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2006 DIGILAW 158 (HP)

RAM v. PREM CHAND (DECEASED) THROUGH LRS

2006-05-27

RAJWANT SANDHU

body2006
ORDER 1. The appeal has been preferred by Shri Siri Ram, appellant under Section 14 of the H.P. Land revenue Act, against the order dated 12.12.1996 passed by the learned Divisional Commissioner, Shimla vide which the appeal of the present respondents No.1 to 5 was accepted. 2.Brief facts of the case are that the present respondents No.1 to 5 filed an application for separation of their shares in respect of landed property comprising khata/khatauni No. 7/11 to 13, kita 50, area measuring 55-19 bigha, situate in village Nuin, Tehsil Kandaghat, Distt. Solan on the basis of jamabandi for the year 1986-87.The learned Assistant Collector 1st Grade commenced the partition proceedings and finally concluded the partition on 05-05.1991. The instrument of partition was signed on 8.6.1991. On27.10.1992, Shri Siri Ram, the present appellant who was not a party to the case and whose name did not figure in the jamabandi for the year 1986-87, challenged the final partition order dated 5.5.1991 before the Collector, Nalagarh in appeal, which was accepted vide order dated 30.9.1993.The Collector set-aside the order passed by the Assistant Collector, 1st Grade, and remanded the matter to the Assistant Collector 1st Grade with the directions that Shri Siri Ram be given opportunity of being heard as he had purchased the land from one Smt. Vidhya Devi and he therefore should have been made party in the partition proceedings. Feeling aggrieved by this order of Collector dated 30.9.1993, Shri Prem Chand (now deceased) and four others alongwith the present respondents No.1 to 5 filed an appeal before the commissioner, Shimla who, vide order dated 12.12.1996 accepted the appeal by restoring the order dated 5.5.1991 passed by the Assistant Collector 1st Grade, Nalagarh. Shri Siri Ram, has now filed this appeal before this court taking the plea that the order of the Commissioner is contrary to law and facts, his observation that the appeal before the Collector was barred by limitation, is wrong as the limitation was rightly condoned by the Collector. He further contended that the order of the Commissioner is based upon whims rather than on acts. 3. I have heard the learned counsel for both the sides and perused the entire record of the case. Written arguments have also been filed by the petitioner which have also been taken on record. 4. The Id. He further contended that the order of the Commissioner is based upon whims rather than on acts. 3. I have heard the learned counsel for both the sides and perused the entire record of the case. Written arguments have also been filed by the petitioner which have also been taken on record. 4. The Id. Counsel for the petitioner has reiterated the contents of the revision petition as well as the written arguments submitted on behalf of the petitioner. The Id. Counsel contended that the Sub Divisional Collector has rightly set aside the order of the Assistant Collector, First Grade, Kandaghat as Smt. Vidya, who was one of the co-sharers, had gifted her share in favour of the petitioner and despite her having brought this fact to the notice of the Assistant Collector, he proceeded ex parte against her. According to the Id. Counsel, the Assistant Collector was duty bound to implead the petitioners as a party in the partition proceedings before him. The Id. Counsel further contended that the Id. Commissioner has wrongly held that the petitioner was present when the possession of the land was delivered to the parties though, at para 9 of his order, he has also held that an error has been committed in not impleading Siri Ram, the present petitioner, as a party. It has been also contended that the petitioner as well as Smt. Radha to whom he has further gifted his share of the land are both entitled to maintain the revision petition. 5. On behalf of the respondents, it has been argued that the application for partition had been filed in the year 1988 and the persons involved were those who were recorded as co sharers as per the Jamabandi for the year 1985-86. The factum of gift by Smt. Vidya Wati was never brought on record. It has been further contended that when the partition was carried out on the spot on 13.6.1991, Shri Siri Ram was present and made a statement accepting the partition. The learned counsel for the respondents argued that the previous co-owners had long back been put into possession of their respective shares and some of them have even exchanged the land of which they became owners in pursuance of the instrument of a partition. Citing the Honble High Court of Punjab and Haryana in "PLR 2005 Vol. 3, Pg. The learned counsel for the respondents argued that the previous co-owners had long back been put into possession of their respective shares and some of them have even exchanged the land of which they became owners in pursuance of the instrument of a partition. Citing the Honble High Court of Punjab and Haryana in "PLR 2005 Vol. 3, Pg. 519" he argued that a final order of partition can only be challenged before the civil court. He also cited Honble High Court of Punjab and Haryana in "Recent Civil Reports, 2001, Pg. 79" to stress that no appeal lies against an instrument of partition. He averred that as per the partition, Siri Ram has been allotted 4-9 bighas as per his share which he had further gifted to Smt. Radha. As such, he is left with no share in the land now. As Smt. Radha was not the owner when the partition took place, she could not be impleaded as a party at this stage. 6. In rebuttal, it was argued that the exchange referred to by the Id. counsel for the respondents has been set aside by the civil court and that when the petitioner was associated with the proceedings, he had a right to pursue the same. 7. Having perused the record and heard the arguments advanced on behalf of the parties, I find that the application for partition of the land in dispute was filed on 7.7.1988 as per the Jamabandi for the year 1986-87. The partition was allowed on 5.5.1991 and the instrument of partition was drawn on 6.6.1991. The mutation pursuant to the partition was attested on05.09.1991.the mutation was given effect to in the Jamabandi for the year 1996-97. The petitioner, Shri Siri Ram became owner in new Khata No.3/3, khasra No.4, measuring 1-2 bighas to the extent of !4 share. Likewise, he became owner in possession in Khata No.5, Khatauni No.5 to 10, kitas 56, measuring 56-10 bighas to the extent of 1/6th share. He has further gifted this land falling in his share to Smt. Radha. Hence, it is evident that Shri Siri Ram had accepted the partition. The gift was made by him on 29.12.97 after filing the present revision petition but he chose not to disclose this fact till 19.5.2005 when Smt. Radha Devi filed an application for impleading her as a party in the case. Hence, it is evident that Shri Siri Ram had accepted the partition. The gift was made by him on 29.12.97 after filing the present revision petition but he chose not to disclose this fact till 19.5.2005 when Smt. Radha Devi filed an application for impleading her as a party in the case. As far as the claim of Smt. Radha is concerned, she acquired ownership subsequent to the completion of partition proceedings. Under these circumstances, neither Shri Siri Ram nor Smt. Radha have any, locus standi to pursue the matter. In find no reason to-interfere in the orders passed by the courts below. The revision petition as well as the application for impleading Smt. Radha Devi as a party is therefore dismissed. I allow the application for taking on record the copies of the gift deed, mutation of partition and relevant "Jamabandis which clarify the facts of the case. 8. The record of the courts below may be returned. The file may be consigned to the record from after due completion.