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2025 DIGILAW 591 (HP)

Ramji Dass v. State of Himachal Pradesh

2025-04-02

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this petition, the petitioners have, inter alia, prayed for the following reliefs:- “i. That writ in the nature of certiorari may very kindly be issued and impugned order Annexure P-7, Annexure P-6 may very kindly be quashed and set aside. ii. That writ in the nature of mandamus may very kindly be issued by directing the respondents authorities not to act upon in furtherance of impugned order dated 20/11/2023 i.e. Annexure P-7.” 2. Brief facts necessary for the adjudication of the present petition are that the private respondents herein filed an application for partition of the property which culminated into preparation of mode of partition, dated 17.10.2011 (Annexure P-2), which was assailed by the present petitioners before Collector, Theog, District Shimla, H.P. and in terms of decision dated 27.11.2012 (Annexure P-3), the appeal filed by the present petitioners was allowed in the following terms:- “I have carefully gone through the entire averments placed before me and am convinced that the Court below had not complied with the orders of this Court passed on dated 31.12.2008. He passed the impugned orders in haste. Therefore, I accept these appeals and set aside the impugned orders dated 17-10-2011. These cases are remanded back to Ld. A.C. 1 st Grade, Theog with the direction to pass the fresh orders after taking into consideration the provisions of Para14(3) of H.P. Land Records Manual. Also, Ld. A.C. 1 st Grade is directed that opportunity of being heard the interested parties. A copy of order be placed on these three files and a copy of order be sent to A.C. 1 st Grade, Theog for strict compliance. 3. Thereafter, post remand, Assistant Collector, 1 st Grade Theog again passed order dated 06.09.2016 (Annexure P-4), which reads as under:- “Sh Tulsi Ram and others have filed three partition applications with respect to the land situated in Chaks namely Chack Mandla, Chak Shai, Chak Tiyali, which are numbered as 6/05, 7/05, 8/05. In all these cases mode of partition were framed on 20.01.2005 by my predecessor and these orders were assailed before the Collector by the Respondent and these cases were remanded back mentioning following quotations:- 1988 Civil Court Cases 138 (Allahabad High Court Lucknow Bench) titied R.K.Mathur Versus Rajinder Mohan Mathur and another. In all these cases mode of partition were framed on 20.01.2005 by my predecessor and these orders were assailed before the Collector by the Respondent and these cases were remanded back mentioning following quotations:- 1988 Civil Court Cases 138 (Allahabad High Court Lucknow Bench) titied R.K.Mathur Versus Rajinder Mohan Mathur and another. "Family Settlement amongst its members neither requires to be reduced into writing nor the registration." Except these some other findings of the Hon'ble Courts regarding family settlement or arrangement has been recorded in the order dated 31.12.2008 by the Collector and it has been affirmed that family settlement and private partition are two different things and observing further that mere not reporting the matter to the Patwari concerned could not become reasonable grounds for ignoring the rights of appellants. Second time the Mode of Partition was framed on 17.10.2011 by the Assistant Collector Grade-l and the same was again assailed before the Ld. Collector and the matter has again been remanded by ld. Collector on 27.11.2012 with the direction to pass fresh orders after taking into the consideration the provisions of Para 14(3) of H.? Land Records Manual and opportunity of being heard be afforded to all the interested parties. Id Collector has also held that the MOP has not been passed as per orders dated 31.12.2008 (as per family Settlement/family partition). In the mean time one of the respondent Sh Ashok Kumar, S/o Ramji bass submitted an application before this Court with the contention that Fard Kabja is not as his name is not appearing in the Revenue Record. This application has been posed of by my predecessor in office vide order dated 10.09.2015 with detailed reasons that he is the son of co-sharer and there is no documentary proof on record regarding the separate possession of Ashok Kumar in the record of right i.e Jamabandi and thus it was not possible for the Field Kanungo to mention the separate possession of Ashok Kumar. Separate living of Ashok Kumar from his father is also off the record and there is also no evidence to substantiate this fact on record. Hence, from the aforesaid discussion it is clear that he is interested to seek the partition of land in question. The case was fixed for arguments on 22.08.2016 on the issue as to whether there is any family settlement/private partition already taken place between the parties. Hence, from the aforesaid discussion it is clear that he is interested to seek the partition of land in question. The case was fixed for arguments on 22.08.2016 on the issue as to whether there is any family settlement/private partition already taken place between the parties. I have heard the arguments of hoth the parties in detail and gone through the relevant Revenue Records i.e. Jamabandi for the year 2012-2013. From the bare perusal of the Jamabandi it is clear that the present applicants are owner in possession of the land in question and as per the provisions of Section 45 of H.P. Land Revenue Act, 1954, presumption of truth is attached to the Jamabandi and as such the applicants are entitled to seek partition of the land in question as per Section 123 of Act ibid. So far as the contention of the Lu Counsel for Respondent qua family Settlement / Private Partition is concerned, he has failed to substantiate his claim by producing cogent documentary as well as oral evidence. Had there been any such Family Settlement/Private Partition as claimed by the Respondent they should have given the same, effect in record of right in accordance with the provisions of Section 135 of the H.P. Land Revenue Act, 1954 read with Para 14.3 of Chapter-14 of the H.P. Land Record Manual (1992 edition as amended vide notification No. Rev- B(A)-/200V-1, dated 22.06.2012). Moreover, if there is any such family settlement/private partition nothing has stopped/restricted the parties to give it effect in the Revenue Record even now by filing a joint application. Since, the Applicants have filed the present application for seeking partition for which they are legally entitled, hereby proceed to partition the land in question and the mode of partition will be framed. 1ne order (mode of partition) which was already issued by the then AC Ist Grade, Theog may be implemented as per rule.” 4. This order was not assailed by the petitioners. On the basis of this order, final partition instrument was prepared. The mutation was also attested on the basis of final partition order. 5. Feeling aggrieved by the final partition instrument, the petitioners herein filed an appeal under Sections 14 and 17 of H.P. Land Revenue Act, 1954. This order was not assailed by the petitioners. On the basis of this order, final partition instrument was prepared. The mutation was also attested on the basis of final partition order. 5. Feeling aggrieved by the final partition instrument, the petitioners herein filed an appeal under Sections 14 and 17 of H.P. Land Revenue Act, 1954. In terms of order dated 02.07.2019 (Annexure P-6), the Appellate Authority, i.e. Sub-Divisional Collector, Theog, District Shimla, H.P. dismissed the appeal by returning the following findings:- “After registration of the case the parties were summoned and the record of Ld. Court below was requisitioned. Before proceeding further the record was perused, from the perusal of record placed on file it appears to me that the instrument of partition had become final and the mutation had also been attested on dated 29-08-2018. As per the provision of HP Land Revenue Act 1954 if the mode of partition had become final and same was not challenged then after passing order the instrument of partition stood issued. In the present case appellant has not challenged mode of partition, instead he has challenged the instrument of partition before this court. Now it is settled law that if mode of partition is not challenged by anyone then instrument of Partition cannot be challenged. If no appeal is preferred against the mode of partition, no appeal is maintainable against the final orders such as instrument of partition, mutation etc. 3. In view of the above since the instrument of partition is equivalent to a decree and therefore I find no justification to interfere with the orders passed by the Ld. Court below and hence the present appeal is dismissed on the ground that instrument of partition cannot be challenged without filing appeal against the mode of partition. The miscellaneous application filed if any shall also stands disposed of accordingly. A copy of this order alongwith lower court record be sent to the Assistant Collector 1 Grade Theog. The Original case file be consigned into General Record Room after due completion. Announced.” 6. This order was assailed by way of a Revision Petition by the petitioners. In terms of order dated 20.11.2023 (Annexure P-7), the Revisional Authority dismissed the revision by returning the following findings:- “7. I have perused the entire record and also given thoughtful consideration to the arguments advanced by Id. Counsels for the respective parties. Announced.” 6. This order was assailed by way of a Revision Petition by the petitioners. In terms of order dated 20.11.2023 (Annexure P-7), the Revisional Authority dismissed the revision by returning the following findings:- “7. I have perused the entire record and also given thoughtful consideration to the arguments advanced by Id. Counsels for the respective parties. The main contention of the petitioner Shri Ashok Kumar is that he is staying separately from his father and step mother Smt. Sheela and his possession is recorded separately. It has not been considered while preparing Mode of Partition (MOP) and instrument of partition by A.C. 1 Grade. From perusal of Jamabandi, it is seen that Smt. Sheela and Shri Ashok Kumar S/o Shri Ramji Dass, are in joint possession of suit land. There is no documentary evidence to prove that Shri Ashok Kumar is in separate possession of the land. He has utterly failed to prove question of title in this case. Also, after remand back of the case vide order dated 27-11-2012 passed by Ld. Sub Divisional Collector, Theog, A.C. 1 Grade has summoned the petitioners to provide them an opportunity of being heard. Shri Ashok Kumar has raised his objections in front of A.C. 1 Grade which were decided by A.C. 1st Grade vide order dated 10-09-2015. A.C. 1st Grade, has passed a reasoned and detailed order on the objections of Shri Ashok Kumar and on detail perusal of the order, it is evident that the order is passed on the basis of record available. Further, there was no need to take legal heirs of Shri Bhagat Ram on record as he has already relinquished his share of land in favour of Shri Rama Nand S/O Shri Hari Dass. From the averments and record, the argument of the respondent that the petitioners are unnecessarily lingering the proceedings since 2005 appears to be correct. 8. In the light of above discussions, the present revision petition is dismissed and the orders dated 02-07-2019 passed by Collector, Sub Division Theog, District Shimla, H.P. are upheld. Miscellaneous applications, if any, stand disposed of accordingly. A copy of this order be placed on the file of the Lower Court and record of the Lower Court be returned back. The case file of this Court be consigned to record room after due completion.” 7. Feeling aggrieved, the petitioners have filed this petition. 8. Miscellaneous applications, if any, stand disposed of accordingly. A copy of this order be placed on the file of the Lower Court and record of the Lower Court be returned back. The case file of this Court be consigned to record room after due completion.” 7. Feeling aggrieved, the petitioners have filed this petition. 8. Learned counsel for the petitioners has vehemently argued that in terms of the order passed by the Collector, dated 27.11.2012, the mode of partition which was prepared on 17.10.2011, was quashed and set aside, with direction to the Assistant Collector, 1 st Grade to pass fresh order. Assistant Collector, 1 st Grade rather than passing fresh orders, again acted upon the mode of partition already prepared, which act of his was per se bad. He thus argued that the final partition instrument which was prepared was non est and this extremely important aspect of the matter has not been appreciated by the Authorities either in appeal or in revision. Accordingly, he prayed that the present petition be allowed and the orders under challenge be quashed and set aside. 9. Learned counsel for the private respondents submitted that the order that was passed by Assistant Collector, 1 st Grade, vide Annexure P-4, dated 06.09.2016 was not challenged by the petitioners. In the light of the fact that there was no challenge to the mode of partition, the challenge to the instrument of partition is not sustainable. Learned counsel has referred to the judgment dated 09.07.2024, passed by Hon’ble Division Bench of this Court in LPA Nos. 170 & 176 of 2024, titled Dina Nath & another Versus State of H.P. & others and submitted that as this issue is no more res integra, therefore, no infirmity can be attributed to the orders that have been challenged by this petition and in the light of the fact that the instrument of partition has attained finality, as has been observed by the Authorities also, this petition being devoid of any merit be dismissed. 10. I have heard learned counsel for the parties and have also carefully gone through the pleadings as well as the documents appended therewith. 11. 10. I have heard learned counsel for the parties and have also carefully gone through the pleadings as well as the documents appended therewith. 11. It is not in dispute that the mode of partition, dated 17.10.2011 was challenged by the petitioners and in terms of the order that was passed by the Appellate Authority on 27.11.2012, the matter was remanded back to A.C. 1 st Grade, Theog, with the direction to pass a fresh order after taking into consideration the provisions of Para 14 (3) of the Land Record Manual. 12. A perusal of the order that has been passed by the said Authority on 06.09.2016 (Annexure P-4) demonstrates that the Authority took into consideration the relevant provisions of the H.P. Land Record Manual vis-a-vis the arguments which were addressed before him and held that the applicants who had filed the application seeking partition were legally entitled to proceed to partition the land in question and in this backdrop, it further observed that the mode of partition which was already issued by the then A.C. 1 st Grade, Theog be implemented as per law. 13. Incidently, order dated 06.09.2016, passed by A.C. 1 st Grade, Theog was not assailed by the petitioners. In other words, said order had attained finality. 14. The contention of learned counsel for the petitioners that there was no necessity for the petitioners to challenge this order as it was void ab initio, does not finds favour with this Court. In case, the petitioners were of the view that this order was bad for any reason, they ought to have had assailed the same in accordance with law. It is for the petitioners to draw the inference as to whether the order in issue was good or bad in law, as this was to be decided by the Competent Authority or by the appropriate Court of law. 15. Be that as it may, fact of the matter remains that this order had attained finality and thereafter, the instrument of partition was prepared. 16. A perusal of the order passed by the Appellate Authority as well as Revisional Authority demonstrates that both the Authorities took into consideration the fact that once the mode of partition had become final, in the absence of any challenge thereto, the instrument of partition could not have been assailed. 16. A perusal of the order passed by the Appellate Authority as well as Revisional Authority demonstrates that both the Authorities took into consideration the fact that once the mode of partition had become final, in the absence of any challenge thereto, the instrument of partition could not have been assailed. The Authorities held that it was settled law that if the mode of partition was not challenged, the instrument of partition prepared thereafter could not be challenged. 17. In the absence of any challenge to Annexure P-4, on the basis of which the instrument of partition was framed, this Court concurs with the findings returned both by the Appellate Authority as well as Revisional Authority. Nothing prevented the petitioners from assailing order dated 06.09.2016 (Annexure P-4), passed by A.C. 1 st Grade, Theog. However, they did not do so and in the light of said order having attained finality, the instrument of partition definitely could not have been challenged by the petitioners. 18. Hon’ble Division Bench of this Court in LPA Nos. 170 & 176 of 2024, titled Dina Nath & another Versus State of H.P. & others, decided on 09.07.2024, also reiterated the principle that once the mode of partition stood formulated and the same was not challenged, then the instrument of partition prepared thereafter could not be assailed by the parties. 19. Therefore, in the light of above discussion, as this Court does not finds any merit in this petition, the same is dismissed. Pending miscellaneous application(s), if any also stand disposed of accordingly.