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2015 DIGILAW 1264 (HP)

ATTAR SINGH v. BHAGAT RAM

2015-09-08

NARINDER CHAUHAN

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JUDGMENT : 1. The revision petition under Section 17 of the H.P. Land Revenue Act, 1954, is directed against the order dated 2-4-2010, passed by the Commissioner, Kangra Division, in case no. 60/2005, whereby he has dismissed the revision petition filed before him by the present petitioner. 2. In the instant case the parties are in a second round of litigation before this court. In the first round, Smt. Trishla Devi, herein respondent no. 11, had agitated the matter upto this court through a revision petition, against the order passed by the Commissioner, Kangra division dated 13.6.1997, in appeal no. 41/96. My Id. predecessor vide order dated 12.8.1998, passed in revision no. 287/94, had set aside the order the A.C. Ist Grade, Chowari, dated 1.10.1992, with a direction that partition be carried out afresh after affording due opportunity to both the parties in respect of land abutting the road side. Consequently, the order dated 15.1.1996, passed by the Sub-Divisional Collector, Dalhousie, and the order dated 13.6.1997, passed by the Commissioner, Kangra division were also set aside. 3. The case on being remanded back, the A.C. Ist Grade, again started denovo partition proceedings in the matter and devised a fresh mode of partition on 24.9.2003. After receiving partition papers from the field, he has confirmed the partition vide his order dated 17.06.2004. 4. Feeling aggrieved with the above orders of confirmation of partition passed by the A.C. Ist Grade, Shri Attar Singh, present petitioner, filed an appeal before the Collector, Sub-Division, Chowari, who vide order dated 03.02.2005, passed in case no. 3/Appeal, has dismissed the same. Thereafter, the petitioner has filed a revision petition before the Commissioner, Kangra Division, who vide the impugned order has also dismissed the same holding that the A.C. Ist Grade, has correctly decided the matter in accordance with the decision of this court after hearing the parties and visiting the spot himself and that the Collector has also passed legal orders. 5. Hence, the petitioner has come up before this court in a second round of litigation by filing the present revision petition. During the pendency of the revision petition, except] respondent no. 11, all toe respondents have been proceeded against ex parte. Further, on the application of the petitioner, Shri Sandeep Kumar has been impleaded as responded No.22, since he has also purchased a part of land from Smt. Trishla Devi, above responded no. 11. During the pendency of the revision petition, except] respondent no. 11, all toe respondents have been proceeded against ex parte. Further, on the application of the petitioner, Shri Sandeep Kumar has been impleaded as responded No.22, since he has also purchased a part of land from Smt. Trishla Devi, above responded no. 11. Shri Sandeep Kumar has been represented through his counsel Shri Sanjay Jaswal, Advocate. At the time of arguments, none was present for respondent no. 11. 6. I have heard toe Id. counsel for toe petitioner and respondent no. 22. Apart from toe oral submissions made by toe Id. counsel for the petitioner, he has also filed written arguments. Written submissions have also been received on behalf respondents no. 4, 9(i), 13, 15, 16, 18, during toe pendency of revision petition, which have also been taken on record and considered. 7. Now the main averments of the petitioner are that he has not been allotted land abutting toe road as per his share; that earlier toe petitioner was allotted 1-8 bighas land in khasra no. 1229/393 having about 29 ft. front but now as per the order of the A.C. 1st Grade, he has been allotted only 14ft front abutting toe road and rest of the land has been given to Smt. Trishla Devi, who is already in possession of more land than her share in khasra no. 1216/350, having about 80ft. front abutting the road. That the petitioner has more than ?th share in khasra no. 1229/393 and ?th share in rest of the land, therefore, she is entitled for less land than the petitioner abutting the road. Lastly, that in all Smt Trishla Devi, has been allotted 94ft. front abutting toe road whereas the petitioner has been allotted only 14ft land abutting toe road. 8. Ld. counsel for respondent no. 22, has stated that he has purchased 0-2 biswas land from Smt Trishla Devi, respondent no.11, and therefore, he is entitled for benefit under section 41 of Transfer of Property Act. 9. Respondents no. 4, 9(i), 13, 15, 16, 18 in their separate written replies have contended that condition no.-7 of mode of partition which laid down that land abutting the road side, should be partitioned as per the share and entitlement of toe parties, has been blatantly violated, as some of toe respondents have not been allotted land abutting toe road as per their shares. They have further contended that khasra no. 1216/350, has 80ft front abutting toe road, khasra no. 1217/350, has 55ft, khasra no. 1219/359 has 65ft front and khasra no. 1229/393 has 103 ft front as such, there is total 303ft abutting the road. Out of which constructed area is in khasra no 1216/350 has 80 ft., khasra no 1219/359 has 65 ft and 1229/393 has 52 ft. total 197ft and rest of the land abutting the road is vacant. The above respondents, therefore asserted that as per toe direction of the F.C. (Appeals), the road front should be partitioned as per the recorded shares of the shareholders. 10. On perusal of toe case file of the A.C. Ist Grade, it is borne out that after remand of toe case by this court vide order dated 12.8.1998, the A.C. Ist Grade, has devised a fresh mode of partition on 24.9.2003, in which Clause-5 lays down that if any co-sharer has constructed a house, and cowshed etc. over toe land under partition then that land should be allotted to him and such land should be deducted from his share. Similarly, clause-7 of mode partition also lays down that land abutting the road is to be divided as per toe share and entitlement of each shareholders. The above mode of partition has been accented to be correct by all the parties present before the Assistant Collector and no appeal/revision etc. against the order of mode of partition, is found to have been filed by any of the parties. Thereafter, before confirming the final partition on 17.06.2004, the loner as well as Smt. Trishla Devi, respondent no. 11, had raised objections before A.C. Ist Grade, qua the land partitioned on the spot. On 9.6.2004, the A.C. Ist Grade, is himself visited the spot and found that whatever land was found vacant on the spot khasra no. 1229/393, has been allotted to the petitioner. Further that no vacant land is available on the spot, which could be allotted to the petitioner as there already listed houses and pucca shops constructed by the other co-owners. 11. It is evident from the order dated 17.6.2004, passed by the A.C. Ist Grade, hereby he has confirmed the partition that he has personally visited the spot on 9.6.2004, on the basis of which he has concluded that whatever vacant land abutting road in khasra no. 11. It is evident from the order dated 17.6.2004, passed by the A.C. Ist Grade, hereby he has confirmed the partition that he has personally visited the spot on 9.6.2004, on the basis of which he has concluded that whatever vacant land abutting road in khasra no. 1229/393, has been allotted to Shri Attar Singh, petitioner, and apart from this no land butting the road is vacant which could be allotted him, and therefore, it is not possible to allot land to the petitioner abutting the road in khasra no. 1229/393. Further, it is also evident from the report of the Field Kanungo, available at pages-294/295 of the file of IC. Ist Grade, Smt Trishala Devi, has occupied khasra no. 1216/350(0-5 biswas), abutting ad side completely by constructing a residential house and sehan, and therefore, khasra o. 1229/393, 1216/350, 1219/359 and 1217/350 abutting road side front cannot be allotted to Attar Singh (petitioner) as per his share on the road side because these Khasra nos. are in possession of other co-sharers, who have constructed their houses and shops etc. over it. 12. As per 'Nakasha J' available at page 307-310 of the file of the trial court, the petitioner has been allotted land comprising khasra no. 1229/393/5, measuring 1-9 bighas (dhani awal), and khasra no. 772/1, measuring 0-10 biswas (0-8 barani soam, 0-2 gair mumkin beed), while Smt. Trishla Devi, respondent no. 11, has been allotted khasra nos. 229/393/4 (0-6-10 dhani awal), 1229/393/6 (0-0-10, gair mumkin khokha), 1216/350 (0-5 biswas, out of which 0-1 dhani awal, 0-4 gair mumkin makan), 772/2 (0-12 biswas, out of which 0-10 brani soam, 0-2 gair mumkin beed) and khasra no. 1118/1 (0-6 ghalla). 13. Further it is also the contention of the respondents no. 4, 9(i), 13, 15, 16, 18 that khasra no. 1216/350, 1217/350, 1219/359 and 1229/393 which are abutting road, have rat been partitioned as per the share of the each co-sharers which fact is also proved on perusal of 'tatima' prepared by Patwari, available at page 269 of the file of trial court. 14. It is a settled law that "value and quality of land should be taken into account at he time of partition-possession alone cannot be the basis of partition', as reported in 2006 (2) SLJ (FC-PH) 802, Gurmukh Singh & Ors v. Paramjit Singh & Ors. 14. It is a settled law that "value and quality of land should be taken into account at he time of partition-possession alone cannot be the basis of partition', as reported in 2006 (2) SLJ (FC-PH) 802, Gurmukh Singh & Ors v. Paramjit Singh & Ors. Further he Punjab & Haryana High Court, has held that "while partitioning the joint holdings of the land of the landholders, some portion of the land in possession of one party has to be given to the other party, if the first party is in possession of more than its due share-Disturbing the possession on the land to some extent between the parties cannot be said to have resulted in miscarriage of justice', reported in 1994 (4) SLJ 2914, Munshi & Ors. v. F.C. Hry. & Ors. The Financial Commissioner, H.P. in case Dasoundhi Ram v. Ramesh Singh & Ors. 1993 (2) SLJ 1661, has also held that Land abutting on Dad side is valuable piece of land-Should be partitioned as one block. 15. Thus, on the basis of above discussion, it is manifestly dear that partition has lot been done as per clause-7 of the mode of partition devised by the A.C. Ist Grade, dated 24.9.2003, and land abutting road has not been allotted to each shareholders as per their share and entitlement. In appeal, the Id. Collector has also failed to look into these facts and has wrongly held that he has no jurisdiction to entertain the appeal as principles of res-judicata apply. Res judicata cannot apply as the as the A.C. Ist Grade, has passed a fresh order after remand of the case by this court. Accordingly, the revision petition is accepted and the case is remanded to the A.C. Ist Grade, Chowari, with a direction that land abutting road side should be partitioned as a separate block as peri share and entitlement of each share holders. 16. Order 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.