2025:HHC:35805 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No.9579 of 2014 Decided on 28th October, 2025 Shyam Lal and others …Petitioners Versus State of Himachal Pradesh and others …Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge 1Whether approved for reporting? For the petitioners : Mr. Neeraj Gupta, Senior Advocate, with Mr. Ajeet Jaswal, Advocate. For the respondents : Mr. Rajat Chauhan, Assistant Advocate General, for the respondent-State. Mr. Amrick Singh, Advocate, for respondents No.3(a) to 3(c). Ajay Mohan Goel, Judge (Oral) By way of this petition, the petitioners have prayed for the following relief:- “That order dated 24.09.2014 passed by learned Financial Commissioner (Appeals) in Revision Petition No.18/2014 so far it remands the case to Assistant Collector Ist Grade Sadar Bilaspur may kindly be quashed and set aside and revision petitioner preferred by the respondents No.2 to 12 and recommended by learned Divisional commissioner may kindly be declared to be dismissed in the interest of justice and fair play.” 2025:HHC:35805 2 2. The case of the petitioners is that the petitioners and respondents are the legal heirs of Narainu and Basau. In terms of the adjudication of this Court in RSA No.126 of 1990 titled Lanhaiya alias Ghania and others versus Nikkeri and others, dated 11.08.1997, this Court had returned the findings that Narainu and Basau, who were real brothers were entitled for the conferment of equal share qua land measuring 22 bighas and 5 biswas, half of which stood relinquished by them in favour of Thakur Dwara and proprietary rights qua remaining area whereof came to be conferred upon. Thereafter, the petitioners applied for partition and a mode of partition was prepared on 02.08.2007 (Annexure P-4), which was not assailed by either parties. Thereafter, the matter was again taken up by the authority concerned and an order was passed, dated 18.04.2009 which was assailed by way of an appeal by the respondents under Section 14 of the Himachal Pradesh Land Revenue Act vide Annexure P-11. This appeal was dismissed by the Appellate Authority in terms of Annexure P-15 dated 16.01.2013 inter alia returning the findings that as no appeal was preferred against the mode of partition, subsequent orders like instrument of partition 2025:HHC:35805 3 or mutation etc., cannot be allowed to be assailed, which are based on the said mode of partition, which remains unchallenged. Feeling aggrieved, the respondents preferred a Revision Petition vide Annexure P-16 and the Revisional Authority in terms of Annexure P-17 allowed the revision by returning the findings that the mode of partition dated 02.08.2007 did not mention the names of some of the parties and revenue record demonstrated that said persons proceeded against ex parte before Assistant Collector, 1st Grade and as the partition took place in their absence, the petitioners were condemned unheard. The Divisional Commissioner, accordingly, made a recommendation to the Financial Commissioner for setting aside the order of the Lower Court under challenge. 3. Learned Financial Commissioner in terms of Annexure P-18 has partly accepted the recommendation in the following terms, vide order dated 24.09.2014:- “In view of the facts stated above, the recommendations made by the Ld. Commissioner are partly accepted to the extent that the final partition be confirmed by the Assistant Collector after affording proper opportunity of being heard to the petitioners without disturbing the mode of partition already framed by him. The case is accordingly remanded to the Assistant Collector 1st 2025:HHC:35805 4 Grade, Bilaspur, with the above directions. The partition proceedings after framing the mode of partition on 02.08.2007 are, therefore, quashed.” 4. Feeling aggrieved, the petitioners have approached this Court. 5. Learned Senior Counsel for the petitioners has argued that the orders passed by the Divisional Commissioner as well as the Financial Commissioner are per se perverse and not sustainable in the eyes of law. Learned Senior Counsel submitted that in the present case, there was no challenge to the mode of partition. Despite this, the Divisional Commissioner has raised fingers on the mode of partition without appreciating that in the absence of there being any challenge to the said mode of partition, the Divisional Commissioner had no authority to question the legality thereof. Learned Senior Counsel further argued that this extremely important aspect of the matter has been ignored even by the learned Financial Commissioner, who erred in not appreciating that when the mode of partition was not challenged by the respondents herein, there was no occasion for the authority to have made any comment upon the legality of the said mode of partition. Accordingly, he prayed that as the orders 2025:HHC:35805 5 passed by the Financial Commissioner as well as Divisional Commissioner are bad in the eyes of law, the present petition be allowed by quashing the same. 6. On the other hand, learned counsel for the private respondents submitted that as far as the factum of the mode of partition not having been assailed by the respondents herein is concerned, the same is a matter of record, however, as it was also a matter of record that some of the respondents were not present when the mode of partition was prepared, therefore, the impugned orders call for no interference. He further argued that otherwise also, the respondents shall be happy in case the instrument of partition is drawn as per the mode of partition, but after hearing them. 7. Learned Senior Counsel for the petitioners submits that in case this statement comes from the respondents, then, the petition can be disposed of in the said terms. 8. I have heard learned Senior Counsel for the petitioners and have also heard learned counsel for the private respondents. 2025:HHC:35805 6 9. Having perused the impugned order as well as other documents on record, this Court is of the considered view that in the absence of their being any challenge to the mode of partition, dated 02.08.2007, no authority was vested in the Divisional Commissioner to have had commented upon the veracity thereof. If the respondents herein were vigilant enough to have challenged order dated 18.04.2009 passed by the Authority, they could have also assailed the mode of partition, maybe on the ground that the same was bad as they were not heard when the same was prepared. In the absence of their being any challenge to the mode of partition and as the mode of partition had attained finality; the Divisional Commissioner erred in accepting the Revision Petition by setting aside the well-reasoned order passed by the Collector at the first instance in the appeal filed by the present respondents. Not only this, even the learned Financial Commissioner erred in not appreciating that in the absence of their being any challenge to the mode of partition, the respondents had no legal right to challenge the veracity thereof on any ground whatsoever, including the alleged ground of the respondents being condemned unheard at the time when the 2025:HHC:35805 7 mode of partition was prepared. Therefore, in light of said facts, this Court has no hesitation in holding that the orders passed by the Divisional Commissioner as well as Financial Commissioner are bad in law. 10. Therefore, in light of the above discussion, this petition is allowed by quashing and setting aside the orders passed by the Divisional Commissioner as well as the Financial Commissioner dated 07.02.2014 and 24.09.2014. However, as prayed for by learned counsel for the private respondents, it is observed that the instrument of partition be prepared by the Authority after hearing all the parties but strictly in consonance with the mode of partition, meaning thereby that the instrument of partition should be in sync with the mode of partition. 11. With these observations, the petition stands disposed of, so also pending miscellaneous applications, if any. (Ajay Mohan Goel) Judge October 28, 2025 (Vinod)