Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 469 (HP)

Sewak Ram v. Dhani Ram

2014-04-25

TARUN SHRIDHAR

body2014
ORDER : Tarun Shridhar, Financial Commissioner This revision petition has arisen on the recommendations of Commissioner, Mandi Division, in Case file No. 143/290, dated 24.11.1999, whereby he has reported the matter to this Court for setting aside the orders passed by the Courts below, with a direction to the A.C. 1st Grade to proceed with the partition proceedings in accordance with law. 2. After receipt of the above recommendations from the Ld. Commissioner, during the pendency of the case in this Court, petitioner No. 2 (Nika Ram), was reported to have expired, Therefore, the Counsel for the remaining petitioners was directed to bring on record the Lrs. of above deceased, as per the interim order of this Court dated 19.7.2013. However, no steps were found to have been taken by the Counsel in this regard till 28.12.2013, when the case again came up for hearing. None appeared for the petitioners on that date but in the interest of justice one more opportunity was given to the petitioner by issuing them notices with a direction to take above steps. Today, when the case again came up for hearing, it was still found that hilherlo no steps have been taken by the Counsel for the petitioners to bring the LRs. of above deceased petitioner on record. Shri R.K. Kaundal, Advocate, who appeared as vice Counsel on behalf on Shri S.R. Badhan, the original Counsel for the petitioners, has sought one more adjournment to file application for bringing on record the LRs of deceased petitioner. As this case is pending for adjudication on the recommendations of the Commissioner, since July, 2013, therefore, for this lapse on the part of the Counsel for the petitioners, the matter cannot be kept pending further and in the interest of justice and equity if is considered appropriate to take decision on the recommendations of the Ld. Commissioner on merits. 3. The Ld. Commissioner, vide his order dated 24.11.1999, has recommended the matter to this Court with his following observations: - "... The Assistant Collectors Grade has passed the order wherein he has ruled out the objections raised by Balkan and others. This order, although in an interlocutory nature, was challenged in appeal. Commissioner on merits. 3. The Ld. Commissioner, vide his order dated 24.11.1999, has recommended the matter to this Court with his following observations: - "... The Assistant Collectors Grade has passed the order wherein he has ruled out the objections raised by Balkan and others. This order, although in an interlocutory nature, was challenged in appeal. In fact the Collector below should not have entertained the appeal against an interlocutory order and should have dismissed the same only on the score that it was not against the mode of partition or against final sanction of the partition. The case was still in an initial stage and it was for the parties concerned to challenge the. entries made in the jamabandi, if not suited to the respondents before the A.C. 1st Grade, before a Competent Court of law. Since the Collector below has given findings on the grounds of appeal before him and also upheld the order of the trial Court, the order passed by the Collector below against an interlocutory order has to be set aside with the direction to the A.C. 1st Grade to proceed with the partition proceedings in accordance with law." 4. Having heard the arguments advanced by the Ld. Counsels for both parties, the above recommendations made by the Ld. Commissioner, Mandi Division, and the records of the Courts below have also been gone through. On perusal of the files of the trial Court, it is revealed that Shri Dhari Ram etc., the present respondents, filed two separate applications for partition before the A.C. 1st Grade (Tehsildar) Sadar Mandi, one in respect of khata/khatauni No. 159/238, comprising khasra Nos. (Kita 32) measuring 28-07-09 bighas, situated in Mohal Mandal, Iliaqua Balh, Tehsil Sadar, Distt. Mandi, and another in respect of khata/khatauni No. 220/355-358, comprising khasra Nos. (kita 17), measuring 10-4-16 bighas, situated in Village Majethal, Iliaqua Balh, Tehsil Sadnr, Distt. Mandi. Whereas the application in respect of mohal Mandal was dis-allowed by the A.C. 1st Grade, on the ground of partial partition vide his separate detailed order passed on 8.12.1983, in case No. 37/2 of 1981, observing therein that applicants should have applied for partition of the entire land recorded in the joint ownership and possession of the parties. Mandi. Whereas the application in respect of mohal Mandal was dis-allowed by the A.C. 1st Grade, on the ground of partial partition vide his separate detailed order passed on 8.12.1983, in case No. 37/2 of 1981, observing therein that applicants should have applied for partition of the entire land recorded in the joint ownership and possession of the parties. However, the partition application in respect of Village Majcthnl, which was also objected by the respondents No. 1, 2 and 5, namely; Shri Balkan, Kinaura and Sewak, on the grounds that the land was earlier in possession of Sidhu as an occupancy tenant, their predecessor-in-interest and on his death, they inherited the same and since then they are in exclusive possession for the last sixty years and the name of the applicants and respondents have been wrongly shown in the revenue record. The Ld. A.C. 1st Grade, after hearing the parties over ruled the objections of the above respondents and allowed the application vide order dated 8.12.1983 in case No. 113/84, holding that the applicants have rightly come with the application for partition being co-sharers. 5. Therefore, on perusal of the case file of the A.C. 1st Grade, it is clear that the order dated 8.12.1983, passed by him is not an interlocutory order, as has been observed by the Ld. Commissioner, but it is a detailed, whereby the A.C. 1st Grade, has over ruled the objections filed by Shri Balkari etc. and allowed the partition application of Shri Dhani Ram etc. present respondents for further proceedings in the matter. 6. The above order dated 8.12.1983, of the A.C. 1st Grade in respect of partition application of Mohal Majethal, is found to have been agitated in an appeal before the Collector, Sub-Division, Sadar Mandi, which was later on transferred to the Distt. Collector (ADM), Mandi. The Ld. District Collector vide his order dated 30.12.1989, passed in file No. 26 of 1989, has dis-allowed the appeal filed by Shri Sewak Ram etc. on the grounds that there is no record to show that the land under reference was in the possession of Sidhu as occupancy tenant. Even if it is so, it is clear from the jamabandi that the respondents are also co-sharers with Sidhu who is the father of Balkan - the original appellant of the instant appeal along with Sewak Ram etc. being other appellants. Thus, the Ld. Even if it is so, it is clear from the jamabandi that the respondents are also co-sharers with Sidhu who is the father of Balkan - the original appellant of the instant appeal along with Sewak Ram etc. being other appellants. Thus, the Ld. Collector found nothing illegal in the application instituted by Shri Dhani Ram before the lower Court for the partition and he, therefore, accordingly, directed the lower Court to proceed further in the case file. 7. Here also, the Ld. Commissioner appears to have wrongly observed that the Collector below should not have entertained the appeal against an interlocutory order and should have dismissed the same only on the score that it was not against the mode of partition or against sanction of final partition. 8. In this regard, here for better appreciation of law on this point, it would be apt to refer to Section 130 of the H.P. Land Revenue Act, which is reproduced hereunder: - Section 130. Disposal of other question. - (1) When there is a question as to the property to be divided, or the mode of making a partition, the Revenue Officer shall, after such inquiry as he deems necessary, record an order stating his decision on the question and his reasons for the decision. (2) An appeal may be preferred from an order under sub-section (1) within thirty days from the date thereof, and, when such an appeal is preferred and the institution thereof has been certified to the Revenue Officer by the authority to whom the appeal has been preferred the Revenue Officer shall stay proceedings pending the disposal of the proceedings. (3) xxx xxx xxx (4) xxx xxx xxx Thus, from a bare perusal of the above Section, it is clear that here the A.C. 1st Grade has decided a question as to the property to be divided vide his order dated 8.12.1983, whereby he has over ruled the objections of the respondents and allowed the application for partition. As such, the above order of the A.C. 1st Grade can not be termed as an interlocutory order by any stretch of imagination, as has been observed by the Ld. Commissioner in his order. This order of the A.C. 1st Grade was also appealable as per sub-section (2) of Section 130 ibid of the Act, which appeal has been rightly entertained and decided by the Ld. Commissioner in his order. This order of the A.C. 1st Grade was also appealable as per sub-section (2) of Section 130 ibid of the Act, which appeal has been rightly entertained and decided by the Ld. Collector vide his order dated 30.12.1989. Therefore, the findings of the Ld. Commissioner to this effect is also not sustainable in the eyes of law. 9. In view of the above, the orders passed by both the Courts below i.e. A.C. 1st Grade and Collector (ADM), are upheld and the recommendations of the Ld. Commissioner, are declined. However, the case is remitted to the A.C. 1st Grade (Tehsildar) Sadnr, District Mandi, to proceed ahead in the matter by drawing a mode of partition at the earliest and conclude the proceedings, expeditiously as the partition application is pending adjudication since 17.9.1984. 10. Announced in open Court today the 25th April, 2014 at Camp Mandi. The records of the Courts below be returned and the file of this Court be consigned to the record room after due completion.