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2017 DIGILAW 68 (HP)

Salo Ram v. Chando Ram

2017-01-18

NARINDER CHAUHAN

body2017
ORDER Shri Narinder Chauhan, I.A.S., Financial Commissioner (Appeals) - This revision petitioner has been filed under Section 17 of the H.P. Land Revenue Act, 1954 (hereinafter referred to as ''the Act'') against the orders dated 17.5.2010, passed by the Divisional Commissioner Kangra Division, in revision number 76/2005, whereby the revision petition. of the present petitioner has been dismissed by way of upholding the orders passed by the courts below. The terms "present petitioner" and "present respondent" used herein, include the main petitioner and respondent as well as their legal heirs. 2. Briefly stated the facts of the case are that Sh. Chando Ram (deceased) present respondent, filed an application dated 19.12.2002, under section 123 of the Act before the AC 1st Grade, Kangra, for partition of land in joint holding comprised in Khata No.168, Khatauni No 276, Khasra No.665 and 667, area measuring 0-49-83 hectares, situated in Mohal Gawli Thehar, Mauza Bhadiyara, Tehsil and District Kangra, as per jamabandi for the year 1996 -97, which was registered as partition case No.221/02-titled as Sh. Chando Ram v. Salo Ram After processing the application, the AC 1st Grade Kangra affirmed the partition vide his order dated 5.8.2003. Thereafter, the instrument of partition has also been drawn, on 30 10.2004. Feeling aggrieved with the orders dated 5.8.2003, of the Ld A C 1st Grade, both the parties filed appeals before the Sub-Divisional Collector, Kangra. The record of appeal No.171/2004, preferred by the present petitioner is available and from the perusal of the record, the appeal of the present petitioner was filed on the grounds that the orders have been passed behind his back and no opportunity to file objections were provided to him; that the partition has been finalised without hearing the objections and other allied issues pertaining to the. partition. That the lower court has not partitioned the land as per the statements of parties and mode of partition was no drawn. Further that the superior land has been allotted to the respondent. That it was agreed on the spot that Khasra No.667 would have been allotted in square plots in equal dimensions and Khasra No.665 was to be partitioned horizontally, but the scheme of partition as agreed to has been totally ignored. Further that the lower court has not taken into consideration the value of tree etc. and the principle of consolidation has also been ignored. Further that the lower court has not taken into consideration the value of tree etc. and the principle of consolidation has also been ignored. After hearing both the parties and going through the record of court below, the Collector, Sub-Division Kangra, dismissed the appeals filed by both the parties, vide his order dated 27.9.2004. observing as follows:- "It is clear from the lower court''s record that both the parties requested to provide plots on the roadside along with partition of remaining plots as per their entitlement on the day of compromise i.e 26.4 2003. The mode of partition was also framed and effected according to their compromise accepted on the spot after proper opportunity was given. The apprehension regarding Khasra No.667/3 also stands rejected in the tatima prepared by the concerned official The plots have also been kept in compact, in consideration with allotment of plots roadside." 3. Dissatisfied with the aforesaid orders of the Sub-Divisional Collector, Kangra, the present petitioner filed a revision petition No.75/2005, before the Ld. Commissioner, Kangra Division. Besides, the grounds taken in appeal it was contended that the orders dated 27.9.2004, are based on conjectures and surmises and the appellate court has affirmed the order of court below without inspecting the spot. That both the parties went in appeal against the orders of the AC 1st Grade, and as such the matter should have been remanded back for repartitioning of the land after settlement of genuine objections Raised by the petitioner in appeal. After providing a opportunity of being heard to both the parties and on perusal of the record, the Ld. That both the parties went in appeal against the orders of the AC 1st Grade, and as such the matter should have been remanded back for repartitioning of the land after settlement of genuine objections Raised by the petitioner in appeal. After providing a opportunity of being heard to both the parties and on perusal of the record, the Ld. Commissioner, Kangra Division, dismissed the revision petition vide impugned order dated 17.5.2010, observing as follows:- " nksuksa i{kksa us Trial Court ds le{k fnukad 26-04-2003 dks le>kSrk gsrw C;ku fn;k FkkA mlds vuqlkj Trial Court us rdlhe lgh dh gSA oknh dh vkifRr;ka lgh ugha gS D;ksafd lM+d ds fdukjs nksuksa i{kksa dks fgLlkuqlkj Hkwfe nh tk pqdh gSA oknh us tks vkifRr;ka fjohtu esa mBkbZ gSa ogh vkifRr;ka vihy esa mBkbZ gSaA muds ckjs esa vihy ds fu.kZ; esa o.kZu fd;k tk pqdk gSaA bl izdkj ;g fjohtu rF;ksa ij vk/kkfjr u gksus ds dkj.k [kkfjt djus ;ksX; gSA oknh us ;g nkok fjohtu dh ctk;s vihy ds :i esa bl U;k;ky; esa izLrqr fd;k Fkk tcfd lgk;d lekgrkZ izFke Js.kh }kjk ikfjr vkns''k dh mi&e.My lekgrkZ us iqf"V (Confirm) dj j[kh gSA ,slh lwjr esa bl vihy dks fg0iz0 Hkw&jktLo vf/kfu;e 1954 dh /kkjk 17 ds vUrxZr fjohtu ;kfpdk ekuh xbZ gSA " Hence, the present revision petition. 4. During the pendency of revision petition, Sh. Chando Ram expired and his LRs have been brought on record as per MA No.353/2011, allowed on 3.5.2013, in camp court at Dharamshala. 5. I have heard the arguments on behalf of Ld. Counsel for respondent who has also filed written arguments. Sh. V.K. Sood, Advocate, appearing vice to Sh. Virender Kumar, Counsel for petitioner, failed to argue the case and was directed to intimate the original counsel to file written arguments within a period of 15 days, but no such written submissions have been received till date. The Ld. Counsel for the respondent argued that Ld. AC 1st Grade, Kangra has affirmed the partition after visiting the spot in order to remove the objections raised by the petitioners and the land has been partitioned equally to both the parties. He further argued that principle of consolidation of holdings has also been followed and the land adjacent to the road side has also been equally partitioned and that too after mutual consent and statements of the parties recorded on 26.4.2003. He further argued that principle of consolidation of holdings has also been followed and the land adjacent to the road side has also been equally partitioned and that too after mutual consent and statements of the parties recorded on 26.4.2003. Lastly, the Id. Counsel submitted that there is no irregularity or illegality in the orders passed by the courts below and as such the present revision petition deserves to be dismissed, being devoid of any merit. 6. I have considered the argument advanced on behalf of the respondent and have gone through the contents of the revision petitioner as well as the records of the courts below. From the perusal of the revision petition, it is clear that the petitioner has failed to point out any specific illegality or irregularity in the orders of the Courts below. In case the petitioner was not satisfied with the manner in which the partition has taken place, he should have first challenged the order dated 17.5.2003, vide which mode of partition was devised. There is a specific clause in the mode of partition, that the partition be carried out keeping in view the possession on spot. Hence, the contention of the petitioner to disturb the possession is not acceptable. Moreover, from the perusal of record of the Trial Court it is evident that the mode of partition has been devised on 17.5.2003, after getting the spot inspected and the same has never been challenged by any of the parties and is thus acceptable to both the parties. Further perusal of the file discloses that on 26.4.2003, when the partition was effected on spot, both the parties have given their consent in the shape of a joint statement, available at page 19 of the said file. In the said statement it has been agreed to by both the parties that the road side land be distributed equally among both the parties and from the perusal of Naksha Ja,(page 41) and tatima attached therewith (page 43) and copy of tatima available at page 23, it is clear that both the Khasra numbers abutt the road and have been divided/partitioned in such a manner that both the parties get equal share abutting the road. Moreover, the partition has almost been finalized as the instrument of partition has also been drawn on 30.1.2004. 7. Moreover, the partition has almost been finalized as the instrument of partition has also been drawn on 30.1.2004. 7. In view of above observations, I find no irregularity/illegality in the orders dated 5.8.2003, passed by the A.C. 1st Grade, Kangra, which has further been upheld by the Ld. Sub-Divisional Collector, Kangra vide order dated 17-9-2004 passed in appeal No.171 2004 and the Ld. Commissioner, Kangra Division, vide order dated 17.5.2010, in revision No.76/2005 and as such orders of the Courts below are hereby upheld. Consequently, the present revision being devoid of merit, is dismissed. 8. 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.