DHIAN CHAND Vs. KAMLA DEVI

JUDGEMENT

(1.) Shri Dhian Chand has filed this revision petition under section 17 of the Himachal Pradesh Land Revenue Act against the order dated 11 -1 -1990 of the Commissioner, Mandi Division.

(2.) The facts of the case briefly stated are that on 208 -1987 it was reported to Village Patwari that Smt. Kamla Devi, respondent No. 1, had exchanged her land measuring 119 -45 Sq. meters comprised in Khasra No. 253/2 included in Khata No. 73 of Up -muhal Hamirpur, for the land comprised in the whole Khasra No. 22 (measuring 106.97 Sq. meters) bearing Khata No. 62 min and the land measuring 51.90 Sq. meters, being 2/9th portion of Khata No, 64 (the total area of which was 158 87 Sq. meters) belonging to Shri Brahm Parkash, who passed on this land in favour of Smt. Kamla Devi for the land he was getting from her. In Column No. 13 of the mutation No. 157, the Village Patwari mentioned that transaction had been made by means of an oral agreement. The Patwari entered the mutation on the same day and the Assistant Collector, II Grade, Hamirpur, attested the mutation on 3 -9 -1987. This order was challenged by Shri Dhian Chand in appeal before the Sub -Divisional Collector, Hamirpur, who upheld the order of the Revenue Officer and ordered that a complaint be made to the learned Chief Judicial Magistrate, Hamirpur, against Shri Dhian Chand for his having committed an offence punishable under sections 181 and 182 of the Indian Penal Code. Feeling dissatisfied with the order of the learned Sub -Divisional Collector, Hamirpur, Shri Dhian Chand filed a revision petition before the Commissioner, Mandi Division, who dismissed the same vide his order dated 11 -1 -199Q. Now Shri Dhian Chand has come in second revision before us.

(3.) We have gone through the record very carefully and have also heard the arguments advanced by Shri Sushil Kumar Kanwar, Advocate, learned Counsel for the petitioner and Shri P. R. Bhardwaj, Advocate, learned Counsel for the respondents. The learned Counsel for the petitioner argued that there was no deed and as such the mutation should not have been entered by the Patwari and attested by the Assistant Collector, II Grade. He also stated that no notice was given to Shri Dharam Chand. In this connection it may be stated that Shri Braham Parkash was a co -sharer in the Khata, the land of which was transferred by him to Smt. Kamla Devi. It is a settled law that possession of one co -sharer in a joint property is the possession of all the co -sharers and the co -sharer who is in possession holds possession of the property on behalf of the other co -sharers who are not in possession. Moreover, he transferred his share in exchange. As regards giving notice to the petitioner, he cannot be said to be an interested party. The person who had transferred his share had duly been informed. Another point taken by the learned Counsel for tbe petitioner was that the respondent No. 2 could not have transferred any land by way of exchange under tbe provisions of section 16 (1) of the Himachal Pradesh Town and Country Planning Act, which does not permit sub -division of the plot. It may be stated that there is no bar under this Act for selling the share of a particular individual. It is also worth mentioning that Shri Dhian Chand, petitioners share is in -tact and that has not been disturbed by this exchange. As already mentioned, shares in Khasra numbers can be sold and there is no bar under any provision of tbe Himachal Pradesh Land Revenue Act. The findings of the learned Sub -Divisional Collector, Hamirpur and tbe Commissioner, Mandi Division, are concurrent so far as the validity of the exchange is concerned. These do not call for any interference. There does not appear to be any irregularity or illegality in the order dated 3 -9 -1987 of the Assistant Collector, II Grade, Hamirpur, passed on mutation No. 157. Although both the Revenue Officers below have stated that there was a prima facie case against the petitioner, Shri Dhian Chand for having committed an offence punishable under sections 181 and 182 of the Indian Penal Code yet we are inclined to take a lenient view. Accordingly, the orders of the learned Sub Divisional Collector, Hamirpur and the Commissioner, Shimla Division, passed on 6 -2 -1989 and 11 -1 -1990 respectively are modified to the extent that complaint not be made to the Chief Judicial Magistrate, Hamirpur under section 195 of the Code of Criminal Procedure.