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2021 DIGILAW 173 (HP)

Ram Singh v. Labh Singh

2021-03-23

TARLOK SINGH CHAUHAN

body2021
JUDGMENT : Tarlok Singh Chauhan, J. The instant petition under Article 227 of the Constitution has been filed for the grant of following relief:- “It is, therefore, prayed that this petition may kindly be allowed and the impugned order dated 26.02.2020 (Annexure P-10) passed by Financial Commissioner (Appeals) and also the orders Annexure P-8 & P-9 passed by the authorities below may kindly be ordered to be quashed and set aside and the application (Annexure P-6) for condonation of delay in filing the appeal may kindly be allowed, the delay in filing the appeal may kindly be condoned and the appeal filed against the order (Annexure P-5) may kindly be ordered to be heard and decided on merits, in the interest of justice.” 2. Brief facts of the case are that respondent No. 1 had filed application under Section 123 of the H.P. Land Revenue Act, 1954 seeking partition of the land comprised in Khata No. 34, Khatauni No. 41 and 42, Khasra Nos. 535, 565, 566, 581, Kite-4, measuring 2-3-7 bigha situated in Mohal Khilra/28, Tehsil Sundernagar, District Mandi, before the Assistant Collector Ist Grade, Sundernagar and the same was allowed on 20.07.2015. 3. Aggrieved by the orders of partition dated 20.07.2015, the petitioners filed an appeal under Section 14 of the H.P. Land Revenue Act before the Sub Divisional Collector, Sundernagar and the same was allowed vide its orders dated 31.05.2016 and the order passed by the Assistant Collector Ist Grade was set aside and was directed to decide the partition proceedings afresh by taking into consideration the observations made by the Sub Divisional Collector in his order dated 31.05.2016. 4. Pursuant to order dated 31.05.2016, the Assistant Collector, Sundernagar decided the partition proceedings vide his order dated 11.04.2017. The petitioners again being aggrieved by the orders preferred an appeal under Section 14 of the H.P. Land Revenue Act before the Sub Divisional Collector, which was allowed vide orders dated 12.09.2018 passed in Appeal No. 41/2017. 5. 4. Pursuant to order dated 31.05.2016, the Assistant Collector, Sundernagar decided the partition proceedings vide his order dated 11.04.2017. The petitioners again being aggrieved by the orders preferred an appeal under Section 14 of the H.P. Land Revenue Act before the Sub Divisional Collector, which was allowed vide orders dated 12.09.2018 passed in Appeal No. 41/2017. 5. During the pendency of the partition proceedings before the Assistant Collector Ist Grade, order dated 26.12.2018 was passed by this Court in Regular Second Appeal No. 353 of 2018, which had arisen out of civil litigation between the parties, this Court on the joint request of the counsel for the parties directed the Collector to finalise the partition proceedings at the earliest with further direction to Assistant Collector Ist Grade to visit the site on 29.12.2018 and submit the compliance report to this Court on or before 09.01.2019. 6. Pursuant to the order passed by this Court, the Assistant Collector Ist Grade visited the spot on 26.12.2018 and proceeded to partition the land. The petitioners preferred an appeal before the Sub Divisional Collector on 28.03.2019 against the order dated 29.12.2018. However, since there was delay of 60 days in filing of the appeal, the petitioner filed an application under Section 5 of the Limitation Act (Annexure P-6) with the appeal. The Sub Divisional Collector vide order dated 28.06.2019 dismissed the application for condonation of delay by coming to the conclusion that no ground for condondation of delay is made out and the appeal is hopelessly time barred. 7. The petitioners preferred revision petition before the Commissioner, Mandi Division against order dated 28.06.2019, however, the same was dismissed vide order dated 24.09.2019 passed in Case No. 125/2019. 8. The petitioners filed revision petition under Section 17 of the H.P. Land Revenue Act before the Financial Commissioner (Appeals), which was also dismissed vide order dated 26.02.2020 passed in revision petition No. 208/2019. 9. It was vehemently argued by Mr. Y. P. Sood, learned Advocate that the authorities below while passing the orders have failed to exercise jurisdiction vested with them in accordance with law and rather adopted a hyper technical approach in throwing out the case of the petitioners on the ground of delay. 9. It was vehemently argued by Mr. Y. P. Sood, learned Advocate that the authorities below while passing the orders have failed to exercise jurisdiction vested with them in accordance with law and rather adopted a hyper technical approach in throwing out the case of the petitioners on the ground of delay. Whereas the record reveals that the petitioners were not at all aware of any order passed by the Assistant Collector Ist Grade, Sundernagar on 29.12.2018, as no such order has been placed before this Court while submitting the compliance report of the order dated 26.12.2018 passed in RSA No. 353 of 2018. 10. On the other hand, Shri Ajay Chandel, learned Advocate, would argue that since the petitioners have resorted to falsehood by suppressing material facts regarding the passing of the order dated 29.12.2018 passed by the Assistant Collector, Ist Grade, Sundernagar, therefore, the case of the petitioners has rightly been thrown out by the authorities below and the petition deserves to be dismissed with heavy costs. 11. It is not in dispute that this Court on 26.12.2018 passed the following orders:- It is jointly represented by learned counsel for the parties that principally they are not aggrieved by the order passed by Sub Divisional Collector, Sundernagar, District Mandi on 12.9.2018 and in fact jointly pray that the Collector should finalise the partition proceedings at the earliest in terms thereof. Accordingly, Assistant Collector 1st Grade, Sundernagar is directed to visit the spot on 29.12.2018 and thereafter submit the compliance report to this Court before the next date of hearing. 12. It is further not in dispute that in compliance to the aforesaid orders, the Assistant Collector Ist Grade submitted compliance report which reads as under:- “This has reference to your letter No. HHC/Judl./In RSA No. 353 of 2018-A, dated 27th day of December, 2018 whereby the undersigned was directed to visit the spot and to carry out partition of suit land i.e. Khata No. 32 Muhal Khilra in terms of order passed by Sub Divisional Collector, Sundernagar, District Mandi, H.P. on 12.09.2018 in appeal No. 41/2017 titled as Ram Singh etc. vs. Labh Singh etc. Paying high reverence to the order of Hon’ble High Court, the undersigned alongwith Field Kanungo Halqua Kalahod and Patwari, Patwar Circle Kalahod visited the spot on 29.12.2018 at Muhal Khilra. vs. Labh Singh etc. Paying high reverence to the order of Hon’ble High Court, the undersigned alongwith Field Kanungo Halqua Kalahod and Patwari, Patwar Circle Kalahod visited the spot on 29.12.2018 at Muhal Khilra. Although the parties had been apprised of the spot visit by Hon’ble High Court itself, yet a combine notice (Itlaahnaama) was also served to all the concerned through Patwari Halqua. Following parties were present on the spot:- 1. Shri Labh Singh s/o Shri Paras Ram 2. Shri Ram Singh s/o Shri Gorkhiya Ram 3. Shri Chet Ram s/o Shri gorkhiya Ram 4. Shri Leeladhar s/o Shriu Thakar Dass, 5. Shri Shashi Kant s/o Shri Gokal Chand, 6. Shri Neeraj s/o Shri Gokal Chand 7. Smt. Hardei w/o Late Shri Gokal Chand 8. Shri Sher Singh s/o Shri Surjan Besides the parties, Shri Lal Singh Chandel Ex Pradhan Gram Panchayat Khilra and local residents namely Shri Rameshwar s/o Shri Moti and Shri Tej Singh s/o Shri Binnu were also present on the spot. In order to ensure compliance of order of Hon’ble High Court in terms of the said order of ld. Sub Divisional Collector, Sundernagar, measurement of spot was done in the presence of parties with the help of standard chain (Jareeb). After thorough checking from all angles and cross-checking from different corners of the fields, the tatima of road passing through the Khasra No.535 was carved out and consequently following tatimas were prepared. In Record On Spot Khasra No. 535 area measuring 00-12-08 Bighas (Barani Avval) 535/1 area measuring 00-07-03 Bigha (Barani Avval). 535/2 area measuring 00-05-05 Bigha, gair Mumkin Sadak (Road). Thereafter, the said Khasra No. 535/2 was kept in joint ownership of all the co-sharers as directed by ld. Sub divisional Collector, Sundernagar and said Khasra No. 535/1 was partitioned among the parties as per their share. The revenue record revealed that except co-owners namely Shri Labh Singh s/o shri Paras Ram and Shri Leeladhar s/o Shri Thakar Dass; no other co-owner was entitled to allotment from said Khasra No. 535/1 as their existing share in Khasra No. 535 had already exhausted in the joint Khasra No. 535/2 i.e. road. Hence, Khasra No. 535 was finally partitioned as follows:- Sr. No. Khasra No. and Area Name of allottee 1. 535/1 area 00-06-05 Bigha (Barani Avval) Shri Labh Singh S/o Shri Paras Ram 2. Hence, Khasra No. 535 was finally partitioned as follows:- Sr. No. Khasra No. and Area Name of allottee 1. 535/1 area 00-06-05 Bigha (Barani Avval) Shri Labh Singh S/o Shri Paras Ram 2. 535/2 area 00-05-05 Bigha (Gair Mumkin Sadak) All the co-sharers of Khata 3. 535/3 area 00-00-18 Bigha (Barani Avval) Shri Leeladhar S/o Shri Thakar Dass Co-sharers namely Shri Ram Singh s/o Shri Gorkhiya requested for allotment from Khasra No. 535/2 but request could not be entertained as the said co-sharer had no vacant land in the khata to compensate the allottee No. 1 and 3 above. After explaining the situation of spot and record to the parties the amended partition papers i.e. Naksha “B”, Naksha “J”, tatima (Maps) and Field Book were prepared afresh. The statements of parties and independent witnesses were recorded and attached with case file. The partition was finalised by the undersigned as per fresh Naksha “J” and the decision was announced to parties on the spot. 13. It would be clear from the aforesaid report that even though the copy of the order dated 29.12.2018 passed by the Assistant Collector was not enclosed with the report submitted to this Court, however, the report itself clearly mentioned that partition was finalised as per fresh Naksha “j” and the decision was announced to the parties on the spot, as is evident from the underline portion above. 14. Once that be so, obviously it cannot be said that the petitioners had no knowledge regarding the final order of partition that was passed by the Assistant Collector on 29.12.2018. 15. Adverting to the orders assailed herein it would be noticed that the authorities below have rejected the case of the petitioners herein on the ground that the same is time barred and the petitioners were fully aware of the order of partition dated 29.12.2018. 16. As observed above, this finding is consistent with the records of the case as it is proved beyond any doubt that the petitioners were fully aware of the order dated 29.12.2018. Therefore, the authorities below have rightly rejected their claim being time barred. 17. It is rather unfortunate that the petitioners, who are more than 73 and 77 years of age have tried to mislead this court by making false averments. Therefore, the authorities below have rightly rejected their claim being time barred. 17. It is rather unfortunate that the petitioners, who are more than 73 and 77 years of age have tried to mislead this court by making false averments. Normally, this would have led to imposition of heavy costs, however, taking into consideration the advance stage of the petitioners i.e. 73 and 77 years of age, this Court refrain from doing so. A stern warning is issued to the petitioners not to indulge in such type of misadventures in future. 18. Accordingly, the petition is dismissed, so also pending applications, if any. Parties are left to bear their own costs.