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2025 DAILYLAW 3407 (HP)

Dalip Singh v. State of Himachal Pradesh

2025-11-19

Ajay Mohan Goel

body2025
JUDGMENT : Ajay Mohan Goel, Judge By way of this writ petition, the petitioner has, inter alia, prayed for the following reliefs:- “i) That the dated 15-11-2016 impugned order (ANNEXURE P-5) may kindly be quashed by issuing the Writ of Certiorari. ii) That the recommendations of the Divisional Commissioner, Mandi vide order dated 23-09-2014 (Annexure-P/4) may kindly be set-aside and the order passed by the Ld. Sub-Divisional Collector Ghumarwin may kindly be affirmed in the interest of law and justice.” 2. Brief facts necessary for the adjudication of this petition are that petitioner Dalip Singh applied for the partition of land that was jointly owned by the parties situated in Village Massour, Pargna, Tiun, Tehsil Ghumarwin, District Bilaspur, before Assistant Collector 1st Grade, Ghumarwin. The claim was allowed by Assistant Collector 1st Grade after summoning and hearing the parties and a mode of partition was framed. The Court stands informed that a Review was filed against the mode of partition by the private respondents herein, but the same was dismissed. Thereafter, after the mode of partition attained finality, partition was carried out on the spot through the Field Agencies and the same was confirmed by Assistant Collector 1st Grade on 01.03.2008. The private respondents herein assailed order dated 01.03.2008 by way of an Appeal, inter alia, on the ground that the appellant was not heard and possession of the parties was disturbed as the partition on the spot was not done as per the mode of partition. The Collector, Sub-Division, Ghumarwin, in terms of order dated 24.11.2009, Annexure P-3, dismissed the Appeal by holding that in terms of the report of the Field Agency dated 05.11.2007, the appellant was not only present but had also consented thereto in terms of the statement attached with the report. The Authority further held that this demonstrated that the appellant was adopting delaying tactics and was chronic in raising objections despite having consented before the Revenue Field Agencies as far as partition was concerned. 3. This order was assailed further by the respondents by way of an Appeal before Learned Divisional Commissioner, Mandi. In terms of order dated 23.09.2014, Annexure P-4, learned Divisional Commissioner recommended the Appeal to the Financial Commissioner for setting aside the order of the lower Court and remand the case to Assistant Collector 1st Grade. 3. This order was assailed further by the respondents by way of an Appeal before Learned Divisional Commissioner, Mandi. In terms of order dated 23.09.2014, Annexure P-4, learned Divisional Commissioner recommended the Appeal to the Financial Commissioner for setting aside the order of the lower Court and remand the case to Assistant Collector 1st Grade. The relevant findings returned by the learned Divisional Commissioner are quoted hereinbelow:- “I have heard both the parties at length and gone through the record placed in case file minutely. Perusal of record reveals that the petitioner has agitated in para No. 2 of the grounds taken in revision petition that petitioner No. 1 and respondent has also got land by filing a suit in civil court and that the mutation of same has been attested of Khasra No. 103. It has further been averred that this land was to be excluded from the present partition proceeding. In this regard the the order Ld. Additional District Judge Ghumarwin in case No. 54/13 titled as Harnam Singh etc, Versus Fulla Devi etc passed on 15.11.2006 was perused and it is found that Khasra No. 103 area measuring 0-3 Bigha has been given to one Smt. Fulla Devi to the tune of ½ share and remaining ½ share of this Khasra No. has been given to Shri Harnam Singh, Dalip Singh, Hakini Devi and Shri Keshav Singh. The order dated 1.3.2008 of the Assistant Collector 1 Grade Ghumarwin shows that this entire Khasra No. has been allotted to Shri Harnain Singh, Keshav Singh and Smt. Hukmi Devi, whereas ½ share of it was to go to Smt. Fullan Devi meaning thereby that the order dated 15.11.2006 of the Ld. Additional District Judge Ghumarwin has not been given effect in the revenue record. in other words the revenit record has not been brought inconformity with the judgment and decree of Ld. Civil Court. The trial court as well as lower court have failed to appreciate the judgment and decree of Ld. Additional District Judge Ghumarwin. Therefore, the partition proceeding are to be carried after incorporating the decree of Ld. Civil Court. in other words the revenit record has not been brought inconformity with the judgment and decree of Ld. Civil Court. The trial court as well as lower court have failed to appreciate the judgment and decree of Ld. Additional District Judge Ghumarwin. Therefore, the partition proceeding are to be carried after incorporating the decree of Ld. Civil Court. In view of my above discussion, I find merit in the revision petition and the same is hereby recommended to the Hon'ble Financial Commissioner (Appeals) Shimla for setting aside the orders of lower courts and further to remand the case to the Assistant Collector 1 Grade Ghumarwin to start the proceedings afresh after bringing the record in conformity with the orders of Additional District Judge Ghumarwin or for passing the appropriate orders as the Hon'ble Financial Commissioner (Appeals) may deem fit. The relevant record is submitted herewith.” 4. Learned Financial Commissioner has accepted the recommendations of the Divisional Commissioner in terms of Annexure P-5 and feeling aggrieved, the petitioner has approached this Court. 5. I have heard learned counsel for the parties and have also carefully gone through the orders under challenge as well as the first order passed by the Appellate Authority in the Appeal preferred by the present respondents. 6. As observed hereinabove also, in terms of Annexure P-3, the Appeal filed by the respondents against order dated 01.03.2008, passed by Assistant Collector 1st Grade, Ghumarwin, in terms whereof, the partition was confirmed, was rejected primarily on the ground that the report of the Revenue Field Agency demonstrated that the respondents herein had consented and recorded their satisfaction as per the statement attached with said order. In this backdrop, when one peruses the orders passed by the learned Divisional Commissioner as well as the learned Financial Commissioner, one finds that they have totally transgressed the brief before them and have decided the issue on the basis of pleadings and facts, which were not at all pleaded before the First Appellate Authority by the present respondents. Before the learned Divisional Commissioner, a totally new stand was taken by the present respondents, qua there being some adjudication in a Civil Suit, as a result whereof, the partition could not have been in variance to the mutation carried out pursuant to the decision in said suit. 7. Before the learned Divisional Commissioner, a totally new stand was taken by the present respondents, qua there being some adjudication in a Civil Suit, as a result whereof, the partition could not have been in variance to the mutation carried out pursuant to the decision in said suit. 7. Learned Divisional Commissioner as well as the learned Financial Commissioner erred in not appreciating that the party before it being aggrieved by the order passed by Collector, Sub-Division, could have agitated the order only on the grounds which were taken by the party before the Collector, Sub-Division, Ghumarwin. This order could not have been assailed on new grounds by introducing those facts and pleas in the subsequent Appeal, which were not raised in front of the First Appellate Authority. 8. During the course of the hearing of this case, it could not be demonstrated that the findings recorded by the Collector, Sub-Division, Ghumarwin, in order dated 24.11.2009 that the record of the Revenue Field Agency dated 05.11.2007, demonstrated that the respondents herein had consented their satisfaction as far as the partition is concerned, were incorrect findings. 9. Therefore, obviously, in this backdrop as there was no perversity in the order passed by the Collector, Sub-Division Ghumarwin, and the setting aside of this order by the Divisional Commissioner as confirmed by the Financial Commissioner, being bad in law, this petition is allowed. Order dated 23.09.2014, passed by learned Divisional Commissioner, Mandi (Annexure P-4) and order dated 15.11.2016, passed by learned Financial Commissioner (Appeals) (Annexure P-5) are quashed and set aside and order dated 24.11.2009, passed by Collector, Sub-Division, Ghumarwin, is upheld. Pending miscellaneous application(s), if any, also stand disposed of accordingly.