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2011 DIGILAW 2453 (HP)

Nirmla Devi v. Karoor Chand

2011-09-06

SUDRIPTA ROY

body2011
ORDER : Sudripta Roy, J. This revision petition under Section 17 of the Himachal Pradesh Land Revenue Act is directed against the order dated 23.4.2010, passed by the Commissioner, Mandi division, in revision petition no. 235/2009, whereby he has upheld the order passed by the Collector dated 13. 8.2009 and dismissed the revision of the present petitioner. 2. Briefly stated, the facts leading to this case are that the present petitioner had applied for partition of her joint land with the respondents before Assistant Collector, 1st Grade Sundernagar, vide her application dated 9.2.1.999 comprised in khata/Khatauni no. 78/213, khasra no. 2968, area measuring 1036 sq. meters, situated in Muhal Sundernagar. After processing the case and hearing the parties, the Assistant Collector allowed the application vide order dated 22.8.2000 and framed the mode of partition. Thereafter, the papers were sent to the Field staff for partition on the spot. On receipt of these papers from the field agency, the Assistant Collector confirmed the partition vide order dated 23.5.2001. 3. Feeling aggrieved with this order, the present respondent Shri Karoor Chand had challenged this order in appeal before the Collector, Sub-division Sundernagar, who after hearing the parties and perusal of the record accepted (lie appeal vide order dated 4.9.2002 and remanded the case back to the Assistant Collector for disposal in accordance with his observations. Against this remand order of the Collector, the present petitioner filed an appeal before the Commissioner, where she did not succeed and then she filed a revision petition before this Court, This Court vide its order dated 12.8.2005 had held that it was open to the Assistant Collector to consider the factual of possession of the petitioner over a specific portion but he must, in such a case, also consider compensating the respondent adequately and equitably. It was also held by this Court that the Assistant Collector must also give a detailed reasoning for the findings in such an eventuality, 4. Thereafter, the Assistant Collector processed the matter again and vide order dated 8,3,2006 devised fresh mode of partition keeping in view the order passed by the Commissioner and by this Court. Still not satisfied, the present petitioner filed an appeal before the Collector, who vide order dated 28.6.2006 dismissed, the same and upheld the order of the Assistant Collector. Thereafter, the Assistant Collector processed the matter again and vide order dated 8,3,2006 devised fresh mode of partition keeping in view the order passed by the Commissioner and by this Court. Still not satisfied, the present petitioner filed an appeal before the Collector, who vide order dated 28.6.2006 dismissed, the same and upheld the order of the Assistant Collector. Against this order, the petitioner filed a revision petition before the Commissioner, who dismissed the same vide order dated 11.4.2007. However, this order was not agitated by any of the parties and, therefore, the Assistant Collector directed the field agencies to partition the and on the spot in consonance with the mode of partition dated 8.3.2006, On receipt of partition papers from the field, the Assistant Collector dismissed the application for partition of the petitioner vide order dated 19.2.2009 on the grounds that some portion of this khasra no. 2968 which is to be partitioned is a built up structure, as such, he was not competent to partition the constructed house. 5. Feeling aggrieved with this order, the present respondent filed an appeal before the Collector, Sundernagar, who after hearing the parties and perusal of the record of the trial court, accepted the appeal vide order dated 13.8.2009 and directed the Assistant Collector to effect the mode of partition dated 8.3.2006 on the spot without any further delay. He also directed the parties to appear before the Assistant Collector on 23,11,2009. 6. The petitioner assailed this order of the Collector in revision before the Commissioner, Mandi division, who also after hearing the parties aid perusal of the records, dismissed the revision petition and upheld the order of the Collector dated 13.8.2009. Hence, this second revision petition before us. 7. Records of the courts below were requisitioned. On 12,7.2011, when the case came up for hearing the learned vice counsel appearing for the petitioner stated that he would file his written arguments, in reply to which the opposite counsel stated that he would also file reply to the same. Therefore, the learned counsel was directed to submit his written arguments within a fortnight with its copy to the opposite counsel, who was also directed to file its reply within next 15 days. As such, the case was fixed for orders for 2.9.2011 but on this date no written arguments were found filed on the file. Therefore, the learned counsel was directed to submit his written arguments within a fortnight with its copy to the opposite counsel, who was also directed to file its reply within next 15 days. As such, the case was fixed for orders for 2.9.2011 but on this date no written arguments were found filed on the file. The learned counsel for the petitioner stated that on account of his illness he could not submit his written arguments and made some oral submissions. He also cited { PLJ-1987 Page 369-370) and [2000 (2) PLJ, page 298] support of his contention that agricultural land converted Into residential plots and houses constructed thereon and proved to be 'abadi, does not fall within definition of land and that there, is no jurisdiction with Revenue Officer to partition such land as it ceased to be agricultural land. Written arguments were also found to have been filed by the respondent at the lime of admission of the case which have been taken into consideration, while the grounds taken in the revision petition by the petitioner have also been considered. 8. The learned counsel for the petitioner has challenged the impugned order of the Commissioner and the order passed by (lie Collector mainly on the grounds that the classification of the land sought lo be partitioned haw changed from agricultural land lo 'abadi', kind since construction has Liken place over this land and that this land dues fall within the definition of land and therefore the Revenue Officer has no jurisdiction lo partition such land. 9. Per contra, the learned counsel for the respondent, has submitted through his written arguments that the petitioner has raised the construction on the front side of national highway which is a valuable portion despite protest from the respondent and now she cannot be allowed to Like advantage of her own wrong. He further asserted that under law every co-sharer is entitled for allotment of land on the roadside according lo the share. In support of his contention he has cited [AIR 2003 (P&H), page 351] and [2005 (2) SLC,(FC HP), page 248. 10. I have considered the averments made by both the parties and also perused the entire records of the courts below. 11. In support of his contention he has cited [AIR 2003 (P&H), page 351] and [2005 (2) SLC,(FC HP), page 248. 10. I have considered the averments made by both the parties and also perused the entire records of the courts below. 11. From the perusal of the records of the case it is borne out that in compliance of the orders passed by this court on 12.8.2005, the Assistant Collector again devised, the mode of partition on 8.3.2006 in the presence of both the parties. As per clause-2 of this mode of partition, the Assistant Collector has ordered for creation of two blocks qua the land under partition, out of which one separate block is created of the land abutting Sundernagar Maloh road and the other block comprising of remaining land. This order of the Assistant Collector appears to have been challenged before the Collector in appeal who has, dismissed the same vide order dated 28.6.2006, upholding the order of mode of partition framed by the Assistant Collector on 8.3.2006. This order of the Collector was further challenged in revision petition by the present petitioner before the Commissioner, Mandi division, who also dismissed the same vide order dated 11.4.2007 in case no. 221/2006. 12. On receiving partition papers from the field, the Assistant Collector himself visited the spot on I5.9.2007 on the objection of the present respondent and finally rejected the application of partition filed, by the present petitioner vide order dated 19.2.2009. He observed that the respondent has himself admitted before the Honble High Court that he is not in possession of the land sought to be partitioned and that the whole land is in possession of the present petitioner which gives rise to the question of title for winch the applicant had to file a plaint which he had not filed. He further observed that on some portion of the land sought lo be partitioned, there is constructed area and remaining area is without construction. He, therefore, held that the Assistant Collector was not competent to partition the constructed portion. 13. The above proposition of the Assistant Collector is totally wrong and illegal which can not be allowed to sustain in the eyes law. He, therefore, held that the Assistant Collector was not competent to partition the constructed portion. 13. The above proposition of the Assistant Collector is totally wrong and illegal which can not be allowed to sustain in the eyes law. Once the mode of partition framed by the Assistant Collector on 8.3.2006 was upheld by the Collector in appeal vide his order dated 28.6.2006, which was further upheld in revision by the learn Commissioner in his order dated 11.4.2007 passed in case no. 221/2006 , there was no reason for the Assistant Collector to have passed such an order. The Assistant Collector was bound, to partition the land as per the mode of partition proposed by him on 8.3.2006. The Assistant Collector has not acted in accordance with law as was expected of him. As such, the order dated 19.2.2009 is not sustainable in the eyes of law which has been rightly set aside by the courts below. 14. it is also borne out that the matter has already been agitated in civil courts up to the Hon'ble High Court of H,P in RSA No. 531/2001 and the Hon'ble Court has passed judgement on 13,5.2008. It has been admitted by the parties before the Hon'ble High court that khokhas were in existence since 1970-71 on the land in question and thereafter from 1975 the defendant (present petitioner) let out the same to some tenants and further that the. construction by the defendant is only on 340 sq. meter of land. On the remaining portion of approximately 700 sq. meters, there is no construction whatsoever and the remaining portion is lying vacant for which there is separate access. Further it has been held by the Hon'ble High Court that the defendants are not excluding the plaintiff (present respondent) from the ownership of the whole of the front portion of 19 sq. meters constructed by them. Thus, from this judgment of the Hon'ble High Court, it is manifestly dear that the petitioner herein has never raised the question that there is constructed area sought to be partitioned for which Revenue Officer is not competent. On the contrary, the petitioner has admitted that partition proceedings are under process in the Revenue Court. Since, the above plea has been raised by the petitioner now for the first time, it appears that the petitioner wants to linger on the partition proceedings on one pretext or another. On the contrary, the petitioner has admitted that partition proceedings are under process in the Revenue Court. Since, the above plea has been raised by the petitioner now for the first time, it appears that the petitioner wants to linger on the partition proceedings on one pretext or another. It is pertinent to point out that the partition proceedings have been started in the year 1999 before the Assistant Collector which have not been finalised even after a period of more than 11 years. The parties have already agitated the mailer up to the High Court and in the Revenue Courts. Further that this case, is coining to this court second time thereby showing the intention of the petitioner to delay the partition proceedings. 15. In view of the foregoing reasons I find no substance in the present revision petition and the same is dismissed, Consequently the impugned order passed by the Commissioner and the order of the Collector, Sundernagar Subdivision, dated. 13.8.2008 are upheld. The Assistant Collector, Sundernagar is directed to partition the land in accordance with the mode of partition framed by him on 8.3.2006 and finalise the partition proceedings within a period of 3 months from the passing of his order. 16. Announced in open court today the 6th September, 2011. The records of the courts below be returned and the file of this court be consigned to the record room after due completion.