Nirmala Devi vs Opposing The Petition
2021 Latest Caselaw 5385 HP

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

ON THE 25th DAY OF NOVEMBER 2021

.

BEFORE

HON'BLE MS. JUSTICE JYOTSNA REWAL DUA

CIVIL WRIT PETITION No. 4373 of 2021

Between:-

1. NIRMALA DEVI W/O LATE SH. PUNNU RAM

R/O VILLAGE BHARIYAN TEHSIL

& DISTT. CHAMBA, H.P.

2. AJAY KUMAR S/O LATE SH. PUNNU RAM R/O VILLAGE BHARIYAN TEHSIL & DISTT. CHAMBA, H.P.

3. HEM LATA D/O LATE SH. PUNNU RAM

R/O VILLAGE BHARIYAN TEHSIL & DISTT. CHAMBA, H.P.

.....PETITIONERS (BY SH. PARVEEN CHAUHAN, ADVOCATE)

AND

1. THE STATE OF H.P.

THROUGH SECRETARY (REVENUE) TO THE GOVT. OF H.P.

SHIMLA H.P.

2. THE FINANCE COMMISSIONER (APPEALS) H.P. SHIMLA-2.

3. THE DIVISIONAL COMMISSIONER, KANGRA DIVISION AT DHARMSHALA, DISTT. KANGRA H.P.

4. THE SUB-DIVISIONAL COLLECTOR CHAMBA H.P.

5. THE ASSTT. COLLECTOR 1ST GRADE CHAMBA, H.P.

.

6. SH. RUMAL SINGH S/O SH. MOHAN LAL R/O VILLAGE BHARIYAN

TEHSIL & DISTT CHAMBA H.P.

7. SH. RAJKUMAR S/O SH. DHARMU, R/O VILLAGE AND PARGNA BHARIAN,

TEHSIL & DISTT. CHAMBA, H.P.

8. SMT. RATTNI DEVI, WD/O LATE SH. AMAR SINGH

R/O VILLAGE BHARIAN, P.O. KUPHADA,

TEHSIL & DISTT. CHAMBA, H.P.

9. SH. RAKESH KUMAR, S/O LATE SH. AMAR SINGH R/O VILLAGE BHARIAN, P.O. KUPHADA,

TEHSIL & DISTT. CHAMBA, H.P.

10. SH. UTTAM SINGH

S/O LATE SH. AMAR SINGH R/O VILLAGE BHARIAN, P.O. KUPHADA,

TEHSIL & DISTT. CHAMBA, H.P.

11. SH. KEWAL KRISHAN S/O LATE SH. PUNNU RAM,

R/O VILLAGE BHARIYAN TEHSIL & DISTT. CHAMBA H.P.

12. SMT. INDU D/O LATE SH. PUNNU RAM, W/O SH. OM PARKASH R/O VILLAGE GRANJAR (GOLI) P.O. GOLI, TEHSIL DALHOUSIE DISTT. CHAMBA H.P.

13. SMT. BANDANA D/O LATE SH. PUNNU RAM, W/O SH. KISHORI LAL R/O VILLAGE GRANJAR (GOLI) P.O. GOLI, TEHSIL DALHOUSIE DISTT. CHAMBA H.P.

.....RESPONDENTS

(SH. ASHWANI SHARMA, ADDITIONAL ADVOCATE

GENERAL WITH SH. VIKRANT CHANDEL, DEPUTY ADVOCATES GENERAL FOR R-1 TO R-5, SH. B.S. CHAUHAN, SENIOR ADVOCATE WITH

.

SH. MUNISH DATWALIA, ADVOCATE, FOR R-6, NEMO FOR REMAINING RESPONDENTS) WHETHER APPROVED FOR REPORTING? YES

_______________________________________________________

This petition coming on for hearing this day, the

Court passed the following:

r ORDER

On 4.3.2009 the Assistant Collector First Grade,

Chamba ( in short A.C. First Grade) ordered for preparing

document of partition on stamp papers. This order was

assailed by petitioner No. 1 before the Collector, Chamba who

vide order dated 24.8.2009 dismissed the appeal. The order

passed by the Collector was assailed by all the three petitioners

before the Divisional Commissioner, Kangra Division by means

of a revision petition. This revision petition was also dismissed

on 2.7.2011. The petitioners thereafter preferred second

revision petition before the Financial Commissioner (Appeals)

Himachal Pradesh. This revision petition was also dismissed on

30.1.2014. Aggrieved, the petitioners have preferred the

present petition assailing all the orders passed by the revenue

authorities.

2. Facts

2(i) Respondent No. 6 moved an application under

.

Section 123 of the H.P. Land Revenue Act, 1954 before the A.C.

First Grade, Chamba for partition of joint land comprised in

Khata/Khatoni No. 19/25-27, Kita 16 measuring 17-18 bighas

situated in Mohal Ohali, Tehsil and District Chamba. Petitioners

No. 2 and 3 are children of petitioner No. 1 and were minors at

that time. They were sued in the partition proceedings through

their natural guardian and mother i.e. petitioner No. 1.

2(ii) Petitioner No. 1 was served for appearing in the

partition proceedings for 25.6.2007 before the A.C. First Grade.

She did not remain present, therefore, was proceeded exparte.

On 14.8.2007 summons were sent to petitioners No. 2 and 3

through their mother and natural guardian petitioner No. 1.

Summons were also issued to petitioner No. 1 for appearance

on 18.10.2007. Petitioner No. 1 who had already been

proceeded exparte on 25.6.2007 did not appear in the court on

18.10.2007 as well. Petitioners No. 2 and 3 were also

proceeded exparte. Mode of partition was prepared by the A.C.

First Grade on 30.11.2007. Record was sent to the Field

Kanungo for partition on spot as per the mode of partition.

Instrument of partition was prepared on 22.1.2009. Partition

was sanctioned by the A.C. First Grade on 31.1.2009. On

.

4.3.2009, the A.C. First Grade passed the order for drawing the

instrument of partition on stamp papers.

2(iii) On 16.3.2009, petitioner No. 1 filed an appeal

against the order dated 4.3.2009 before the Collector. This

appeal was instituted on the ground that the order dated

4.3.2009 was passed behind the back of petitioner No. 1. That

question of title was involved in the case, hence, the A.C. First

Grade, Chamba was not competent to pass the order. That

mode of partition was not prepared in accordance with law and

applicable instructions. That petitioner No. 1 was allotted

barren and uncultivable land in partition. Learned Collector held

that proper opportunity was granted to the petitioner No. 1 in the

partition proceeding but even after service she did not appear

before the A.C. First Grade. Her contention of involvement of

question of title also did not find favour with the Collector who

also observed that the A.C. First Grade had partitioned the land

amongst the share holders in accordance with mode of partition

according to their share.

2(iv) Petitioner No. 1 along with her two children assailed

the order dated 24.8.2009 passed by the Collector before the

.

Divisional Commissioner. The Divisional Commissioner held

that the petitioners were granted ample opportunity to present

their case and dismissed the revision petition on 2.7.2011.

2(v) Further revision petition was carried by the

petitioners before the Financial Commissioner. In this petition,

petitioners contended that before preparing the mode of

partition, the A.C. First Grade had not got prepared 'Fard Kabza

Mauka'. Mode of partition was prepared in exparte proceedings

held against petitioners No. 2 and 3 who were minors at that

time. The Financial Commissioner dismissed the revision

petition on 30.1.2014 holding that issue of preparation of 'Fard

Kabza Mauka' was not raised by the petitioners at the relevant

time and after completion of partition proceedings this issue

could not be gone into. The Financial Commissioner also held

that petitioner No. 1 being the mother and natural guardian of

petitioners No. 2 and 3 who were minors on 30.11.2007 was

duly associated in the partition proceedings. She did not attend

the proceedings despite having been served repeatedly. That

the shares of minors were kept joint with their mother, therefore,

no prejudice was caused to petitioners No. 2 and 3. Their

rights were not adversely affected in any manner.

.

Aggrieved against the above orders passed by the

revenue authorities, the petitioners instituted CWP No. 1771 of

2014. Vide judgment dated 27.7.2021, on the plea of there

being technical defects in the petition, the petitioners were

permitted to withdraw the writ petition with liberty to file afresh.

In the backdrop of above facts, the petitioners have

preferred instant petition with following substantive relief:

"(i) That order dated 30.01.2014 passed by respondent No.2 in Revision Petition No.184/2011 contained in

Annexure P-5 whereby order passed by Ld. Asstt. Collector 1st Grade Chamba in case No.18/The/CBA/2007

dated 04.03.2009 contained in Annexure P-2, Order passed by Ld. Sub-Divisional Chamba in case

No.6/2VIII/09 dated 24.08.2009 contained in Annexure P-3, order passed by Ld. Divisional Commissioner Kangra

Division, at Dharamshala in Revision No.392/09 contained in Annexure P-4 were affirmed and upheld by the respondent No.2 may kindly be quashed and set aside in the interest of justice.

(ii) That direction to the respondent No.5 may kindly be issued to initiate fresh partition proceeding in case No.18/The/CBA/2007 after giving adequate opportunity to the petitioner No.2 & 3 to represent themselves."

3. Learned counsel for the petitioners submitted that

the mode of partition was prepared by the A.C. First Grade on

.

30.11.2007 behind the back of petitioners No. 2 and 3 who were

minors at that time. Relying upon AIR 1968 SC 954, titled Ram

Chandra Arya vs. Man Singh and another and judgment

dated 16.7.2021 rendered by Hon'ble Apex Court in SLP (C)

No. 2492 of 2021, titled

to K.P. Natrajan & Anr. vs

Muthalammal & Ors. learned counsel contended that the mode

of partition prepared against minors is nullity in eyes of law.

That 'Fard Kabza Mauka' was not prepared before preparation

of mode of partition. Therefore, mode of partition is required to

be set aside. It was also argued that in view of a title dispute

raised by the petitioners, the A.C. First Grade was not

competent to finalize the partition proceedings.

Opposing the petition, learned senior counsel

appearing for respondent No. 6 contended that petitioners had

not raised the issue of their minority and its impact upon the

partition proceedings before the Collector. Petitioners No. 2

and 3 had attained age of majority on 14.9.2009. The revision

petition assailing the order passed by the Collector was

instituted jointly by all the petitioners before the Divisional

Commissioner on 14.9.2009. Though on 14.9.2009, petitioners

No. 2 and 3 had become major, however, they filed the revision

.

petition as minors through their mother petitioner No. 1. Even

before the Divisional Commissioner the petitioners did not raise

the issue of petitioners No. 2 and 3 being minors on the date of

preparation of mode of partition. The issues being raised by the

petitioners in the instant writ petition were raised by them for the

first time before the Financial Commissioner. Learned Senior

counsel submitted that though petitioners No. 2 and 3 were

minors on the date of preparation of mode of partition, however,

no prejudice was caused to them either by the mode of partition

prepared on 30.11.2007 or by the subsequent orders whereby

the partition was carried out as per mode of partition. Shares of

petitioners No. 2 and 3 were kept joint with their mother and

natural guardian i.e. petitioner No. 1. Learned senior counsel

also submitted that petitioners No. 2 and 3 even after attaining

age of majority on 14.9.2009 did not assail the mode of partition

prepared on 30.11.2007. In support of these submissions,

learned senior counsel relied upon (2018) 2 SCC 504, titled

Nagaiah and Another vs. Chowdamma (Dead) by Legal

Representatives And Another.

According to learned Deputy Advocate General

impugned orders were passed in accordance with law and did

.

not warrant any interference.

4. I have heard learned counsel for the parties and

gone through the record. In my considered view, this petition

deserves to be dismissed for the following reasons:-

4(i)

Challenge to mode of partition by petitioner No. 1

The mode of partition in the instant case was

prepared on 30.11.2007. Mode of partition is appealable under

Section 130(2) of H.P. Land Revenue Act. In terms of this

Section an appeal against mode of partition can be preferred

within a period of 30 days. Petitioner No. 1 was served with the

summons of partition proceedings, however, she chose not to

attend. She did not file any appeal against the mode of

partition. The mode of partition thus attained finality as against

petitioner No. 1. Her appeal before the Collector was not

against the mode of partition but against the order dated

4.3.2009 whereby instrument of partition was ordered to be

drawn on stamp papers. The order dated 4.3.2009 was just a

formal order. But all the grievances raised by petitioner No. 1

now are against the mode of partition. It is not disputed that

petitioner No. 1 was aware of the order dated 30.11.2007

whereby mode of partition was prepared. As already observed,

.

petitioner No 1 had not attended the partition proceedings

despite having been served. Subsequent to preparation of

mode of partition, she appeared before the A.C. First Grade on

30.1.2009 when her statement was recorded. Petitioner No.1,

therefore, cannot be heard in respect of her grievances against

the mode of partition dated 30.11.2007.

r The question of

preparation of 'Fard Kabza Mauka' raised by her also becomes

redundant since 'Fard Kabza Mauka' is prepared at the time of

preparation of mode of partition. The contention that question

of title was involved has not been substantiated.

4(ii) Challenge to mode of partition by petitioners No. 2 and 3

Petitioners No. 2 and 3 were admittedly minors on

30.11.2007 when mode of partition was prepared. It is not in

dispute that they were served through their natural guardian

and mother i.e. petitioner No. 1 for appearing in the partition

proceeding. As noticed earlier, petitioner No. 1 chose to remain

absent in the partition proceeding and was proceeded exparte.

Petitioners No. 2 and 3 were also proceeded exparte. No court

guardian was appointed for them. Petitioners No. 2 and 3

attained the age of majority on 14.9.2009. If they were

aggrieved agaisnt the mode of partition, they were required to

.

assail the same in accordance with law i.e. within a period of

three years after attaining the age of majority. Petitioners No. 2

and 3 had instituted revision petition on 14.9.2009 along with

their mother (petitioner No. 1). This leads to an inference that

they were aware of the partition proceedings as well as the

mode of partition prepared on 30.11.2007.

r The mode of

partition was not assailed by them. In fact, it has not been

assailed till date. Even in the present petition, there is no

specific prayer for quashing of mode of partition dated

30.11.2007. When the petitioners do not challenge the mode of

partition dated 30.11.2007 in accordance with the provisions of

Land Revenue Act then they cannot be heard to complain that

there is any error in the mode of partition.

Hon'ble Apex Court in (2018) 2 SCC 504, titled

Nagaiah and Another vs. Chowdamma (Dead) by Legal

Representatives And Another held that in respect of minor

defendants, the decree cannot be set aside even when

formalities for appointment of guardian ad litem to represent

them have not been observed. In the case of minor defendants,

where the permission of the court concerned under Order 32

Rule 3 of the Code is not taken, but the decree has been

.

passed, in the absence of prejudice to the minor defendant,

such decree cannot be set aside. The main test is that there

has to be a prejudice to the minor defendant for setting aside

the decree. Relevant para of the judgment is as under:

"14.

Not only is there no provision for appointment of next friend by the court, but the permission of the court is

also not necessary. However, even in respect of minor

defendants, various High Courts are consistent in taking the view that the decree cannot be set aside even where certain formalities for the appointment of a guardian ad litem to represent the defendant have not been observed.

The High Courts have observed in the case of minor defendants, where the permission of the court concerned

under Order 32 Rule 3 of the Code is not taken, but the decree has been passed, in the absence of prejudice to

the minor defendant, such decree cannot be set aside. The main test is that there has to be a prejudice to the

minor defendant for setting aside the decree. In the matter on hand, the suit was filed on behalf of the minor and therefore the next friend was competent to represent the minor. Further, admittedly no prejudice was caused to plaintiff 2.

18. Order 32 Rules 12, 13 and 14 of the Code empower the minor plaintiff to take a decision either to proceed with the suit or to abandon the suit, after attaining majority. Thus, after attaining majority, if the plaintiff elects to proceed with the suit, he may do so by making an application, consequent upon which the next friend

ceases to represent the minor plaintiff from the date of attaining majority by the minor. Order 32 Rule 12 of the

.

Code requires the minor plaintiff to have the option either

to proceed with the suit or to abandon the suit and does not at all provide that if no such election is made by the

minor plaintiff on attaining majority, the suit is to be dismissed on that ground. In case, if the court discovers during the pendency of the suit that the minor plaintiff has attained majority, such plaintiff needs to be called upon by

the court to elect whether he intends to proceed with the suit or not. In other words, the minor who attained majority during the pendency of the matter must be informed of the

pendency of the suit and in the absence of such a notice

the minor cannot be imputed with the knowledge of the pendency of the suit. So, before any adverse orders are to be made against the minor who has attained majority,

the court has to give notice to such person. Of course, in the present matter, under the facts and circumstances,

such occasion did not arise, since Plaintiff 2 on attaining majority has continued with the suit, which means he has

elected to proceed with the suit."

The judgment relied upon for the petitioners have no

applicability to the facts of the case. In the instant case though

it has been already observed that petitioners No. 2 and 3 even

after attaining the age of majority did not lay any challenge to

the mode of partition prepared in ex parte proceedings on

30.11.2007, however, even otherwise what prejudice has been

caused to these petitioners has not been shown. Petitioner No.

1 i.e. mother and natural guardian of petitioners No. 2 and 3,

who were minors on 30.11.2007, chose not to attend the

.

partition proceedings. Mode of partition was prepared on

30.11.2007. Petitioner No. 1 did not assail it within the statutory

limit. The order became final. On 16.3.2009, petitioner No. 1

filed an appeal not against the mode of partition but against a

formal order passed subsequently. None of the petitioners

assailed the mode of partition, which is specifically made

appealable under the Act. Petitioners No. 2 and 3 on 14.9.2009

(when they became major) joined their mother in the revision

petition before the Divisional Commissioner but did not

challenge the mode of partition. Petitioner No. 1 had also

appeared before the A.C. First Grade on 30.1.2009 and got

recorded her statement in respect of carrying out partition on

spot in accordance with mode of partition. She stated that she

had objections regarding allotment of some khasra numbers to

her and also with respect to allotment of certain khasra

numbers to respondent No. 6 in partition but to the remaining

partition she had no objection. These objections had no

meaning in light of mode of partition. Shares of petitioners No.

2 and 3 were kept joint with petitioner No. 1. The Financial

Commissioner was, therefore, justified in observing that no

prejudice was caused to the petitioners No. 2 and 3 nor their

.

rights were affected in any manner by the mode of partition in

the facts and circumstances of the case. Factual findings have

been returned by all the three revenue authorities that partition

has been carried out in accordance with the mode of partition.

4(iii)

According to the record, the partition proceedings

have been completed long back. The possession was delivered

in accordance with the instrument of partition prepared as per

mode of partition to the share holders of the joint land on

20.8.2009.

For all the aforesaid reasons, I find no merit in the

instant petition and the same is accordingly dismissed, so also

the pending application(s), if any.

Jyotsna Rewal Dua Judge 25th November, 2021 (vs)