Research › Search › Judgment

Himachal Pradesh High Court · body

2006 DIGILAW 318 (HP)

SANDHYA DEVI v. HARI CHAND

2006-10-13

RAJWANT SANDHU

body2006
ORDER 1. This revision petition has been filed under Section 16 of the H.P. Land Revenue Act against the order dated 5th April, 1995 passed by the Divisional Commissioner, Kangra Division. 2. Brief facts of the case are that the respondent Srjrt Hari Chand and two others filed an application on 4th November, 1989 seeking partition of the land which they wound jointly with the respondents before the Assistant Collector, 1st Grade, Arrib. The mode of partition was sanctioned by the Assistant Collector, 1st Grade vide his order dated 4-12-1989. Feeling aggrieved by this order Shri Prem Chand and Smt. Gango Devi preferred an appeal before the Collector who . disposed of the same in terms of the compromise orally made but recorded before the Appellate Authority. This order was challenged by the present petition in an appeal filed before the learned Divisional Commissioner, Kangra Division on the grounds that the Assistant Collector, 1st Grade has made an unauthorized alteration in the mode of partition. The petitioners also contended that fruit trees have been planted in khasra no. 1430 and there is a cattle shed in khasra no. 1404 which should have been allotted to the co-owners now in possession but this had not been provided for in the sanctioned mode of partition. The learned Divisional Commissioner dismissed the appeal vide an order dated 5-4-1995. 3. The present revision petition has been filed on the grounds that since the petitioners have submitted before the Collector that the record had been tampered with, this allegation should have been enquired into. It has been further alleged that the mode of partition sent to the Patwari was not the same as available on the case file. It was further been averred that the compromise was entered into by Shri Prem Chand who was not a duly authorized agent on their behalf. Acpording to the petitioners they have reclaimed khasra nos. 1430 and 1446 and have also developed khasra No. 1433 regarding which specific objections were raised before the courts below. It has also been claimed that partial partition cannot be allowed as has been done in the present case and that the alleged compromise was never reduced into writing. The record of the case has been seen and counsel for the parties heard. The learned counsel for the petitioners stated that the dispute was regarding the mode of partition. It has also been claimed that partial partition cannot be allowed as has been done in the present case and that the alleged compromise was never reduced into writing. The record of the case has been seen and counsel for the parties heard. The learned counsel for the petitioners stated that the dispute was regarding the mode of partition. This had been tampered with/forged. The order dated 6.12.1991 recorded in this regard by the Assistant Collector, 1st Grade clearly showed that initially ltem-2 was recorded as Kabza Bahal Rakh Kar". Later this had been substituted with "Kabza Tord Kar". Since Abadis were standing on the land in the dispute and there was also orchard on part of the land which had been grown by some of the co-sharers in the property, it was not reasonable to disturb the possession while carrying out the partition. He cited "Bardu versus Tara Chand & another 1986, SLC page 75" in this regard. 4. The learned counsel for the respondents argued that this revision petition was not maintainable as this had been filed under Section 16 while this provision related to review of orders passed by the lower courts. In this case petition should have been filed under Section 17 rather than 16. Moreover, all the courts, below had decided in favour of the respondents and in view of the concurrent findings of the courts below there was no ground for consideration of the revision petition. In this regard he cited "Hari Saran versus Mst Raji, 1977 SLC, page 489" decided by Honble P.K. Mattoo, Financial Commissioner. The learned counsel further argued that the only point on which the mode of partition was challenged by the parties was regarding change in ltem-2. However, the change had been initiated by the Revenue Officer and this could not be construed as being tampered with/forged. The detailed judgment recorded by Shri K.C. Sharma, learned Divisional Commissioner, Kangra clearly discussed this issue and the learned Divisional Commissioner had also concluded that there was no tampering with the record. Also, the learned Divisional Commissioner in his order had discussed in great detail the locus standi of Smt. Sandhya Devi to challenge the partition proceedings and had concluded that the interests of Shri Prem Chand and his wives Smt. Sandhya Devi and Smt. Ganga Devi were identical. Also, the learned Divisional Commissioner in his order had discussed in great detail the locus standi of Smt. Sandhya Devi to challenge the partition proceedings and had concluded that the interests of Shri Prem Chand and his wives Smt. Sandhya Devi and Smt. Ganga Devi were identical. Smt. Sandhya Devi could not take a different stand in the matter and she had not many any statement before the Assistant Collector or the Collector alleging violation of her rights. Both the ladies had been given ample opportunity to be heard in the matter and they were represented in the proceedings by their husband Shri Prem Chand who described himself as a "Mukhtyar." Since Shri Prem Chand had made the statement before the learned Collector on 26th Nov. 1991 accepting the mode of partition as proposed, the appeal before the learned Divisional Commissioner was held to be not maintainable. Counsel for the respondents also stated that the partition proceedings had been delayed for 18 years on account of prolonged litigation by the present petitioner and her family members. They were in possession of more area than entitled to and therefore were interested in delaying the proceedings. In rebuttal, counsel for the petitioners reiterated that the partition should be carried out maintaining the possession of the parties. 5. The record clearly shows that the allegations made by the petitioners regarding tampering with the order of mode of partition are not established. Moreover, Shri Prem Chand, husband of Smt. Sandhya Devi and Smt. Ganga Devi has accepted the mode of partition as proposed and now he/they, cannot take a different stand in the matter. The petitioners therefore appear to have no case and this revision petition is rejected 6. Announced in the open court today the 13.10.2006 at Una. Record of the courts below the returned and the case file of this court be consigned to the record room after due completion.