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2015 DIGILAW 418 (HP)

Man Singh v. Bantas Singh

2015-04-29

NARINDER CHAUHAN

body2015
ORDER : 1. The revision petition under section 17 of the H.P. Land evenue Act, 1954, is directed against the order dated 08-07-2009, passed by the Commissioner, Mandi Division, in Case No. 93/2004, whereby he has dismissed the revision petition of the present petitioners and upheld the order passed by the Settlement Collector, Kangra, dated 23.04.2004, in file no.22/03/ASO. 2. Brief facts of the case are that Shri Jai Singh, the predecessor-in-interest of the present respondents no.1 to3, filed two applications on 23.03.1993, before the Assistant Collector-1st Grade (Tehsildar), Barsar, for partition of joint land comprised in khata/khatauni no. 28/31, khasra nos. 116, 130, 131, 638, 654, 739, 854, kita (7), area measuring 17K-14M, and khata/khatauni no. 29/32, khasra no.129, area measuring 2K-15M, total area measuring 20-09 Kanals, situated in Tikka Maharal, Tappa Dhatwal, Tehsil Barsar, Distt. Hamirpur, on the basis entries in the jamabandi for the year 1986-87. After processing the application and hearing the objections of both the parties, the Assistant Collector devised a mode of partition on 24.5.1994. Subsequently, on the report of Field Kanungo, the Assistant Collector revised the mode of partition on 07.07.1995, after obtaining necessary permission on 21.6.1995 from the Collector. On the filing of an affidavit on behalf of Pritam Singh etc. respondents, wherein it was stated that khata/khatauni no. 29/32 according to copy of jamabandi for the year 1986-87, has been left for partition, the Assistant Collector, after hearing the parties, again devised another mode of partition of both khata Nos.28 and 29, total area measuring 22-00 kanals, as per jamabandi, for the year 1966-97, vide order dated 06.06 2002, and again sent the papers to the field agency for partitioning the land on the spot. In the meantime, the settlement operations started in the area and the file was transferred to the Tehsildar (Settlement) Circle, Barsar, who after hearing the parties and affording an opportunity to the parties to settle their partition issues at their own level, finally confirmed the partition carried out by the field agency on the spot vide order dated 07.08.2003,. ignoring the fact hat from the very beginning there was an objection of the parties to the partition of the land classified as gair mumkin in the revenue records. Thereafter, an instrument of partition has also been drawn on the file. 3. ignoring the fact hat from the very beginning there was an objection of the parties to the partition of the land classified as gair mumkin in the revenue records. Thereafter, an instrument of partition has also been drawn on the file. 3. Against the order dated 07.08.2003, of the A.C. Grade (Settlement), Shri Man Singh etc., the present petitioners, filed an appeal before the Collector (Settlement), Kangra at Dharamshala, mainly on the grounds that the land under partition is recorded as gair mumkin abadi, gair mumkin nallah and gair mumkin rastsa', and the lower court has partitioned the same in connivance with the respondent/applicants without any jurisdiction; secondly that the land which was under the possession of the appellants/petitioners, has been allotted to the respondents and the statements of the appellants/petitioners have also not been recorded at the time of passing final orders; that the present appellants/petitioners purchased khasra no. 129 to the extent of 0-12, marlas through a sale 'deed over' which they are in possession and a cowshed of the petitioners is also existing on the same, but out this land some portion has been wrongly allotted to the petitioners is existing but during partition only 1K-6M has been allotted to them and, therefore, the deficiency of 0-14 marlas be made good. 4. The ld. Settlement Collector, after hearing the parties and going through he record of the trial court, dismissed the appeal no.22/03/ASO, vide order dated 23.04.2004, holding that partition proceedings have been completed after giving due opportunity to the parties at every stage and so far as the partition of 'gair mumkin abadi, path and nallah' not being within the competence of A.C.1st Grade, it was held, that abadis have been partitioned as per the possession of the parties and that its partition was within the jurisdiction of the trial court. 5. Still Dis-satisfied, the present petitioners filed a revision petition before the Commissioner, Mandi Division, on similar grounds as taken before the Collector in appeal. The ld. Commissioner, after hearing the parties and after perusal of the records, has also dismissed the revision petition vide the impugned order dated 08.07.2009, passed in case no. 93/2004, holding that the land under partition is not a land of abadi tikka but malkiati khasra nos. The ld. Commissioner, after hearing the parties and after perusal of the records, has also dismissed the revision petition vide the impugned order dated 08.07.2009, passed in case no. 93/2004, holding that the land under partition is not a land of abadi tikka but malkiati khasra nos. entered (sic-entered) and jointly owned in the revenue record which have been partitioned according to he possession of the parties and that the partition of land consisting of "Malkiati Abadi" is within the jurisdiction of the Assistant Collector-1st Grade., The ld. Commissioner has further held that it is only the "Abadi Deh" land in which the partition by the revenue courts is barred and partition of "Abadi Deh" land falls within the jurisdiction of civil court. 6. Hence, this second revision petition has been field before this court on the same grounds as taken before the lower courts in appeal and revision. 7. When the case came up for arguments before me on 16.12.2014, the learned counsel for the parties failed to argue the case. Hence, they were directed to file written submissions, if any, within a week, failing which the case will be decided on merits on the basis of available record. The case was fixed for orders on 30.12.2014. However, due to other important engagements the court could not be held on subsequent dates. The case was taken up on 17.1.2015, and written submissions only on behalf of the petitioners and respondent no.1, have been received. No written submissions have been received on behalf of respondents no.9 and 10, though they were represented through a counsel. The remaining respondents have already been proceeded against ex parte for non-appearance despite proper service during the proceedings before this court. 8. The main grounds taken in the written arguments, by the petitioners are that the land under partition is recorded as gair majrua and gair mumkin and is not assessed to land revenue. Thus, the revenue courts have no power to partition such lands, and, therefore, the orders passed by the courts below are non-est in law. Further that the partition was carried out against the mode of partition and before partition, no fard kabaza has been prepared. In support of his contention, the ld. Thus, the revenue courts have no power to partition such lands, and, therefore, the orders passed by the courts below are non-est in law. Further that the partition was carried out against the mode of partition and before partition, no fard kabaza has been prepared. In support of his contention, the ld. Counsel has cited SLC 2013(3), page 1296, Shanti Devi v. Shyam Sunder and 2012(1) Him L.R. page 204, Khima Ram v. Mast Ram, regarding lack if jurisdiction, and case law cited in SLC 2007 (1), page 207 and Cur. LJ (H J) 2007(1), page 302, regarding non-preparation of fard kabja mauka. 9. On the other hand, the ld. Counsel for respondent no.1, has submitted in his written arguments that there are concurrent findings on the matter in dispute by the three Revenue Courts below and the petitioners have lost in all the courts below ; that the land under partition is a "malkiati land", entered in the joint ownership of the parties; that the abadis existing on the land have been partitioned according to the possession of the parties and partition of "malkiati abadi" is within the jurisdiction of A.C. 1st Grade. Further, that after the partition of land, the instrument of partition has been prepared and the possession of the partitioned land has accordingly been delivered to each shareholder on the spot; and finally that the lower court has rightly portioned the land under dispute at d; therefore, it has been urged that the present revision petition is not maintainable and it deserves to be dismissed. 10. I have considered the arguments adduced by the ld. Counsel for both the parties and have also minutely gone through the record of the courts below. The main objection of the petitioners in this case is that "gair mumkin" land can not be partitioned by the Revenue authorities. As is evident form the record of the case file of the trial court, as well as the copies of the jamabandis of Mohal Maharal, Mauza Dakhal, of Tehsil Barsar, Distt. Hamirpur, available on the file of the trial court, the entire partitioned land comprising of khata/khatauni no.28/31, kita 7, area measuring 17K-114M, and khata/khatauni no.29/32, khasra no. 129, area measuring 2K-15M, total area measuring 20-09 Kanals, consists of uncultivated "gair mumkin land" comprising of 'gair mumkin nallah, 'gair mumkin rasta and 'gair mumkin abadi etc. Hamirpur, available on the file of the trial court, the entire partitioned land comprising of khata/khatauni no.28/31, kita 7, area measuring 17K-114M, and khata/khatauni no.29/32, khasra no. 129, area measuring 2K-15M, total area measuring 20-09 Kanals, consists of uncultivated "gair mumkin land" comprising of 'gair mumkin nallah, 'gair mumkin rasta and 'gair mumkin abadi etc. Now the question is whether such type of land can be partitioned by the revenue authorities? 11. The word "land" is not defied in the H.P. Land Revenue Act. However, sub-section (7) of Section 2 of the H.P. Tenancy and Land Reforms Act, 1972, defines "land" as: (7) "land" means land which is not occupied as the site of any building in a town or village and is occupied or has been let for agricultural purpose or for purposes subservient in agriculture, or for pasture and includes.- (a) the sites of building and other structures on such land, (b) orchards, (c) ghasnies, (d) banjar land, and (e) private forests Chapter-IX of the H.P. Land Revenue Act deals with Partition. Section 124 lays down certain restrictions and limitations on partition, and is as follows:- Section 124. Restrictions and limitation on partition:- Notwithstanding anything in the last foregoing section-(1) Places of worship and burial grounds held in common before partition shall continue to be so held after partition unless the parties otherwise agree among themselves and record their agreement and file it with the Revenue Officer: (2) Partition of any of the following properties, namely- (a) any embankment, water course, well or tank, and any land on which the supply of water to any such work may depend, (b) any grazing ground, and (c) any land which is occupied as the site of a town or village and is assess to land revenue. May be refused, if in the opinion of the Revenue Officer, the partition of such property is likely to cause inconvenience to the co-sharer or other persons directly or indirectly interested therein, or to diminish utility to those persons, and (3) the fact that partition on the application of a joint owner of land would render necessary the severance into to or more parts of the land comprised in the tenancy or a tenant having a right of occupancy may, unless the tenant assents to the severance, be a sufficient reason for the dis-allowance of the partition in so far as it would affect that tenancy. Further, section 127 of the Act deals with Absolute disallowance of partition. It states as under: Section 127. After examining such of the co-sharers and other persons as may be present on that day, the Revenue Officer, may, if he is of opinion that there is good and sufficient course why partition should be absolutely disallowed refuse the application recording the grounds of his refusal. Thus from the perusal of above quoted provisions of the Act, it is clear that there is no bar for partition of the gair mumkin land except for the restrictions land down in the above mentioned section 124 of the Act The Revenue Officer can refuse partition of lands mentioned in sub-sections (a), (b) and (c), keeping in view the likely inconvenience to the parties or diminishing the utility of such land to those persons. To partition or to refuse partition depends on the contextual and ground realities. The law does not bar the Revenue Officer to partition lands which in his opinion does not cause inconvenience to the parties or diminish the utility of the land or unless there is a good and sufficient cause to dis-allow partition of such land. In the instant case, both the revenue Officers i.e. the A.C,. 1st Grade (Tehsildar, Barsar) and the Tehsildar (Settlement), have not found violation of the above stipulated conditions so as to disallow the partition. Therefore, in my opinion, no illegality or irregularity has been committed by them while partitioning the land in question. 12. In the instant case, both the revenue Officers i.e. the A.C,. 1st Grade (Tehsildar, Barsar) and the Tehsildar (Settlement), have not found violation of the above stipulated conditions so as to disallow the partition. Therefore, in my opinion, no illegality or irregularity has been committed by them while partitioning the land in question. 12. So far as the objection of the petitioners with regard to non preparation of 'fard kabza mauka' by the revenue field staff is concerned, the petitioners lave not raised this issue before framing the mode of partition, which in this case has been devised three times nor they have challenged the same in appeal immediately before the competent court. The petitioners have only raised this issue in revision before the Commissioner when the entire partition proceedings have been completed by the A.C. 1st Grade by drawing the instrument of partition in the year 2003 and the possession is also stated to have been delivered to the parties as per the sanctioned final partition. Thus, this objections of the petitioners is also not tenanable at this stage and is therefore rejected. 13. Apart from the above, there are concurrent findings of both the courts below which do not call for any interference of this court by invoking its revisional powers, especially when no illegality or irregularity is found in their orders, and accordingly their orders are upheld. Keeping in view the facts narrated above, there is no substance in the present revision petition and the same is dismissed. 14. 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.