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2017 DIGILAW 73 (HP)

Bhagat Ram Son Of Mahi v. Todri Devi

2017-02-07

NARINDER CHAUHAN

body2017
ORDER Shri Narinder Chauhan, I.A.S., Financial Commissioner (Appeals). —This revision petition has been recommended by the Ld. Commissioner, Mandi Division, under section 17 of the H.P. Land Revenue Act, 1954 (hereinafter referred to as ''the Act''), vide his order dated 23.09.2014 passed in case No. 147/2012, for setting aside the orders of the lower courts and further to remand the case to Assistant Collector 1st Grade, Sundernagar for a decision in the light of his order dated 25.4.2006. 2. Brief facts of the case are that Smt. Todari Devi (Deceased respondent No. 1 preferred an application dated 15.1.2000, before the A.C. 1st Grade, Sundernagar, District Mandi, for partitioning of the land comprised in Khata No. 78, Khatauni No. 112 to 117, Khasra No. 29, 1195/49, 26, 28, 1189/42, 44, 21, 27, 1191/45, 1151/24, 1193/48, 1151/24, 1193/48, 1150/24, Kitta 12, area measuring 5076 Square Metres, situated in Mohal Ropa 26/1, Tehsil Sundernagar, District Mandi, H.P. as per jamabandi for the year 1993-94. After processing the application, the A.C. 1st Grade, accepted the partition vide his order dated 25.10.2007. Feeling aggrieved with the said order of the AC 1st Grade, the present petitioners filed ai appeal before the Sub-Divisional Collector, Sundernagar who after hearing the parti accepted the same vide his order dated 3.6.2008, in case No. 18 of 2007, and remanded the case to AC 1st Grade, Sundernagar, with the directions to partition the land abutting the road side as per condition No. 14 of the mode of partition i.e. as per share of the owners. Feeling aggrieved the this order dated 3.6.2008, the present respondents filed an appeal before the Division Commissioner, Mandi, who after hearing the parties accepted the same vide his order dated 22.12.2009 in case No. 177/08, and remanded the case back to the id. Collector, with the directions to decide the case afresh after affording opportunity of being heard to the parties. After hearing the parties, the Sub-Division Collector, Sundernagar, vide his order dated 12.4.20012, allowed review application ail case was again remanded back to the Assistant collector, 1st Grade, Sundernagar with the direction to complete the partition proceedings in accordance with its order data 25.10.2007. 3. Dissatisfied with the orders dated 12.04.2012, the present petitioners filed; revision petition before the Ld. After hearing the parties, the Sub-Division Collector, Sundernagar, vide his order dated 12.4.20012, allowed review application ail case was again remanded back to the Assistant collector, 1st Grade, Sundernagar with the direction to complete the partition proceedings in accordance with its order data 25.10.2007. 3. Dissatisfied with the orders dated 12.04.2012, the present petitioners filed; revision petition before the Ld. Commissioner, Mandi Division, on the grounds that impugned order under challenge is both against law and facts; that the lower court has committed serious irregularities and illegalities during the court of the proceedings which have resulted into miscarriage of justice. That the orders of both the courts below are contravention and in violations of the mode of partition dated 6.1.2003. That land bearing Khasra No. 44, 1191/45, 1193/48 and 1195/49 is abutting to the road side with 51 meters road front and is several times more valuable as compared to other land and according to the shares of the petitioners they are allotted only 4 meters of road frontage which is quite inequitable, unfair and in breach of the mode of partition as well as settled principles of partition. That the petitioners were not party to the sale in favour of the respondents, and as such their claim for road side frontage in proportion to their share cannot be defeated for the act of the other co-sharers. That the order dated 25.10.2007 and 12.4.2012 of the trial court and appellate court are in clear violations of the mode of partition dated 61.2003. After hearing the parties and on perusal of the record, the Ld. Commissioner, Mandi Division, has referred the matter to this court under Section 17 of the Act, vide his order dated 23.09.2014, passed in case No. 147/2012, with the recommendations to set aside the orders of the courts below and further to remand the case to the AC 1st Grade, Sundernagar for a decision in light of his order dated 25.4.2006 or as may be deemed fit. While referring the matter to this court, the Ld. Commissioner has observed as follows :- "Perusal of record reveals that order dated 25.4.2006 passed by Assistant Collector 1st fade Sundernagar gives clear view of the facts with regard to land abutting the road, is order gives description that Khasra No. 1193/48/1 has been allotted to the respondents shri Jagdish etc. and Khasra No. 1193/48/2 to respondents Shri Sanjay Kumar etc. and Khasra No. 1193/48/2 to respondents Shri Sanjay Kumar etc. It further states that total road front side of this Khasra No. is 23 Mts. And that this land is been sold by the LRs of Shri Himmat Ram to them. The order also speaks that as r share they are entitled for 15 Mts road front side whereas they have been given 23 Mts front road side which is 8 Mts. Excess to their shares. This order also gives clear view about other co-sharers about road side front i.e. their entitlement is road front side and allotment of road front to them vis-a-vis increase or decrease to that of road side front entitlement. About petitioners, it is mentioned in the order that Khasra No. 1191/45 having 11 Mts road front side is in possession of petitioners and that they are entitled for 15 4ts Road front side. The Assistant Collector 1st Grade has observed that as per rule petitioner should had been given 15 Mts road front side and in case it was not possible in view of spot position, Khasra No. 1191/45 having 11 Mts road front side should had been allotted to them. Later on when partition was accepted on 25.10.2007, the earlier view was changed holding that the order passed on 25.4.2006 cannot be implemented since Khasra No. 1193/98 stands sold prior to Settlement and the road front side of Khasra No. 1191/45, 1195/49 and 44 only having 28 Mts front side was only apportioned. The Assistant Collector 1st Grade on 25.4.2006 held that respondents Shri Jagdish etc ind Shri Sanjay Kumar etc have been given road front side 23 Mts. which is excess by 8 Mts to their shares. Partition means equitable and fair distribution and allotment of and, particularly prime land. In case the entries of Missal Haqiat Bandobast are only to be considered, the copy of Jamabandi placed in lower court file manifests that parties are in possession of land on specific Khasra Nos. in excess to or less than their share. If this only has to be considered, then partition is of no use and not required at all. Further the partition is meant for allotment of area to parties as per their shares. Therefore, review taken by the trial court while accepting partition on 25.10.2007 is not sustainable and deserved to be quashed. If this only has to be considered, then partition is of no use and not required at all. Further the partition is meant for allotment of area to parties as per their shares. Therefore, review taken by the trial court while accepting partition on 25.10.2007 is not sustainable and deserved to be quashed. The value of land has increased manifolds with the passage of time and it is very clear that the commercial value of land was not so high or important many decades ago. Both the court have failed to appreciate this important aspect of the case and committed illegality." 4. I have heard the Id. Counsel for the petitioners while Ld. Counsel for the respondent No. 7 had agreed to submit written arguments within a period of 15 days. But, such written submissions have been received till date. While reiterating the grounds revision and endorsing the recommendations made by the Ld. Commissioner, Mandi Division, the Ld. Counsel for the petitioners argued that the co-sharers who have already land from their share on the road front are not entitled for share in the Khasra numbers abutting the road. Ld. Counsel further argued that the position has already been made clear in the orders dated 25.4.2006. Ld. Counsel further argued that the share of the co-sharers who have transferred no land, should not be reduced on the road front. Lastly it has been argued that all these aspect have been taken into consideration by the Commissioner, while making recommendations and as such the same may be accepted. 5. I have considered the arguments advanced on behalf of the petitioners have gone through the recommendations of the Ld. Commissioner, Mandi Division along with the record of the courts below. From the perusal of the record, more particularly the order dated 25.4.2006 of the AC 1st Grade, Sundernager, it is clear that Sh Bhagat Ram and Dutt Ram, the present petitioners have raised specific objection qua partition allotment of land on the road front and the Ld. AC 1st Grade, has accepted the object so raised by the present petitioners. The orders dated 25.4.2006, have been discussed detail by the Ld. Commissioner, as has also been reproduced herein above. But, vide order dated 25.10.07, the Ld. AC 1st Grade, has accepted the object so raised by the present petitioners. The orders dated 25.4.2006, have been discussed detail by the Ld. Commissioner, as has also been reproduced herein above. But, vide order dated 25.10.07, the Ld. AC 1st Grade, came to the conclusion that the order dated 25.4.2006 cannot be implemented because Khasra No. 1193/48 having 231 road front has been sold during the Settlement Operation and same has now be developed by the purchaser and thereafter road front of Khasra No. 1191/45, 1195/49 and 44 remains 28 meters, which has been allotted rightly in accordance with the share. The order dated 25.10.2007, does not satisfy all the observations made in order dated 25.4.2006, wherein it has also been observed that the road front is proposed to be allot to those who have already sold their entire share in the Khasra numbers abutting the road. Hence, the Ld. Commissioner, Mandi Division has rightly observed that the land has not been partitioned equitably and fairly. 6. Besides, in the instant case the mode of partition has not been challenged by any of the parties and as such the same is acceptable to both the parties and as per condition No. 14 of the Mode of Partition (copy available at pages 100-101 of the file of the trial court) so agreed to by both the parties, the road front is required to be distributed in accordance with the share. It is also admitted tact that some of the co-sharers have sold their shares of the land abutting the road. Hence, the persons who have already sold their shares in Khasra numbers abutting the road are not entitled for any land in road front. As such the orders dated 25.10.2007 are not in consonance with the provision Mode of Partition. 7. Hence, the persons who have already sold their shares in Khasra numbers abutting the road are not entitled for any land in road front. As such the orders dated 25.10.2007 are not in consonance with the provision Mode of Partition. 7. In general, if one or more co-sharers sold land equal to or more than their share, from a specific Khasra number more particularly on the roan front or other land having more value, in a joint holding and the subsequent purchasers develop the same and consequently it becomes impossible to allot land to other co-sharers in accordance with their shares, they may be compensated in other Khasra numbers by allotting more area after assessing the value of the land, alternatively the co-sharers who have sold more land than their shares be asked to compensate other co-sharers monetarily, in accordance with the provision of Chapter 14 of the H.P. Land Record Manual (1992 - Edition amended vide notification No. Rev.B.A.(3)-1/2004-I, dated 22nd June 2012). The provisions of para 14.7 of the aforesaid Chapter provide following guidelines, among others, for revenue officers to keep in mind, while devising the mode of partition: I. The land to be partitioned shall be pooled and thereafter valued keeping in view its distance from road, yield per unit per year in monetary terms on the basis of kinds of crops grown, value of trees standing on the land any other potential usage of the land especially commercial use, etc. II. (iii)Taking into account above valuation and the factors like actual possession, efforts at development by specific shareholders, etc. the Revenue Officer shall make an equitable partition of the value of the land. III. (iv) In addressing these issues, the Revenue Officer will, if required, ask certain shareholders to monetarily compensate others. In the instant case, if any change is required to be carried in the mode of partition, for this purpose, the same may also be carried accordingly and this order may taken as order to review to fulfil the requirement of Section 16 of the H.P. Land Revenue Act, 1954. 8. In view of aforesaid orders, the recommendations of the Ld. Commissioner, Mandi Division are accepted. The impugned orders of courts below are hereby set aside and the matter is remanded back to the AC 1st Grade, with the direction to dispose of the same in accordance with the aforesaid observations. 8. In view of aforesaid orders, the recommendations of the Ld. Commissioner, Mandi Division are accepted. The impugned orders of courts below are hereby set aside and the matter is remanded back to the AC 1st Grade, with the direction to dispose of the same in accordance with the aforesaid observations. Accordingly, the revision petition is allowed. 9. Orders be communicated to the parties, immediately. The records of the courts below be returned and file of this court be consigned to the record room after due completion.