IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.2067/2007 and CWP No. 2071/2007 Reserved on:17.4.2009 Decided on:19.6. 2009 1. CWP No. 2067/2007 Kamla Devi and another. …Petitioners. Versus State of Himachal Pradesh and others. …Respondents. 2. CWP No. 2071/2007 Sohan Lal. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. (CWP No. 2067/2007) For the petitioners : Mr. R.K. Gautam, Senior Advocate with Ms. Archana Dutt, Advocate. For the Respondents : Mr. Rajinder Dogra, Addl. A.G. and Mr. Vikas Rathore, Dy. Advocate General for respondents No. 1 to 5. Rakesh Chandel, Advocate for respondents No. 6 to 9 Ms. Salochana Kaundal, Advocate for respondent No.10. 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 (CWP 2071/2007) For the petitioner : Mr. R.K. Sharma, Senior Advocate with Ms. Archana Dutt, Advocate. For the Respondents : Mr. Rajinder Dogra, Addl. A.G. and Mr. Vikas Rathore, Dy. Advocate General for respondents No. 1 to 5. Rakesh Chandel, Advocate for respondents No. 6 to 9 Ms. Salochana Kaundal, Adv. for respondents No. 10 & 11. Rajiv Sharma, J. Since common questions of law and facts are involved in both these petitions, the same were taken up together for hearing and are being decided by a common judgment. Brief facts necessary for the adjudication of these petitions are that the predecessor-in-interest of the present petitioners in CWP No. 2067/2007 Sh. Lal Chand filed an application before the Assistant Collector 1st Grade (Settlement), Nadaun for partitioning his joint holdings comprised in khata Khatauni No. 5/6 khasra Nos. 5,8,9,10,11, 12, 74, 164, 167,178 and 180, kitas 11 measuring 92 Kanals 16 Malras situated in Tikka Dhaneta, Mouza Hathol, Tehsil Nadaun, District Hamirpur. The Assistant Collector 1st Grade framed the mode of partition on 18.12.1991. Sh. Lal Chand preferred an application on 26.5.1993. Sh. Devi Chand filed reply to the same. The final partition of the land was sanctioned on 30.9.1993. Sh. Lal Chand, predecessor-in-interest of the present petitioners in CWP No. 2067/2007 and Sohan Lal petitioner in CWP N0. 2071/2007 filed two appeals against this order before the Settlement Collector, Hamirpur. He dismissed the appeal on 18.6.1994. Sh. Lal Chand and Sohan Lal preferred two separate revision petitions before the Divisional Commissioner, Mandi. He recommended the matter to the 3 Financial Commissioner (Appeals) for his observations that the orders by the courts below are required to be quashed and set aside and the Assistant Collector 1st Grade should be permitted to conduct the partition proceedings afresh on 20.5.1997. The Financial Commissioner (Appeals) vide order dated 10.10.2006 did not accept the recommendations made by the Divisional Commissioner, Mandi. He upheld the order passed by the Assistant Collector 1st Grade sanctioning the final partition on 30.9.1993 and the order of the Settlement Collector dated 18.6.1994. S/Sh. Lal Chand and Devi Chand expired when the matter was heard by the Financial Commissioner (Appeals) and their legal representatives were brought on record. Thereafter the petitioners have also filed review petitions before the Financial Commissioner (Appeals). These were rejected by the Financial Commissioner (Appeals) on 28.8.2007. These two petitions have been preferred by the legal representatives of Sh. Lal Chand, namely, Smt. Kamla Devi and Devinder Singh and Sohan Singh against the orders passed by the Financial Commissioner (Appeals) dated 10.10.2006 and 28.8.2007. Mr. R.K. Gautam, Senior Advocate has strenuously argued that the orders passed by the Financial Commissioner (Appeals) dated 10.10.2006 and 28.8.2007 are not sustainable in the eyes of law. He has further argued that the order passed by the Land Settlement Collector 18.6.1994 was contrary to record. He further contended that there is neither any description of land nor the details of khasra numbers mentioned in the order passed by the Settlement Collector, Hamirpur about the earlier partition proceedings. His further contention is that the Settlement Collector could not take into consideration the earlier partition which never formed subject matter of the present partition proceedings. He lastly contended that the order passed by the Divisional Commissioner was 4 based on facts and the Financial Commissioner (Appeals) has wrongly relied upon the order passed by the Settlement Collector on 18.6.1994. Mr. Rajinder Dogra, Additional Advocate General and Mr. Rakesh Chandel have supported the orders passed by the Assistant Collector 1st Grade, Naduan dated 17.9.1993, order dated 18.6.1994 passed by the Settlement Officer, Hamirpur and the orders passed by the Financial Commissioner (Appeals) dated 10.10.2006 and 28.8.2007. Mr. Rakesh Chandel has strenuously argued that in earlier partition proceedings, the petitioner had been given the valuable piece of land by the road side. He then contended that his clients have rightly been given the share adjacent to the land as per the existing spot position. I have heard the learned counsel for the parties and perused the pleadings carefully. The partition proceedings had commenced on the basis of the application preferred by Sh. Lal Chand, predecessor-in-interest of Smt. Kamla Devi and Devinder Singh. The mode of partition was framed on 18.12.1991. It appears from the record that Sh. Lal Chand had filed objections for allotting land adjacent to the road side to him on 26.5.1993. Sh. Devi Chand had filed reply to the same. The final orders were passed by the Assistant Collector 1st Grade, Nadaun on 17.9.1993. The objections preferred by Sh. Lal Chand were rejected. The reason gathered for rejecting the objections is that the lands of the details abutting the land were not given in the objections. S/Sh. Lal Chand and Sohan Lal have preferred appeals before the Settlement Officer, Hamirpur. He rejected the same on 18.6.1994. The main ground for rejecting the appeals preferred by S/Sh. Lal Chand and Sohan Lal was that in earlier partition proceedings valuable piece of land has been given to the petitioners and Sh. Devi Chand was left out. In the common order passed 5 by the Settlement Officer, Hamirpur, no details of the earlier partition have been given. It was necessary for him at least to give description of khasra numbers and the classification of the land which was involved in the earlier partition proceedings. It was not open to him to only mention in a cursory manner that earlier partition proceedings had benefited the petitioner at the cost of respondent Sh. Devi Chand. The other fact weighed while rejecting the appeals of S/Sh. Lal Chand and Sohan Lal was that they have not got their statements recorded on 17.9.1993. The Settlement Officer had to decide the matter on the basis of the material which was brought on record by the parties. He was to decide the lis between the parties on the basis of the case pleaded by the parties. He was not seized, in any manner, of the earlier partition proceedings which had taken place between the co-owners. The Divisional Commissioner while recommending the case of the petitioners to the Financial Commissioner (Appeals) had come to a conclusion that it was necessary for the courts below to take into consideration that all the parties were given their respective shares of the land abutting the road. The order passed by the Divisional Commissioner on 20.5.1997 was equitable taking into consideration that the petitioners have been left out from the share in the land abutting road. The petitioners had also brought to the notice of the authorities below that when the earlier proceedings had taken place, there was no road in existence. However, the Financial Commissioner (Appeals) has accepted the order passed by the Settlement Officer, Hamirpur on 18.6.1994. He has also erred by heavily relying upon the earlier partition proceedings, which had taken place between the parties. He has also not given the details of the case or the khasra numbers, which were involved in the earlier partition proceedings. The observations made by the Settlement Officer as well as by the Financial Commissioner 6 (Appeals) are not supported by the records of the case. The observations could not be made without calling upon for the parties to lead tangible evidence to establish about the true nature of the earlier partition and the manner in which the land has been partitioned amongst the various co- owners. The only observation made by the Financial Commissioner (Appeals) based on the order passed by the Settlement Officer in his order dated 28.8.2007 is that other land belonging to the parties was also subject matter of the partition and in those Khatas, Sh. Sohan Lal and Lal Chand had got road side valuable land. There is no basis also for coming to a conclusion that the valuable land has been allotted to S/Sh. Sohan Lal and Lal Chand in earlier partition proceedings. The Divisional Commissioner had noticed in his order dated 20.5.1997 that Sh. Lal Chand was serving in interior part of Shimla District when the partition proceedings had taken place. The petitioners have also filed before the Financial Commissioner (Appeals) copies of jamabandi and Aks Mushabi. These two documents have also not been taken into consideration by the Financial Commissioner (Appeals) while hearing the review petition. There is sufficient force in the submission of Mr. R. K. Gautam, learned senior counsel for the petitioners that the present partition proceedings were independent proceedings and the earlier partition proceedings had no bearing on the present case. In this case separate mode of partition was framed and the final order was passed on 17.9.1993. The mode of partition is to be passed after taking into consideration the respective possessions of the parties over the land in question. The mode of partition should be such that all the parties are equitably distributed the land taking into consideration the classification of the land and its proximity to road side. The Settlement Officer and Financial Commissioner (Appeals) have mis-directed themselves by taking into 7 consideration the earlier partition proceedings which had taken place as per the pleadings somewhere in the year 1979. The Assistant Collector 1st Grade while drawing the proceedings of partition had to take into consideration the land which formed subject matter of the present partition proceedings. Even if the Assistant Collector 1st Grade and Settlement Officer, Hamirpur had to take into consideration earlier partition proceedings, the same were required to be discussed in length, as noticed above, after noting the khasra numbers and the classification of the land. Accordingly, in view of the discussion made hereinabove, both the petitions are allowed. Annexures P-8 and P-10 dated 10.10.2006 and 28.8.2007 are quashed and set aside. The Financial Commissioner (Appeals) is directed to hear the review petitions No. 271/1997 and 272/1997 within a period of eight weeks from today afresh. The parties through their Advocates are directed to make themselves available before the Financial Commissioner (Appeals) on 6.7.2009. No Costs. 19.6. 2009 (Rajiv Sharma ), J. *awasthi*