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Himachal Pradesh High Court · body

2016 DIGILAW 41 (HP)

MAST RAM v. SODHA DEVI

2016-01-05

NARINDER CHAUHAN

body2016
ORDER : 1. This revision petition under Section 17 of the H.R Land Revenue Act, 1954 is based on the recommendations made the Ld. Commissioner, Shimla Division vide his order dated 11.06.2015 in Revision Petition No.123/2014 whereby he accepted the revision petition against the orders passed by the Collector, Sub-Division, Theog, District Shimla on 26-7-2014, in case number 19-VIII/2014 and 27-VIII/2014, as well as order dated 22.4.2014 and 24-4-2014/25-4-2014, passed by the AC 1st Garde Theog, DIstrict Shimla, in case number 8-IX-A-08. 2. Briefly stated, the facts as narrated in the recommendation are that the present respondent had applied for partition of land comprised in Khata/khatauni No. 13/30, 31, 32, 33 and 34 Khasra No.89, 207, 208, 209, 220, 222, 251, 254, 262, 285, 289, 289/1, 354, 360, 523, 531, 532, 534, 536/1, 542, 543, 580, 606, 607, 634, 635, 636, 637, 640, 642, 1172/644, 645, 696, 1192/808, 864, 865, 479, 99, 639 total kitta 39 area measuring' 03-33-18 hectares situated at Mauza Chamrot, Pargana Matiana, Tehsil Theog, District Shimla, H.P. before the Assistant Collector, 1st Grade, Theog, DIstrict Shimla, H.P. as per jamabandi for the year 2004-05. in para 3 of the said application, the applicant stated that out of the above land, the area of land measuring 0-77-46 hectares comprised in Khasra number 220, 289, 285, 354 and 360 is in exclusive ownership and possession of the present respondent on the basis of order passed in execution petition by the civil court as such the same is not liable to partitioned. The said application is registered as case number 8-IX-A-08 on 1.5.2008. The objections of the appellants were removed by the AC 1st Grade on 22.4.2009 and the mode of partition was framed. The present petitioners No. 1 and 2 and predecessors of present petitioners 3 and 4, had appealed to the Collector, Sub-Division Theog, against the order dated 22.4.2009, passed by the Assistant Collector 1st Grade Theog, which was dismissed on 31.3.2010. Thereafter, they filed revision before the Commissioner, Shimla Division which was also rejected on 17.10.2011. Feeling dissatisfied, they filed further revision petition before the Financial Commissioner (Appeals) which was not admitted vide order dated 24.7.2012. Thereafter, they filed revision before the Commissioner, Shimla Division which was also rejected on 17.10.2011. Feeling dissatisfied, they filed further revision petition before the Financial Commissioner (Appeals) which was not admitted vide order dated 24.7.2012. Shri Narain Singh (present petitioner No.2) and another filed CWP No.9788/2012-I against the State of H.P and other in the Honble High Court of H.P. which was decided on 18.9.2013, whereby the Honble Court was pleased to issue directions that the partition proceedings may proceed further by including left out land. Accordingly, the Revenue Officer may go ahead with the partition proceedings in accordance with law. The mode of partition qua the above entire land i.e. 03-33-18 hectares was prepared and spot partition was affected. The mode of partition was confirmed on 24.4.2014 and instrument of partition was signed by the AC 1st Grade on 2.9 2014 on which there is note as follows: "to give effect 24.4.2014 be corrected as 25.4.2014." 3. The appellant filed two appeals before the Collector, Sub-Division Theog, DIstrict Shimla, against the order dated 24.4.2014, and order dated 11.11.2013 and 18.9.2013, which were dismissed by him vide common order 26.7.2014, remanding back the matter to AC. 1st Grade, Theog with the direction to pass afresh orders in accordance with law as well as per the direction of the Honble High Court of H.P. after affording due opportunity of being heard to all concerned. 4. Thereafter, the present petitioners filed an appeal before the Ld. Commissioner, Shimla Division against the order dated 26.7.2014 passed by the Collector, Sub-Division, Theog which has been treated as revision petition by the Ld. Commissioner, Shimla Division and has been recommended to this Court on the one issue while rejecting the other pleas/issues raised in the appeal/revision. Ld. Commissioner, Shimla Division has observed that land comprised in Khasra number 880, 881, 882, 883 and 1127, Kita 5, area measuring 3-97-19 hectares, situated at Mohal Chamrot, Tehsil Theog has not been partitioned so far nor any application to partition of this land has been filed by either of the parties. The Honble High Court in CWP No.9788/2012-I filed by the present petitioners has directed vide order 18.9.2013, that partition proceedings may proceed further by including the left out land and accordingly the Revenue Officer may go ahead, with the partition proceedings in accordance with law. In the view of these observations the Ld. The Honble High Court in CWP No.9788/2012-I filed by the present petitioners has directed vide order 18.9.2013, that partition proceedings may proceed further by including the left out land and accordingly the Revenue Officer may go ahead, with the partition proceedings in accordance with law. In the view of these observations the Ld. Commissioner has recommended as follows:- "In view of the above discussion, the revision petition is accepted and the case is recommended to the Financial Commissioner (Appeals) H.P. with the recommendation that order passed by the Collector, Sub-Division, Theog, District Shimla H.P. on 26.7.2014 in case number 19-VIII/2014 and 27-VIII/2014 as well as order dated 22.4.2014, 24.4.2014/25.4.2014 passed by the Assistant Collector, First Grade, Theog, District Shimla in case number 8-IX-A-08 and order passed in instrument of partition may be quashed and set aside and case be remanded back to the Assistant' Collector First Grade Theog, District Shimla H.P to implead all co-owners as necessary parties and to take into account all left out land and to decide the case afresh in accordance with law in view of the above discussion after affording due opportunity of being heard to all concerned likely to be affected by the proposed partition." 5. I have heard the Ld. Counsel for the respondent and carefully gone through the recommendations made by the Ld. Commissioner, Shimla Division and the records of the Courts below. The Ld. Counsel for the respondent has submitted that the petitioners are un-necessarily delaying the partition proceedings just to harass the respondent. That the petitioners have lost their claims in various civil courts upto Honble Supreme Court and they are trying to delay the proceedings just to deprive the respondent from her legally established rights. He has further contended that the petitioners are asking to include land which is incorporated in other Khata where share-holders are not similar and as such same cannot be clubbed together with the present partition proceedings. Lastly, he has requested to dismiss the present revision petition in view of his aforesaid assertions. 6. Since, the Ld. He has further contended that the petitioners are asking to include land which is incorporated in other Khata where share-holders are not similar and as such same cannot be clubbed together with the present partition proceedings. Lastly, he has requested to dismiss the present revision petition in view of his aforesaid assertions. 6. Since, the Ld. Commissioner, Shimla Division has recommended the present revision petition against the order dated 26.7.2014 passed by the Collector, Sub-Division, Theog on the issue that land comprised in Khasra number 880,881,882,883 and 1127, Kita 5, area measuring 3-97-19 hectares, situated in Mohal Chamrot, Tehsil Theog, has not been partitioned so far nor any application to partition this land has been filed by either of the parties, whereas the Hon'ble High Court in CWP No.9788/2012-1 filed by the present petitioners has directed vide order 18.9.2013, that partition proceedings may proceed further by including the left out land and accordingly the Revenue Officer may go ahead, with the partition proceedings in accordance with law, it would be appropriate to go through the record of Ld. Collector, Sub-Division, Theog at first instance. From the perusal of the common orders 26.7.2014 passed by Ld. Collector, Sub-Division, Theog, in case no. 19-VIII/2014 and 27-VIII/2014, and case file of said Court, it is clear that Ld. Collector, has rightly dismissed the appeals, because the same were filed by a person, Sh. Surat Ram showing him as respondent, who was neither co-sharer nor attorney holder of all the appellants/now petitioners. However, despite dismissal the Ld. Collector has remanded the matter to AC 1st Grade Theog, with the direction to remove all the defects in the partition proceedings and pass fresh orders in accordance with law as well, as per the direction of the Honble High Court of H.P. However, it may be technically wrong to dismiss the appeals and also remand the matter. But, the petitioners could have pursued their case before the Ld. AC 1st Grade, Theog in view of the specific direction/remand by the Ld. Collector in order to avoid unnecessary delay in partition proceedings. Contrary to this, they approached the Ld. Commissioner, Shimla Division against the above order which was not totally against them. This shows that the petitioners are trying to delay the partition proceedings under the guise of the order of the Honble High Court dated 18.9.2013. Collector in order to avoid unnecessary delay in partition proceedings. Contrary to this, they approached the Ld. Commissioner, Shimla Division against the above order which was not totally against them. This shows that the petitioners are trying to delay the partition proceedings under the guise of the order of the Honble High Court dated 18.9.2013. For this purpose, it would be appropriate to reproduce the relevant portion of the order dated 18.9.2013 passed by the Honble High Court in CWP No.9788/2012-I: "XXXXX 2. The respondents have filed the reply in which it is submitted that the alleged left out land has also been included in the partition proceedings and the mode of partition has also been proposed. 3. In view of the above, the grievance of the petitioners stands redressed. Accordingly, the partition proceedings may proceed further, by including the left out land. Accordingly, the revenue officer may go ahead with the partition proceedings in accordance with law. 4. With the aforesaid observations/directions, petition is disposed of so also the pending application(s), if any. Interim order, if any, stands vacated." From the perusal of aforesaid order, it is clear that the grievance of the petitioners were redressed by the respondent by including left out land in the partition application and at that time the petitioners have not objected to the reply filed by the respondent. Since, it is the reply of the respondent on the basis of which the Honble Court has passed the aforesaid orders and in case the respondent has filed a false reply or affidavit in the Honble High Court or has not complied with the directions of the Honble Court, a contempt petition could have been filed against her. Moreover, in appeal No.19-VIII/2014 filed on behalf of the petitioners, before the Sub-Divisional Collector, Theog, in para 4, it has specifically been submitted that the Honble High Court of H.R on 18.9.2013, has allowed their writ petition and has directed to partition the land measuring 00-77-46 hectares which the respondent was claiming in her own possession. From these assertions on behalf of the present petitioners, it is clear that the Honble High Court has directed the revenue authorities to include 00-77-46 hectares in the partition proceedings. From these assertions on behalf of the present petitioners, it is clear that the Honble High Court has directed the revenue authorities to include 00-77-46 hectares in the partition proceedings. So far as the land bearing Khatta No. 30/74 is concerned, from the perusal of Jamabandi for the year 2004-05 qua this land (available at page 84/85 of file of AC 1st Grade), it is clear that the sharer-holders in this khatta are different from the co-share-holders in other khattas which are under partition. As such these khattas cannot be taken together for partition as it would un-necessarily delay the partition proceedings. Furthermore, if the petitioners intend to get Khata No.30/74 partitioned, what is restraining them to file a separate application before the AC 1st Grade, Theog, for the purpose. The contention of the petitioners to delay the partition proceedings are also evident from the order dated 22.4.2009 of the AC 1st Grade, Theog, in which a specific issue No.(1) was framed by the AC 1st Grade as follows:- "(1) Whether the whole of land being owned by the parties in Mohal Chamrot has not been included in the partition application? O.P.D." The reasons and findings on this issue are as follows: Issue No. 1: No. xxxxxx xxxxxx Issue No.1: The respondent in his reply has alleged that the applicant has not included the whole of land being owned by the parties situated in Mohal Chamrot. But in his reply the respondent has not give the details of other lands jointly between the parties nor he has produced any copy of relevant Revenue Record substantiate his claim. Hence this issue is decided against the respondent." For sake of clarity it is clarified that in the partition proceedings before the AC 1st Grade, Theog, the present petitioners were respondents. 7. From above discussions, it is clear that opportunities are being provided to the petitioners to prove their claim, which is also the issue under consideration before this court in the present petition, but either there is no such land which could be made part of partition proceedings presently going on, or they deliberately have not disclosed such details just to delay the partition proceedings on one pretext or other, which is not acceptable under the law. In view of above discussions, I find no merit in the recommendations made by the Ld. In view of above discussions, I find no merit in the recommendations made by the Ld. Commissioner, Shimla Division who has not taken into consideration the aforesaid aspects and as such his recommendations to accept the revision petition are declined. Other issues raised by the petitioners in the present revision petition, have rightly been adjudicated by the Ld. Commissioner, Shimla Division. It is on the record that the instrument of partition has been signed on 2.9.2014 and as such the AC 1st Grade is hereby directed to proceed further to complete the partition proceedings. 8. Announced in the open court on 5.1.2016. Copy of this order be sent to the Revenue Officer concerned to comply with the aforesaid directions. The records of the courts below be returned immediately and file of this court be consigned to the record room after due completion.