SUNKA RAM Vs. PRAKASH CHAND

JUDGEMENT

(1.) This revision petition has arisen on the recommendation of Divisional Commissioner Mandi Division dated 28.12.2005 passed by him in revision petition No. 599/2003.

(2.) BRIEF facts of the case are that the present petitioner filed an application on 24.03.1994 before the Settlement Tehsildar. Nadaun exercising the powers of Assistant Collector, 1st Grade for partition of land comprised in khata khatauni No. 172/182, khasra Nos. 1101, 1445, 1448, 1457, 1458 and 1461, kita 6, measuring 12 14 kanals, situated in Mahal Basaral, Tehsil Nadaun, District Hamirpur. The Assistant Collector, 1st Grade, Nadaun processed the case and devised the mode of partition on 01.05.1996 and the final partition was sanctioned on 02.12.1996. Shri Sunka, the present petition filed an appeal before the Collector, Settlement Hamirpur who accepted the same on 08.05.1998 and remanded the matter to the Assistant Collector, 1st Grade to decide the matter afresh after verifying the claim on the spot. On remand, the case was again processed and the Assistant Collector, 1st Grade finalized the partition vide order dated 28.06.1999. Feeling aggrieved by this order dated 28.06.1999, Shri Sunka Ram, present petitioner again tiled appeal before the Settlement Collector, Hamirpur which was dismissed on 21.07.2000 holding that the Assistant Collector, 1st Garde had visited the spot himself and amended the final partition with the consent of both the parties. Aggrieved by this order of the Settlement Collector, dated 21.07.2000, Shri Sunka Ram, filed a revision petition before the Divisional Commissioner, Mandi Division who after hearing and examining the record has referred the case to this Court holding that the 'Fard Kabza' i.e. list of possession was not prepared by the Assistant Collector, 1st Grade prior to partition proceedings. Thereby, the Assistant Collector, 1st Grade has committed a grave error and the learned Collector Settlement has also stepped/traveled in the same boat. The learned Commissioner has recommended that the orders passed by the Assistant Collectror, 1st Grade dated 28.06.1999 and the order of the Settlement Collector, dated 21.07.2000 are required to be set aside. Hence, this revision petition before this Court.

(3.) THE learned Counsel for the respondents argued that the learned Divisional Commissioner had proposed acceptance of the revision petition and recommended that the case be remanded to the Assistant Collector, 1st Grade on the sole ground that the 'Fard Kabja Mauka' had not being prepared and the partition proceedings were therefore vitiated. He however argued that before the lower Courts, the petitioner had not made any objection regarding 'Fard Kabja Mauka' not being prepared arid nor had he challenged the mode of partition. Since he had not challenged the mode of partition he was barred from challenging the further proceedings. Moreover, the Assistant Collector, 1st Grade had visited the spot before deciding the partition case. The main issued raised by the present petitioner was regarding Khasra No. 1457. On this khasra number abadis were standing and the possession could not be disturbed keeping in view the mode of partition. The petitioner had been allotted 1 kanal 6 marlas of land and this was in excess of his share. He opposed the recommendation made by the learned Divisional Commissioner. Counsel Shri Ashok Sharma representing Shri Parkash Chand, Respondent No. 1 did not have any additional points to those raised by Shri R.C. Sharma, Counsel for the Respondent Nos. 2 to 9.