Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 2424 (HP)

BALI RAM (DECEASED) v. DESH RAJ

2016-11-16

NARINDER CHAUHAN

body2016
ORDER : 1. This revision petition has been referred to this Court by the Ld. Commissioner, Mandi Division against the order dated 28.8.2010, passed by the Ld. Sub-Divisional Collector, Nadaun District Hamirpur, in appeal No.47/2009, whereby the appeal of present petitioner against the order dated 7.3.2009, of the AC to Grade, Nadaun, passed in case No. 182/06, has been dismissed The Ld. Commissioner, vide his order dated 27.03.2014, passed in case No 395/2010, has recommended to set aside the orders of lower courts, by invoking revision a jurisdiction under section 17(4) of the Himachal Pradesh Land Revenue Act, 1954 (hereinafter referred to as 'the Act') and to remand the case to the lower court for deciding it afresh. 2. Briefly stated, the facts of the case are that the present petitioner and others filed an application 27.1.2006, before the AC 1st Grade, Nadaun, District Hamirpur, under section 123 of the Act, for partition of land bearing khata No 11, khatauni No. 15 to 21,total kitas 44, area measuring 1-31-66 hectares, situated in Mohal Banoh, Mauza/Tika Hathol, Tehsil Nadaun, District Hamirpur After processing the application, the AC 1st Grade, sanctioned final partition vide his order dated 7.3.2009. Feeling aggrieved with the aforesaid order of the AC 1st Grade, the present petitioner preferred an appeal No.47/2009, before the Ld Sub-Divisional Collector, Nadaun, inter alia on the grounds that the partition has been done in violation of the mode of partition, as agreed to by both the parties, that the possession of the parties on the spot has been disturbed; that land abutting the road front, which is more valuable, has not been partitioned as per share After hearing the parties Ld. Collector, dismissed the same vide order dated 25 8 2010. Hence, the petitioner has filed the present revision petition before the Ld. Commissioner, Mandi Division, who after hearing both the parties and on perusal of the record of the courts below, has referred the same to this Courts vide his order dated 27.03.2014, for invoking revisional jurisdiction under section 17(4) of the Act, observing as follows:- "Perusal of record reveals that my predecessor sought a report from the Assistant Collector 1st Grade Nadaun sending him copy of petition. The Assistant Collector 1st Grade visited the spot on 26.11.2010 in presence of parties and reported that khasra No. 122/1 area measuring 0-02-40 hect. The Assistant Collector 1st Grade visited the spot on 26.11.2010 in presence of parties and reported that khasra No. 122/1 area measuring 0-02-40 hect. Was in possession of Shri Bali Ram and that it was not in possession off Shri Jai Ram, the present respondent No.6. He has further reported that khasra No. 11/2 area measuring 0-00-64 hect. Was also in possession of Shri Bali Ram and it was not in possession of Smt. Satya Devi, the present respondent No.7. The Assistant Collector 1st Grade has further reported that 41 meters of land comprised in Khasra No. 102,103 and 92 were on road side and Shri Bali Ram the present petitioner was entitled for Share i.e. 10 Meters of road side, which has not been given to him He has further reported that the present petitioner is agreed to loose 4 Marlas of land out of khasra No.45,46,51 and 47. The remaining respondents has not objected the partition as done already as per report of Tehsildar. Further perusal of record of trial court shows that the present petitioner has not been allotted any land in khasra No. 111,122,102,103, and khasra No.102,103,92 being of road side. This way the prime land is not found to have been allotted to the present petitioner as per report of Assistant Collector Ist Grade and also the land which was in his possession. No co-owner can be deprived of the land of high value or prime land, which has been done in this case." 3. During the pendency of revision petition Sh. Bali Ram petitioner expired and his legal heirs have been brought on record as per MA No. 19/2015. Hence, the term "petitioner" being used herein includes Sh. Bali Ram and his legal heirs. 4. I have heard Sh. Madan Lal, one of the petitioner, Sh. Desh Raj, respondent No.1 and Ld. Counsel for respondent No. 2 to 7. Sh. Madan Lal submitted that written arguments have already been filed on behalf of the petitioner which may be considered as argument of the petitioner, besides the recommendations of Ld. Commissioner, Mandi which are already in their favour. In written argument on behalf of the petitioner, it has been submitted that the Ld. Counsel for respondent No. 2 to 7. Sh. Madan Lal submitted that written arguments have already been filed on behalf of the petitioner which may be considered as argument of the petitioner, besides the recommendations of Ld. Commissioner, Mandi which are already in their favour. In written argument on behalf of the petitioner, it has been submitted that the Ld. Divisional Commissioner with the consent of parties was pleased to admit the present appeal and was further pleased to call for a detailed report of factual position form the then AC Ist Grade, Nadaun, and the recommendations of the Ld. Commissioner, are based on the report of the AC Ist Grade, Nadaun. Further that the report is acceptable to both the parties and partition is required to be carried out in accordance with that report. Lastly, it has been requested to accept the recommendations made by the Ld. Commissioner. 5. Per contra, the Ld. Counsel for the respondent No.2 to 5, argued that the instrument of partition has also been prepared on 26.10.2010. Ld. Counsel further alleged that the written arguments were also filed on behalf of the respondents, but the Ld. Commissioner, Mandi Division has not considered the same while recommending the present revision petition. Lastly, he argued that the order of the Ld. Collector, is well reasoned and since the instrument of partition has also been drawn, the recommendations of the Ld. Commissioner and as such the present revision petition deserves to be dismissed. The Ld. Counsel for (he respondent No.6 and 7 submitted that written argument has been filed on behalf of respondent No.6 and 7, Sh. Jai Ram and Smt. Satya Devi, which maybe considered and the recommendations may be declined in the interest of justice. In written argument on behalf of respondent No.6 & 7, it has been submitted that the partition has been carried out as per mode of partition and rule of consolidation of holdings and utility has also been kept in view. Referring to the spot inspection report dated 26.11.2010, submitted the Ld. AC Ist Grade, it has been alleged that the report is not as per the spot position and no statement of any parties or witnesses have been attached with the same. Referring to the spot inspection report dated 26.11.2010, submitted the Ld. AC Ist Grade, it has been alleged that the report is not as per the spot position and no statement of any parties or witnesses have been attached with the same. It has further been alleged that the report as well as the order of the Court below are verbatim reproduction/narration of facts of the appeal filed by the present petitioners and there are contradictions between the statements of the petitioners or their GPA and the report of the Tehsildar. That the lower court has ignored the entries of record of rights, to which, the presumption of truth is attached, while recommending the present revision petition. Lastly, it has been submitted that the orders passed by the lower court is not at all a speaking orders and it has does not fulfil the legal requirement and moreover the partition proceedings have already attained finality because an instrument of partition has also been drawn in the instant case and as such the recommendations of Ld. Commissioner, deserves to be declined. In support of his claim Ld. Counsel has cited Shinghara Singh & others v. Sampuran Singh & ors. 1997 (1) PLJ 546 , Inder Singh v. Labh Kaur & ors. 1996 PLJ 659 , Mahender Singh v. Ram Kan war & ors. 2007 (1) PLJ 127 and Jitender Pal Singh v. Ram Vijay Kumar & ors. 2007 (1) PLJ 222. 6. I have considered the arguments as advanced by both the parties and have gone through the recommendations of the Ld. Commissioner, Mandi Division along with the record of the courts below. The Ld. Divisional Commissioner, Mandi has recommended the revision mainly on the grounds that as per report dated 26.11.2010, of the A.C. Ist Grade, Nadaun, land bearing khasra No 123/1 area measuring 0-00-64 hect. Is in possession of Shri Bali Ram, on the spot but no land has been allotted to him in both these khasra numbers. But facts has been contended by the Ld. Counsel for respondents, the perusal of Misal Haquat-1993-94 available at pages 16 to18 of the file, suggests that khasra No. 122 was in the possession of Jai Ram and Khasra No.111 in the possession of Smt Satya Devi. But facts has been contended by the Ld. Counsel for respondents, the perusal of Misal Haquat-1993-94 available at pages 16 to18 of the file, suggests that khasra No. 122 was in the possession of Jai Ram and Khasra No.111 in the possession of Smt Satya Devi. In this regard, it is clarified that the provision of preparation of "Fard kabza" has been kept in the Chapter 14, of the H.P. Land Records Manual, 1992 (as amended from time to time), just to ascertain the factual position on spot In the instant case, the AC Ist Grade, has personally visited the spot and ascertained possession of the petitioner on certain portion of land bearing khasra No. 122 and 111. Moreover, it is a settled principle of law that possession of one co-sharer is possession of all. Further as per clause (1) of the mode of partition, which was acceptable to both the parties, the partition has to be carried out keeping in view the possession on spot after making good the deficiencies. Hence, the plea of the respondents, that the recommendations of the Ld. Commissioner, are against the entries in the record of rights, is not acceptable in the eyes of law. 7. The second ground, on which the recommendations are based, is that the land abutting the road front has not been allocated as per share. From the perusal of the record of the trial court it is clear that the land abutting the road front has not been divided as per share, whereas as per law, the land abutting to the road should have been allotted to all the co-sharers, being more valuable and in case it is not feasible, the co-sharers being deprived of such land should be compensated by allotting proportionately more area in another piece of land. These facts seem to have been overlooked by the Ld Collector, Sub-Division, Nadaun, while adjudicating the appeal of the present petitioner. Further, it is clear that the order dated 7.3.2009, passed by the AC Ist Grade, Nadaun is contrary to his spot inspection report, which solely is a sufficient ground to accept the recommendation of the Ld. Commissioner, Mandi Division. No doubt, the instrument of partition has also been drawn in the instant case, but injustice cannot be allowed to be caused to any of the parties, and if the same needs to be redrawn, so be it. 8. Commissioner, Mandi Division. No doubt, the instrument of partition has also been drawn in the instant case, but injustice cannot be allowed to be caused to any of the parties, and if the same needs to be redrawn, so be it. 8. In view of above 4 observations, I accept the recommendations of the Ld Commissioner, Mandi Division, and remand the case back to the Ld. AC Ist Grade for afresh disposal of the partition application in accordance with the law after giving reasonable opportunity of being heard to the parties. 9. Orders be communicated to the parties. The records of the courts below be returned and file of this court be consigned to the record room after due completion.