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2017 DIGILAW 56 (HP)

Bhima Nand v. Krishna Nand

2017-01-12

NARINDER CHAUHAN

body2017
ORDER Shri Narinder Chauhan, I.A.S., Financial Commissioner (Appeals). —This revision petition has been preferred under section 17 of the H.P.Land Revenue Act 1954, (herein after referred to as ''the Act''), against the order dated 26.9.2014, passed by the Id. Commissioner, Shimla Division, in Case No. 78/2011, whereby the Id. Commissions has dismissed the revision petition of the present petitioner by upholding the orders passed by the courts below. 2. Brief facts of the case are that Shri Krishna Nand, herein respondent filed an application under section 123 of the Act, before the A.C. 1st Grade, Kandaghat or 12.9.2007, for separation of his share in the land comprised in khata/khatauni no. 42'' 89, total kita 73, area measuring 117-02 bighas, situated in Mauza Chhausha, Pargna Bharooli, Tehsil Kandaghat, Distt. Solan, H.P., as per jamabandi for the year 1999-2000 After hearing both the parties, the A.C. 1st Grade, vide order dated 16.5.2008, devised a mode of partition, which was assailed by the present petitioner before the Id. Collector, Sub-Division, Kandaghat, who, vide order dated 30.12.2008, passed in case No. 15.8.2008, allowed the appeal and set aside the above order of the A.C.1st and remanded the case to the A.C. 1st Grade with the direction to prepare "Fard Kabza" before framing the mode of partition. On remand, the Id. A.C.1st Grade, got the "fard kabza mauka" prepared through the Patwari concerned and after hearing the counsels for both the parties, again devised a mode of partition on 7.11.2009. 3. Feeling aggrieved with the above order of the Id. A.C. 1st Grade, dated 7.11.2009 the present petitioner, again challenged the same before the Id. Collector, Sub-Division, Kandaghat, on the grounds that the lower court has not recorded the statement of the appellant/petitioner before framing the mode of partition, and the land adjoining and surrounding to his house, should be allotted to him for which a specific clause/condition should be inserted in the mode of partition, and the same should not be left to the Field Kanungo. Further that it should also be mentioned as to which plot is to be allotted to which specific party. After hearing the parties and on perusal of the file of the trial court, the Id. Collector, Kandaghat, vide his order dated 23.8.2010, dismissed the appeal No. 06/8/2010, observing that the appellant appears interested in delaying the proceeding of the case intentionally on one pretext or another. 4. After hearing the parties and on perusal of the file of the trial court, the Id. Collector, Kandaghat, vide his order dated 23.8.2010, dismissed the appeal No. 06/8/2010, observing that the appellant appears interested in delaying the proceeding of the case intentionally on one pretext or another. 4. Still dis-satisfied, the petitioner, further filed a revision petition before the Ld. Commissioner, Shimla Division, on similar grounds. The Id. Commissioner, after hearing the parties and a perusal of the records, vide order dated 26.9.2014 passed in Revision No. 78/2011, upheld the orders of the lower courts and rejected the same. Hence, the present revision petition. 5. Before admitting the case, it was considered appropriate to examine the record of the trial court to ascertain the veracity of issues raised by the petitioner during the arguments advanced for admission of the case. The case file of the trial court has been received. In the mean time, the respondent also filed a caveat, and as such both the parties were heard. 6. Ld. counsel for the petitioner, while reiterating the grounds of revision petition, argued that the possession of the petitioner has been ignored while preparing mode of partition. According to him, khasra nos. 415, 937, 958 and 1084 are in his exclusive possession Further, that the land adjoining and surrounding the house of petitioner should be allotted to him, and more ''ghasni'' portion has been given to him. Ld. counsel also asserted that both the parties are enjoying separate possession over the land in question since long and the same should be partitioned as per possession. 7. Per contra, the respondent, argued that the parties to the dispute are two brothers and both are entitled to equal share over the total land measuring 117-02 bighas and both are entitled to 58-11 bighas each. Further that the ancestral house is also situated on the land, but no share has been given to him in the ancestral house. He further added that no private partition has taken place between the parties. The respondent further averred that he has only applied for partition and may only be given his share in the ancestral property for which he is legally entitled. 8. On considering the arguments advanced by the Id. He further added that no private partition has taken place between the parties. The respondent further averred that he has only applied for partition and may only be given his share in the ancestral property for which he is legally entitled. 8. On considering the arguments advanced by the Id. counsel for the petitioner and the respondent who appeared in person, and having gone through the record of the courts below, it is clear that after the remand order of the Id. Collector, dated 30.12.2008, the A.C. 1st Grade, has got the ''fard kabza mauka'' prepared and after hearing Id. counsels for both the parties, has rightly devised a mode of partition on 7.11.2009, and has announced the same in their presence. The guidelines of the mode of partition clearly indicate that the land has to be partitioned equally in two khatas as per the entitlement keeping in view the possession and classification of the land in dispute. Besides all necessary clauses/guidelines have been inserted in the mode of partition. As such, the perusal of the contents of the mode of partition, no mistake/error appears to have been committed. Moreover, on bare perusal of the copies of jamabandi, it is also crystal clear that both the both the shareholders are recorded in joint ownership and possession of the entire land under partition, no khasra number has been shown to be recorded in the exclusive or separate possession of any of the shareholder. So far as the contention of the petitioner that the statement of the parties were not recorded before framing mode of partition is concerned, this contention of the petitioner is not tenable because, the Id. counsels for both the parties were present before the A.C.1st Grade, when mode of partition has been devised on 7.11.2009. The contention of the petitioner that in the mode of partition it should be specifically indicated that which portion would be given to which party, is not acceptable because such specific directions cannot be made part of mode of partition because a mode of partition only spells out the guidelines, norms and contours to be kept in consideration while effecting partition. Hence, both the lower courts have rightly held that the petitioner intends to delay the partition proceedings on one pretext or the other. 9. Hence, both the lower courts have rightly held that the petitioner intends to delay the partition proceedings on one pretext or the other. 9. In view of the above discussion, I find no illegality or irregularity having been committed by the courts below which warrant any interference in revision. Accordingly, the present revision petition is not admitted and dismissed in liminie. The Id. A.C. 1st Grade, Kandaghat, is directed to proceed further in the partition proceedings in accordance with the provisions of law. 10. Order be communicated to the parties. The record of the courts below be returned and the file of this court be consigned to the record room after due completion.