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Himachal Pradesh High Court · body

2009 DIGILAW 721 (HP)

Nand Lal v. Jai Ram

2009-08-18

P.MITRA

body2009
ORDER (P. Mittra, F.C.) - This matter has arisen from the appeal filed by the petitioner against the decision of the Commissioner, Shimla Division dated 5.9.2007 in revenue appeal no. 31/2006. 2. The brief facts of the case arc that the Assistant Collector, IInd Grade, Solan had attested mutation no. 2056 on 13.8.2002 whereby private partition of land comprised in khata no. 555 measuring 2.79-46 hectares in mauza Basal, Patti Kather, Tehsil and district Solan\owned and possessed by the petitioner and respondent jointly in equal share was affirmed. Aggrieved by this, the respondent had preferred an appeal before the Collector, Solan sub division, alongwith application for condonation of delay. The said Collector had condoned the delay in the filing of the appeal vide order dated 16.10.2003. The present petitioner was not satisfied with the said order and had preferred an appeal before the Commissioner, Shimla Division. The Commissioner had however dismissed the appeal on 4.1.2005. The Collector thereafter proceeded with the case and ultimately on 26.10.2005 allowed the appeal of the present respondent and set aside the above said mutation. Aggrieved of this order, the petitioner had again filed an appeal before the Commissioner who not finding any merit in the said appeal had dismissed the same vide order dated 5.9.2007. The present petitioner has now come to this court in revision. 3. The records of the lower court were obtained and the learned counsel for both sides were heard. In support of the petition, learned counsel for the petitioner began his arguments stating that the short question in this case is whether the private partition between the parties is to be upheld. Learned counsel stated that both parties had gone to the Patwari and this factum is recorded in the Rapat Roznamcha at no. 456. They applied for family partition and accordingly mutation on. 2056 was attested and thus the family partition got approved. Against this, the respondent went to the Collector who allowed the appeal and that too after condoning considerable delay. According to learned counsel, the present petitioner had then gone to the Commissioner who had dismissed the appeal on the ground that the partition was not as per sections 133 and 135 of the HP Land Revenue Act. Further the Divisional Commissioner says that there should be some written application which was not available in the instant case. 4. According to learned counsel, the present petitioner had then gone to the Commissioner who had dismissed the appeal on the ground that the partition was not as per sections 133 and 135 of the HP Land Revenue Act. Further the Divisional Commissioner says that there should be some written application which was not available in the instant case. 4. Learned counsel stated that as per Chapter 14(1) of the Land Records Manual, the patwari is bound to enter voluntary partition and no written application is required Learned counsel further referred to Chapter 8 (1) of the Land Records Manual which provides for attestation of even oral [ran8actions. As per learned counsel, the Commissioner has ignored Chapters, 14(1) and 8(1) of the Land Records Manual. Learned counsel also cited the judgments in the cases Sudama Ram & Ors Vs. Ram Dhan & Another [Lahore Law Times Vol. LXXI-1992 p.17] and Pritam Singh. Vs. Dhian Singh & Ors [2003 CWT.W (HP)p.36]. Learned Counsel also cited Angrez Singh & Gurmej Singh Vs Jeet Singh & Ors., LLT. Vol-LXXVI-1997, p.12]. Learned Counsel next drew attention to section 135 of the Land Revenue Act on which the Commissioner has relied, which nowhere lays down that parties cannot have a private partition when partition proceedings are pending. As per learned counsel, the procedure prescribed in the Land. Revenue Act has been followed. The revenue courts cannot go into intricate questions of law and thereafter the mutation was correctly sanctioned. On this ground, the orders of the lower courts need to be set aside. 5. Learned counsel for the respondent stated that admittedly the respondent had filed for partition. Further during the course of the partition proceedings, the mode of partition had been prepared and it is an admitted fact that nobody filed any objection against the mode of partition. Thereafter the mode of partition was sent to the field agency for effecting partition on the spot but instead of effecting such partition as per mode of partition already approved, mutation no. 2056 was attested on 13.8.2000. As per learned counsel, the Assistant Collector, IInd Grade was not competent to attest mutation in respect of private partitions because of section 138 of the Land Revenue Act which clearly states that the officer empowered under the Chapter 9 cannot be below the Assistant Collector of the 1st Grade. 2056 was attested on 13.8.2000. As per learned counsel, the Assistant Collector, IInd Grade was not competent to attest mutation in respect of private partitions because of section 138 of the Land Revenue Act which clearly states that the officer empowered under the Chapter 9 cannot be below the Assistant Collector of the 1st Grade. Therefore, only Assistant Collectors of the 1st Grade can attest such private partitions. Learned counsel stated that the Collector has given due consideration to the provisions of the law and rightly set aside the partition which has been upheld by the learned Commissioner. 6. Learned counsel further stated that the sequence of events .shows the alleged family partition was completed in haste. As regards the provisions in the Land Records Manual quoted by the learned counsel for the petitioner, learned counsel said that these are guidelines which, though approved by Government, cannot supersede the provisions of the law contained in the Land Revenue Act. Secondly, these are not even applicable now because of amendments to section 135 in 2000. Now the report to the Patwari has to be in writing duly signed by all co-shares. In the instant case; there is no such written application with the signatures of the various co-owners. 7. Learned counsel further stated that section 135 of the Land Revenue Act will come into play because the rights of the parties are being changed. The Land Revenue Act, specifically requires, mutations to be recorded in respect of partition proceedings. In these circumstances, the court below has rightly concluded that the Assistant Collector, IInd Grade has exceeded his jurisdiction and the prescribed procedure has not been followed, Accordingly the appeal may be dismissed. 8. In rebuttal, learned counsel for the petitioner pointed out to the judgement in the case of Pritam Singh Vs: Dhian Singh & Ors (cited earlier) whereby it has been laid down that in the absence of instrument of partition does not imply that the status of the parties continued to be of co-sharers. Learned counsel further stated, that the family partition had been correctly recorded by the Patwari and duly attested by the Revenue Officer. In such a situation the partition is complete and cannot be questioned by a Revenue court. 9. I have carefully considered the petition as well" as the' arguments of learned counsel of both sides. Learned counsel further stated, that the family partition had been correctly recorded by the Patwari and duly attested by the Revenue Officer. In such a situation the partition is complete and cannot be questioned by a Revenue court. 9. I have carefully considered the petition as well" as the' arguments of learned counsel of both sides. As rightly pointed out by learned counsel for the petitioner, the short question in this case is whether the private partition between the parties should be upheld. In this regard it would be useful to recall certain provisions of Chapter 9 of the HP Land Revenue Act. In particular the following sections are relevant : 135 Affirmation of partition privately affected: (1) In any case in which partition has been made without the intervention of a Revenue Officer, any party thereto may apply to a Revenue Officer for an order affirming the partition. (2) On receiving the application, if the Revenue officer, after hearing the parties, finds that, the partition has taken place and acted upon, he may make an order affirming the partition and get his order implemented by getting the mutation of private partition attested within one month and he shall also distribute the land revenue and rents involved in the holding in accordance with the shares portioned therein. (3) Where all the co-shares make a report in writing duly signed by all of them to the patwari, that, they have privately partitioned the land and separated the possession thereof amicably, the patwari shall make an entry of such report in his diary and enter the mutation which will be decided by the Revenue Officer after hearing the parties within three months]. 138. Officers who may be empowered to act under this Chapter- The Revenue Officer by whom proceedings may be taken under this Chapter shall be a Revenue Officer of a class not below that of Assistant Collector of the first grade. It will be noticed that though partition proceedings were already going on, yet the parties allegedly chose to opt for a private partition as per the provisions of section 135 (3). This section provides that the parties have to submit a report to the Patwari in writing duly signed by all of them that they have privately partitioned the land. A copy of the entry made by the Patwari in his Roznamcha at No. 456 has come on record. This section provides that the parties have to submit a report to the Patwari in writing duly signed by all of them that they have privately partitioned the land. A copy of the entry made by the Patwari in his Roznamcha at No. 456 has come on record. This states that the parties had informed the Patwari of the private partition effected by them. However the, parties were required to make a report in writing to the Patwari and not to simply inform/ bring their partition to the notice of the Patwari. To that extent, on essential condition of private partitions through report to Patwari has not been fulfilled. Secondly, after such report in the Patwari's Roznamcha, the matter has to be decided by the concerned Revenue Officer after hearing the parties within 3 months. It needs to be noted that such Revenue Officer has to be one not below the level of a Assistant Collector of the 1st Grade as per sec. 138. There is nothing on record to show that an Assistant Collector of the 1st Grade further carried out proceedings and heard the parties. All we know is that an Assistant Collector of the 2nd Grade had attested the mutation and nothing else. In such a situation it is clear that the requirements of Chapter 9 of the Land Revenue Act have not been fulfilled in the manner required. 10, In view of the above discussion, the private partition allegedly affected by the parties and attested vide mutation No. 2056 dated 13.8.2002 suffers from shortcomings which renders it violative of the provisions of the law. Hence the present petition is not allowed and the orders of both the lower courts are upheld. 11. Announced in open court today the 18th August, 2009. The records of the lower courts be returned and this file be consigned to records after completion. M.R.B.