DEVI SINGH Vs. FINANCIAL COMMISSIONER (APPEALS), HIMACHAL PRADESH

JUDGEMENT

(1.) BRIEFLY stated, the facts of the case are that respondent No.5 herein Sh.Hari Krishan and the petitioners Devi Singh and Narpat jointly owned land in Karsog Sub Division. Respondent No.5 filed an application for partition of the land before the Assistant Collector Ist Grade, Karsog on 28.12.1992. Notices in this petition were sent to the respondents therein i.e. the present petitioners for 18.3.1993. The present petitioner Narpat was not found on the spot and the report is that he had gone to attend a wedding but his sister -in -law was orally informed about the date. The summons were admittedly not pasted. Similarly, the petitioner Devi Singh was also not found at the spot and it was stated that he had gone to attend a wedding of some relative. It is alleged that his wife refused to accept the summons. She was orally informed about the date. The summons were not affixed on the last known address. They were however proceeded against ex - parte on 18.3.1993 and in their absence it was found that nobody had raised objection to the partition as claimed by respondent No.5. Thereafter, the matter was referred to the Field Kanungo to submit his report.

(2.) ON 3.2.1994 Devi Singh and Narpat both were present before the Assistant Collector even though, as observed above, they had not been properly served. The statement of the parties were recorded and the Collector overruled the objection raised by the present petitioners and directed that the land be partitioned. Narpat and Devi Singh alongwith two other land holders had stated that they had objection to the partition since they had not been given their complete shares. This issue was never determined by the Assistant Collector as to what was the share but he overruled the objection in general terms. When the Kanungo had conducted the visit on the site at that time also the statements of Devi Singh and Narpat had been recorded. Though they did not object to the entire partition, their objection was that one fruit bearing orchard which was near the house of respondent No.5 had been totally allotted to him and this should have been put in the joint pool and partitioned. This objection was never considered in detail by the Collector who vide his order dated 3.2.1994 allowed the application for partition. On 22.4.1994, the Assistant Collector Ist Grade, Karsog passed an order that since the application for partition had been decided on

(3.) THE petitioners thereafter approached the Commissioner, Mandi Division who allowed the Revision Petition on the ground that no instrument of partition had been prepared in terms of Section 133 and therefore the entire partition proceedings were non est. Private respondent No.5 filed a Revision Petition in the year 1998 before the Financial Commissioner who vide her order dated 27.7.2006 allowed the same. It would be pertinent to mention that the Financial Commissioner came to the conclusion that legally there was merit in the arguments of the present petitioners but since according to her possession had been handed over and mutation had been attested there was no need to set -aside the entire proceedings. Against this order, the petitioners are before this Court.