2. Brief facts necessary for the adjudication of both
3. Briefly stated, private respondents moved an
Revenue Act for partition of joint holding. Annexure P-1 is the
copy of the application. According to the petitioners, after
receiving the notice, they filed their objections thereto i.e.
Annexure P-2. Ignoring the objections filed by the petitioners,
instrument of partition be accordingly prepared. Feeling
the Himachal Pradesh Land Revenue Act. The appeal was
"I have carefully perused the record placed
before me and I have given due consideration to the
arguments advanced by ld. counsels of both parties.
Perusal of lower court record reveals that this
proceeding was started since 2000 and the parties
moved application to application in different courts even
upto Hon'be High Court for staying these proceedings.
The Hon'ble High Count has directed vide order dated
10.9.2007 CMP No 447/2007 in RSA 415 that the
partition proceedings before the Tehsaldar Sader, Mandi
would continue but final order shall not be pronounced
without permission of this Court. The Tehsildar/Assistant
Collector 1st Grade has passed final order in this case
on 22.4.2013 and Instrument of partition has been
prepared on 23.5.2013.
In view of the foregoing discussions I am led to
conclude that the contention of appellant is only to
prolong these proceedings and he is filing appeal to
another appeal before the different courts without any
merit. The ground of appeal that the Hon'ble High Court
of Himachal Pradesh has already granted stay and
ordered to maintain status quo, qua the nature and
possession of the suit property, in CMP No.716 of 2005,
filed alongwith RA No.415 of 2005 pending before
Hon'ble High Court has no substance because the
Hon'ble High Court has also ordered vide CMP No.447
of 2007 dated 10.09.2007 in RSA No.415 of 2005 that
partition proceedings before the Tehsildar Sadar Mandi
would continue. Hence, this appeal is devoid of any
merits is ordered to be dismissed. A copy of this order
be forwarded to the Assistant Collector 1st Grade balh
for compliance as per direction given by the Hon'ble
High Court vide CMP No.447 of 2007 dated 10.09.2007
in RSA No.415 of 2005 alongwith Lower Court case file
No.116 of 2003. Case file be consigned to the General
Record Room after due completion."
4. Said order was challenged by the petitioners before
the learned Divisional Commissioner, Mandi, H.P., who in terms
of order dated 05.08.2016 (Annexure P-8), dismissed the
appeal and revision in the following terms:-
"Therefore, in view of the above discussions, I am
of the considered view that since the final instrument of
partition has been prepared by the AC 1st Grade Sadar
Mandi regarding the partition of the land in question and
the same has been upheld by the Collector Sub
Division Sadar Mandi by dismissing the appeal of the
appellant vide order dated 17.06.2015 and the revision
petition filed against the order dated 17.06.2015 has
also been dismissed by this court vide separate order
dated 05.08.2015, as such now there is no justification
to proceed with the present appeal further. Moreover,
the Collector Sub Division Sadar Mandi, has vacated
the stay order granted on 11.02.2011 in view of the
observations made by the Hon'ble High Court in RSA
No.415 of 2005 and as such no illegality has been
committed by the Collector Sub Division Sadar Mandi
by passing the order dated 22.06.2011. Thus, the
preent appeal is hereby dismissed being not
maintainable in view of the discussions made in para
supra of this order. Case file of this court be consigned
to the GRR after due completion."
5. The order passed by the learned Divisional
Commissioner was assailed before the learned Financial
Commissioner by way of two Revision Petitions. In terms of
Annexure P-11, order dated 30.01.2018, the Revision Petitions
filed before the learned Financial Commissioner were
dismissed.
6. While rejecting the Revision Petitions, learned
Financial Commissioner held that the only issue involved in the
petitions was whether mutation No.413 attested in the year
1978 was required to be kept in view while conducting the
proceedings for the partition of land in question. Learned
Financial Commissioner held that from the record, it was
evident that partition was carried out on the basis of entries in
the record of right i.e. jamabandies for the year 1996-97.
Mutation No.413 was entered and attested on the basis of
order dated 18.12.1975 of the Land Reforms Officer passed in
Missal No.262 of 1975. Learned Financial Commissioner
observed that the petitioners were trying to challenge mutation
No.413 attested in the year 1978 and subsequent entries in
jamabandies, in partition proceedings, which was not
permissible. He held that if the petitioners were indeed
aggrieved by order dated 18.12.1975 passed by Land Reforms
Officer or mutation No.413 or entries in subsequent
jamabandies, they should have challenged the same before the
Competent Court of jurisdiction at the relevant time. Learned
Financial Commissioner held that mutation No.413 had already
been incorporated in the subsequent jamabandies and,
as such, the same was not required to be kept in view while
conducting the partition proceedings. Learned Financial
Commissioner also held that petitioners had failed to point out
any illegality or irregularity in the partition proceedings. Learned
Financial Commissioner held that the contention of the
petitioners that Revenue Courts passed the final order despite
status quo order of this Court in CMP No.44 of 2007 in RSA
No.415 of 2005 was not sustainable, because, record
demonstrated that RSA No.415 of 2005 was dismissed by the
Court on 18.11.2010 and thereafter interim order passed in the
Civil Miscellaneous application automatically ceased to
operate. Learned Financial Commissioner also held that in fact
Assistant Collector 1st Grade had passed the final order of
partition on 22.04.2013, i.e. much after the dismissal of the
RSA by the High Court. On these grounds, learned Financial
Commissioner rejected the appeal.
7. Feeling aggrieved, the petitioners have approached
this Court.
8. I have heard learned counsel for the parties and
have also carefully gone through the pleadings and documents
appended therewith.
9. A perusal of the record demonstrates that the
mutation vis-à-vis Khasra No.531 was entered on 21.07.1978.
Same was never assailed by the petitioners. The transaction
remained unchallenged and as is also reflected in the reply filed
by respondent No.3, Khasra No.531 was reflected in the
exclusive ownership and possession of Sh. Sunder son of Sh.
Dev as per the revenue record including jamabandi for the year
1981-82, which is appended with the reply.
10. That being so, but natural, the land comprised in
this khasra number was never part of the partition proceeding.
In fact, Annexure P-4, which is the order passed by Assistant
Collector 1st Grade in the application filed under Section
123 of H.P. Land Revenue Act 1954 demonstrates that the
parties therein, i.e. Puran Chand and Pram Sukh
(the present petitioners are the successors in interest of
Prem Sukh) accepted the mode of partition, which was
prepared on 03.05.2012 and on these basis, Assistant Collector
1st Grade Sadar Mandi, District Mandi, H.P., ordered the
partition and directed the instrument of partition to be prepared
after the expiration of appeal period. This order was assailed by
Prem Sukh and Brij Lal by way of an appeal, inter alia, on the
ground that an appeal under Section 14 of H.P. Land Revenue
Act against order dated 06.06.2009 regarding the mode of
partition was still pending. The appeal was dismissed by the
Appellate Authority on 17.06.2015 by assigning reasons which
have been quoted by me in above paras of the judgment.
11. During the course of the hearing of this writ petition,
learned Senior Counsel for the petitioners could not
demonstrate that the findings returned by the Collector were
perverse. Therefore, the contention of the petitioners (as was
raised before the learned Collector) that the final order was
passed by the Authority without awaiting the outcome of the
appeal is without any merit for the reason that indeed
everything had come to an end after the dismissal of the
Regular Second Appeal by the High Court in RSA No.415 of
2005, which was decided in the year 2010 and there was
nothing pending when Assistant Collector passed the order.
The subsequent proceedings preferred by the petitioners
demonstrate that with each round of litigation, they expanded
the scope of the dispute, however, the Appellate/Revisional
Authorities correctly rejected the appeals/revisions by returning
the findings that there was no infirmity or illegality in the
partition proceedings. The reasoning assigned by the learned
Divisional Commissioner and the Financial Commissioner are
clearly borne out from the record of the case. It is evident that
mutation No.413, which was attested in the year 1978, was
never challenged by the petitioners nor there was any need to
go into the said mutation in the course of the deciding of the
application filed under Section 123 of H.P. Land Revenue Act.
12. This Court is of the considered view that as the
order passed by Assistant Collector 1st Grade was challenged
by the petitioners only on the ground that the order was passed
by ignoring an appeal filed against the mode of partition was
pending, which challenge was meritless for the reason that
everything had come to an end as on the date when Assistant
Collector 1st Grade had passed the order in the year 2013, in
the subsequent proceedings, the petitioners could not have
been allowed to expand the scope of litigation. Even in this writ
petition, this Court in exercise of its power of judicial review has
only to scrutinize the issue from this angle. Therefore, as this
Court does not finds any infirmity in the orders under challenge,
these petitions are dismissed. Pending miscellaneous
applications, if any, also stand disposed of.
(Ajay Mohan Goel)
Judge
May 01, 2025
(Vinod)
