Lalit Kumar and Others Vs State of Hp and Others

For the petitioners: Mr. Subhash Sharma, Senior Advocate, with M/s Prantap Sharma and Gaurav Thakur, Advocates, for the petitioners, in both the petitions.

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For the respondents: Mr. Rahul Thakur, Deputy Advocate General, for the respondents-State, in both the petitions.

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Mr. Ajay Kochhar, Senior Advocate, with Mr. Varun Chauhan, Advocate, for respondent No.3, in both the petitions.

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Mr. Bimal Gupta, Senior Advocate, with Ms. Kusum Chaudhary, Advocate, for respondent No.4 to 18, in both the petitions.

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Ajay Mohan Goel, Judge (Oral )

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As common issues of law and facts are involved in these petitions, therefore, the same are being disposed of vide common judgment.

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Brief facts necessary for the adjudication of both these petitions are that the petitioners herein are assailing order dated 30.01.2018 (Annexure P-11) passed by learned Financial Commissioner (Appeals), in terms whereof, the Revision Petitions filed by the petitioners in both these cases were dismissed vide a common order, which Revision Petitions were preferred by the petitioners against the orders passed by learned Divisional Commissioner Mandi, in Revision Petition No.190 of 2015 and Appeal No.294 of 2011.

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Briefly stated, private respondents moved an application under Section 123 of the Himachal Pradesh Land Revenue Act for partition of joint holding. Annexure P-1 is the copy of the application. According to the petitioners, after receiving the notice, they filed their objections thereto i.e.

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Annexure P-2. Ignoring the objections filed by the petitioners, Assistant Collector 1^st Grade, vide Annexure P-4, dated 22.04.2013, accepted the mode of partition and directed that instrument of partition be accordingly prepared. Feeling aggrieved, the petitioners filed an appeal under Section 14 of the Himachal Pradesh Land Revenue Act. The appeal was dismissed by the Collector vide order dated 17.06.2015 by returning the following findings:-

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“I have carefully perused the record placed before me and I have given due consideration to the arguments advanced by ld. counsels of both parties. Perusal of lower court record reveals that this proceeding was started since 2000 and the parties moved application to application in different courts even upto Hon'be High Court for staying these proceedings. The Hon'ble High Count has directed vide order dated 10.9.2007 CMP No 447/2007 in RSA 415 that the partition proceedings before the Tehsaldar Sader, Mandi would continue but final order shall not be pronounced without permission of this Court. The Tehsildar/Assistant Collector 1^st Grade has passed final order in this case on 22.4.2013 and Instrument of partition has been prepared on 23.5.2013.

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In view of the foregoing discussions I am led to conclude that the contention of appellant is only to prolong these proceedings and he is filing appeal to another appeal before the different courts without any merit. The ground of appeal that the Hon’ble High Court of Himachal Pradesh has already granted stay and ordered to maintain status quo, qua the nature and possession of the suit property, in CMP No.716 of 2005, filed alongwith RA No.415 of 2005 pending before Hon’ble High Court has no substance because the Hon’ble High Court has also ordered vide CMP No.447 of 2007 dated 10.09.2007 in RSA No.415 of 2005 that partition proceedings before the Tehsildar Sadar Mandi would continue. Hence, this appeal is devoid of any merits is ordered to be dismissed. A copy of this order be forwarded to the Assistant Collector 1^st Grade balh for compliance as per direction given by the Hon’ble High Court vide CMP No.447 of 2007 dated 10.09.2007 in RSA No.415 of 2005 alongwith Lower Court case file No.116 of 2003. Case file be consigned to the General Record Room after due completion.”

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Said order was challenged by the petitioners before

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the learned Divisional Commissioner, Mandi, H.P., who in terms of order dated 05.08.2016 (Annexure P-8), dismissed the appeal and revision in the following terms:-

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“Therefore, in view of the above discussions, I am of the considered view that since the final instrument of partition has been prepared by the AC 1^st Grade Sadar Mandi regarding the partition of the land in question and the same has been upheld by the Collector Sub Division Sadar Mandi by dismissing the appeal of the appellant vide order dated 17.06.2015 and the revision petition filed against the order dated 17.06.2015 has also been dismissed by this court vide separate order dated 05.08.2015, as such now there is no justification to proceed with the present appeal further. Moreover, the Collector Sub Division Sadar Mandi, has vacated the stay order granted on 11.02.2011 in view of the observations made by the Hon’ble High Court in RSA No.415 of 2005 and as such no illegality has been committed by the Collector Sub Division Sadar Mandi by passing the order dated 22.06.2011. Thus, the preent appeal is hereby dismissed being not maintainable in view of the discussions made in para supra of this order. Case file of this court be consigned to the GRR after due completion.”

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The order passed by the learned Divisional Commissioner was assailed before the learned Financial Commissioner by way of two Revision Petitions. In terms of Annexure P-11, order dated 30.01.2018, the Revision Petitions filed before the learned Financial Commissioner were

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dismissed.

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While rejecting the Revision Petitions, learned Financial Commissioner held that the only issue involved in the petitions was whether mutation No.413 attested in the year 1978 was required to be kept in view while conducting the proceedings for the partition of land in question. Learned Financial Commissioner held that from the record, it was evident that partition was carried out on the basis of entries in the record of right i.e. jamabandies for the year 1996-97. Mutation No.413 was entered and attested on the basis of order dated 18.12.1975 of the Land Reforms Officer passed in Missal No.262 of 1975. Learned Financial Commissioner observed that the petitioners were trying to challenge mutation No.413 attested in the year 1978 and subsequent entries in jamabandies, in partition proceedings, which was not permissible. He held that if the petitioners were indeed aggrieved by order dated 18.12.1975 passed by Land Reforms Officer or mutation No.413 or entries in subsequent jamabandies, they should have challenged the same before the Competent Court of jurisdiction at the relevant time. Learned

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Financial Commissioner held that mutation No.413 had already been incorporated in the subsequent jamabandies and, as such, the same was not required to be kept in view while conducting the partition proceedings. Learned Financial Commissioner also held that petitioners had failed to point out any illegality or irregularity in the partition proceedings. Learned Financial Commissioner held that the contention of the petitioners that Revenue Courts passed the final order despite status quo order of this Court in CMP No.44 of 2007 in RSA No.415 of 2005 was not sustainable, because, record demonstrated that RSA No.415 of 2005 was dismissed by the Court on 18.11.2010 and thereafter interim order passed in the Civil Miscellaneous application automatically ceased to operate. Learned Financial Commissioner also held that in fact Assistant Collector 1^st Grade had passed the final order of partition on 22.04.2013, i.e. much after the dismissal of the RSA by the High Court. On these grounds, learned Financial Commissioner rejected the appeal.

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Feeling aggrieved, the petitioners have approached

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this Court.

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I have heard learned counsel for the parties and

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have also carefully gone through the pleadings and documents appended therewith.

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A perusal of the record demonstrates that the

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mutation vis-à-vis Khasra No.531 was entered on 21.07.1978. Same was never assailed by the petitioners. The transaction remained unchallenged and as is also reflected in the reply filed by respondent No.3, Khasra No.531 was reflected in the exclusive ownership and possession of Sh. Sunder son of Sh. Dev as per the revenue record including jamabandi for the year

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1981-82, which is appended with the reply.

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That being so, but natural, the land comprised in this khasra number was never part of the partition proceeding. In fact, Annexure P-4, which is the order passed by Assistant Collector 1^st Grade in the application filed under Section 123 of H.P. Land Revenue Act 1954 demonstrates that the parties therein, i.e. Puran Chand and Pram Sukh (the present petitioners are the successors in interest of Prem Sukh) accepted the mode of partition, which was

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prepared on 03.05.2012 and on these basis, Assistant Collector 1^st Grade Sadar Mandi, District Mandi, H.P., ordered the partition and directed the instrument of partition to be prepared after the expiration of appeal period. This order was assailed by Prem Sukh and Brij Lal by way of an appeal, inter alia , on the ground that an appeal under Section 14 of H.P. Land Revenue Act against order dated 06.06.2009 regarding the mode of partition was still pending. The appeal was dismissed by the Appellate Authority on 17.06.2015 by assigning reasons which have been quoted by me in above paras of the judgment.

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During the course of the hearing of this writ petition, learned Senior Counsel for the petitioners could not demonstrate that the findings returned by the Collector were perverse. Therefore, the contention of the petitioners (as was raised before the learned Collector) that the final order was passed by the Authority without awaiting the outcome of the appeal is without any merit for the reason that indeed everything had come to an end after the dismissal of the Regular Second Appeal by the High Court in RSA No.415 of 2005, which was decided in the year 2010 and there was

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nothing pending when Assistant Collector passed the order. The subsequent proceedings preferred by the petitioners demonstrate that with each round of litigation, they expanded the scope of the dispute, however, the Appellate/Revisional Authorities correctly rejected the appeals/revisions by returning the findings that there was no infirmity or illegality in the partition proceedings. The reasoning assigned by the learned Divisional Commissioner and the Financial Commissioner are clearly borne out from the record of the case. It is evident that mutation No.413, which was attested in the year 1978, was never challenged by the petitioners nor there was any need to go into the said mutation in the course of the deciding of the application filed under Section 123 of H.P. Land Revenue Act.

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This Court is of the considered view that as the order passed by Assistant Collector 1^st Grade was challenged by the petitioners only on the ground that the order was passed by ignoring an appeal filed against the mode of partition was pending, which challenge was meritless for the reason that everything had come to an end as on the date when Assistant Collector 1^st Grade had passed the order in the year 2013, in

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the subsequent proceedings, the petitioners could not have been allowed to expand the scope of litigation. Even in this writ petition, this Court in exercise of its power of judicial review has only to scrutinize the issue from this angle. Therefore, as this Court does not finds any infirmity in the orders under challenge, these petitions are dismissed. Pending miscellaneous

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applications, if any, also stand disposed of.

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(Ajay Mohan Goel) Judge

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May 01, 2025 (Vinod)

Lalit Kumar and Others v. State of Hp and Others

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Lalit Kumar and Others v. State of Hp and Others

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