[Cites 4, Cited by 0]
Himachal Pradesh High Court
Reserved On : 02.12.2025 vs Of on 29 December, 2025
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
2025:HHC:45667
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
CWP No. 3437 of 2024
Reserved on : 02.12.2025
Decided on: 29.12.2025
Pawan Kumar ... Petitioner
Versus
of
The State of Himachal Pradesh and others ... Respondents
Coram
Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
For the petitioner
rt
Whether approved for reporting?1
_____________________________________________________
: M/s Sumesh Raj and Vinod Kumar
Thakur, Advocate.
For the respondents : Mr. Pushpender Jaswal, Additional
Advocate General for respondents-
State.
: Mr. Vishal Singh Thakur, Advocate for
respondents No. 6 and 7.
Ajay Mohan Goel, Judge
By way of this writ petition, the petitioner has inter alia
prayed for the following reliefs:-
"a. The writ in nature of certiorari may kindly be passed
quashing the order dated 15.01.2024 passed by the L.d.
Financial Commissioner (Appeals) Annexure P-13 whereby he
upheld the order of the Collector Sub Division Nadaun District
Hamirpur H.P. dated 16.11.2023 Annexure P-9 in Revenue
Appeal Case No. 50 of 2023 Pawan Kumar Versus Ashish Singh
Chaudhary and anr., upholding the order passed by the
Whether reporters of the local papers may be allowed to see the judgment?
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Assistant Collector 2nd Grade (N.T.)Nadaun dated 20.10.2023
.
(Annexure P-7) in Partition Case No. 41/2018 titled as Ashish
Singh Chaudhary vs 2074shwar Dass (rejecting the
applications raising the question of title as also transfer of mater
to AC Ist Grade have been dismissed.
of
b. Writ in the nature of mandamus be also passed directing the
AC IInd Grade Nadaun, District Kangra to transfer the
application filed by the petitioner raising the question of title to
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AC Ist Grade Nadaun with further directing the said authority to
decide the said application in accordance with the law."
2. In terms of the order passed by the learned Financial
Commissioner (Appeal), dated 15.01.2024, the revision petition
preferred by the petitioner under Section 17 of the H.P. Land Revenue
Act, 1954, against the order passed by the Sub Divisional Collector,
Nadaun, stands rejected.
3. Brief facts necessary for the adjudication of this petition
are that according to the petitioner, in the year 2002, General
Zorawar Singh Smarak Samiti, Dhaneta, started a public school in
the building of the petitioner on rent in the name and style of ASSD
Public School, Gawal Pather. In the year 2013, the same was
upgraded to 10+2. As per the petitioner, in light of the school being
upgraded, one Ashish Singh Choudhary, approached the petitioner
with an offer to construct the building required for upgradation of the
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school and a gift deed was executed by his father late Shri Ishwar
.
Dass on 26.08.2014 through his GPA i.e. present petitioner in favour
of respondent No. 6 qua land measuring 230 square metres. A two
storeyed building was constructed thereupon in the year 2016. As per
the petitioner, in the year 2018, the school authorities informed the
of
father of the petitioner that Ashish Singh Choudhray has
fraudulently grabbed the school from the school authorities by
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misrepresentation and by misleading the Education Department. In
the month of April, 2019, the school was closed for one year by the
government authorities. Thereafter, in the year 2020, the school
authorities provided late father of the petitioner a copy of inquiry
report which was conducted by the Education Department, in terms
whereof, according to the petitioner, he gained knowledge that
respondent Ashish Singh Choudhary tried to grab the income of his
late father which was in violation of the purpose for which the gift
deed was executed. The petitioner accordingly filed a civil suit,
assailing the gift deed in terms of Annexure P-2. Further according to
the petitioner, in the month of June 2018, (i.e. before the filing of the
civil suit), private respondent moved an application for partition of
the land under Section 123 of the Land Revenue Act and the
petitioner filed an application raising the question of title therein
under Sections 128 and 129 of the H.P. Land Revenue Act read with
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the provisions of Land Record Manual and requested for transferring
.
the case to the Assistant Collector 1st Grade, however, said
application was rejected by the Assistant Collector 2nd Grade on
20.10.2023. The appeal preferred by the petitioner against the order
passed by Assistant Collector 2nd Grade was dismissed by the Sub
of
Divisional Collector on 20.10.2023. The matter was further assailed
by way of a revision and interim order were passed therein staying
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further proceedings which was pending before the learned Assistant
Collector 2nd Grade. The case was listed on 22.03.2024, however, an
early hearing application was filed by respondent No.2 on 12.01.2024
and the matter was preponed for 12.01.2024 and heard by learned
Financial Commissioner (Appeals) and order was reserved. The
appeal was dismissed in terms of the impugned order by the
Financial Commissioner on 15.01.2024 and after the petitioner came
to know of the order, the present petition has been filed.
4. Learned Counsel for the petitioner inter alia argued that
the impugned order was not sustainable in law for the reason that
there was no occasion for preponing of the case by the learned
Financial Commissioner and this was done by the authority
arbitrarily. Learned Counsel further submitted that otherwise also on
meirt, the order passed by the Authority was not sustainable as the
learned Authority erred in not appreciating that as the lower
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authorities had erred in dismissing the application of the petitioner,
.
therefore, the impugned order passed in revision was liable to be set
aside.
5. On the other hand, learned Counsel for the private
parties has supported the order passed by the learned Financial
of
Commissioner by inter alia submitting that the contention of learned
Counsel that pre-ponement was done in an arbitrary manner is
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completely misconceived for the reason that even after the pre-
ponement of the case, the parties were heard on merit and if there
was any issue with regard to the pre-ponement, then learned Counsel
should have raised it before the Revisional Authority itself. On merit
also, learned Counsel submitted that the learned Financial
Commissioner has upheld the order passed by both the authorities
below and this was correctly done by the Financial Commissioner as
there was no infirmity in the orders passed by the authorities.
Accordingly, he submitted that in exercise of power of its judicial
review, as there was no occasion for this Court to interfere with the
order, the present petition be dismissed.
6. I have heard learned Counsel for the parties and have
also carefully gone through the pleadings including the orders under
challenge.
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7. Record demonstrates gift deed in issue is dated
.
26.08.2014 and a suit for revocation of the gift deed has been filed by
the present petitioner in the year 2020. This court would not like to
make any further observation qua the civil suit save and except that
father of the petitioner late Shri Ishwar Dass did not seek revocation
of
of the gift deed during his life time and the Court was informed that
Shri Ishwar Dass died much after the execution of the gift deed.
8.
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Be that as it may, as far as the controversy involved in
the present case is concerned, the record demonstrates that on the
basis of gift deed, an application for partition was filed by Shri Ashish
Singh Choudhary in the month of June, 2018. In this, besides others,
Shri Ishwar Dass and the present petitioner, were parties. In these
proceedings, petitioner filed an application raising the question of
title in the month of October, 2023, i.e. after five years of the filing of
the partition application. The plea raised in the application was that
he had filed a suit for revocation of the gift deed and therefore, the
issue of title was pending adjudication before the Civil Court and
therefore, the partition proceedings be referred to the Assistant
Collector 1st Grade to decide the question of title.
9. In terms of Annexure P-7, dated 20.10.2023, the
Authority dismissed this application by holding that there was no
question of title involved in the matter. The appeal filed against this
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order by the present petitioner was also dismissed by the Appellate
.
Authority vide Annexure P-9, dated 16.11.2023.
10. Feeling aggrieved, the petitioner filed the revision petition
which has been dismissed by the learned Financial Commissioner in
terms of impugned order dated 15.01.2024. While dismissing the
of
revision petition, learned Revisional Authority has returned the
following findings:-
"5.
rt I have considered the arguments put forth on behalf of
the parties and have gone through the contents of the revision
petition as well as the writ submissions made on behalf of the
respondents. Main contention of the petitioner is that the
question of title is involved in the land under partition and as
such the partition cannot be carried out unless and until the
question of title is decided by the competent court of
jurisdiction. From perusal of the record attached with the
revision petition, it is clear that a Civil suit No.386/2023 has
been instituted in the Court of Senior Civil Judge, Nadaun,
District Hamirpur for revocation of gift deed No.770 dated
28.08.2014 of land comprised in Khata No.71. Khatauni
No.97. Khasra No.643 measuring 00-31-11 hectares to the
extent of 2/27 shares, measuring 00-02-30 hectares, situated
in village Takroon Mauza Hathol, Tehsil Nadaun, District
Hamirpur, with consequential relief of permanent prohibitory
injunction restraining the defendant from alienating the same
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by way of executing the sale deed, mortgage etc. and change
.
the nature of the suit land. It appears that the said civil suit is
still pending adjudication, but, there is nothing on record to
suggest that the Civil Court has stayed the partition
proceedings in any manner. The record also shows that the
of
application for partition of land comprised in Khata No. 14,
Khatauni No.22, 23, 24 Khasru Nos. 637, 63, 6-410, 054, 648,
643,646, 645, 649, Kita 9, measuring 00-73-88 hectares,
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situated at Mohal Takroon, Mauza Hathol Tehsil Nadaun
District Hamirpur, was moved by the present respondent No.1,
on 2.6.2018, before the AC 2nd Grade. The mode of partition
was drawn in the matter on 29.10.2018 and thereafter
partition was finalized on 24.09.2019. The present petitioner
and his father had filed an appeal against the aforesaid order
of the AC 2nd Grade, before the Ld. Collector, who had
accepted the same vide order dated 30.03.2022 and
remanded the matter to the AC 2 Grade. The present
respondent had challenged the order dated 30.03.2022,
passed by the Ld. Collector by filing an appeal No.223/2022,
before the Ld. Divisional Commissioner, Mandi Division, who,
dismissed the same, vide order dated 26.06 2023, with the
direction to Trial Court to carry out partition strictly in
accordance with the Mode of partition already framed so as to
complete the partition proceedings within two months from the
first hearing. When the AC 2nd Grade, proceeded to partition
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the land in dispute in compliance of the order dated
.
26.06.2023, passed by the Ld. Divisional Commissioner,
Mandi, the present petitioner moved an application raising the
question of title on 20.10.2023, before the AC 2nd Grade, who
rejected the same on the same day. The present petitioner filed
of
appeal against this order before the Ld. Collector, who has
dismissed the same vide order dated 29.11.2023. Hence, the
present revision petition. Thus, it is clear from the aforesaid
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discussion that on the partition application moved by the
present respondent No.1, mode of partition has already been
devised, which has not been challenged by any of the parties.
The present petitioner has raised the question of title at this
belated stage, whereas as per law, the question of title can
only be raised at initial stage ie. before preparation of mode of
partition. From the contents of the revision petition and record
attached therewith, it is clear that in the instant case, no such
question was raised by the present petitioner or his
predecessor-in-interest at the relevant point of time. Not only
this, the order dated 26.06.2023, whereby the Ld. Divisional
Commissioner, had remanded the matter to the AC 2nd Grade
with the direction to complete the partition proceedings within
a period of two months from the date of first hearing, has not
been challenged by any of the parties. This shows that the
present petitioner is trying to prolong the partition proceedings
on one pretext or the other. The civil suit has also been filed by
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him now, when the partition proceedings are going on in the
.
field that too after remand. Thus, the AC 2nd Grade, vide his
order dated 20.10.2020, has rightly rejected the application of
the present petitioner, whereby he (present petitioner) had
raised the question of title. The Ld. Collector has also rightly
of
rejected the appeal (Case No.50/2023) of the present
petitioner, vide order dated 29.11.2023."
11. It is evident from the order passed by the learned
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Financial Commissioner that in the partition proceedings, the mode
of partition was drawn on 29.10.2018. Thereafter, the partition was
finalized on 29.04.2019. The appeal filed by the petitioner and his
late father against the order passed by Assistant Collector 2nd Grade
before the Collector was accepted on 30.03.2022 and the matter was
remanded back to the Assistant Collector 2nd Grade. This was
assailed by the private respondent herein before the Divisional
Commissioner, Mandi. The appeal was dismissed by the Divisional
Commissioner, Mandi, on 26.04.2023 with the direction to Assistant
Collector 2nd Grade to carry out partition strictly in accordance with
the mode of partition already framed so as to complete partition
proceedings within two months. Thereafter, when the Assistant
Collector 2nd Grade proceeded to partition the land in compliance to
the order passed by learned Divisional Commissioner, Mandi, the
present petitioner filed an application raising the question of title.
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Learned Financial Commissioner rejected the revision petition and
.
upheld the order passed by the authorities below by inter alia holding
that the issue of title was not only raised at a belated stage but the
predecessor-in-interest of the petitioner, never raised this issue
during his lifetime. Learned Financial Commissioner also held that
of
after the learned Divisional Commissioner remanded the matter back
and directed the first authority to decide the case within two months,
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said order was not assailed by any of the parties. On these counts,
learned Financial Commissioner held that the intent of the petitioner
was only to prolong the partition proceedings.
12. This Court is of the considered view that the order
passed by the learned Financial Commissioner calls for no
interference. It is a matter of record that whereas the partition
proceedings were initiated in the year 2018, in which father of the
petitioner was also a respondent, no plea of issue of title being
involved was raised at the initial stage either by the petitioner or his
father who in fact had gifted the property to the private respondent.
Not only this, it was belatedly at the stage when the matter was
again pending before the Assistant Collector 2nd Grade post remand
by the Divisional Commissioner with the direction that the matter be
decided within two months that this application raising issue of title
was filed by the present petitioner in the year 2023.
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13. During the course of hearing of this petition, it could not
.
be explained by learned Counsel for the petitioner as to why the issue
of title was raised after five years. Now, one more thing which this
Court cannot lose sight of is the fact that during his lifetime, the
father of the petitioner never filed any suit for revocation of the gift
of
deed and it was only after his death that his son, i.e. present
petitioner, filed this suit. Therefore, all this demonstrates that the
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filing of the application was nothing but an afterthought and a tactic
deployed by the petitioner to prolong the proceedings. Otherwise
also, in the light of the fact that there is a gift deed in favour of the
private respondent and till date, no Court has held that the gift deed
is bad in law, no question of title can be said to be involved in the
partition proceedings.
Accordingly, in light of above discussion, as this Court
does not find any merit in the present petition, the same is dismissed.
Pending miscellaneous applications, if any, also stand disposed of
accordingly.
(Ajay Mohan Goel)
Judge
December 29, 2025
(narender)
