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2016 DIGILAW 2761 (HP)

URMILA DEVI v. GUDI DEVI

2016-12-29

NARINDER CHAUHAN

body2016
ORDER : 1. This revision petition has arisen based on the recommendations of the Id. Divisional Commissioner Mandi Division, dated 18.9.2015, made in Case No. 208/2015, vide which the Lo Commissioner has referred the matter to this Court, under Section 17 of the H.P. Land Revenue Act, 1954 (hereinafter referred to as 'the Act') for setting aside the orders passer by the Id. Collector, Sub-Division, Hamirpur and to remand the case back to the low court, or pass as may be deemed fit. 2. Briefly stated, the facts of the case are that the present respondent, Smt Guddi Devi, through her counsel Shri S.C. Sharma, Advocate, made an application date: 1.6.2013, under section 123 of the Act, before the A.C. 1st Grade, Hamirpur, for partition of joint land comprised in khata/khatauni No. 28/36, bearing khasra No. 27, 32, 37, 71, 74, 76, 160 and 170, kita 8, area measuring, 0-51-10 hectares, situated in Mohai Kuthera Uperla, Tappa Kuthera, Tehsil and Distt. Hamirpur, H.P. as per jamabandi for the yea 2010-2011. After following the due process of law, the A.C. 1st Grade, devised a mode of partition vide order dated 28.2.2014, and sent a copy thereof to the field agencies fa partition of the land on the spot. On receipt of the partition papers prepared by the field staff the Ld. AC 1st visited the spot himself in order the resolve the objections raised b) the parties and thereafter, vide order dated 30.6.2014, sanctioned the final partition in case file No. 4/2014. After expiry of the period of appeal, the Id. A.C. 1st Grade, prepare the instrument of partition and thereafter possession has been delivered and the mutatia has also been attested on 29.11.2015. 3. In between, the present petitioner challenged the order dated 30.6.2014, of the A.C. 1st Grade, before the Id. Collector, Sub-Division, Hamirpur by filing an appeal No. 46/2004 dated on 19.8.2014, on the grounds that the land has not been partitions keeping in view possession of the parties; that the land bearing khasra no. 37 is a very valuable piece of land but despite the possession of the present petitioner over that khasra number, less area has been allotted to them. That no land has been allotted them in khasra no. 160 which abutts the road and similarly, khasra no. 32 is also re, partitioned as per the possession of the parties and that khasra no. That no land has been allotted them in khasra no. 160 which abutts the road and similarly, khasra no. 32 is also re, partitioned as per the possession of the parties and that khasra no. 71 and 76 which are in the shape of 'Nala' and 'Cheer' as well as 'Sapar'(rock) on the spot, have been allotted to the appellants whereas as per mode of partition, the land of these khasra nos. was to be partitioned in equal shares among the parties. After hearing the parties and on perusal of the record, the Id. Collector, vide order dated 31.3.2015, dismissed the appeal observing that there is no infirmity in the order of the lower court. 4. Hence, a revision petition was filed before the Id. Commissioner, Mandi Division on the same grounds as were taken before the Id. Collector in appeal. After hearing the parties and on perusal of the records, the Id. Commissioner, has referred the mattertl this Court for exercising revisional powers under section 17(4) of the Act, observing the "...the order passed by the Sub-Divisional Collector, Hamirpur is not a self speaking order and he has not discussed the grounds of appeal raised by the petitioners which is against the principle of natural justice." Therefore, the Id. Commissioner, has recommended that orders passed by Id. Collector, Sub-Division, Hamirpur may be set aside and case be remanded to lower court or as the court may deems fit. 5. I have heard the Id. counsels for both the parties. Besides, the grounds of revision, the Ld. Counsel for petitioners has argued that no 'fard kabza mauka' was called by the lower court. The Ld. Counsel also alleged that no partition has been done on the spot and Kanungo has never visited the spot and all papers have been prepared in the office of the Patwari halqua just to give advantage to the respondent. It has been averred that the operation of the order dated 30.6.2014, was stayed on 10.11.2014, but by that time the warrant of possession was also issued by the A.C. 1st Grade i.e. on (29.10.2014). Lastly, it has been argued that the Id. Collector, has not passed the order with a judicious mind, therefore, the Id Commissioner and rightly recommended for setting aside his order and as such the same may kindly be accepted. 6. Per contra, the Ld. Lastly, it has been argued that the Id. Collector, has not passed the order with a judicious mind, therefore, the Id Commissioner and rightly recommended for setting aside his order and as such the same may kindly be accepted. 6. Per contra, the Ld. Counsel for the respondent objected to the recommendations of the Id. Commissioner' and further argued that after affirmation of final partition, an instrument of partition has been prepared, mutation has been attested and the possession has also been delivered to the parties on 29.10.2014, in execution of the warrant of possession Ld Counsel further averred that the partition was done not only as per mode of partition, but rules of consolidation of holdings and utility have also been kept in mind and present petitioner No. 1 had not raised any objection during the partition proceedings and whatever false and flimsy objections were raised, have been overruled by the AC 1st Grade after due consideration. So far as the partition of alleged specific khasra numbers are concerned, the Id. counsel submitted that the lower court has failed to appreciate that land bearing khasha no. 160 does not adjoin any road; that in khasra no. 37 also 0-01-86 Hect. area has been allotted to the petitioner, because they refused to take land bearing khasra no. 170 being having shrubs/bushes. Ld. Counsel further argued that similarly, khasra no. 71 and 76 are not Sapar (rocky) rather these are 'barrani awal' as per record which record carries a presumption of truth but the Id. Commissioner has not considered and appreciated these facts. Lastly, the Ld. Counsel for respondent has raised a legal point that when the instrument of partition has been drawn and warrant of possession has also been finalised, the revenue court is left with no powers and jurisdiction to try arid adjudicate the appeal or revision, therefore, the recommendations made by the Id. Commissioner, may be declined. 7. I have considered the arguments advanced by the Id. counsels for both the parties and have also gone through the records of the courts below. From the perusal of the case file of the A.C. 1st Grade, it is revealed that the application for partition was filed on 1.6.2013. and thereafter, 'Fard Kabza Mauka', was prepared by field Kanungo on 11.11.2013, which is available at page 39 of the file of A.C. 1st Grade. From the perusal of the case file of the A.C. 1st Grade, it is revealed that the application for partition was filed on 1.6.2013. and thereafter, 'Fard Kabza Mauka', was prepared by field Kanungo on 11.11.2013, which is available at page 39 of the file of A.C. 1st Grade. From the perusal of the "Fard Kabza Mauka", it is clear that the present petitioners have occupied more land as compared to their shares. As such, the plea of the petitioners that the "fard Ebza mauka" was not prepared, is wrong and baseless Further, the mode of partition is also been devised by the A.C. 1st Grade, after the consent of both parties, which is not been challenged by any of the parties. As such, it is clear that the parties had consented to partition the suit land as per their share and entitlement. Further, the perusal of the record, reveals that when the partition papers were received from the field, certain objections were raised by the present petitioners in respect of partition of Khasra Nos. 37, 71, 76, 160 and 170 and in order to verify and settle the objections so raised, the AC 1st Grade, had himself visited the spot on 7.6.2014. After verifying the spot and objections so raised, the AC 1st Grade, ordered some amendments in the partition as proposed by the field staff, qua partition of Khasra no. 170, and this khasra no. was proposed to be allotted to the present petitioners. The A.C. 1st Grade ordered to put this khasra no. in the khata of present respondent, and in lieu of that an equivalent area oft present petitioners was ordered to be compensated from the khasra No. 37. So far as the averments of the petitioners qua allotment of land in khasra No. 160 stated tot adjacent to road is concerned, in this regard, there is nothing on the record except US claim of the petitioners and a mention in the order of Mode of Partition that the land along the road side will be distributed as per share, which could suggest that the land bearing Khasra No. 160 abutts some road. Even copy of 'musavi' is not available on the record. However, the respondent has also denied this fact, but since there is a mention at Sr. Even copy of 'musavi' is not available on the record. However, the respondent has also denied this fact, but since there is a mention at Sr. No. 6 of the Mode of Partition, that the land along the road side will be allotted asp share, the possibility of road alongside Khasra No. 160 cannot be overruled. 8. Record further shows that the present petitioners have raised this objection in writing (available at pages 62-63) among others i.e. allotment of land in Khasra No. 37, 71, 76 and 170, but from the perusal of 'zimni (interim) order' dated 7.6.2014 and final order dated 30.6.2014, it is clear that the AC 1st Grade has only discussed and decide the issue qua allotment of Khasra No. 37 and 170. Moreover, the Hon'ble High Court of H.P. vide judgement dated 29th September, 1992, delivered in revision petition No. 101 of 1990 Dasoundhi Ram v. Ramesh Singh and Ors. 1993 (2) SLJ 1661, has observed held that land abutting on road side being valuable piece of land should be partitioned as one block as per entitlement of the parties. 9. The petitioners have raised all these issues in appeal, before the Collector, Sub-Division, but the Ld. Collector, has also adjudicated upon the issue qua allotment of land in Khasra No. 37 and 170 only. None of the other issues raised by the petitioners has been discussed in the orders passed by the Ld. Collector, Hamirpur while adjudicating the appeal of the present petitioners, whereas as per provisions of law appellate authority has to adjudicate each and every issue raised before him with detailed reasons for acceptance or denial of such issues. Hence, the Ld. Commissioner, Mandi Division has rightly pointed out that the orders of the courts below are not self speaking orders. 10. Hence, the Ld. Commissioner, Mandi Division has rightly pointed out that the orders of the courts below are not self speaking orders. 10. No doubt, the AC 1st Grade, has visited the spot to resolve the objections raised by the petitioners and now the partition proceedings are at a final stage as the instrument of partition has been drawn and warrant of possession has also been issued however its execution is still a matter of dispute, but the plea of the respondent that the revenue courts have no power/jurisdiction to entertain the matter at this stage, is not acceptable in view of the provisions contained in Section 17 of the Act, which empowers this court to call for at any time, the record of any case pending before or disposed of by any revenue officer subordinate to him. 11. In view of the above discussion, I am not in agreement with the recommendation made by the Id. commissioner, Mandi Division who has not suggested any ambiguity in the orders passed by the courts below, as such, the same is declined and the revision petition stands dismissed. The orders dated 30.6.2014 and 31.3.2015, passed by the Id. A.C. 1st Grade, and Sub-Divisional Collector, Hamirpur, in case Nos. 4/14 and 46/14 respectively, are set aside and the matter is remanded to the AC 1st Grade, with the direction to proceed from the date of mode of partition afresh and to pass speaking order on each and every objections raised by the petitioners. 12. Further, in order to minimize the litigation between the parties suitable instructions be issued to all the revenue officers to direct the applicants to attach a cop of 'musavi' with the partition application. In cases the road has not been shown in the 'musavi', the revenue official preparing the 'fard kabza mauka' should give details 4 khasra numbers abutting the road on spot clearly indicating the length of road front Such road must be shown in dotted lines with red ink on the copy of 'musavi' attached with the application so that the authorities deciding the partition application/appeal/revision could come to a just and fair conclusion on the basis of record. 13. 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.