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Himachal Pradesh High Court · body

2006 DIGILAW 362 (HP)

MUINNI DEVI v. GULAB SINGH

2006-11-21

RAJWANT SANDHU

body2006
ORDER This order shall dispose of the above titled two revision petitions, which have arisen out of the same facts. 2. Brief facts of the case are that the present respondents applied to the j Assistant Collector, 1st Grade, Kandaghat for partition of land held in joint ownership with other co-sharers including the present petitioners. The Assistant Collector, 1st Grade devised a mode of partition on 2.9.1990 and subsequently passed the final order of partition on 10.2.1993. The present petitioners filed an appeal against this order before the Collector, Sub-Division, Kandaghat who dismissed the same on 30.7.1993. Later on 25.9.1993, the present petitioners filed an application before the Collector, Sub-Division, Kandaghat seeking to recall the order dated 30.7.1993 on the grounds that no Naksha Alif was prepared while partitioning the land in dispute. Besides, it was averred that khasra No.66 measuring 0-18 biswas which has been in the possession of the petitioners and is near their houses, has been given to the respondents and also that khasra No.51 measuring 1-6 biswas has also been wrongly allotted to other co-sharers while it is in the possession of the petitioners. The learned Collector, visited the spot and accepted the application on 30.4.1996 with the observation that Khasra No.66 is adjoining to the house of the present petitioners but has been allotted to the respondents Smt Janki, while khasra No. 40/2 while is adjoining to the house of Smt. Janki has been allotted to Smt Muni & Smt Satya, the petitioners. The learned Collector attributed this to the non preparation of Naksha Alif". He recommended the matter to this Court under Section 17 of the H.P. Land Revenue Act for necessary directions in order to rectify the errors as mentioned by him. This courts rejected the recommendation of the learned Collector vide order dated 25.11.1999 on the grounds that the learned Collector, could not have entertained a revision petition against an order passed by himself or his predecessor and the application preferred before him could, at best be describes as an application for review. The matter was, however, sent to the learned Commissioner (Revenue) to see whether the impugned order could be deemed to be a request for seeking permission for review of the order of the Collector, dated 30.7.1993 vide which order, the appeal against the order of the Assistant Collector, 1st Grade dated 10.2.1993 was rejected. The matter was, however, sent to the learned Commissioner (Revenue) to see whether the impugned order could be deemed to be a request for seeking permission for review of the order of the Collector, dated 30.7.1993 vide which order, the appeal against the order of the Assistant Collector, 1st Grade dated 10.2.1993 was rejected. The Commissioner (Revenue) vide an order dated 4.6.2001 dismissed the matter with the observations that the learned Collector had, while passing the earlier order dated 30.7.1993 observed that the Assistant Collector, 1st Grade had visited the spot in the presence of all the parties on 10.2.1993 and he had passed a speaking order on the partition application. The learned Commissioner also observed that the subsequent order dated 30.4.1996 passed by the learned Collector, Kandaghat is mis-conceived and is not maintainable and that a review is permissible only in cases of material irregularity. Now, the present petitioners have filed the revision petition No. 123/2001 against the order of the Collector, Kandaghat dated 30.7.1993 passed in appeal No.8/8-93 and the revision petition No. 124/2001 has been filed against the order passed by the learned Commissioner (Revenue) dated 4.6.2001 vide which the permission to allow review of the order of the learned Collector dated 30.7.1993, was declined. 3. The record of the courts below was called for and examined and the arguments advanced by the learned counsel for the parties were heard. 4. Shri Pawan Kaprate, the learned counsel for petitioners argued that the final partition was ordered by the learned Assistant Collector, 1st Grade on 10.2.1993 without preparing Naksha Alif (PTN-1). The petitioners came to know of this fact only when they applied for a copy of the order passed in appeal by the learned Collector, Sub-Division, Kandaghat dated 30-7-1993 alongwith the Naksha Alif. Though the certified copy of the order was not supplied as the same was not found on the record of the case file before the Assistant Collector, 1st Grade, the petitioners filed an application before the Collector seeking recall of his orders passed on 30.7.1993. The learned Collector recommended the matter to this court but the same was turned down and the matter was sent to the learned Commissioner, Shimla who also disallowed the permission for review of the order of the learned Collector dated 30.7.1993. The learned Collector recommended the matter to this court but the same was turned down and the matter was sent to the learned Commissioner, Shimla who also disallowed the permission for review of the order of the learned Collector dated 30.7.1993. The learned counsel pleaded that he is before this court against the orders of the learned Collector dated 30.7.1993 vide which the appeal against the order of the Assistant Collector, 1st Grade dated 10.2.1993 sanctioning the final partition and agaisnt the learned Commissioner dated 4.6.2001 dis-allowing the permission to review the order of the Collector dated 30.7.1993. He argued that the only point which he wishes to bring to the notice of this Court is that while allowing the partition on 10.2.1993, the Assistant Collector, 1st Grade did not get the Naksha Alif prepared. The learned counsel further argued that in the absence of Naksha Alif which is the first and basic document showing the existing position of the parties prior to partition, the partition could not have been carried out. He asserted that in the absence of Naksha Alif the khasra No.66 which is adjoining to the house of the petitioners, was allotted to the respondent No.4. He referred to the order of the Assistant Collector, 1st Grade dated 10.2.1993 wherein it has been specifically observed that a Photostat copy of an agreement was produced, according to which khasra No.66 has been given to Smt. Janki, respondent No.4. The learned counsel contended that this Photostat document has been made a basis for partition though it never formed a part of the mode of partition and therefore ought not to have been considered at all by the Assistant Collector, 1st Grade when he visited the spot on 10.2.1993 and finalized the partition. He further contended that this Photostat document is dated 2.8.1970 and if this is to be considered at all, there is another document which was drawn up in the year 1987, according to which Smt Janki Devi had surrendered this particular khasra No. in favour of the petitioners. The leaned counsel stressed that either a document referring to a private partition is to be got effected under Section 133 of the H.P. Land Revenue Act or a formal partition can be applied for under Section 123 of the same. Both options cannot be exercised by a party. The leaned counsel stressed that either a document referring to a private partition is to be got effected under Section 133 of the H.P. Land Revenue Act or a formal partition can be applied for under Section 123 of the same. Both options cannot be exercised by a party. He asserted that it is on record that the learned Collector, while visiting the spot found that khasra No.66 was in possession of the petitioners. 5. The learned counsel further emphasized upon the provisions of para 14.14. of the H.P. Land Record Mannual to fortify his argument that the Naksha Alif of PTN-1 is necessary in partition proceeding. The learned counsel cited the following judgments in support of his arguments. I.Smt. Phul Kaur versus Shri Man Kaur, 1991(1) SLJ. Para 316, 2.Smt Bardu versus Shri Tara Chand and another, 1986 SLC, page 75, 3.Shri Pritam Singh versus Jaskaur Singh, 1992 RRR, Page 390. 4.Sh. Jarnail Singh v/s Paramjeet Singh, 2002(2) Civil, RCR, page 16, 5.Smt Katori versus Smt. Rajbala and others, 1972 PLJ page 404, 6.Shri Girwar versus F.C. Haryana, 1997(11) Civil RCR page 114. 6. Shri P.C. Sood, the learned counsel for the respondents argued that the facts being taken up by the petitioners cannot be considered by this court in revision petition at this stage. He cited "Harnam Singh and others versus Nand Kaur and others, 1967 LLT, page 114" in this regard. He contended that the Naksha Alif was duly presented but due to negligence on the part of the officials of the office of Assistant Collector, 1st Grade, the same was appended to some other application since there were other partition cases going on between the parties. He further argued that the learned Collector, while passing the order dated 30.4.1996 has wrongly observed that twelve opportunities were given for presenting the Naksha Alif. He also contended that the partition application was made on the basis of latest jamabandi and other co-sharers who were shown to be in possession of khasra No.66 therein have not objected to its allotment to Smt Janki respondent. He claimed that allocation of Kuhli land has been completed by giving kahsra No.66 to the respondents. According to him there is no khasra No. 44/2 adjacent to the house of Smt Janki and her house is in Abadi Deh. He claimed that allocation of Kuhli land has been completed by giving kahsra No.66 to the respondents. According to him there is no khasra No. 44/2 adjacent to the house of Smt Janki and her house is in Abadi Deh. The learned counsel further argued that no appeal had been preferred against the order regarding the mode of partition. He alleged that the petitioners only wanted to delay the mater. He pleaded that the revision petition may be dismissed. 6. Having heard the arguments advanced by both the learned counsel and perusing the record. I have arrived at the following conclusion:- 7. The main issue involved in the entire controversy is whether the partition I could be concluded without preparing the Naksha Alif or PTN. 8.A perusal of the order of the Assistant Collector, 1st Grade Kandaghat dated 10.2.1993 reveals that he has disallowed the objection of present petitioners regarding khasra No.66 on the basis of a purported Photostat document. Though he has allowed the partition after spot visit on the same day after disallowing the objection raised by the petitioners, it has been recorded by him that the partition is being sanctioned as per the Tatimas, Field Book, Naksha Jeem and Khatauni. He has made no reference to "Naksha Alif having been prepared. It is pertinent that the learned Assistant Collector, 1st Grade had, vide an interim order dated 22.4.1989 directed the patwari concerned to prepare the "Farad Kabza and Naksha Alif. However, the same is not found to have been prepared and placed on the file. 9. Before proceeding further it would be appropriate also to discuss the order passed by this court in Revenue Appeal No. 35/95 decided on 25.11.1999. At that point of time the issue before my learned predecessor was whether the learned Collector, Kandaghat, could have referred the matter to this court under Section 17(3) of the Act while adjudicating upon the application filed by the present petitioners before him for re-call of his earlier dated 30.7.1993. My learned predecessor has ruled that there exists no provisions under which the Collector could entertain an appeal or revision against an order passed by himself. The matter was hence sent to the learned Commissioner to examine the same further to see if the impugned recommendation could be deemed to be a request for seeking permission for review of the order dated 30.7.1993. The matter was hence sent to the learned Commissioner to examine the same further to see if the impugned recommendation could be deemed to be a request for seeking permission for review of the order dated 30.7.1993. The learned Commissioner had subsequently disallowed the recommendations made by the learned Collector vide his order dated 6.4.2001 which are under challenge before me in revision petition No. 124/2001. Besides this, the legality of the order passed by the learned Collector on 30.7.1993 whereby he has upheld the partition done by the Assistant Collector, 1st Grade, Kandaghat dated 10.2.1939 are also assailed in revision petition No. 123/2001. I am of the opinion that while it is established on record that a Naksha Alif or PTN-1 was not prepared despite clear instructions of the Assistant Collector, 1st Grade and regarding which the explanation of the patwari concerned was sought by the Assistant Collector, 1st Grade and regarding which the explanation of the patwari concerned was sought by the Assistant, 1st Grade vide his interim order dated 2.1.1990, it is not understood as to how the learned Assistant Collector, 1st Grade proceeded with the partition in the absence of the same. The law lays down a specific procedure for carrying out the partition, when sought by the parities under Section 23 of the Act. Para No. 4. of the H.P. Land Record Mannual lays down that; "A map of the land to be partitioned should obtained from the patwari and a statement showing the area to be divided and the share of parties should be prepared. Form PTN- in the annexes given as the specimen, but it may be modified to show further detail when this is considered necessary". 10.The importance of Naksha Alif is that the objections of the parties concerned can be acted upon by the revenue Officer after ascertaining the correct position regarding the status of each co-owners entitlement vis-a-vis his existing ownership and possession as recorded. This gives an insight to the revenue officer of the area to be partitioned, its quality and status, as well as the extent to which the existing possession is to be respected while carrying out the partition on spot. This gives an insight to the revenue officer of the area to be partitioned, its quality and status, as well as the extent to which the existing possession is to be respected while carrying out the partition on spot. It has been held in "Prittam Singh Versus Jas Kaur, 1992 RRR, page 390, that if the Revenue Officer comes to the conclusion that there is no question of title involved, he will ask the patwari to prepare a map of the land to be partitioned and the share of the persons asking for partition, popularly known as Naksha Alif. This Naksha Alif contains the details of the possession of co-sharers asking for partition, issues or ... cultivating by the co-sharer. On receipt of Naksha Alif the Revenue Officer shall ask the parties to raise objections to it. After disposing of these objections, he will frame the mode of partition". 11.lt has been further held in "Jarnail Singh versus Paramjit Singh 2002(2) RCR Civil, page 16" that Naksha (Ara) order to be prepared only after approving the mode of partition, which, on the face of it, is patently wrong and erroneous". 12.In view of the above position of the law, it is clear that the "Naksha Alif \ or PTN-1 is an important document which the revenue Officer concerned must get prepared and call the parties seeking partition to raise valid objections and suggestions thereupon which he must decide under Section 128 of the Act before framing mode of partition. By not doing so, the Assistant Collector, 1st Grade has denied the petitioners an opportunity to raise their valid objections regarding the partition as per their entitlement. In the instant case the Assistant Collector, 1st Grade has affirmed the partition on 10.2.1993 without adopting the proper course of action as laid down under law. The learned Assistant Collector, 1st grade has affirmed the partition on 10.2.1993 without adopting the proper course of action as laid down under law. The learned Assistant Collector, 1st grade has, perhaps, overlooked this position. In view of the same the revision petition No. 123/2001 filed by the petitioners against the order of the learned Collector, Sub-Division Kandaghat dated 30.7.1993 is accepted. The order of the Assistant Collector, 1st grade Kandaghat dated 10.2.1993 as well as the order of the Collector, Sub-Division, Kandaghat dated 30.7.1993 are set aside. In view of the same the revision petition No. 123/2001 filed by the petitioners against the order of the learned Collector, Sub-Division Kandaghat dated 30.7.1993 is accepted. The order of the Assistant Collector, 1st grade Kandaghat dated 10.2.1993 as well as the order of the Collector, Sub-Division, Kandaghat dated 30.7.1993 are set aside. The matter is remanded to the i Assistant Collector, 1st Grade Kandaghat with the directions to decide the I application for partition after completing all legal formalities. It is further directed j\ that since the matter has already been considerably delayed, it must be decided within three months of receipt of these orders on priority. 13.As regards the revision petition No. 124/2001, the same becomes infructuous in view of the above findings. Announced in the open Court today the 21.11.2006. Record of the courts below be returned and the case file of this court be cosigned to the record room after due completion.