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2010 DIGILAW 842 (HP)

Nirmala Devi v. Manmohan Singh

2010-05-25

P.MITRA

body2010
ORDER Sh.P.Mitra, IAS - This appeal under section 14 of the H.P. Land Revenue Act is directed against the orders dated 28.7.2007 of the Commissioner, Shimla division passed in appeal No. 29/2005 whereby the appeal of the present respondents has been accepted and orders of the Collector, Arki sub-division has been set aside. 2. Briefly stated, the facts of the case are that the Assistant Collector, Grade-I, Arki Tehsil, on the application of present respondents and other co-shares, decided the partition case by devising mode of partition on 24.5.2000 and instrument of partition was also framed. Consequently mutation No. 2375 was entered and was attested on 27.11.2001 by the Assistant Collector IInd Grade. This order of the Assistant Collector, IInd Grade was challenged in appeal. Before the Collector, Arki sub-division who dismissed the appeal on 29.7.2003 holding that since an appeal against the partition case had already been set aside and therefore the appeal against the mutation of the partition did not lie. An appeal was filed against this order of the Collector before the Commissioner, Shimla division who vide orders dated 7.4.2004 passed in revenue appeal No. 129/2003 accepted the appeal and remanded the case back to the Collector, Arki sub-division to decide the appeal afresh taking into consideration the points in appeal and to pass detailed orders. The Collector heard the parties again and accepted the appeal of the present petitioners and set aside the impugned orders passed on mutation No. 2375 dated 27.11.2001 vide orders dated 18.1.2005. This order of the Collector was challenged in appeal before the Commissioner by the present respondents. The Commissioner accepted the appeal and set aside the order of the Collector. It is against this order of the Commissioner that the present appeal has been preferred by the appellant Smt. Nirmla Devi. 3. Learned counsel for both the parties have advanced arguments. Learned counsel for the appellant argued that that in the present matter, the. mutation which has been challenged arose due to partiti9n proceedings; in partition proceedings the petitioner was proceeded exparte. Learned counsel further argued that the Commissioner's order is self contradictory; at one place it says that the appellant was not present before Assistant Collector yet at another place it is stated that the appellants statement was recorded in the trial court. Nowhere in the zimny (interim) order sheet does it say that the appellant was present. Learned counsel further argued that the Commissioner's order is self contradictory; at one place it says that the appellant was not present before Assistant Collector yet at another place it is stated that the appellants statement was recorded in the trial court. Nowhere in the zimny (interim) order sheet does it say that the appellant was present. He further contended that the Commissioner has said nothing about the illegality committed by Assistant Collector regarding service of the appellant and the order of the Commissioner is non-speaking and has not touched on the mutation. 4. In reply, the learned counsel for the respondents argued that partition proceedings had not been challenged and the appellant has not challenged either the mode of partition or even the instrument of partition. He further contended that the partition mutation order clearly states that the appellant was not present at the time of order of petition. The learned counsel also pointed out that the matter was raised in the civil court when came to be dismissed on 17.7.2008 on the grounds that the proceedings of Revenue/Courts can not be challenged in civil courts. He also submitted the copy of judgment passed by Civil Judge, (Jr. Division), Arki, District Solan dated 17.7.2008 alongwith copies of jamabandis for the year 2003-2004 pertaining to khata/khataunis No. 21/22, 22/ 23 and 23/24 of mauza Maan, Tehsil Arki. In support of his contentions, the learned counsel placed reliance on case Shri Jindu versus Smt. Neel Kamal & Others [SLC 2003(3), page 496] decided by this court. 5. The learned counsel for both the parties lave been heard and the records of the lower courts have been perused. A perusal of the record shows that the appellant has challenged mutation No. 2375 whereby the khewats of the co-shares have been separated-m-consequence of partition decided by the Assistant Collector, 1st Grade, Arki. The main contention of the appellant is that the mutation was entered on the basis of ex-parte partition proceedings and the mutation was also attested at her back and thus she had been condemned unheard. It is further contended by the appellant that while allotting the land, the possession of the parties was not kept in consideration and the possession of the appellant through her brothers S/Shri Jodhvir Singh and Balbir etc. was· also affected by the order under challenge because of earlier private partition. It is further contended by the appellant that while allotting the land, the possession of the parties was not kept in consideration and the possession of the appellant through her brothers S/Shri Jodhvir Singh and Balbir etc. was· also affected by the order under challenge because of earlier private partition. From the above contentions of the appellant, it is manifestly clear that her main or real grouse is against the partition proceedings and not against the mutation which is the out come of partition proceedings. The present mutation had been entered on the basis of partition proceedings and if the appellant was not satisfied with the partition proceedings, then she should have challenged the 'same before the appellate authority which apparently she has failed to do. A mutation is the culmination of an order passed by an authority to give effect to that order in the revenue record. Since the appellant failed to challenge the partition proceedings, challenging the consequent mutation is not the right courts. I also find support to my view from the authority cited above by the learned counsel for the respondents wherein it has been held that if no appeal is preferred against the mode of partition, no appeal is maintainable against the final orders such as instrument of partition, mutation, etc. 6. The next contention of the appellant is that the provisions of section 134 of H.P. Land Revenue Act has not been complied with since the earlier possession of the parties was not kept in consideration. This issue should have-also been raised during the initial stage of partition proceedings before the Assistant Collector, 1st Grade. 6. The next contention of the appellant is that the provisions of section 134 of H.P. Land Revenue Act has not been complied with since the earlier possession of the parties was not kept in consideration. This issue should have-also been raised during the initial stage of partition proceedings before the Assistant Collector, 1st Grade. As far as section 134 of the Act ibid is concerned, it relates to delivery of the possession of property allotted on partition which is reproduced as under :- "All owner or tenant to whom any land or portion of a tenancy, as the case may be, is allotted in proceedings of partition shall be entitled to possession thereof, as against the other parties to the proceedings and their legal representative and a Revenue Officer, shall, on application made to him for the purpose by any such owner or tenant at any time within three years from the date recorded in the instrument of partition under the last forgoing section, give effect to that instrument so a it concerns the applicant as if it were a decree from immoveable property. " 7. From a perusal of the above, it is clear that an owner or tenant who has not got possession of the land allotted during partition proceedings can apply to the Revenue Officer within three years from the date recorded in the instrument for partition and the Revenue Officer upon such application shal1 give effect to that instrument so as it concerns the applicant. Any owner or tenant who is already in possession of the land allotted to him or has got possession of the land allotted to him during the partition proceedings, is not bound to give such application before the Revenue Officer. Thus, the compliance of section 134 is not legal1y mandatory in every partition proceedings. Only an owner or tenant who as not been delivered the possession of the land allowed in him during the partition proceedings can file such application before the Revenue Officer for delivery of possession of the land. Since no such application has been filed by any of the parties, it is presumed that the parties are in possession of the land allotted to them during partition proceedings. Thus this contention of the appel1ant is unfounded and untenable. 8. Since no such application has been filed by any of the parties, it is presumed that the parties are in possession of the land allotted to them during partition proceedings. Thus this contention of the appel1ant is unfounded and untenable. 8. Further it is revealed that the mutation under challenge has already been given effect to in the jambandi for the year 2003-2004, copy of which has been submitted by the counsel for respondents. Therefore, at this stage it is not considered proper to re-open the partition case since it has already attained finality by way of entries incorporated in subsequent jambandis. 9. IN view of the foregoing reasons, I do not find any merit in the present appeal and the same is accordingly dismissed. 10. Announced in open court today the 25th May, 2010. 11. Records of the lower courts be returned and case file of this court be consigned to the record room after due completion. M.R.B.