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2015 DIGILAW 1368 (HP)

HARSUKH v. PRAKASH CHAND

2015-09-24

NARINDER CHAUHAN

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ORDER : 1. The revision petition under Section 17 of the H.P. Land Revenue Act, 1954, is directed against the order dated 18-04-2011, passed by the Commissioner, Mandi Division, in case no. 61/2010, whereby he has dismissed the revision petition of the present petitioner filed before him. 2. Briefly stated, the facts of the case are that initially Shri Harsukh herein petitioner had filed an application before the A.C. Ist Grade, Nadaun on 2.1.1996 for partition of joint land comprising khata/khatauni no. 36/74-77, khasra nos. kita 15, area measuring 1-60-16 hectares, situated in Mauza Galore, Tehsil Nadaun, Distt. Hamirpur, H.P. The A.C. Ist Grade, had devised a mode of partition on 21.5.1999 and 5.6.1999. Against the order dated 21.5.1999, Shri Ram Sukh predecessor-in-interest of the present respondents filed an appeal before the Collector, Sub-Division, Nadaun, mainly on the ground against clause-3 of mode of partition, The Id. Collector, dismissed the same vide order dated 12.5.2000 in case no. 6/99. Subsequently, he filed a revision petition before the ADC, Hamirpur (exercising the powers of Commissioner during abolition of posts of Divisional Commissioners in H.P), who also dismissed the same vide order dated 18.1.2003 in case no. 8/2000. holding that "...the plea taken by the Id. counsel for the revisionist regarding adding of word 'Good and Bad' in clause 3 of the mode of partition is not based on logic as the A.C. Ist Grade has not put any party to disadvantageous position, simply by adding these words in clause-3 of mode of partition. To me, these words have been added by the A.C. Ist Grade while authenticating the mode of partition, I feel that intention of the A.C. Ist Grade is to act impartially and not to put any party to disadvantage. The Id. Collector, Sub-division, has rightly upheld order of the A.C. Ist Grade and as such the same is upheld and the revision petition is hereby rejected. Thereafter, Shri Ram Sukh, filed another revision petition before this court, which has been accepted by my predecessor vide order dated 29.7.2005 (case no. 33/2003), and directed the A.C. Ist Grade, to carry out the mode of partition ignoring the words 'Good and Bad' inserted in Clause-3 of the same. 3. On remand, the AC. Thereafter, Shri Ram Sukh, filed another revision petition before this court, which has been accepted by my predecessor vide order dated 29.7.2005 (case no. 33/2003), and directed the A.C. Ist Grade, to carry out the mode of partition ignoring the words 'Good and Bad' inserted in Clause-3 of the same. 3. On remand, the AC. Ist Grade, after taking into consideration the direction of this court and on perusal of the partition papers received from the field Kanungo, observed that the word 'Good and Bad' has not affected any parties, meaning thereby that there remain no objection to such an addition. Thus, he finalised the partition vide order dated 23.9.2006, and thereafter, after the expiry of time of appeal, the instrument of partition has also been drawn. 4. Feeling aggrieved with the above order of the A.C. Ist Grade, dated 23-9-2006, Shri Sukh Ram, filed an appeal before the Collector, Sub-Division, Nadaun, mainly qua the distribution of khasra no. 115. The Id. Collector, after hearing the parties and examining be record of the trial court vide order dated 16.12.2009, while dismissing the appeal (no. 33/2007), has held that "...the appellant has been allotted 33 meter in length and on the same side khasra no. 115/1 in length 30 meters is allotted to the respondent and the (Inferences of internal area is about same except minor increase to the land allotted to the respondent. From the perusal of jamabandi attached with the lower court file khasra no. 115 is recorded under the possession of Ram Sukh respondent. As far as violation of mode of partition nothing brought on record which can be verified from the record of lower court..." 5. Still aggrieved, he filed a revision petition before the Commissioner, Mandi Division, who after hearing the parties and on perusal of the record of the courts below, also held that there is no violation of mode of partition, resultantly, he has also dismissed the same vide the impugned order dated 18.4.2011. hence, this revision petition has been filed before this court on the same ground. 6. I have heard the Id. counsel for both the parties. Ld. counsel for the petitioner, Shri Dushyant Dadwal, Advocate, has also argued that qua the partition of khasra no. 115, in which major portion has been given to respondents, and out of khasra no. hence, this revision petition has been filed before this court on the same ground. 6. I have heard the Id. counsel for both the parties. Ld. counsel for the petitioner, Shri Dushyant Dadwal, Advocate, has also argued that qua the partition of khasra no. 115, in which major portion has been given to respondents, and out of khasra no. 115, the petitioner has been allotted area measuring 0-02-05 hectares as khasra no. 115/2, which is in the shape of Bheth & Nallah, and cannot be put to any use, where as the respondents have been allotted khasra no.115/1 measuring 0-02-17 hectares, which is plain valuable, and adjacent to the road. In support of his contention, Id. counsel cited a judgment of this court in case Sital Ram & ors v. Sant Ram & Ors. 2003 (2) Cur. L.J. (HP) 392, wherein it has been held that approved mode of partition with regard to land abutting roadside has not been adopted-Partition of land abutting road side is struck down-Assistant Collector directed for carrying out partition of land abutting road side afresh. 7. On the other hand, Id. counsel for the respondents, Shri Ashan Kaushal, Advocate, has argued that the revision petition in the present form is not maintainable as the partition has concluded on the preparation of an instrument of partition. He averred that there is nothing wrong in partitioning the khasra no. 115 which is proved from the perusal of the Ask Musavi'. Ld. counsel has also drawn my attention to the contention of the counsel for the petitioner made before my predecessor in case no. 33/2003, whereby Shri Harsukh, was a respondent and admitted the possession of the present petitioner on the basis of which a 'fard kabza mauka' was also prepared by the A.C. Ist Grade. Thus, according to him, this contention of the petitioner is baseless, which has been rightly rejected by both the courts below. 8. Having considered the arguments advanced by the Id. counsel for the parties and on perusal of the record of the courts below, it is evident that khasra no. 115, was entirely recorded in possession of Shri Ram Sukh, predecessor-in-interest of the present respondents, which further has been authenticated/verified by preparing a 'fard kabza mauka' available at page 117 of the case file of A.C. Ist Grade. counsel for the parties and on perusal of the record of the courts below, it is evident that khasra no. 115, was entirely recorded in possession of Shri Ram Sukh, predecessor-in-interest of the present respondents, which further has been authenticated/verified by preparing a 'fard kabza mauka' available at page 117 of the case file of A.C. Ist Grade. The word 'Good and Bad' has already been deleted from the clause-3 of the mode of partition as per the direction of this court. Thus, the A.C. Ist Grade, has partitioned khasra no. 115 to both the right holders as per their entitlement and spot position, and has not violated any provisions of the sanctioned mode of partition. Further, on perusal of the 'tatima' of khasra no. 115, the size and dimensions of its carved out both khasra nos. 115/1 and 115/2, appear to be the same i.e. in a rectangular shape. In appeal, the Id. Collector, and thereafter, in revision the Id. Commissioner, both have also thoroughly scrutinised and checked the case file of the AC. Ist Grade, by taking into consideration the contention of the petitioner, and no error has been committed by the AC. Ist Grade, in the order dated 23.9.2006. Thus, no irregularity has been committed by both the courts below who have given concurrent findings, which are sustainable in the eyes of law. 9. In view the above position, I find no illegality or irregularity has been committed by the courts below, which may warrant any interference of this court in a second revision. 10. Therefore, the orders passed by the courts below are upheld and the revision petition is dismissed being devoid of merit. 11. 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.