Himachal Pradesh High Court
Between vs Balbir Singh And Others on 20 May, 2022
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 20th DAY OF MAY, 2022
BEFORE
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
.
CIVIL WRIT PETITION No.3247 of 2014
ALONGWITH CONNECTED MATTERS
1. CWP NO.3247 OF 2014
Between:-
PRITHI CHAND,
S/O SH. JAI GOPAL,
R/O VILLAGE JIJWIN, MOUZA MEWA,
AND
r to
TEHSIL BHORANJ,
DISTRICT HAMIRPUR, H.P.
.....PETITIONER
1. FINANCIAL COMMISSIONER (APPEALS),
HIMACHAL PRADESH,
SHIMLA-171002.
2. DIVISIONAL COMMISSIONER, MANDI,
DIVISION MANDI, HIMACHAL PRADESH,
3. COLLECTOR, SUB DIVISION
BHORANHJ, DISTRICT HAMIRPUR, H.P.
4. ASSISTANT COLLECTOR,
1ST GRADE BHORANJ,
TEHSIL BHORANJ,
DISTRICT HAMIRPUR, H.P.
5. SHRI BALBIR SINGH
S/O SHRI JAI GOPAL.
6. SMT. ANITA DEVI,
WIDOW OF SHRI MUKHTIAR CHAND.
7. SMT. SUHRI DEVI
W/O SHRI ROOPA.
8. SHRI DAMODAR
S/O SHRI SHANKAR.
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9. SHRI PREMI
S/O SH. SHANKAR.
ALL R/O VILLAGE JIJWIN, MOUZA MEWA,
TEHSIL BHORANJ,
DISTRICT HAMIRPUR, H.P.
.
.....RESPONDENTS
2. CWP NO.3248 OF 2014
Between:-
PRITHI CHAND,
S/O SH. JAI GOPAL,
R/O VILLAGE JIJWIN, MAUZA MEWA,
TEHSIL BHORANJ,
1.
AND
FINANCIAL
DISTRICT HAMIRPUR, H.P.
COMMISSIONER
.....PETITIONER
(APPEALS),
HIMACHAL PRADESH,
SHIMLA-171002.
2. DIVISIONAL COMMISSIONER, MANDI,
DIVISION MANDI, HIMACHAL PRADESH,
3. COLLECTOR, SUB DIVISION
BHORANHJ, DISTRICT HAMIRPUR, H.P.
4. ASSISTANT COLLECTOR,
1ST GRADE BHORANJ,
TEHSIL BHORANJ,
DISTRICT HAMIRPUR, H.P.
5. SHRI BALBIR SINGH
S/O SHRI JAI GOPAL.
6. SMT. ANITA DEVI,
WIDOW OF SHRI MUKHTIAR CHAND.
7. SMT. BHARAMI DEVI W/O SH. GIAN CHAND
8. SMT. INDU DEVI WD/O LATE SH. SURESH
KUMAR.
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9. JOTU D/O LATE SHRI SURESH KUMAR
10. KAKI D/O LATE SH. SURESH KUMAR.
11. PRITI D/O LATE SH. SURESH KUMAR.
.
12. SH.SANJAY KUMAR S/O SH. GIAN CHAND.
13. SMT. MEERA DEVI, D/O SH. GIAN CHAND.
14. SHRI ROSHAN LAL S/O SH. HARI SINGH.
15. SHRI HEM RAJ S/O SH. HARI SINGH
16. SHRI BALDEV SINGH S/O SH. BHAGAT
17.
18.
SHRI PRATAP SINGH S/O SH. BHAGAT
SHRI JASWANT SINGH S/O SH. BHAGAT.
KAMLA DEVI D/O SH. BHAGAT
19.
20. SALEMA DEVI D/O BHAGAT
ALL R/O VILLAGE JIJWIN, MAUZA MEWA,
TEHSIL BHORANJ,
DISTRICT HAMIRPUR, H.P.
.....RESPONDENTS
3. CWP NO.3249 OF 2014
Between:-
PRITHI CHAND,
S/O SH. JAI GOPAL,
R/O VILLAGE JIJWIN, MOUZA MEWA,
TEHSIL BHORANJ,
DISTRICT HAMIRPUR, H.P.
.....PETITIONER
AND
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1. FINANCIAL COMMISSIONER (APPEALS),
HIMACHAL PRADESH,
SHIMLA-171002.
2. DIVISIONAL COMMISSIONER, MANDI,
DIVISION MANDI, HIMACHAL PRADESH,
.
3. COLLECTOR, SUB DIVISION
BHORANHJ, DISTRICT HAMIRPUR, H.P.
4. ASSISTANT COLLECTOR,
1ST GRADE BHORANJ,
TEHSIL BHORANJ,
DISTRICT HAMIRPUR, H.P.
5. SH. UTTAM CHAND,
S/O SH. BALBIR SINGH
6. SH. SUBHASH CHAND
S/O SH.DUNI CHAND S/O DIFFU
7. SMT. ASHO DEVI
W/O SH. DUNI CHAND S/O DIFFU
8. SMT. OMI DEVI
WD/O SH. BHAGIRATH
9. SH. RETESH RANGRA
S/O SH. BHAGIRATH
10. SURESH KUMAR S/O SH.DIFFU
11. BALWANT SINGH S/O SH. DIFFU
ALL R/O VILLAGE JIJWIN, MOUZA MEWA,
TEHSIL BHORANJ,
DISTRICT HAMIRPUR, H.P.
.....RESPONDENTS
4. CWP NO.3250 OF 2014
Between:-
PRITHI CHAND,
S/O SH. JAI GOPAL,
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R/O VILLAGE JIJWIN, MOUZA MEWA,
TEHSIL BHORANJ,
DISTRICT HAMIRPUR, H.P.
.....PETITIONER
AND
.
1. FINANCIAL COMMISSIONER (APPEALS),
HIMACHAL PRADESH,
SHIMLA-171002.
2. DIVISIONAL COMMISSIONER, MANDI,
DIVISION MANDI, HIMACHAL PRADESH,
3. COLLECTOR, SUB DIVISION
BHORANHJ, DISTRICT HAMIRPUR, H.P.
ASSISTANT COLLECTOR,
4.
1ST GRADE BHORANJ,
TEHSIL BHORANJ,
DISTRICT HAMIRPUR, H.P.
5. SHRI BALBIR SINGH
S/O SHRI JAI GOPAL.
6. SMT. ANITA DEVI,
WIDOW OF SHRI MUKHTIAR CHAND.
SMT. KALASHO DEVI
7.
WD/O SH. NARAIN SINGH.
ALL R/O VILLAGE JIJWIN, MOUZA MEWA,
TEHSIL BHORANJ,
DISTRICT HAMIRPUR, H.P.
.....RESPONDENTS
5. CWP NO.3277 OF 2014
Between:-
PRITHI CHAND,
S/O SH. JAI GOPAL,
R/O VILLAGE JIJWIN, MOUZA MEWA,
TEHSIL BHORANJ,
DISTRICT HAMIRPUR, H.P.
.....PETITIONER
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AND
1. FINANCIAL COMMISSIONER (APPEALS),
HIMACHAL PRADESH,
SHIMLA-171002.
2. DIVISIONAL COMMISSIONER, MANDI,
.
DIVISION MANDI, HIMACHAL PRADESH,
3. COLLECTOR, SUB DIVISION
BHORANHJ, DISTRICT HAMIRPUR, H.P.
4. ASSISTANT COLLECTOR,
1ST GRADE BHORANJ,
TEHSIL BHORANJ,
DISTRICT HAMIRPUR, H.P.
5.
6.
SHRI BALBIR SINGH
S/O SHRI JAI GOPAL.
SMT. ANITA DEVI,
WIDOW OF SHRI MUKHTIAR CHAND.
7. SH. MILAP CHAND, S/O SH. MILKHI.
ALL R/O VILLAGE JIJWIN, MAUZA MEWA,
TEHSIL BHORANJ,
DISTRICT HAMIRPUR, H.P.
.....RESPONDENTS
6. CWP NO.3278 OF 2014
Between:-
PRITHI CHAND,
S/O SH. JAI GOPAL,
R/O VILLAGE JIJWIN, MOUZA MEWA,
TEHSIL BHORANJ,
DISTRICT HAMIRPUR, H.P.
.....PETITIONER
AND
1. FINANCIAL COMMISSIONER (APPEALS),
HIMACHAL PRADESH,
SHIMLA-171002.
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2. DIVISIONAL COMMISSIONER, MANDI,
DIVISION MANDI, HIMACHAL PRADESH,
3. COLLECTOR, SUB DIVISION
BHORANHJ, DISTRICT HAMIRPUR, H.P.
.
4. ASSISTANT COLLECTOR,
1ST GRADE BHORANJ,
TEHSIL BHORANJ,
DISTRICT HAMIRPUR, H.P.
5. SHRI BALBIR SINGH
S/O SHRI JAI GOPAL.
6. SMT. ANITA DEVI,
WIDOW OF SHRI MUKHTIAR CHAND.
7. SH. MILAP CHAND, S/O SH. MILKHI
W/O SHRI ROOPA.
8. SH.GARIB DASS S/O SH. MANGTU
ALL R/O VILLAGE JIJWIN, MOUZA MEWA,
TEHSIL BHORANJ,
DISTRICT HAMIRPUR, H.P.
.....RESPONDENTS
7. CWP NO.3281 OF 2014
Between:-
PRITHI CHAND,
S/O SH. JAI GOPAL,
R/O VILLAGE JIJWIN, MOUZA MEWA,
TEHSIL BHORANJ,
DISTRICT HAMIRPUR, H.P.
.....PETITIONER
AND
1. FINANCIAL COMMISSIONER (APPEALS),
HIMACHAL PRADESH,
SHIMLA-171002.
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2. DIVISIONAL COMMISSIONER, MANDI,
DIVISION MANDI, HIMACHAL PRADESH,
3. COLLECTOR, SUB DIVISION
BHORANJ, DISTRICT HAMIRPUR, H.P.
.
4. ASSISTANT COLLECTOR,
1ST GRADE BHORANJ,
TEHSIL BHORANJ,
DISTRICT HAMIRPUR, H.P.
5. SHRI BALBIR SINGH
S/O SHRI JAI GOPAL.
6. SMT. LEELA DEVI W/O SH. SURU,
7. SH. ASHOK KUMAR S/O SH. SURU
8.
9.
ASHA DEVI
WD/O LATE SH. SUBHASH CHAND
ABHISHEK KUMAR
S/O LATE SH. SUBHASH CHAND
10. VASHA BALA D/O LATE SH. SUBHASH CHAND.
RESPONDENTS NO.9 AND 10 BEING MINORS
THROUGH THEIR MOTHER AND NATURAL
GUARDIAN, SMT. ASHA DEVI, RESPONDENT
NO.8.
11. SHEETLA DEVI D/O SH. SURU
12. SMT. SUNITA DEVI D/O SH. SURU.
13. SH. SHER SINGH S/O LAKHA
ALL R/O VILLAGE JIJWIN, MAUZA MEWA,
TEHSIL BHORANJ,
DISTRICT HAMIRPUR, H.P.
.....RESPONDENTS
8. CWP NO.3282 OF 2014
Between:-
PRITHI CHAND,
S/O SH. JAI GOPAL,
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R/O VILLAGE JIJWIN, MOUZA MEWA,
TEHSIL BHORANJ,
DISTRICT HAMIRPUR, H.P.
.....PETITIONER
AND
.
1. FINANCIAL COMMISSIONER (APPEALS),
HIMACHAL PRADESH,
SHIMLA-171002.
2. DIVISIONAL COMMISSIONER, MANDI,
DIVISION MANDI, HIMACHAL PRADESH,
3. COLLECTOR, SUB DIVISION
BHORANHJ, DISTRICT HAMIRPUR, H.P.
4.
ASSISTANT COLLECTOR,
1ST GRADE BHORANJ,
TEHSIL BHORANJ,
DISTRICT HAMIRPUR, H.P.
5. SHRI BALBIR SINGH
S/O SHRI JAI GOPAL.
6. SMT. ANITA DEVI WD/O SH. MUKHTIAR CHAND
7. SMT. KALASHO DEVI WD/O SHRI NARAIN SINGH
8. SH. ASHOK KUMAR S/O SH.SURU RAM
9. SMT. ASHA DEVI WD/OSH. SUBHASH CHAND.
10. MASTER ABHISHEK KUMAR
S/O SH. SUBHASH CHAND
11. VARSH BALA D/O SH. SUBHASH CHAND
RESPONDENTS NO.10 AND 11 MINOR THROUGH
THEIR MOTHER AND NATURAL GUARDIAN SMT.
ASHA DEVI RESPONDENT NO.9
12. SMT. SHEETAL KUMARI D/O SH. SURU RAM
13. SMT. SUNITA KUMARI D/O SH. SURU RAM
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14. SMT. LEELA DEVI WD/O SH. SURU RAM
15. SH.RATTAN CHAND S/O SH. LAKHU
16. SH. SHER SINGH S/O SH. LAKHU
17. SH. CHUNI LAL S/O SH. JULFI RAM
.
18. SH. SUNKA RAM S/O SH. JULFI RAM
19. SH. SHALI S/O SH. BIDHI
20. SH. BIDHI S/O SH. MAHANTU.
ALL R/O VILLAGE JIJWIN, MAUZA MEWA,
TEHSIL BHORANJ,
DISTRICT HAMIRPUR, H.P.
.....RESPONDENTS
9. CWP NO.3283 OF 2014
Between:-
PRITHI CHAND,
S/O SH. JAI GOPAL,
R/O VILLAGE JIJWIN, MOUZA MEWA,
TEHSIL BHORANJ,
DISTRICT HAMIRPUR, H.P.
.....PETITIONER
AND
1. FINANCIAL COMMISSIONER (APPEALS),
HIMACHAL PRADESH,
SHIMLA-171002.
2. DIVISIONAL COMMISSIONER, MANDI,
DIVISION MANDI, HIMACHAL PRADESH,
3. COLLECTOR, SUB DIVISION
BHORANHJ, DISTRICT HAMIRPUR, H.P.
4. ASSISTANT COLLECTOR,
1ST GRADE BHORANJ,
TEHSIL BHORANJ,
DISTRICT HAMIRPUR, H.P.
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5. SH. UTTAM CHAND,
S/O SH. BALBIR SINGH
6. SMT. ANITA DEVI
WD/O SH.MUKHTIAR CHAND
.
7. SMT. SUHRI WD/O ROOPA
8. SH. DAMODAR S/O SH. SHANKAR
9. SH. PREMI S/O SH. SHANKAR
10. SH. HEM RAJ, S/O SH. DAMODAR
ALL R/O VILLAGE JIJWIN, MAUZA MEWA,
TEHSIL BHORANJ,
DISTRICT HAMIRPUR, H.P.
.....RESPONDENTS
10. CWP NO.3284 OF 2014
Between:-
PRITHI CHAND,
S/O SH. JAI GOPAL,
R/O VILLAGE JIJWIN, MOUZA MEWA,
TEHSIL BHORANJ,
DISTRICT HAMIRPUR, H.P.
.....PETITIONER
AND
1. FINANCIAL COMMISSIONER (APPEALS),
HIMACHAL PRADESH,
SHIMLA-171002.
2. DIVISIONAL COMMISSIONER, MANDI,
DIVISION MANDI, HIMACHAL PRADESH,
3. COLLECTOR, SUB DIVISION
BHORANHJ, DISTRICT HAMIRPUR, H.P.
4. ASSISTANT COLLECTOR,
1ST GRADE BHORANJ,
TEHSIL BHORANJ,
DISTRICT HAMIRPUR, H.P.
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5. SHRI BALBIR SINGH
S/O SHRI JAI GOPAL.
6. SMT. INDU THAKUR,
D/O SH. UTTAM CHAND
7. SH. SUBHASH CHAND,
.
S/O SH.DUNI CHAND S/O SH. DIFFU.
8. SMT. ASHO DEVI W/O
SH. DUNI CHAND S/O DIFFU.
9. SMT. OMI DEVI W/O SH. BHAGIRATH.
10. SH. RETESH RANGRA, S/O BHAGIRATH.
11. SHAKUNTLA DEVI D/O SH. BHAGIRATH
12.
13.
r to
SH. SURESH KUMAR S/O SH. AMAR SINGH
BALWANT SINGH S/O SH. AMAR SINGH.
ALL R/O VILLAGE JIJWIN, MAUZA MEWA,
TEHSIL BHORANJ,
DISTRICT HAMIRPUR, H.P.
.....RESPONDENTS
(MR. AJAY CHANDEL, ADVOCATE, FOR THE
PETITIONER(S) IN ALL THE PETITIONS,
MR. DESH RAJ THAKUR, ADDITIONAL
ADVOCATE GENERAL WITH MR. GAURAV
SHARMA, DEPUTY ADVOCATE GENERAL, FOR
R-1 TO 4-STATE IN ALL THE PETITIONS)
____________________________________________________________
These petitions coming on for hearing this day, the
Court passed the following:
ORDER
The petitioner's grievance in all these petitions that the partition has not been carried out in accordance with ::: Downloaded on - 20/05/2022 20:07:47 :::CIS
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the sanctioned mode of partition, has not found favour with the revenue authorities below. Aggrieved, he has invoked the jurisdiction of this Court under Article 226 of the .
Constitution of India. Being connected, these are taken up for disposal together. For convenience, facts of lead case, i.e. CWP No.3247 of 2014, are being referred to hereinafter.
2. Facts:-
2(i). Respondents No.5 and 6 moved an application for Nos.87/109 r to 112, partition of the joint land comprised in Khata/Khatoni alongwith nine other separate applications pertaining to other Khatas of Tika Jijwin, Tappa Mewa, Tehsil Bhoranj, District Hamirpur, H.P.. The applications were moved on 04.01.2001 and were based upon jamabandi for the year, 1996-97.
2(ii) Assistant Collector (AC in short) 2nd Grade, Bhoranj District Hamirpur, proposed the mode of partition on 09.07.2002 and submitted the files to AC 1st Grade, Bhoranj.
The AC 1st Grade Bhoranj vide order dated 23.08.2002, approved the mode of partition and forwarded the documents to the concerned Field Kanungo for preparing partition papers on the spot.
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2(iii) The petitioner filed an appeal against the order dated 23.08.2002 before the Collector Hamirpur. The appeal was dismissed on 09.02.2005. No further appeal or revision .
was preferred against the order dated 09.02.2005. The order dated 23.08.2002 attained finality. Meaning thereby, the partition was to be carried out in accordance with the accepted and approved mode of partition dated 23.08.2002.
The field staff carried out the partition on the spot. This was
3. confirmed by AC 1st Grade on 25.07.2005.
The petitioner felt aggrieved against the order dated 25.07.2005. His grievance was that the partition had not been carried out on the spot in accordance with the mode of partition sanctioned on 23.08.2002 and thus was wrongly confirmed under order dated 25.07.2005. He preferred appeal against the order dated 25.07.2005 before the Collector. The appeal was dismissed on 30.06.2008. Revision petition preferred by the petitioner against the order dated 30.06.2008 was dismissed by the Divisional Commissioner Mandi on 20.01.2010. Further revision petition filed by him was also dismissed by the Financial Commissioner (Revenue Appeals) H.P. 10.01.2014. It is in the aforesaid background ::: Downloaded on - 20/05/2022 20:07:47 :::CIS
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that the petitioner has preferred this writ petition, seeking quashing of the order passed by the Financial Commissioner (Appeals) on 10.01.2014, by the Divisional Commissioner .
Mandi, dated 20.01.2010, by the Collector Bhoranj dated 30.06.2008 as well as the order passed by AC 1st Grade Bhoranj, District Mandi on 25.07.2005.
This petition was admitted on 13.05.2014.
Respondents No.5 to 8 though stand served, however, none appeared on their behalf. A separate reply to the writ petition has been filed by respondents No.5 and 6, which has been considered.
4. I have heard learned counsel for the petitioner, learned Additional Advocate General for the respondents-
State and have also considered the entire case file, including the reply filed by respondents No.5 and 6.
Learned counsel for the petitioner confined his submissions on the plea of violation of principles of natural justice. It was argued that no notice was ever issued to the petitioner for carrying out partition on the spot. Partition was carried out behind the back of the petitioner, which has caused serious prejudice to him. In breach of terms of ::: Downloaded on - 20/05/2022 20:07:47 :::CIS
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approved mode of partition, the land in possession of the petitioner has been allotted to the other co-sharers and vice-
versa. According to learned counsel for the petitioner, .
provisions of clauses 14.16 and 14.23 falling under Chapter 14 of the H.P. Land Records Manual require mandatory issuance of notice to the parties at the time of carrying out partition. These provisions were given a go bye by the concerned revenue authorities. Petitioner was not issued any notice at the time of carrying out partition as per accepted mode of partition and also at the time of confirmation of partition. Instruments of partition were therefore, were the result of faulty process causing grave injustice to the petitioner. Prayer was made for quashing of the impugned orders.
Learned Additional Advocate General produced the record during one of the hearings of the case. From the record, it could not even be demonstrated that the petitioner was ever issued summons by the concerned authorities for carrying out partition on the spot as per sanctioned mode of partition.
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5. Observations:
Following facts are not in dispute.:-
5(i)(a) Mode of partition was proposed by AC 2nd Grade, .
Bhoranj, vide order dated 09.07.2002.
5(i)(b) The proposed mode of partition was forwarded to the AC 1st Grade, for confirmation. AC Grade-I confirmed the proposed mode of partition on 23.08.2002.
5(i)(c) The mode of partition was appealable under Section 130 of the H.P. Land Revenue Act. The petitioner assailed order dated 23.08.2002 by filing appeal before the Collector, Sub Division Bhoranj, District Hamirpur, H.P. This appeal bearing No.105 of 2002 was dismissed on 09.02.2005.
The order dated 09.02.2005 was not challenged any further and it became final. Thus, mode of partition sanctioned on 23.08.2002 became final.
5(ii) The partition was to be carried out by the field staff on the spot in accordance with the approved mode of partition dated 23.08.2002. The procedure in partition cases has been detailed in Chapter14 of the Land Records Manual.
Some relevant provisions as extracted from its Chapter run as under:-
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"Method of carrying out partition 14.16 If the partition is to be made by the patwari, the tehsildar should give him on the spot, if possible detailed instructions from which he should not be .
allowed to deviate. As little as possible should be left to the patwari's discretion, and he should not be called on to decide how land should be classified or to its respective value. Points of this sort are for the parties to agree upon among themselves; if they cannot agree, the tehsildar must decide them himself. He may, however, appoint arbitrators to do so, if the parties desire it, and he thinks their appointment is likely to lead to an equitable and speedy decision. The patwari should only be required to make a correct survey and record of the land to be partitioned, and of the manner in which they have been divided. Measurements are necessary if numbers are broken up, and in order to determine the proper boundaries of the joint fields, if these have r been encroached upon to a serious extent by any of the shareholders. If the shares are equal and the particular parcels of land to be allotted to each shareholder are to be decided by lot, 'Kurras, in the form of Khatauni slips, should be prepared for each share, the names being left blank. When the partition is completed, the following papers must be drawn up by the patwari and put on the file:
(a) A tracing from the shajra showing the new field numbers. If the village has been measured on the square system, the square should be shown on the map and the position of the new numbers within the square should be correctly indicated.
(b) A khatauni showing the names of the shareholders, and a full list of the fields allotted to each with their areas.
(c) A field-book of all new fields,
(d) A statement showing in separate columns
the area to which each shareholder was
entitled according to his recorded share and the area which he has actually received. A specimen form PTN. 2 is given in the append is, but it may be modified to whatever extent appears desirable.::: Downloaded on - 20/05/2022 20:07:47 :::CIS
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XXXXXXXXXXXXXXXXXXXXXXX Attestation of partition before the tehsildar 14.23 On receiving the map and khatauni with the field kanungo's report, the tehsildar or naib-tehsildar must give notice to all the parties to appear and state whether they agree to the partition or not. Repeated .
notices should not be issued to absentees, but as soon as he is satisfied that all parties have had an opportunity of appearing, the tehsildar should dispose of the case, making any modification in the partition which are shown to be necessary and correct the khatauni accordingly. He should then send the case for sanction to the officer empowered to decide it. All corrections made by the Tehsildar should be communicated to the kanungo and patwari. The former should point them out to the parties on the ground and correct their khatauni, and the later should correct his copy of the khatauni. If the tehsildar can arrange to collect the parties when he is in or near the village and dispose of objections on the spot, this stage of the proceedings will be shortened and much trouble saved."
The above procedure indicates that before confirming the partition, the concerned Tehsildar or Naib Tehsildar has to mandatorily issue notice to all the parties to appear and state whether they agree to the partition or not. It is only after the officer is satisfied that all the parties had an opportunity of appearing that the partition case should be disposed of, making any modification in the partition that are shown to be necessary.
5(iii) In tune with the above procedure, the petitioner was required to be summoned before confirmation of the partition. The AC 1st Grade, Bhoranj confirmed the partition ::: Downloaded on - 20/05/2022 20:07:47 :::CIS
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on 25.07.2005. While confirming the partition, he observed in the order that since the petitioner had not remained present at the time of carrying out partition on the spot, therefore, .
there was no necessity of issuing him summons. On that basis, the partition was confirmed by him on 25.07.2005.
During hearing of the case, record was produced by the respondents. The order passed by the revenue officer mentioned that despite intimation, the petitioner had not turned up at the time of carrying out partition on the spot as per accepted and approved mode of partition. There was no contemporary material available on record produced by respondents No. 1 to 4 to show that any intimation in whatsoever manner was ever sent to the petitioner directing him to remain present during partition proceedings after 09.02.2005 i.e. the date of dismissal of petitioner's appeal by the Collector Sub Division Bhoranj. It is not the case of the respondents that the petitioner was proceeded against ex-
parte in the partition proceedings subsequent to 09.02.2005.
In fact, there was no occasion for the official respondents to proceed against the petitioner ex-parte post 09.02.2005 as he had never been issued any summons after 09.02.2005.
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Therefore, the justification given by AC 1st Grade, Bhoranj in his order dated 25.07.2005 for having not issued the summons to the petitioner as he did not remain present .
earlier despite service, is factually incorrect.
The Collector, Sub Division Bhoranj, District Hamirpur and the Divisional Commissioner Mandi Davison, in their orders (impugned herein) have not at all referred to the infraction of procedure by revenue authorities while carrying out partition as per accepted mode of partition, which is the bone of contention of arguments advanced by the petitioner. The Financial Commissioner in para-13 of his order (impugned herein) though has taken note of the preach in the procedure, but has observed that the breach will not vitiate partition proceedings. Such observation cannot be allowed to sustain in the facts of the case.
5(iv) In the aforesaid circumstances, the prejudice has definitely been caused to the petitioner. He has been condemned unheard on incorrect factual grounds. The grievance of the petitioner as is being highlighted, is not against the mode of partition, the grievance of the petitioner is that the partition has not been carried out in accordance ::: Downloaded on - 20/05/2022 20:07:47 :::CIS
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with the sanctioned mode of partition. It is his case that the land which was in his possession has been given to the others, whereas, the land which was in possession of others .
has been allotted to him. All this, according to him, is in breach of the accepted mode of partition. Petitioner's grievances have gone unaddressed. This is required to be gone into by the AC 1st Grade, Bhoranj.
5(v) Learned counsel for the petitioner during hearing of the case also brought to the notice of this Court order dated 27.02.2010 passed in case No.08/2009, titled Prithvi Chand Vs Balbir Singh and others, setting aside the mutations attested on the basis of partition proceedings in question. The mutations have been set aside on the ground that the petitioner was not served at the time of attestation of the mutation. That the mutations have been attested behind the back of the petitioner and without giving him due opportunity to remain present at the time of attestation of mutation. The matter is stated to be still pending before the AC 1st Grade, Bhoranj.
For all the aforesaid reasons, the petitioner has made out a case in his favour. These writ petitions are ::: Downloaded on - 20/05/2022 20:07:47 :::CIS
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accordingly allowed. The orders dated 30.06.2008 passed by Collector Sub Division Bhoranj, District Hamirpur (Annexure P-2), dated 20.01.2010 passed by Divisional Commissioner .
Mandi (Annexure P-3), dated 10.01.2014 passed by Financial Commissioner Revenue (Appeals) H.P. as well as the order dated 25.07.2005 passed by AC 1 st Grade, Bhoranj, District Hamirpur, H.P. are quashed and set-aside. The AC 1st Grade, Bhoranj, District Hamirpur, is directed to carry out the partition proceedings afresh subsequent to the stage of approval of mode of partition in accordance with law.
The petitions stand disposed of in the above terms, so also the pending miscellaneous application(s), if any.
( Jyotsna Rewal Dua )
May 20, 2022 Judge
R. Atal
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