Dina Nath & Anr. vs State of H.P. & Ors.

Jyotsna Rewal Dua, J

Both these petitions involve common questions of law and facts, hence are taken together for adjudication.

Petitioners’ appeal against the order dated 25.02.2023, whereby the partition proceedings were accepted by the concerned authorities, was dismissed by the Collector on 30.09.2023. Revision petitions preferred by them were also dismissed by the Financial Commissioner (Appeals) on 07.11.2023. These orders have been assailed by the petitioners in these petitions. But for the case numbers, the orders passed in both the cases are almost similar.

2(i). Relief prayed for in CWP No.8869 of 2023 reads as under:-

(i) That the impugned order dated 07.11.2023 passed by Respondent No. 2 in Revision Petition No.307/2023 (Annexure P-7), order dated 30.09.2023 passed by Respondent No. 4 in Case No. 32/2 of 2023 (Annexure P-6), orders dated 25.02.2023 passed by Respondent No. 4 in Case No. 24/9 of 2019 (Annexure P-5) and order of mode of partition dated 06.09.2022 (Annexure P-4), may kindly be quashed and set aside.

2(ii). Relief prayed for in CWP No.8871 of 2023 reads as under:-

(i) That the impugned order dated 07.11.2023 passed by Respondent No.2 in Revision Petition No.308/2023 (Annexure P-6), order dated 30.09.2023 passed by Respondent No.4 in Case No. 31/2 of 2023 (Annexure P-5) and orders dated 25.02.2023 passed by Respondent No. 4 in Case No.25/9 of 2019 (Annexure P-4), may kindly be quashed and set aside.

Heard learned counsel on both sides and perused the case file.

Petitioners and respondents No.5-the contesting parties are real brothers.

4(i). Respondent No.5 moved two separate applications under Revenue Act for partition of lands held jointly by the parties under different khata numbers.The mode of partition was purported to have been prepared in aforesaid applications on 04.06.2018 and accepted on 04.06.2021.

4(ii). Aggrieved against the aforesaid orders passed in two separate cases, petitioners filed appeals before the Collector invoking Section 14 of the Himachal Pradesh Land Revenue Act (in short ‘the Act’). The appeals were allowed on 30.06.2022. Impugned orders were set aside. The cases were remanded to the Assistant Collector, 2nd Grade, with direction to initiate the proceedings afresh by preparing mode of partition in accordance with law.

4(iii). After remand, fresh proceedings started before the Assistant Collector, 2nd Grade. Petitioners got recorded their statements on 06.09.2022. Respondent No.5’s statement was also recorded on 06.09.2022. These statements were in respect of preparation of mode of partition. Assistant Collector, 2nd Grade, also passed order dated 06.09.2022 taking note of the statements of the parties in respect of preparation of made of partition. This order available at page 28 of CWP No.8869 of 2023 mentions that in view of statements of the parties, land is to be partitioned separately in three different khatas/shares belonging to three brothers; The parties had agreed to proceed on the basis of partition proceedings already carried out; The deficiency or excess in the land as per their shares was to be completed and sorted out by respecting their possession as far as possible. Mode of partition was accordingly prepared afresh under a separate order of even date, i.e. 06.09.2022. The mode of partition was sent to Field Kanungo on 22.09.2022 for preparing the partition papers after inspecting the spot. Field report was received by the concerned revenue official on 30.01.2023. The partition carried out on the spot as per accepted mode of partition, was also accepted on 25.02.2023, matter was ordered to be fixed for preparing instrument of partition on 31.03.2023.

4(iv). Feeling aggrieved against the order dated 25.02.2023, the petitioners preferred appeal under Section 14 of the the Act before the Collector. The Collector dismissed the appeal on 30.09.2023. The Financial Commissioner (Appeals) vide his order dated 07.11.2023 declined to interfere with the order passed by the Collector. In the aforesaid background, petitioners have instituted these writ petitions.

The impugned orders and the case record make it evident that the mode of partition was prepared on 06.09.2022. It was prepared with due consideration to the statements of the parties recorded on the same date, i.e. 06.09.2022. The mode of partition is an order appealable under Section 130(2) of the Act. But the petitioners’ appeal preferred before the Collector on 28.03.2023 was not against the mode of partition dated 06.09.2022. Their appeal was against the order dated 25.02.2023, whereunder partition carried out as per accepted mode of partition was accepted.

Though in the body of the appeal petitioners had raised certain grounds involving the mode of partition, yet the petitioners having not availed the specific remedy available against mode of partition at the relevant time, could not have collaterally objected to the mode of partition in their challenge to the order accepting the partition carried out as per accepted mode of partition. Their appeal was against the specific order dated 25.02.2023. It was not the case of the petitioners in the appeal preferred before the Collector that partition had not been carried out in accordance with the accepted mode of partition. In these petitions also, basic grievance of the petitioners is against mode of partition. However, the fact remains that they did not assail the mode of partition in accordance with law at the appropriate stage. Hence, the learned authorities below did not err in dismissing the appeals as well as the revision petitions preferred by the petitioners. Hence, the present writ petitions fail and are dismissed accordingly. Pending applications, if any, also stand disposed of.