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Judgment
Deepak Gupta, Judge
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.
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 3.2.1994 and no appeal has been filed, the map be sent to the Field Kanungo Baksad to effect the partition and send his complaint report.
The petitioners thereafter filed an appeal before the Collector, Karsog on 10.2.1995, though it was styled to be a Review Petition u/s 17. However a bare reading of the document shows that what had actually been sought was permission from the Collector to the Assistant Collector to review his earlier order. Be that as it may, this appeal was dismissed on 25.8.1995 on the ground that it was barred by limitation. Various objections were raised and the 5 appeal was dismissed only on the ground that the dispute is with regard to 0-03-12 bighas of land only which is in front of the house of Hari Krishan.
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.
One of the main grounds raised by Sh. G.D. Verma, is that the petitioners were not properly served and therefore they were wrongly proceeded against ex-parte and as such the entire proceedings needs to be quashed.
There is no manner of doubt that the petitioners were not served in the manner prescribed under the Land Revenue Act. In proceedings under the Land Revenue Act, notice has to be not only issued to the coowner but even a proclamation has to be issued calling upon any person who may have objection to the partition to appear before him. This Court in CMPMO No.96 of 2011 decided on 13.7.2011 held that when procedure under Order 5 Rule 17 CPC is followed and the defendant refuses to accept summons then the Process Server must affix the summons. In this case summons were never affixed by the Process Server and the present petitioners were not properly served. However, this will have no effect on the 7 merits of the case since admittedly when the Kanungo visited the spot both Devi Singh and Narpat appeared before him. They were aware of the proceedings and did not take any steps to get the ex-parte order setaside. They chose to join the proceedings from that stage and therefore I find no merit in this contention of Sh.Verma.
The next objection of Sh.Verma is that after the partition is complete the Revenue Officer should get an instruction of partition prepared and should also record the date on which the partition should takes place. It is thereafter that delivery of possession has to be allotted on the partition.
Sections 133, 134 and 135 of the Land Revenue Act which are relevant for our purpose read as follows:
Instrument of partition- When a partition is completed, the Revenue Officer shall cause an instrument of partition to be prepared, and the date on which the partition is to take effect to be recorded therein.
Delivery of possession of property allotted on partition- An owner or tenant to whom any land or portion of a tenancy, as the cases may be, is allotted in proceedings for partition shall be entitled to possession thereof, as against the other parties to be proceedings and their legal representatives, and a Revenue Officer shall, an application made to him for the purpose by any such owner or tenant at any time within three years from the date recorded in the instrument of partition under the last foregoing section, give effect to that instrument so as it concerns the applicant as if it were a decree from immovable property.
Affirmation of partition privately affected. - (1) In any case in which a partition has been made without the intervention of a Revenue Officer, any party thereto may apply to a Revenue Officer for an order affirming the partition.
(2) On receiving the application, the Revenue Officer shall inquire into the case, and if he finds that the partition has in fact been made, he may make an order affirming it and proceed u/s 131, 132, 133 and 134, or any of those sections, as circumstances may required, in the same manner as if the partition had been made on an application to himself under this Chapter.
A learned single Judge of this Court in Khem Dutt and others vs. Palkia and another, 1983 Sim. L.C. 77, considered the import and ambit of the Land Revenue Act and held as follows:
As a result, I agree with the lower appellate court that the preparation of the instrument of partition is not a mere formality but it is a necessary document to make a partition legally effective. It is in the instrument of partition that the date from which the partition is to take effect has to be indicated. I also agree with the learned counsel for the plaintiff that the possession even if delivered to the parties before the partition was made effective, did not extinguish the status of the plaintiff as a co-sharer. Moreover, the order for executing the warrant of possession was so executed after the validity of the same had expired. As such, even if the possession had been delivered to the respective parties, the same was ineffective. I further agree with the contention of the learned counsel for the plaintiff that the Revenue Officer had rightly revoked the instrument of partition which was prepared inspite of the stay order obtained by the plaintiff.
In that case also possession had been delivered to the respective parties but the Court held that merely because the possession had been delivered it would not mean that partition was proper and delivery of possession was ineffective and not binding.
Sh.Verma has also relied upon a judgment of this Court in Kaka Ram Vs. Financial Commissioner, Himachal Pradesh and Others, and contends that where question of title is involved then the jurisdiction of the Civil Court to entertain the suit is not barred. I am afraid that this judgment is not applicable to the facts of the present case.
The only issue is whether the nonpreparation of the instrument of partition would make the partition ineffective or not. A perusal of Sections 133 and 134 of the Land Revenue Act read with the judgment of this Court in Khem Dutt''s case (supra) clearly indicates that it is incumbent that the instrument of partition should be prepared and it is in this instrument of partition that the date from which the partition has to take effect has to be mentioned. If such instrument is not prepared then obviously no date is indicated and as such partition is not effected from any date. I am bound by the law laid down in Khem Dutt''s case (supra).
The learned Financial Commissioner did not accept the recommendations of the Divisional Commissioner only on the ground that long time had elapsed and possession had been delivered. The petitioners were not to be blamed for lapse of time. They had come to Court within time. The appeal before the Divisional Commissioner Mandi was filed in the year 1995 and decided in the year 1997. The Divisional Commissioner recommended that the Revision Petition be accepted but it took the Financial Commissioner almost 9 years to decide this issue. There is no reason why the petitioner should suffer because of the delay in the Court. The petitioners have not contributed to delay and therefore mere fact that the case is an old one was not a ground to deny the relief to the petitioners.
As far as the second finding of the Financial Commissioner is concerned, according to her, since the possession had been delivered it is not a fit case to reopen the matter. The law laid down by the High Court is binding on all judicial or quasi judicial authorities in the State. The judgment rendered in Khem Dutt''s case (supra) was binding on the Financial Commissioner. In the aforesaid judgment it had been clearly stated that if possession had been delivered without an instrument of partition is prepared the same is ineffective. The Financial Commissioner had no business to sit over the judgment of the High Court.
Sh. Neeraj Gupta, learned counsel for respondent No.5 has drawn my attention to the instrument of partition dated 22.9.2006 which was prepared subsequent to the directions issued by the Financial Commissioner. It is contended that since the instrument of partition has been prepared, the order of the Financial Commissioner need not be set-aside. The instrument of partition prepared on 22.9.2006 itself makes a reference to the order of the Financial Commissioner. No notice was issued to the parties before preparation of this instrument of partition. Therefore, this instrument of partition is also not legally prepared and must fall with the order of the Financial Commissioner.
In view of the above discussion, I am of the considered view that since the instrument of partition had not been prepared and the delivery of possession was illegal and mutation on the basis of such delivery of possession will not in any manner affect the rights of the parties. Therefore, the writ petition is allowed, the order of the Financial Commissioner is set-aside, the recommendations of the Divisional Commissioner are accepted and the Assistant Collector Ist Grade, Karsog is directed to proceed further from the date the order of final partition by preparing an instrument of partition in accordance with law. No costs.