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Himachal Pradesh High Court · body

2009 DIGILAW 664 (HP)

Malkiat Singh Shri S/o Bhandari Ram v. Amar Singh s/o Bhandari Ram

2009-07-24

P.MITRA

body2009
ORDER This revision arises from the order of the Commissioner, Mandi Division, in case no. 416/2003 dated 24.1.2007. 2. The brief facts of the case are that the petitioner and also respondent no 1 are joint owners in possession of land comprised in khata/khatauni no. 19/19, kahsra no. 3,4,7, 13 and 20 kita 5 measuring 78-10 kanals situated in village Narghol Tappa in sub teshil Dhatwal in Hamirpur district. The present petitioner had filed an application before the Assistant Collector, 1st Grade, Barsar, for partition of the land. The mode of partition was devised by the Assistant Collector vide order dated 17.4.2001 and the papers were sent to the field for carrying out the partition. The respondent no. 2 had filed an objection claiming that she is the owner in possession of one third share in the khata. The Assistant Collector himself visited the spot on 23.11.2001 and observed that the objector was in possession as claimed. He thereafter sought the permission of the Collector, Barsar sub division, to review the mode of partition. The Collector allowed the review vide order dated 30.7.2002. The petitioner had thereafter filed an appeal before the Commissioner, Mandi Division, who dismissed the appeal. Hence this revision petition. 3. In the petition, the petitioner has assailed the decision of the Commissioner on various grounds, the first being that only he and the respondent no. 1 are the joint owners of the land described above and that he and the respondent No. 1 have been in possession of the said land for more than 40 years. The respondent no. 2 has no title, interest, claim or possession over the land and is a complete strange. Further that the respondent no. 2 had raised the question of title on false and flimsy grounds and prayed for impleading her as a party to the partition proceedings. Her application had been rejected and she had not challenged the same before any appropriate authority. Further that the respondent no. 2 had again filed objections vide an application dated 7.9.2001. The Assistant Collector, Barsar, thereupon sought the permission of the Collector, Barsar, to review the mode of partition which was allowed by the Collector. 4. The petitioner has challenged the impugned order and orders of the other courts below on grounds of irregularity and illegality. Further that the respondent no. 2 had again filed objections vide an application dated 7.9.2001. The Assistant Collector, Barsar, thereupon sought the permission of the Collector, Barsar, to review the mode of partition which was allowed by the Collector. 4. The petitioner has challenged the impugned order and orders of the other courts below on grounds of irregularity and illegality. He has also claimed that once the mode of partition having been framed and sanctioned, it cannot be altered. He has claimed that the partition proceedings were not conducted in accordance with the provisions contained in chapter 10 of the, Land Records Namual. The basic requirement for partition between parties is their joint ownership and a third party or a stranger cannot be pleaded as a party. The remedy in such a situation is not in partition proceedings but elsewhere. He has also maintained that the application for amending the mode of partition is not maintainable when no appeal against the mode of partition has been preferred. The petitioner has also claimed that the application of respondent no. 2 was malafide in collusion with respondent no. 1 who wants to grab more than his due share in connivance with respondent no. 2. 5. Learned counsels for the parties were heard. Learned counsel began his arguments by stating that the partition proceedings have been unnecessarily delayed. This commenced in 1991 and is still stuck. Further the mode of partition was finalized on 17.4.2001 and the application of respondent no. 2 is dated 18.6.2001. In fact the respondent no. 2 in her application u/s 129 of the HP. Land Revenue Act even claims to be owner by way of adverse possession. Learned counsel further pointed out that the respondent no. 2 never moved any appeal but instead has been making applications while not assailing the earlier orders which had reached finality. Learned counsel alleged that such frivolous application were being made to delay the proceedings. The jamabandi very clearly shows that only the petitioner and the respondent no. 1 were owners of the land while the respondent no. 2 does not figure anywhere. He prayed that the petition may be dismissed with heavy costs. 6. Learned counsel for the respondent on. 2 stated that the respondent no. 2 had applied for review of mode of partition. 1 were owners of the land while the respondent no. 2 does not figure anywhere. He prayed that the petition may be dismissed with heavy costs. 6. Learned counsel for the respondent on. 2 stated that the respondent no. 2 had applied for review of mode of partition. The land was owned earlier by Shri Bhandari Ram and the respondent is his daughter and the respondent was entitled to equal share of her father's land. He further stated that once possession is there, the revenue code has to take into account the same. He prayed that the petition may be dismissed. 7. In rebuttal the learned counsel for the petitioner stated that the name of the respondent no. 2 is nowhere in the record. The respondent no. 2 has not claimed ownership by way of inheritance but has claimed by her application that she has acquired ownership by way of adverse possession. 8. I have given due consideration to the records as available and also the arguments of learned counsel on both sides. As stated at para 3 above, the petitioner has claimed that the respondent no. 2 has no title, interest, claim or possession over the land in question and is a complete stranger. This does not appear to be correct. Firstly the respondent no. 2 is the daughter of Shri Bhandari Ram who is the father of the petitioner as well as respondent no. 1. To the extent, the laws of inheritance need to be checked as to whether she was entitled to any share' of the land upon the death of Shri Bhandari Ram. Secondly in her application dated 18.6.2001, the respondent no. 2 has claimed ownership by way of adverse possession. Though these positions may appear contradictory yet the respondent no. 1 has, in his objections to the partition conducted on spot (which is placed at p.117-119 of the Assistant Collector's file), supported the respondent no. 2 to the extent that she was in possession of the land. Even the Assistant Collector himself had visited .spot on 23.11.2001 and found that respondent no. 2 was in possession of the land. In these circumstances. it cannot be accepted without proper determination that the respondent no. 2 has no title, interest, claim or possession over land and is a complete stranger. The fact that the respondent no. Even the Assistant Collector himself had visited .spot on 23.11.2001 and found that respondent no. 2 was in possession of the land. In these circumstances. it cannot be accepted without proper determination that the respondent no. 2 has no title, interest, claim or possession over land and is a complete stranger. The fact that the respondent no. 2 is not included in the jamabandi is also not of much help to the petitioner as such record which came in existence upon the death of the father of the parties may have been manipulated. Thirdly as regards the claim that the remedy for such situations is not in partition proceedings' but elsewhere, it needs to be remembered that during partition proceedings, the Assistant Collector has to give the opportunity to all interested parties. After giving such opportunity, the Assistant Collector has to, on the basis of the record before him, reach a conclusion as to the interest of the parties concerned. To do this, the action of the Assistant Collector to seek permission to review earlier orders is correct. The Collector, Barsar subdivision, is also correct in allowing the review. The Commissioner has dismissed the appeal of the petitioner on similar grounds and no fault can be found with the same. In these circumstances, the present revision is dismissed. 9. Announced in open court today the 24th July, 2009. 10. Record of the courts below be returned and the case file of this court be consigned to their record room after the completion. M.R.B.