partition vide order dated 21.8.1991. Pursuant to the mode of partition actual partition was carried out by the revenue field agency and the partition was finally sanctioned by Assistant Collector 1st Grade on 10.7.1992. 4. Against this order. Smt. Pushpa Devi the present respondent No. 1 filed an appeal before the Distt. Collector Hamirpur on the grounds that the objections raised by her before the trial court had not been heard and considered. The learned Distt. Collector heard both the parties and ordered to allot specific khasra Nos. to various share holders vide order dated 15.10.1992. This order was assailed by Smt. Pushpa Devi before the Commissioner Mandi Division who after hearing both the parties and going through the records of the case, accepted the appeal of Smt. Pushpa Devi vide order dated 17.5.1994 and set-aside the order of Distt. Collector dated 15.10.1992 and remanded the case to the Assistant Collector 1st Grade Hamirpur for fInalization of partition after visiting the spot and keeping in view the principle of consolidation of holdings. In compliance of the order of Commissioner Mandi dated 17.5.1994. the Assistant Collector 1st Grade Hamirpur visited the spot and partitioned the land in the presence of parties and announced the partition vide order dated 17.10.1994. 5. In compliance of the order of Commissioner Mandi dated 17.5.1994. the Assistant Collector 1st Grade Hamirpur visited the spot and partitioned the land in the presence of parties and announced the partition vide order dated 17.10.1994. 5. Shri Tara Chand and Smt.Tripta Devi both present petitioners filed an appeal against the partition before the Sub-Divisional Collector on the grounds that the order of the Assistant Collector 1st Grade was without jurisdiction and beyond the scope of directions issued by the learned Commissioner and the learned Assistant Collector 1st Grade had not considered the objections filed before him and he had proceeded just to give benefit to Smt. Pushpa Devi (the present respondent No.1) and to involve the present petitioners in unnecessary litigation. 6. The learned Collector after hearing both the parties and having gone through the record of the ease held that the impugned order passed by the Assistant Collector 1st Grade below was justified as per the possession on the spot and upheld the order of Assistant Collector vide order dated 29.1.1996. 7. Dis-satisfied with this order of the Sub-Divisional Collector dated 29.1.1996 the present petitioner filed revision petition before the Divisional Commissioner. Mandi who after hearing both the parties and scrutiny of the records of the case, has" recommended the case to this court with his opinion that the trial court has since not kept in mind the mode of partition and consequently has committed irregularities and therefore recommended that partition should be done again and the orders passed by Assistant Collector be set-aside. 8. The parties were afforded opportunity to address their arguments in support and against the recommendations. 9. The learned counsel for petitioner argued that the Assistant Collector 1st grade has not adhered to the mode of partition and the same has been violated in course of partition. It has also been urged that the petitioners were not afforded any opportunity to present their claim at the time of partition and the Assistant Collector did not visit the spot to settle the dispute of the parties. It was accordingly prayed that the recommendations made by the learned Commissioner be accepted, the orders passed by the Assistant Collector be set-aside and the partition be ordered de-novo. 10. It was accordingly prayed that the recommendations made by the learned Commissioner be accepted, the orders passed by the Assistant Collector be set-aside and the partition be ordered de-novo. 10. The learned counsel for respondents averred that the partition carried out by the revenue field agency has been completed long ago and possession has also been delivered in consequence of the said partition to the parties as per their entitlement and there is no occasion to upset the partition already done. It was also urged that no violation of mode of partition has taken place and the recommendations made by the learned Commissioner do not deserve to be accepted. 11. Having heard the parties and perusal of records, the revision petition is liable to be dismissed as the discussion here under would show. After filing of the application for partition by the respondent No. 1 on 6.10.1990. the Assistant Collector commenced the proceedings on the application and got the partition carried out on the spot and sanctioned the same on 10.7.1992. On appeal, the Distt. Collector himself went on to allocate specific Khasra No. to various parties that was undone by the learned Commissioner in appeal lodged before him. Subsequently partition was again carried out and sanctioned by the Assistant Collector on 7.10.1994 which was affirmed by the Collector on appeal also. On further revision lodged before the Commissioner by the petitioners, he has recommended that the partition be ordered to be got carried out afresh after setting aside the previous partition already ordered by the Assistant Collector and affirmed by the Collector on first appeal. It may be pointed out at the out-set that the learned Commissioner has not pointed out specifically as to what irregularity has been committed by the lower revenue courts that justify1 to set-aside their orders. 12. The contention of the petitioners that the Assistant Collector has not adhered to the mode of partition while carrying out the actual partition on the spot has not been substantiated by adducing any evidence in support of the plea. Rather, the partition has been carried out by maintaining possession of the parties as per "Fard Kabza Mauka prepared by the field revenue officials before preparing the mode of partition. The petitioner has not pointed out if any portion of the land under his possession has not been allotted to him in partition. Rather, the partition has been carried out by maintaining possession of the parties as per "Fard Kabza Mauka prepared by the field revenue officials before preparing the mode of partition. The petitioner has not pointed out if any portion of the land under his possession has not been allotted to him in partition. Therefore it cannot be said that there has been violation of mode of partition. The petitioner and his wife has been allotted land in khasra No. 1208/2 that was reported to be in their possession in "Fard Kabza Mauka" and respondents have been allotted land that was shown in their possession in the said "Fard Kabza Mauka. Therefore the mode of partition has been complied with in the partition proceedings. 13. The contention of the petitioners that they were not afforded opportunity of hearing by the Revenue Officers below is not correct, since the petitioners were duly represented before the lower courts in the two rounds of litigation that went on between the parties at various levels. Therefore it cannot be said that the petitioners did not get sufficient opportunity to defend their claim. This plea also lacks force and is therefore rejected. 14. As has been pointed out that the partition proceedings are complete in all respect, instrument of partition has been issued and possession in consequence there of has also been delivered to the parties. In the result, the recommendations made by the learned Commissioner are without any force and are therefore turned down and the orders passed by Assistant Collector and confirmed by Collector. Hamirpur on appeal are affirmed. The revision petition is accordingly dismissed. 15. Orders be communicated to the parties and case file of this court be consigned to the record room after due completion. -