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2006 DIGILAW 287 (HP)

JEET RAM v. DEV RAJ

2006-09-12

RAJWANT SANDHU

body2006
ORDER By the Court.—This revision petition has been referred to this Court by the Divisional Commissioner, Mandi under Section 17(3) of the H.P. Land Revenue Act, 1954 vide his recommendation dated 26.12.1997. 2. Brief facts of the cases are that Smt. Devki Devi, on her behalf and that of her sons S/Sh. Dev Raj and Kamal Lal, filed an application for partition of holdings held in joint ownership with the other parties in village Majhot, Tehsil Sadar Bilaspur before the Assistant Collector, 1st Grade, Bilaspur. The Assistant Collector framed the mode of partition on 19.5.1978. The final partition was sanctioned on 21.7.1978. The mode of partition was assailed in appeal before the Collector, Sub Division Bilaspur who accepted the appeal on 21.12.1979 and remanded the matter back to the Assistant Collector with the specific direction that the case be decided afresh by adopting de novo proceedings from the date on which the ex parte order had been passed against the petitioner. Thereafter, the final partition was sanctioned on 24.3.1981. This order was also challenged in appeal before the Sub Divisional Collector who dismissed the appeal as being time barred on 31.5.1989. The petitioner filed a revision petition before the Divisional Commissioner, Mandi who, while adjudicating on this petition 26.12.1997 has observed that summons were sent to the petitioner for service for 6.12.1980 and the process server, while reporting that the petitioner has refused to receive a copy of the summon, affixed the same on the residential house of the petitioner which he was not competent to do. According to the learned Commissioner, the trial Court has therefore, committed a material irregularity in conducting the proceedings and prejudice has been caused to the petitioner. The learned Commissioner has held that these interested persons were condemned unheard and therefore the orders of both the Courts below should be quashed and the proceedings should be conducted a fresh. 3. The record of the case has been seen and Counsel for the parties heard. Counsel for the petitioner argued that the mode of partition was finalized without serving the present petitioner Shri Jeet Ram, who was serving at Solan. The Assistant Collector, 1st Grade had committed material irregularities in carrying out the partition proceedings since the Fard Kabja Mauka was not prepared in the case. Counsel for the petitioner argued that the mode of partition was finalized without serving the present petitioner Shri Jeet Ram, who was serving at Solan. The Assistant Collector, 1st Grade had committed material irregularities in carrying out the partition proceedings since the Fard Kabja Mauka was not prepared in the case. Smt. Devki Devi had filed a civil suit regarding the very area and she was stopped from seeking the partition through this partition proceeding. This issue was ignored by the Assistant Collector, 1st Grade and he had preceded with the partition proceedings. 4. The learned Counsel for the respondent claimed that the proceedings in the partition case had been completed and the possession had already been delivered to the parties as per the Rapat Roznamcha dated 7.6.1993 and at this stage there was no point in re-opening a settled case. 5. The record shows that this case has been the subject of prolonged litigation- The Assistant Collector, 1st Grade sanctioned the final partition initially on 24.3.1981. The Sub-Divisional Collector dismissed the appeal as being time barred on 31.5.1989 and a revision petition filed before the Divisional Commissioner was referred to the Financial Commissioner with his recommendation on 26.12.1997. The case has finally been heard for disposal on 12.9.2006. The learned Divisional Commissioner has recommended the case to this Court on one point only vis. that Shri Jeet Ram had not been properly served. Although, the process server reported that the petitioner refused to receive the copy of the summons and the process server had affixed out of the copies of the summons on the residential house of the petitioner. The Divisional Commissioner has recorded that since there were no orders from the Court to effect the service by affixation the process server was not competent to do so on his own and by continuing with the proceedings, prejudice has been caused to the petitioner by ordering ex-parte order against him. 6. This is rather a strange finding in view of the fact that the process server had recorded that the petitioner had refused to accept the service. It is seen from the record that even earlier ex-parte orders were passed against Shri Jeet Ram and later these orders were reviewed after obtaining necessary permission from the Sub-Divisional, Collector on 18.8.1980. 6. This is rather a strange finding in view of the fact that the process server had recorded that the petitioner had refused to accept the service. It is seen from the record that even earlier ex-parte orders were passed against Shri Jeet Ram and later these orders were reviewed after obtaining necessary permission from the Sub-Divisional, Collector on 18.8.1980. It appears therefore that Shri Jeet Ram seems to have been in the habit of evading service with a view to prolonging the proceedings and it is seen that this case has already been going on for over 28 years. Since the final partition has already been effected and possession has been given to the parties as per the Rapat Roznamcha of 7.6.1993 the recommendation of the Divisional Commissioner, Mandi, is rejected and the orders of the Assistant Collector, 1st Grade dated 24.3.1981, are upheld. 7. Announced in the open Court today on the 12.9.2006 at Bilaspur. 8. The record of the Courts below be returned and the file be consigned to the record room after due completion. Recommendation rejected.