Himachal Pradesh High Court
Kunal Thakur vs "The Appellant And The on 23 August, 2022
Bench: Amjad Ahtesham Sayed, Jyotsna Rewal Dua
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 23rd DAY OF AUGUST, 2022
BEFORE
.
HON'BLE MR. JUSTICE A. A. SAYED,
CHIEF JUSTICE
&
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CIVIL WRIT PETITION No. 5580 of 2022
Between :-
1. KUNAL THAKUR
2. BARUN THAKUR
BOTH SONS OF LATE SHRI
SURENDER THAKUR, RESIDENT OF
VILLAGE RANGRI, PHATI NASOGI
KOTHI MANALI, TEHSIL MANALI,
DISTRICT KULLU, H.P.
...PETITIONER
(BY MR. ANUP RATTAN, ADVOCATE)
AND
1. PARVATI DEVI, DAUGHTER OF LATE
ABHAY CHAND (PRESENTLY WIFE
OF KUNZAM NAMGYAL, RESIDENT
OF VILLAGE RANGHRI, P.O.
CHHIYAL, TEHSIL MANALI, DISTRICT
KULLU, H.P.
2. SHAMSHER THAKUR, SON OF SHRI
PRATAP CHAND, R/O VILLAGE
RANGHRI, P.O. CHHIYAL, TEHSIL
MANALI, DISTRICT KULLU, H.P.
3. MANORMA DEVI, D/O SHRI PRATAP
CHAND, PRESENTLY WIFE OF COL.
S.A. BODH, RESIDENT OF VILLAGE
::: Downloaded on - 26/08/2022 20:01:22 :::CIS
2
SARAI, P.O. HARIPUR, TEHSIL
MANALI, DISTRICT KULLU, H.P.
4. SHAKUNTLA, DAUGHTER OF SHRI
PRATAP CHAND, PRESENTLY WIFE
.
OF S. YONGDOL, RESIDENT OF
VILLAGE KARZOK, DISTRICT LEH
(J&K).
5. SONAM ANGDUL, SON OF LATE
DAMYANTI DEVI, R/O VILLAGE
KOMLING, P.O. KAZA, TEHSIL KAZA,
DISTRICT LAHAUL SPITI, H.P.
6. POOJA CHAHAL, D/O SHAMSHER
THAKUR.
7. SUJATA SHARMA, D/O SHAMSHER
THAKUR.
8. DICKY, D/O SHAMSHER SINGH, SON
OF SH. PARTAP CHAND.
ALL RESIDENTS OF VILLAGE
RANGHRI, P.O. CHHLAL, TEHSIL
MANALI, DISTRICT KULLU, H.P.
9. FINANCIAL COMMISSIONER
APPEALS, STATE OF HIMACHAL
PRADESH, SHIMLA-2.
10.ASSISTANT COLLECTOR GRADE-1,
MANALI, DISTRICT KULLU, H.P.
...RESPONDENTS
(MR. BHAGBATI PRASAD, ADVOCATE
FOR R-1.
MR. C.D. NEGI, ADVOCATE, FOR R-2/
CAVEATOR.)
____________________________________________________
::: Downloaded on - 26/08/2022 20:01:22 :::CIS
3
This petition coming on for admission this day, the
Hon'ble Ms. Justice Jyotsna Rewal Dua passed the following :
ORDER
.
Caveat No. 137 of 2022
Discharged. The petition to stand disposed of.
CWP No. 5580 of 2022
Petitioners are recorded as co-owners of the suit
land alongwith respondents No. 1 to 8. In respondent No.1's
application for partition of joint land, mode of partition was
prepared by the competent revenue authority on 15.02.2018.
Petitioners' challenge to this mode of partition was turned down
concurrently by the three revenue Courts. Aggrieved, petitioners
have now invoked writ jurisdiction of this Court.
2. Facts
2(i) Respondent No. 1 moved an application on
31.10.2013 before the Assistant Collector 1 st Grade Manali,
District Kullu for partition of land measuring 4-07-79 hqtrs,
comprised in khata/khatauni No.126/175, situated in Up Muhal
Simsa Phati Nasogi Kothi, Manali, Tehsil Manali, District Kullu.
She pleaded that the land was held by her jointly with the other
private parties (petitioners and respondents No. 2 to 8) in terms of
'misal hakiat' for the year 2001-2002. Petitioners, who figured as
respondents No. 5 and 6 in the said application filed their reply on
05.03.2016 taking up the stand that proceedings for declaration
challenging the shares of the parties in the land was sub-judice
.
before the Apex Court, hence unless and until the shares of the
parties were finally determined by the Hon'ble Apex Court, the
partition application could not proceed. The prayer was
accordingly made by the petitioners in their reply for dismissing
the application moved by respondent No. 1 seeking partition of
the land.
2(ii) to
Civil Appeal No. 5820 of 2006 (Surinder Chand (D)
through LRs Versus Shakuntala and others) was dismissed by
the Apex Court on 09.03.2017. The order passed by the Apex
Court runs as under :-
"The appellant and the respondents are brother and sisters
and there is a dispute about the inheritance of certain properties.
Insofar as subject matter of the present proceedings is concerned,
the following properties are involved :-
"a) Land measuring 0-4-5 biswas being 1/4th share of the
land measuring 0-17 biswas comprised under Khasra No. 650,
Khata Khatauni No. 222/487 incorporated in the Jamabandi for
the year 1972-73 of Phati Nasogi Kothi Manali Tehsil and District
Kullu.
b) Land measuring 16-15-13 bigha being 1/3rd share of
the land measuring 50-7 bighas comprised under Khata
Khatauni No. 22/485 Khasra No. 2363, 2364, 2365, 2366, 2367,
2368, 2370, 2371, 2371, 2373, 2374, 2379, 2390, 2391 kittas 15
incorporated in the jamabandi for the year 1972-73 of Phati
Nasogi Kothi Manali, Tehsil and District Kullu. Parcha jamabandi
is enclosed herewith."
As far as the aforesaid properties are concerned, after
the death of the father of the appellant/plaintiff, these were
.
mutated in the name of the parties following the rules of
succession as per the Hindu Succession Act, meaning thereby,
all these parties got equal shares. The appellant/plaintiff filed
the suit on the ground that the parties belong to 'Bodh
Community', which was a notified tribe in Lahaul Spiti Valley
(H.P). It was also the case of the appellant/plaintiff that
there was a custom in 'Bodh Community' that it is only
sons who would succeed in the properties left behind by
their ancestors.
It is not necessary to traverse to the history of the
litigation and the fate of the aforesaid case from Court to Court.
Suffice it to state that, though the Trial Court dismissed the suit
of the appellant/plaintiff, the First Appellate Court reversed the
findings of the Trial Court and decreed the suit accepting the
case of the appellant/plaintiff and the judgment of the First
Appellate Court has been reversed by the High Court vide
impugned judgment dated 10.04.2006. The effect is that the
mutation as carried out by the authorities in the revenue
records giving all the parties equal shares is accepted. We may
also record that while doing so the High Court has
returned a finding that the appellant/plaintiff was not able
to give any evidence to prove the custom as pleaded and
there was also no evidence to show that the ancestors of
the parties changed their religion and became 'Bodh". The
appellant/plaintiff had relied upon "Rewaz-e-Zamindar"
custom to the effect that only sons would inherit the
properties was virtually proved. The High Court has not
accepted the same.
We find that there may be some arguable case as to
whether the parties belong to 'Bodh Community' and whether it
is a notified Tribal community and whether 'Rewaz-e-Zamindar"
is applicable or not ? However, in the peculiar facts and
.
circumstances of the present case, more so when we find
that substantial justice is done by giving all the parties
their equal share, it is not necessary to go into the issues
raised by the appellant in the present appeal.
Leaving the question of law open, the appeal is otherwise
dismissed and, therefore, it would always be open to the
appellant/plaintiff in any other proceedings to independently
prove his case. As the suit having been dismissed, it would be
open to the respondents to seek demarcation of the
property(s).
The appeal is dismissed accordingly."
While Dismissing the appeal filed by the petitioners,
Hon'ble Apex Court has taken cognizance of the fact that the
mutation carried out by the revenue authorities giving equal
shares to all the parties stands accepted. The petitioners were
not able to lead any evidence to prove the custom pleaded by
them for declining right in the suit property to private respondents
No. 1, 3, 4 and 6 to 8. It was also observed in the order that
substantial justice has been done by giving all the parties their
equal share.
(iii) After dismissal of their civil appeal by the Apex Court,
the petitioners instituted a fresh civil suit against the respondents.
On 18.05.2017, learned Civil Judge Manali ordered the parties to
maintain status quo regarding nature and possession of the suit
property. The order was to remain in force till 22.05.2017.
Petitioners attended the partition proceedings before the AC-IInd
.
grade on 14.06.2017. The status quo order passed by the Civil
Judge Manali on 18.05.2017 was produced before the revenue
authority. In view of the Civil Court order passed on 18.05.2017,
the partition proceedings were suspended.
On 12.09.2017, learned Civil Judge Manali modified
the order dated 18.05.2017 to the extent "the parties to the
application shall not create any third party interest over the suit land till
further order. Also, order shall have no effect over the partition
proceedings qua suit land pending before AC-IInd grade Manali.".
2(iv) Petitioners who had been attending the partition
proceedings, chose not to appear in the same after 14.06.2017.
Impugned orders show that AC-IInd grade ordered to effect their
service by way of affixation for 30.10.2017. The Process Server
reported that the petitioners were not present in their house and
their family members stopped him from affixing the summons.
AC-IInd grade on coming to conclusion that service of the
petitioners was not possible by ordinary mode, ordered for
serving them by way of publication for the next date of hearing i.e.
17.07.2017. The notice was published in the newspaper "Dainik
Jagran" on 03.11.2017. The petitioners did not attend the
proceeding before the AC-IInd grade even on 17.11.2017. They
were accordingly proceeded ex-parte.
2(v) On 15.02.2018, mode of partition was prepared by
.
AC-IInd grade. At this stage, the petitioners preferred an appeal
under Section 14 of the H.P. Land Revenue Act before the
Collector Sub Division Manali against the order dated 15.02.2018.
Their appeal was on the ground that (i) parties are residents of
Lahaul and Spitii and as per 'Riwaz-e-Aam' (local custom), a
widow is entitled to inherit only till her re-marriage or death and
un-married daughters are entitled to inherit only till their marriage.
Male reversioners are entitled to inherit the entire estate of
deceased, who had no male issues of his own. A point, therefore,
was raised that respondents No. 1, 3, 4 and 6 to 8 had lost their
right to inherit the ancestral property being married women; (ii)
Civil suit regarding the suit land was pending before the civil
Court ; (iii) the petitioners were not informed at the time of field
inspection ;
On the basis of the above pleadings, prayer was
made for setting aside the order dated 15.02.2018 preparing
mode of partition and for remanding the case to the learned AC-
IInd grade for a fresh decision.
2(vi) The appeal preferred by the petitioners was
dismissed by the Collector, Sub Division Manali on 05.07.2019.
Revision Petition preferred by them under Section 17 of the H.P.
.
Land Revenue Act against the order dated 05.07.2019 passed by
the Collector was dismissed by the Divisional Commissioner
Mandi Division on 27.09.2019. Further revision carried by the
petitioners against the order dated 27.09.2019 passed by
Divisional Commissioner, Mandi Division was dismissed by the
Financia
26.11.2021.
3.
Commissioner
r to
(Appeals), Himachal Pradesh
Having lost before the three revenue Courts, the
on
petitioners have now preferred this writ petition for the following
substantive reliefs :-
"That the impugned order dated 26.11.2021 passed
by the Financial Commissioner, Himachal Pradesh in Rev.
Petition No. 205/2019 may kindly be quashed and set aside
and AC Grade 1 Manali, Distrit Kullu may kindly be directed
to permit the petitioners to join proceedings from the date of
ex-parte order.
That AC Grade 1 Manali, District Kullu may kindly be
directed to expedite the proceedings and conclude the
same within six months."
4. After hearing learned counsel for the petitioners and
respondents No. 1, 3, 4 and 6 to 8, we do not find any good
.
ground to interfere with the orders impugned herein. This is for
the following reasons :-
4(i) Petitioner No. 1 admittedly is a lawyer by profession.
The petitioners were being represented by their lawyer before the
AC-IInd grade in the partition proceedings. Petitioners chose not
to appear in the partition proceedings after 14.06.2017. They
were proceeded ex-parte on 17.11.2017. Before being proceeded
ex-parte, the AC-IInd grade ordered for effecting their service by
way of affixation of summons. The Process Server reported that
the petitioners' family members stopped the revenue staff from
affixing the summons. The AC-IInd grade then directed for
serving the petitioners through publication for their appearance
for 17.11.2017. Notice was accordingly published in "Dainik
Jagran" on 03.11.2017. Despite this, the petitioners did not
appear before the AC-IInd grade on 17.11.2017. Hence they were
proceeded ex-parte. The petitioners have not challenged the
order dated 17.11.2017 till date. The petitioners have made no
efforts for setting aside order dated 17.11.2017. They have
challenged the subsequent order passed by AC-IInd grade on
15.02.2018 whereby mode of partition was prepared. In such
circumstances, it is highly debatable whether the petitioners could
even challenge the mode of partition prepared on 15.02.2018
when they were proceeded ex-parte on 17.11.2017 and never
.
prayed for setting aside of this order.
4(ii) It is not in dispute that petitioners were aware of
partition proceedings and had been attending the same. Also, it
cannot be disputed by them that in the civil suit filed by them,
learned Civil Judge on 12.09.2017 had ordered that status quo
Pendency of
civil suit
order passed on 18.05.2017 shall have no effect upon partition
proceedings. Partition proceedings were allowed to continue.
thus cannot impact the partition
proceedings.
4(iii) A reading of the impugned order shows that
petitioners had primarily agitated against the order dated
15.02.2018 on the ground that they had not been given
opportunity to present their case. This contention is de-hors the
factual findings concurrently returned by all the revenue
authorities that the petitioners who were appearing in the partition
proceedings suddenly stopped attending the same. Attempt to
serve them by way of affixation of summons failed due to
resistance of their family members. Because of this reason, the
petitioners were ordered to be served through publication. The
petitioners despite having been served chose not to attend
partition proceedings. In such circumstances, no fault can be
found with the revenue authorities in devising the mode of
.
partition on 15.02.2018.
4(iv) Learned counsel for the petitioners vehemently
argued that the petitioners had independently questioned the
merits of the order dated 15.02.2018 passed by the AC-IInd
grade preparing mode of partition on the ground that respondents
No. 1, 3, 4 and 6 to 8 were married women and according to local
custom ('Riwaz-e-Aam'), they had lost their right to inherit the
ancestral property. Learned counsel for the petitioners further
submitted that the matter is still being adjudicated by the learned
civil Court. This contention lacks substance. Hon'ble Apex Court
while deciding Civil Appeal No. 5820 of 2006 filed by the
petitioners, has already held on 09.03.2017 that by virtue of the
judgment dated 10.04.2006 passed by the High Court, the
mutation has been carried out by the authorities giving equal
shares to all the parties, which has been accepted by them. The
Apex Court did not interfere with the findings that the petitioners
were not able to lead any evidence to prove the custom pleaded
by them and that their ancestors had changed their religion and
became 'Bodh". Though the question of law was left open to the
petitioners to be proved independently in any other proceedings.
After dismissal of their appeal by the apex Court, the petitioners
instituted a civil suit, wherein on 18.05.2017, the parties were
.
directed to maintain status quo qua nature and possession of the
suit land. Admittedly, this order was modified on 12.09.2017. The
Civil Judge Manali on 12.09.2017 ordered that the interim order
dated 18.05.2017 shall have no effect over the partition
proceedings qua suit land pending before AC-IInd grade Manali.
In view of these facts, petitioners' assertions cannot affect
partition proceedings and the order dated 15.02.2018
The partition proceedings are pending since 2013.
These proceedings cannot be allowed to be unnecessarily
dragged by the petitioners. In view of above discussion, we do
not find any ground to interfere with the concurrent orders passed
by three revenue Courts. Hence, the writ petition fails. Pending
applications, if any, also stand disposed of.
( A. A. Sayed ),
Chief Justice
23rd August, 2022 (K) ( Jyotsna Rewal Dua )
Judge
