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2014 DIGILAW 1129 (HP)

Mulakh Raj v. Udham Singh

2014-08-25

NARINDER CHAUHAN

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ORDER : Narinder Chauhan, I.A.S. This revision petition under section 17 of the H P Land Revenue Act, 1954, is directed against the order dated 30.8.2012, parsed by the Commissioner, Mandi Division, in case No 259/2009, whereby the revision petition filed by the present petitioners against the order dated 15.9 2009, passed by the Collector, Sub-Division, Sundernagar, has been dismissed. 2. Briefly stated the facts of case are that Shri Udham Singh, present respondent no.1, filed an application before the Assistant Collector- 1st Grade, Tehsil Sundernagar, on 7.3.2001, for partition of joint land comprising khata/khatauni No. 63/105, khasra nos. 483 and 481, kita (2), area measuring 5-11-1 bighas, situated in Mohal Gangal/14, Tehsil Sundernagar, Distt. Mandi. After processing the case and hearing the parties, the A-1st Grade, devised a mode of partition on 17.7.2001, and thereafter forwarded the papers to the Field Kanungo for spot partition. On receipt of the papers from the field, the respondents no.1 to 3, i.e. present petitioners through their counsel, filed written objections qua the spot partition. The Assistant Collector, after hearing both the parties and considering the objections of the respondents no.1 to 3, rejected the same vide a detailed order dated 3.9.2002, and confirmed the partition vide order dated 23.10.2002. 3. Feeling aggrieved with the order dated 23.10.2002, of the Assistant Collector, Shri Jai Pal, petitioner no.2, filed an appeal before the Collector, Sub-Division, Sundernagar, who after hearing the parties and on perusal of the record of the trial court, set aside the order dated 23.10.2002, of the Assistant Collector and accepted the Appeal No. 89 of 2002, on the ground that the partition has not been done in consonance with the mode of partition. 4. On remand, the Assistant Collector again processed the matter and he also visited the spot on 24.12.2008, and found the objections of the petitioners baseless and thereafter again sanctioned the final partition as carried out by the field staff vide order dated 15.1.2009. Thereafter, he has also prepared the instrument of partition on 16.11.2009. 5. Dissatisfied with the order dated 15.1.2009 of the Assistant Collector, the petitioners again filed an appeal before the Collector, Sub-Division, Sundernagar, on the grounds that the partition of the land on the spot has been effected against the mode of partition which is inequitable, un-fair and unreasonable resulting into mis-carriage of justice to the petitioners. 5. Dissatisfied with the order dated 15.1.2009 of the Assistant Collector, the petitioners again filed an appeal before the Collector, Sub-Division, Sundernagar, on the grounds that the partition of the land on the spot has been effected against the mode of partition which is inequitable, un-fair and unreasonable resulting into mis-carriage of justice to the petitioners. That the Revenue Officer below has wrongly given khasra no. 483/2 and 483/3 to the respondents no. 1 and 2 along with roadside. That the Revenue Officer below has not obeyed the orders of the Collector and affirmed the order dated 23 .10.2002, which was already set aside That the findings of the court below that the house of the respondents is constructed during the settlement operations is also wrong On the above grounds the order passed by the Assistant Collector was sought to be quashed and set aside. 6. The Id. Collector, after hearing both the parties and on perusal of the case file of trial court, dismissed the appeal No 6/09 vide order dated 15.9.2009, observing therein" But in this case the khasra Nos. 558,561, at present part of khasra nos 483 viz 483/2, 483/3 were in the possession of present respondents No 1 and 2 since Bandobast jadid and. therefore, there was no need to partition, this land as per share making separate block. Therefore, the impugned order passed by the A.C. 1st Grade, Sundernagar is legal as per the provisions of law." 7. Still-dissatisfied, the present petitioners have filed a revision petition before the Commissioner. Mandi Division, on the same grounds as set forth before the Id. Collector below. The Id Commissioner also after hearing both the parties and after perusal of the records of both the courts below, dismissed the revision petition vide the impugned order dated 30.8.2012, holding that the courts below have addressed all the issues comprehensively as raised in the pleadings by their well-reasoned and speaking orders, as such, they do not want any interference and the same are upheld. 8. Hence, this second revision petition has been filed before this court on the same grounds as taken before the lower courts below, viz-a-viz. 8. Hence, this second revision petition has been filed before this court on the same grounds as taken before the lower courts below, viz-a-viz. that though in the mode of partition, it is clearly mentioned that the land adjoining to the road side will be allotted to each parties in accordance with their shares, but more than 50% of land abutting the road has been given to the respondents as against their entitlement of 1/12th shares whereas the petitioners are entitled to 11/12 shares abutting the roadside That the petitioners have been given inferior land while the respondents have been given valuable land which is against the mode of partition and therefore the orders in revision are liable to be set aside. Lastly, that the Id Commissioner has wrongly dismissed the revision petition holding that prior to consolidation both the parties owned and possessed land depicted by different khasra nos which though were part of same khata therefore, partition thereof only required creation of two khatas. keeping the different khasra nos, intact, and, therefore the impugned orders are liable to be set aside. 9. When the case came up for arguments before me on 19.7.2014 at Mandi the Id Vice counsel for the petitioners who failed to argue the case was directed to file written arguments within a fortnight, but the same have not been received till the writing of this order I have heard the Id Counsel for respondent no.1. while respondents no. 2 and 3 who were present, have been heard in person. 10. On behalf of the respondents. Id Counsel has argued that Smt Karju was in possession of the entire land in the year 1964 and respondents no. 1 and 2 purchased the land from Smt Karju and mutation was attested on 29.7.1961 Later Smt Karju executed a gift deed on 22.10.1982 in favour of the petitioners Further, that during the settlement operations in Sundernagar tehsil from 1965-1970. the name of respondents appeared in Missal Hakiat as owners in possession It has been further asserted that the respondent no. 1, has constructed his house and after that consolidation operations took place in 1990 and some other area was added to the old khasra number and new khasra no. 483/1, measuring 0-9 biswas was added Shri Karam Chand, respondent no. 3. also stated that he has purchased 0.5 biswas land from Shri Mulkh Raj. petitioner no. 1, has constructed his house and after that consolidation operations took place in 1990 and some other area was added to the old khasra number and new khasra no. 483/1, measuring 0-9 biswas was added Shri Karam Chand, respondent no. 3. also stated that he has purchased 0.5 biswas land from Shri Mulkh Raj. petitioner no. 1 in 1995 and he has no dispute as land is in his possession. 11. Having considered the arguments advanced on behalf of the respondents since no written arguments have been received from the petitioners. I have considered the grounds taken in revision petition and also examined the entire records of the courts below. 12. On perusal of the case file of trial court it is evident that the petitioners have been raising the objection from the very beginning qua khasra nos 483/2 and 483/3, which have been allotted to the respondents no. 1 and 2 along-with the roadside, and further that they have been allotted more land than their entitlement of 1/12 sharers abutting the roadside, which is against the spirit of mode of partition. 13. The orders passed by the AC 1st Grade Sundernagar, clearly depicts that he has confirmed the partition after analysing the entire record and objections raised by the petitioners on the spot before him. In his interim order dated 24.12.2008, the Assistant Collector at the time of visiting the spot, has categorically mentioned that the applicant (herein respondent no. 1), has purchased 1/12 shares from the owner Smt Karju in the year 1964 which has been given effect in the Missal Hakiat during the settlement operations through mutation no 1983 dated 29.7.1964 and that he has constructed his house on the land so purchased by him Further that the petitioners have purchased the land under partition much later after 18 years in the year 1982 from the same owner Smt Karju and their possession is also on the land purchased by them The Assistant Collector has also mentioned that respondent no. 1, has also constructed his new house over khasra no 483/2 during the time of settlement operations over which his old house existed It is also evident from the orders of the Assistant Collector that the petitioners Shri Mulakh Raj etc. have been allotted 16 karams land. Shri Udham Singh respondent no. 1, has been allotted 10 karam land and Shri Karam Chand (herein respondent no. have been allotted 16 karams land. Shri Udham Singh respondent no. 1, has been allotted 10 karam land and Shri Karam Chand (herein respondent no. 2) has been allotted 18 karam land abutting the road as per their shares Thus from the orders of the Assistant Collector it is evident that having found the objections raised by the petitioners being baseless, he has finally vide order dated 15.1.2009 confirmed the partition. 14. Further, the claim of the petitioners qua the above khasra nos. is also found untenable on perusal of the copy of judgment delivered in Civil Suit No. 253/2000, decided 10.11.2003 by the Id Civil Judge. (Jr. Div.) Sundernagar a copy of which is available on the file of the trial court From its perual it is evident that the claim of the petitioners against the respondent no. 1 Shri Udham Singh, has been turned down by the Civil Court whereby the suit for permanent prohibitory and mandatory injunction qua the land in dispute filed by Shri Jai Pal, present petitioner no. 2 has been dismissed. 15. Apart from the above it would be also evident that both the courts below in appeal and revision petition filed before them by the present petitioners, have addressed and adjudicated upon all the objections in detail and have turned down the same having found no force in them The same objections being reiterated in second revision petition before this court warrant no further consideration especially when the petitioners have no legal grounds to substantiate their claim. 16. This court in a number of cases has held that in revision petition, no interference is called for in case of concurrent findings by the lower courts unless their decision is per-versed. A similar view has been taken by this court in Revision Petition no. 24/2001 Ram Chand v. Rajesh Kumar, decided on 18.7.2005 reported in SLC 2005(H) page 247, wherein it has been held order passed in presence of both the parties no illegality-in second revision same objections raised which have already been adjudicated needs no further consideration specially when petitioners have nothing legality tenable to substantiate their claim-no interference is called for in case of concurrent findings on facts by lower courts unless their decision is perverse." 17. For the reasons aforesaid, the impugned order dated 30.8.2012 and the orders passed by the appellate court dated 15.9.2009 as well as by the trial court dated 23.10.2002, are upheld. 18. Orders be communicated to the parties The records of the courts below be returned and the file of this court be consigned to the record room after due completion.