Himachal Pradesh High Court
Gulab Singh & Another vs Jhanpi Ram & Others on 3 December, 2019
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
CWP No.5865 of 2010
Decided on: 03.12.2019
Gulab Singh & another ....Petitioners.
Versus
Jhanpi Ram & others ...Respondents.
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes
For the petitioners : Ms Shalini Thakur, Advocate.
For the respondents : Mr. Rupinder Singh, Advocate,,
for respondents No.2, 6 to 9, 13 to
19, 22, 24, 84, 115, 116, 136 (a),
136 (b), 137, 216 and proposed
legal representatives No.1 (i) to 1
(iv).
Mr. Gaurav Gautam, Advocate, for
respondents No.25 to 38, 40 to 42,
45 to 47, 63, 65 to 68, 85 to 87, 89
to 92, 95, 97 to 108, 110, 112, 113,
119, 120, 123, 124, 139, 143, 147,
161, 163, 171 to 173, 189 to 191,
193, 194, 200, 202 to 205 and 207
to 209.
1
Whether reporters of the local papers may be allowed to see the judgment?
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2
Respondents No.4 (a) to 4 (e), 5,
.
12, 20, 44, 48, 49, 50, 51 to 57, 60
to 62, 69 to 71, 74 to 82, 88, 93, 94,
96, 117, 126 to 128, 130, 132 to
135, 140, 144 to 146, 149 to 151,
153, 156, 62, 164, 174 to 176, 178
to 187, 195, 196, 199, 201, 215 (a)
to 215 (d), 217 (a), 217(b), 218,
219, 221 to 224, 226 to 237, 239 to
247 are ex parte.
Names of respondents No. 3 (a), 3
(b), 4 (f), 21, 23, 39, 41, 43, 64, 73,
r 75, 102, 105, 109, 111, 122, 125,
129, 131, 134, 138, 141, 142, 148,
157, 165, 166, 167, 168, 169, 177,
188 to 194, 208, 211, 212, 220, 225
and 238 stand deleted.
None for other respondents.
Ajay Mohan Goel, Judge (Oral)
By way of this writ petition, petitioners have prayed for the following reliefs: " 1) for issuing a writ of Certiorari for quashing order dated 23.7.2010 annexure P5 passed by Divisional Commissioner, Shimla Division, Shimla in Revenue Revision No.239 of 2010 titled Gulab Singh Versus Janphi Ram whereby order dated 27.3.2010 annexure P 4 passed by Assistant Collector 1st Grade Paonta Sahib District Sirmour in Revenue Appeal No.1/10 of 2003 was upheld.
2.) For quashing the mode of partition dated 20.4.2002 and subsequent partition proceedings including the instrument of partition dated 24.10.2002 prepared for the land in question.
::: Downloaded on - 09/12/2019 20:25:02 :::HCHP 33.) For directing the Assistant Collector 1st Grade Paonta Sahib, District Sirmour to prepare the Mode of Partition afresh in accordance with law after hearing the .
objections/ submissions of the petitioners.
4.) Respondents may kindly be directed to produce before this Hon'ble Court all the relevant record".
2. I have heard learned counsel for the parties and have also gone through the impugned orders as well as documents on record.
3.
Divisional Commissioner, A perusal of the order passed by the learned r Shimla Division, in Revenue Revision Petition No.239 of 2010, titled as Gulab Singh Versus Janphi Ram, dated 23.07.2010, demonstrates that the Revision Petition filed by present petitioner inter alia was dismissed by the learned Divisional Commissioner, on the ground that as the mode of partition was not assailed by way of filing of an appropriate appeal by the petitioners and it was only instrument of partition which stood assailed, therefore, there was no infirmity with the order which was passed by the Collector SubDivision, Paonta Sahib, which stood assailed before the learned Divisional Commissioner, as it was settled law that in the absence of there being any valid appeal ::: Downloaded on - 09/12/2019 20:25:02 :::HCHP 4 against the mode of partition, the ancillary proceedings were not assailable by way of appeal.
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4. While arriving at the said findings, learned Revisional Authority took note of the fact that the Mode of Partition was not challenged by way of an appropriate appeal by the petitioners within the period of limitation and after the instrument of partition was prepared, in the garb of challenging the same, the mode of partition also stood assailed by way of a common appeal. However, no application was filed for condonation of delay in filing the appeal to challenge the initial mode of partition.
5. A perusal of the order passed by the Collector Sub Division, Paonta Sahib in Revenue Appeal No.1/10 of 2003 demonstrates that in the garb of challenging the instrument of partition which was prepared on 24.10.2002, petitioners also prayed for setting aside the mode of partition prepared on 20.04.2002. This appeal was instituted on 28.01.2003 i.e beyond the period of limitation as prescribed for assailing the mode of partition which is dated 20.04.2002. No application ::: Downloaded on - 09/12/2019 20:25:02 :::HCHP 5 for condonation of delay in filing the appeal was filed alongwith said appeal against the mode of partition.
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6. In these circumstances, learned Collector vide order dated 27.03.2010 (Annexure P4) dismissed the appeal by holding that as the mode of partition was not assailed within the period of limitation and further the appeal which subsequently was filed was not accompanied by any application for condonation of delay, therefore, in fact there was no valid appeal filed against the mode of partition so passed by the Authority concerned. Said Authority further held that as there was no provision of filing appeal against the instrument of partition, therefore, the Court had no jurisdiction to entertain any appeal against the instrument of partition.
7. During the course of arguments, learned counsel for the petitioners could not demonstrate that the findings so returned by the Authorities below were perverse or not sustainable from the record. She has made an attempt to submit that the mode of partition itself was a nullity as it ::: Downloaded on - 09/12/2019 20:25:02 :::HCHP 6 stood passed by ignoring the factum of death of many of the cosharers, however, in my considered view, petitioners cannot .
be permitted to rake up the said cause for assailing the orders which have been passed by the Authorities below. This otherwise was not also a ground taken before the Authorities below.
8. It is duly borne out from the record that no appeal was preferred by the petitioners against the mode of partition.
After the instrument of partition was prepared, petitioners have filed an appeal before the Collector, SubDivision, Paonta Sahib on 28.01.2003, vide which they have challenged the instruments of partition dated 24.10.2002 as well as mode of partition dated 20.04.2002.
9. Admittedly, as far as the instrument of partition is concerned, there is no provision of assailing the same by way of an appeal. In addition, there was no application filed for condonation of delay in filing the appeal against the mode of partition, which took place on 20.04.2002 and appeal ::: Downloaded on - 09/12/2019 20:25:02 :::HCHP 7 instituted against that order on 28.01.2003 was admitted beyond limitation.
.
10. In this view of the matter, there is no infirmity with the findings returned either by the Collector or the Divisional Commissioner that there was no appeal filed by the petitioners against the mode of partition as the appeal purportedly filed was not only beyond limitation, but was not supported by an application for condonation of delay and the instrument of partition was not amenable to appeal.
11. Besides this, it is not the case of the petitioners that the Authorities below have not heard them at the time of adjudication of the appeal/ revision so filed by them or the orders have been passed by ignoring the rules or procedures so prescribed for the purpose of adjudication of the appeal/ revision.
12. In these circumstances, this Court does not finds any reason to interfere with the orders so passed by the Authorities in exercise of its powers of judicial review.
Accordingly, this petition is dismissed. Pending miscellaneous ::: Downloaded on - 09/12/2019 20:25:02 :::HCHP 8 applications, if any, stand disposed of. Interim order, if any, stands vacated.
.
(Ajay Mohan Goel)
Judge
December 03, 2019
(Rishi)
r to
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