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2006 DIGILAW 159 (HP)

HITESH KUMAR v. JAGDISH CHAND

2006-05-29

RAJWANT SANDHU

body2006
ORDER: This revision petition has been preferred by the petitioners under Section 17 of the H.P. Land Revenue Act, against an order dated 26.12.2000 passed by the Deputy Commissioner, Shimla in revision petition No. 03/2000, exercising the powers of Commissioner. The learned Commissioner (DC) has accepted the revision petition of the present respondents and has set aside the orders passed by both the courts below. 2. Brief facts of the case are that the present petitioners moved an application before the Assistant Collector 1st Grade, Shimla (Rural) for partition of their landed property comprised khata No. 87, khatauni No. 143 to 147, kita 29, measuring 20-07 bighas, situated in Mauza Pujarli, Pargana Jajot, /Tehsil and Distt. Shimla as per jamabandi for the year 1993-94. The Assistant Collector 1st Grade framed the mode of partition vide order dated 21.08.1997. This order of the Assistant Collector 1st Grade was assailed in appeal before the collector Sub-Division, Shimla (Rural), by the present respondent’s No. 1 to 5. The Sub-Divisional, Collector, Shimla dismissed the appeal vide order dated 24.6.1999. Still aggrieved by the order passed by the Collector, the present respondent’s No. 1 to 5 filed a revision petition before the Divisional Commissioner, Shimla Division. The matter was processed by the Deputy Commissioner, Shimla exercising the powers of Commissioner after winding up of the office of the Divisional Commissioner. He accepted the revision petition by setting aside the order passed by the courts below vide order dated 26.12.2000. Aggrieved by this order of the Commissioner (DC), Shimla, Shri Hitesh Kumar and others have preferred this revision petition before this court on the grounds that the order passed by the Commissioner (D.C.) is based upon surmise and conjectures. He has mis-construed and mi-read the fact which is contrary to the law and the correct facts of the case. 3. Arguments advanced by the learned counsel for both the parties were taken into consideration. The record of the courts below has also been perused. 4. The Learned counsel or the petitioners argued that the petitioners had applied for the partition of the suit land. Factual position of the possessions of land was never in dispute. The petitioners were recorded as owners in possession of the area to be partitioned and the presumption of truth was attached to the revenue record. 4. The Learned counsel or the petitioners argued that the petitioners had applied for the partition of the suit land. Factual position of the possessions of land was never in dispute. The petitioners were recorded as owners in possession of the area to be partitioned and the presumption of truth was attached to the revenue record. Only two conditions were required to be satisfied for application for partition to be considered viz (i) applicant for the partition should be a joint owner of the holding sought to be partitioned, (ii) his share should also be recorded regarding the same. The Assistant Collector, 1st Grade had concluded that the applicants to the partition were entitled to get the land partitioned as they satisfied these two conditions. He cited "Smt. Punni Devi versus Chet Ram & others, decided by this court in revision petition No. 180/1984 on 19.09.1985" in support of his contention. The learned counsel for the petitioners further stressed that the Commissioner (D.C. Shimla) had no right to exercise revisional powers and to set aside the order of the Sub-Divisional, Collector and the Assistant Collector, 1st Grade. The Commissioner (DC Shimla) cold at his best make recommendation to the Financial Commissioner. The revision proceedings were no stage to reappraise the evidence and therefore the observations of the Commissioner (DC Shimla) that Shri Jagdish and others had specifically raised .the objections of the title in the proceedings and that the respondents/petitioners were never in possession of the land to be partitioned and therefore the application for partition could not be maintained without getting decree of the joint possession from the civil court were erroneous. 5. On behalf of the respondents it was argued that the application for partition was filed in 1997 by the present petitioners. Objections were filed to these proceedings by the present petitioners. The disposal of the question of title was necessary before proceedings in the matter while the Assistant Collector, 1st Grade had not dealt with this. Although, the civil suit was going on through which the present petitioners had sought injunction, the same had not yet been granted and status quo should be maintained regarding this matter. The disposal of the question of title was necessary before proceedings in the matter while the Assistant Collector, 1st Grade had not dealt with this. Although, the civil suit was going on through which the present petitioners had sought injunction, the same had not yet been granted and status quo should be maintained regarding this matter. Reference was also rriade to chapter 14, Para 47 of the H.P. Land Records Manual, wherein it is stated that if an applicant for partition is not in possession of his share heir not entitled to claim partition at all. 6. Having perused the record and weighed the arguments of counsels for the parties, I am of the view that since the present petitioners had purchased some share in the suit land they were entitled to get their share partitioned as the possession of a co-sharer is treated to be that of all the co-sharers. There is ample case record in support of this view. The Assistant Collector, 1st Grade has hot committed any irregularity by rejecting the objections regarding issue of title being raised by the present respondents since the jamabandi entries were clearly in favour of the present petitioners and the Sub Divisional Collector has rightly upheld the order of the Assistant Collector, 1st Grade. The Commissioner (D.C. Shimla) has not appreciated these facts and hence has failed in the exercise of the jurisdiction vested in him in a legal manner. Hence, the orders of the Commissioner (D.C. Shimla) dated 26.1.2.2000, are set a aside while the orders of the Sub-Divisional Collector dated 24.6.1999 and that of the Assistant Collector, 1st Grade 21.8.1997, are upheld. 7. Announced in the open court today the 29th may, 2006. 8. Record of the courts below be returned and the case file of this court be consigned to the record room after due completion.