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2015 DIGILAW 2003 (HP)

Jagat Ram v. Surender Kumar

2015-12-31

NARINDER CHAUHAN

body2015
ORDER : Shri Narinder Chauhan, I.A.S. - These two revision petitions have been preferred under section 17 of the H.P. Land Revenue Act, 1954 first is against the order of the Id. Commissioner, Mandi Division dated 28-9-2010 passed in case no. 61/2007 which relates to attestation of mutation on the basis of Sale Deed and second revision petition is based on the recommendations of the Id. Commissioner, Mandi Division, dated 11-5-2011, which relates to partition of the same and involved in the aforesaid mutation. Since, these two revision petitions relate to the same land, similar parties and the facts and circumstances of the cases are also the same, therefore, both these petitions have been clubbed together and are being heard and disposed of by this single order. 2. Brief facts of the first case i.e. revision petition no. 254/2010, as gathered from the record are that Shri Surender Kumar, present respondent purchased land comprised in khata/khatauni no. 154/161 min, khasra no. 2458/420, measuring 3-17 kanals to the extent of ?rd share, measuring 1-6 kanals, situated in Mauza Dathwal, Tikka Bijhari, Tappa & Sub-Tehsil Datwal, Distt. Hamirpur from Smt. Kamlesh Kumari and Smt. Sansarri Devi vide sale deed no. 313 dated 29.10.2001, for a consideration of Rs. 44,000/-. Consequent to the aforesaid sale deed, the Id. A C.IInd Grade, attested mutation no. 2768 on 19.3.2002 in favour of Surinder Kumar. The present petitioner, Shri Jagat Ram, challenged this mutation order 19-03-2002, before the Collector, Sub-Division, Barsar, mainly on the ground that he had purchased land in kahta/khatauni no. 154/161, khasra nos. 2458/420, 1243, measuring 8-0 kanals to the extent of share measuring 4-0 kanals and his name is recorded in the ownership and possession columns and since the date of purchasing the land, he is in possession of specifically khasra no. 2458/420, measuring 3-17 kanals on the spot and Smt. Kamlesh Kumar and Sansari Devi were never in possession of khasra no. 2458/420. The Id. Collector, vide order dated 10.6.2003, passed in case no. 45/2002, accepted the appeal and remanded the case back to the A C. IInd Grade, with the direction to hear the parties afresh and decide the mutation again in the light of arguments presented by the parties and facts of the case within three months. 2458/420. The Id. Collector, vide order dated 10.6.2003, passed in case no. 45/2002, accepted the appeal and remanded the case back to the A C. IInd Grade, with the direction to hear the parties afresh and decide the mutation again in the light of arguments presented by the parties and facts of the case within three months. After remand, the A.C.IInd, Grade, after considering the objections put forth before him by both the parties and after going through the contents of the sale deed, upheld the earlier order dated 19-3-2002, passed by his predecessor by giving detailed findings and attested the mutation vide order dated 28-6-2004. 3. Still dis-satisfied, the present petitioner filed another appeal before the Collector, sub-Division, Barsar on similar grounds and averred that until and unless the possession is transferred the mutation is liable to be set aside and as par Land Record Manaul the possession is a pre-condition for attestation of mutation and specific khasra no. can not be sold to any person. Ld. Collector, after hearing the parties and going through the records, held that a detailed inquiry has been conducted by the A.C.IInd Grade, Dhatwal at Bijhari and ample opportunity of being heard has also beer afforded to the parties, and passed a well reasoned order. The Id. Collector, found no illegality in the order dated 28.6 2004 and dismissed the appeal of the present petitioner vide order dated 28,6.2006 passed in case No. 22/2005. 4. The petitioner further agitated the aforesaid order of the Id. Collector, before the Commissioner, Mandi Division by filing a revision petition no. 62/2007, on the same grounds. The Id. Commissioner, vide impugned order dated 28.9.2010, dismissed the same holding that the matter has already been analysed in detail and no irregularity is found in the orders of the Sub-Divisional Collector, Barsar and A.C.IInd Grade, Bijhari, Distt. Hamirpur. Hence, the second revision petition which has been registered as 254/2010. 5. The brief facts of second case i.e. Revision Petition no. 47/2012, as emerge from the record are that Shri Surender Kumar, present respondent no. 1, filed an application before the A.C.1st Grade, Barsar, on 29-1-2003, for partition of land comprised in khata/ khataum no. 154/161, bearing khasra no. 2458/420 and 1243. area measuring 8-0 kanals, situated in Tikka Bijhari, Tappa Dhatwal, Tehsil Barsar, Distt. Hamirpur, as per jamabandi for the year 1997-98. 1, filed an application before the A.C.1st Grade, Barsar, on 29-1-2003, for partition of land comprised in khata/ khataum no. 154/161, bearing khasra no. 2458/420 and 1243. area measuring 8-0 kanals, situated in Tikka Bijhari, Tappa Dhatwal, Tehsil Barsar, Distt. Hamirpur, as per jamabandi for the year 1997-98. After following due process of law, the A.C 1st Grade, had devised a mode of partition on 22.7.2003 and forwarded the same to the field agency for preparing partition papers on the spot. In the meantime, the present petitioner obtained stay order from the Collector, Sub-Division, Barsar against the order of mode of partition dated 22.7.2003, of the A.C.1st Grade, by filing appeal no. 25/2004. Main grounds of appeal were that the respondent no. 1 (Surender Kumar) has purchased land from specific khasra nos. 2458/420 and the person who sold the land is/are not in possession of this khasra no. and the same is in the possession of appellant. It was further submitted that he has filed an appeal against the mutation which was accepted and remanded to the A.C.IInd Grade for fresh hearing, and was pending at that time. Further it was alleged. that the lower court has wrongly framed the mode of partition in connivance with the respondent no. 1, thus, the order of the lower court was one sided and when the respondent no. 1, is not owner and mutation has been set aside, then how the lower court has framed the mode of partition. That no statements of appellant were recorded by the lower court. The Id. Collector, after hearing the parties, dismissed the appeal vide order dated 28.6.2006, passed in case no. 25/2004, holding that the lower court has adopted the laid down procedure in the mode of partition and there is no illegality in the mode of partition as ample opportunity has been afforded to the parties. 6. Feeling aggrieved with the order dated 28.6.2006, of the Collector, Barsar, the petitioner filed a revision petition before the Commissioner Mandi Division, on similar grounds as taken before the Collector. The Id. Commissioner, after hearing the parties and perusal of the records of the courts below and observed that "... the A.C.1st Grade, Barsar has not afforded opportunity of being heard to the present appellant who is the affected party and claimed his possession over the and in question. The Id. Commissioner, after hearing the parties and perusal of the records of the courts below and observed that "... the A.C.1st Grade, Barsar has not afforded opportunity of being heard to the present appellant who is the affected party and claimed his possession over the and in question. The mode of partition should have been passed after hearing all the co-sharers concerned and it has not been done in this case. It is the set procedure of law and natural justice that no order should be passed without affording opportunity of being heard. The plea of the petitioner that he had purchased specific khasra number bearing 2458/420 and he is in exclusive possession over that land seems to be genuine and the mode of partition need amendment." Therefore, the Id. Commissioner, has referred the matter to this court with this recommendation for invoking revisional powers under section 17(4) of the Act H.P. Land Revenue Act for consideration and passing appropriate orders as deem fit. 7. I have heard the Id. counsel for both the parties, who argued both cases together since the similar question of facts is involved and the same have been taken into consideration and the entire record of the courts below have also been gone through. 8. From the perusal of the record, it is clear that respondent no. 1, Shri Surinder Kumar, who is common respondent in both the revision petitions, had vide sale deed no. 313 dated 29.10.2001, for a consideration of Rs. 44,000/-, purchased land bearing khata/khatauni no. 154/161, khasra no. 2458/420, area measuring 3-17 kanals, situated Mauza Dathwal, Tikka Bijhari, Tappa & Sub-Tehsil Datwal, Distt. Hamirpur to the extent of ? share, measuring 1-6 kanals from Smt. Kamlesh Kumari and Smt. Sansari Devi, who were recorded as owner in possession of said land up to ?rd share. As per the entitlement recorded in the revenue record, Smt. Kamlesh Kumari and Smt. Sansari Devi were owner in possession of aforesaid land up to an extent of ?rd share and they were competent to transfer the same by way of sale, gift etc. Hence, there is no illegality in the mutation order dated 28.6.2004 of the A.C.IInd Grade, who has attested the mutation on the basis of sale deed, after affording due opportunity of being heard to interested parties. The Sub-Divisional Collector and the id. Hence, there is no illegality in the mutation order dated 28.6.2004 of the A.C.IInd Grade, who has attested the mutation on the basis of sale deed, after affording due opportunity of being heard to interested parties. The Sub-Divisional Collector and the id. Commissioner, have rightly upheld the order of the A.C.IInd Grade vide their order dated 28-6-2006 in appeal no. 22/2005, and order dated 28-9-2010, in revision petition no. 62/2007, respectively. Accordingly, the revision petition no. 254/2010 filed before this court, stands dismissed. 9. So far as another revision petition no. 47/2012 qua partition of aforesaid land nearing khata/khatauni no. 154/161 is concerned, as has been discussed earlier, Smt. Kamlesh Kumari and Smt. Sansari Devi, were competent to transfer ?rd share of the land in the said khata, and as such, the respondent no. 1, could have purchased the same and is also entitled to seek partition thereof to the extent of his entitlement/share Further, a perusal of mode of partition dated 22-07-2003, clearly shows that the possession of the individuals will be taken into account, and as such, there appears no force in the challenge of the present petition. So far as the claim of the petitioner qua possession on entire khasra no. 2458/420 is concerned, the same is not tenable in the eyes of law, as there is nothing on record-of-right i.e. jamabandi to suggest this. Moreover, it is settled proposition of law that in a joint holding the possession of one co-sharer is the possession of all. Furthermore, the petitioner who has also purchased the share in the said khata, and is recorded as co-owner in possession to that extent in the land in question, and as such, he cannot legally claim more land then his share in a particular khasra no. Hence, there appears no illegality in the mode of partition prepared by the A.C.1st Grade vide order dated 22.7.2003, to this extent. Moreover, the petitioner has not challenged any specific clause of the mode of partition. Hence, there appears no illegality in the mode of partition prepared by the A.C.1st Grade vide order dated 22.7.2003, to this extent. Moreover, the petitioner has not challenged any specific clause of the mode of partition. So far as the contention of the petitioner qua preparation of mode of partition in his absence is concerned, it is evident from the perusal of the case file of the A.C.Ist Grade, that Shri G.D. Sharma, Advocate, counsel for Jagat Ram, present petitioner, was present before the A.C.Ist Grade on the previous date i.e 16.7.2003 when the case was fixed for 22.7.2003 for consideration, but despite having knowledge of the date, none was present for him and as such, the contention of the petitioner is not tenable in the eyes of law. Therefore, the Id. Sub-Divisional Collector has rightly dismissed the appeal of the present petitioner filed before him. 10. From the above discussion, I am not in agreement with the recommendations made by the Id. Commissioner, Mandi Division dated 11.5.2011 being devoid of legal force. Accordingly, the revision petition no. 47/2012, is also dismissed. The A.C. 1st Grade, Barsar, is directed to proceed further to complete the partition proceedings of the land in question as per the provisions of law. 11. 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.