IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.633/2006 Reserved on:29.7.2008 Decided on:28.8.2008 Mehar Singh. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.yes. For the petitioner : Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate. For the Respondents: Mr. Rajinder Dogra, Additional Advocate General with Mr. Vikas Rathore, Deputy Advocate General for respondent No.1. Mr. R.L. Sood, Senior Advocate with Mr. Vikas Rajput, Advocate for respondents No.2 to 5. Rajiv Sharma, J. The brief facts necessary for the adjudication of this petition are that the petitioner has instituted an application for partition of suit land comprising Khasra No. 2,3,74,76 and 101 situated in Tikka Chalbara, Tappa Nauhangi, Tehsil Nadaun, District Hamirpur, H.P. before the Assistant Collector 1st Grade, Nadaun on 20th August 1991. The statements of the learned counsel appearing on behalf of the parties were recorded on 21.2.1992. The mode of partition was framed by the 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 Assistant Collector Grade-I, Nadaun on 23.5.1992. The statements of the petitioner and the predecessor-in-interest of respondents No.2 to 4 Sh. Shambhu Ram and Shri Sita Ram were recorded on 13.4.1993. Sh. Shambhu Ram and Sh. Sita Ram had shown their reservation against the partition. It has come in the report dated 13.4.1993 that the partitioned could not be carried out as per the mode of partition. The predecessor-in- interest of respondents No.2 to 4 and respondent No.5 filed objections before the Assistant Collector 1st Grade, Nadaun. It was primarily contended in the objections that the partition paper has not been prepared according to the statements of the parties and the Kanungo and Patwari have not cared about the classification of land and the land has not been allotted to them on the road head. The Assistant Collector 1st Grade directed the Kanungo on 3.7.1993 to prepare the documents of partition as per mode of partition. The Tehsildar, Nadaun submitted the report on 23.9.1993. The predecessor-in-interest of respondents No.2 to 4 and respondent No.5 again lodged the objections on 16.11.1993 being dissatisfied with the partition paper. The Assistant Collector 1st Grade directed the Naib Tehsildar on 18.12.1993 to verify whether the partition has been effected as per mode of partition dated 23.5.1992 or not. The statements of the parties were recorded by the Niab Tehsildar, Nadaun on 22.2.1994. Sh. Shambhu Ram, the predecessor-in-interest of respondents No.2 to 4, had again reiterated his demand for allotment of the land near road head. The Naib Tehsildar, Nadaun has not recommended any change in the partition. Consequently, after the receipt of the report of the Naib Tehsildar dated 22.2.1994, the Assistant Collector 1st Grade sanctioned the partition on 22.4.1994. The predecessor-in- interest of respondents No.2 to 4 and respondent No.5 filed an appeal under section 14 of the Himachal Pradesh Land Revenue Act, 1953 3 against the order dated 22.4.1994 before the Additional District Magistrate exercising the powers of the Collector, Hamirpur on 6.7.1994. The appeal was dismissed by the Additional District Magistrate on 1.3.1995. Sh. Shambhu and Sita Ram thereafter filed a revision petition under section 17 of the Himachal Pradesh Land Revenue Act, 1953 in the court of Commissioner Mandi Division, Mandi against the order dated 1.3.1995. The Commissioner Mandi Division, Mandi dismissed the revision on 22.8.1996. Sh. Shambhu Ram and Sh. Sita Ram filed a revision before the Financial Commissioner (Appeals) against the decision dated 22.8.1996. The Financial Commissioner (Appeals) accepted the appeal on 5.5.2006 and directed the Assistant Collector 1st Grade that classification of land and valuation of mode may be kept in view while finalizing the partition proceedings to ensure that the justice is done to both the parties. The present petition has been filed against the order dated 5.5.2006. Mr. G.D. Verma, Senior Advocate had strenuously argued that the order dated 5.5.2006 is not sustainable in the eyes of law. He also contended that the order passed by the Additional District Magistrate exercising the powers of Collector dated 1.3.1995 and order passed by the Commissioner Mandi Division, Mandi dated 22.8.1996 are in conformity with law. He further contended that the partition has been carried out strictly as per the mode of partition. Mr. R.L. Sood, Senior Advocate appearing on behalf of respondents No.2 to 5 has supported the order dated 5.5.2006. He also contended that the partition has to be carried out strictly as per the mode of partition dated 23.5.1992. 4 Respondent-State was directed to produce the entire record during the course of hearing. The learned Additional Advocate General has produced the entire record for the perusal of the Court. I have heard the learned counsel for the parties and perused the record carefully. The detailed procedure has been prescribed for effecting partition in Chapter-IX of the Himachal Pradesh Land Revenue Act, 1953. The mode of submission of application seeking partition has been laid down in section 123. Section 125 provides for issuance of notice to the parties. The procedure of admission of application is stipulated under section 128. The disposal of questions as to the title in property to be divided has been laid down under section 129. The disposal of other questions has been provided under section 130. Section 133 provides that when the partition is complete, 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. Section 134 provides for the delivery of possession of property allotted on partition. Para 14.4 of the Himachal Pradesh Land Records Manual provides that it is for the Naib Tehsildar in whose circle the estate concerned lies under the division prescribed in Land Administration Manual and in the manual that the case is referred to investigation of report. However, it is further provided therein that to avoid delay, AC Ist Grade should hear and decide the case himself. Para 14.5 prescribes that any joint owner and any joint tenant, who has a right of occupancy in his holding, may apply for partition. The application is required to be annexed with an extract from the last detailed jamabandi as provided in para 14.6. The procedure for conducting partition cases has been prescribed under para 14.7. Para 14.13 lays down the detailed 5 procedure for Assistant Collector as stipulated under section 129. Para 14.13 reads thus: “The Assistant Collector 1st grade on receiving back the file should himself examine the parties, and, if he finds that there is a question of title involved, either decline to grant the application for partition until the question of title has been determined by a competent court, or himself decide the questions of title raised under one or other of the procedure laid down in section 129 (b) (a&b), The cases which will involve action under this section may be divided broadly into two classes-first, those in which an applicant believing that the partition proceedings will give him an advantage over the opposite party has chosen that procedure in order to evade direct resort to the civil courts in respect of a question of title which he knows would be disputed; and, secondly, those in which the applicant is acting in a straight forward manner, that is to say, in which a partition is really desired by him and is the principal matter in which he requires official assistance. In the class of cases first mentioned the revenue officer should file the proceedings with leave to either party to apply to have them reopened, on showing that the point at issue had been determined by a competent civil court. In the latter class of cases a revenue officer should exercise the full jurisdiction vested in him by law, and should refrain from putting parties to the trouble of separate proceedings in a civil court, even although the question is one which would ordinarily fall within the jurisdiction of such a court. When the respondent in the partition proceedings puts forward an objection as to title the revenue officer should invariably, unless there is some special reason to the contrary, proceed to determined the question himself arid not refer the objector to a civil court. When he stays proceedings until the question of title has been settled in a civil court, he should send the partition \ file to the record 6 officer and treat the case in the quarterly business returns as a decided one. If, on the termination of the proceedings in the civil court, the applicant petitions to revive the partition case, the file will be restored to the register of pending cases and be reckoned in the business return as a new institution. If the revenue officer determines to hear the case himself and the burden of proof is on the applicant for partition, he should order the applicant to put in by a certain date a written statement giving full particulars of his claim. Similarly if the objecting party is the respondent in the partition proceedings he should be required to put in a written statement by a certain date giving full particulars of his objections. If either party fails or refuses to obey these instructions the revenue officer should pass orders under order VIII, role 10 of the Civil Procedure Code (Act V of 1908). On a plaint being presented, he should record a brief note stating whether the question at issue is cognizable by a revenue court (section 129 (2) (a) or by a civil court, (section lQ.9 (2) (b) of the Himachal Pradesh Land Revenue Act and consequently what his future procedure is intended to be. Although in case of appeal the appellate court would have to decide by what description of court the question was really cognizable, the note of the revenue officer will determine the course of appeal in the first instance and thus save both litigants and the appellate court much trouble”. Para 14.13 (A) provides for preparation of list of possession (Fard Kabza). The detailed inquiry as to the methods of partition has been provided under para 14.14. The relevant extract of para 14.14 reads thus: “(i) If there are no disputes as to title, or if all such disputes have been decided under section 129 and the case has been returned to him for report, the tehsildar should proceed to enquire into any question to the 7 property to be divided and the method to be followed in dividing it (section 128 (b). A map of the land to be partitioned should be obtained from the patwari and a statement showing the area to be divided and the share of the parties should be prepared. Form PTN.-I in the appendix is given as a specimen, but it may be modified to show further details when this is considered necessary. In reporting the mode of partition for sanction, the Naib-tehsildar should state 'clearly what are the points remaining for decision, and they should be fully dealt with. The first matter to be noticed is whether the applicants' share only will be separated off, the other co-sharers continuing to hold jointly, or whether all the shares will be divided, If there 'is any provision regulating partitions in the village administration paper, it should be referred to; if not, the absence of any such provision should be stated. It should be noted whether all the land is to be thrown into one account or whether different classes are to be distinguished. The distinction may consist in part being cultivated, part culturable waste and part barren. Some lands may be more valuable than the rest on account of its natural quality or its situation, or the existence of means of irrigation. Part may be mortgaged, or held by a tenant at-will who cannot equitably be turned out. It will, as a rule, be quite impracticable to give every man his exact share of every sort of land, and the investigating officers should set forth clearly how far deviation from the rule of equal proportions is to be allowed, and how men receiving inferior land are to be compensated by an increase in the area allotted to them or otherwise, In this connection efforts should be made to persuade co- sharers to abstain from insisting on an exact application of the rule of equal proportions where this would result in the formation of an excessive number of small scattered plots or fields. It should be pointed out that such a division of holding has many disadvantages from the point of view of agricultural efficiency. It entails 8 waste of the cultivator's time and labour, and adds to the work of his bullocks by multiplying journeys to and from his land. It causes wastage of water and ever water-logging by involving the use of unnecessarily long, tortuous or badly aligned water courses from the wells, canals or other irrigation sources. It makes the sinking of wells, drainage, levelling and other agricultural improvements more difficult, while small fields may often be an obstacle to the employment of improved agricultural implements and machinery. Should the parties, nevertheless, desire the application of the rule of equal proportions of each class of land, the revenue officer has discretion under section 130 of the Himachal Pradesh Land Revenue Act, to refuse compliance if he thinks that the circumstances of the case render that rule in appropriate, and he may instead authorize duly specified deviations from it. (ii) It is impossible to settle every detail till the partition is actually made on the ground. Something must be left to the patwari, aided if necessary by arbitrators; but to order a partition, "balihaz nakas wa kamil" as is constantly done, is to throw everything into the patwari's hand. The extent to which existing possession will be respected must be noted. It should be maintained, especially when it is of old standing, as far as this can equitably be done. If it is proposed to appoint arbitrators, the matters which they are to determine should be noted, and also what remuneration, if any, they are to receive. The value of the land, for the purpose of calculating the stamp duty on the instrument of partition, the amount of the stamp duty and all fees and costs, and the proportion of the total costs to be 'borne by the different parties, should be mentioned so that sanction to their recovery may be given. The stamp duty on instruments of partition should be calculated in accordance with item No. 45 read with item No. 15 in schedule I-A appended to the Indian Stamp Act of 1889, 9 as amended by the Indian Stamp (Himachal Pradesh Amendment) Act, 1970, (Act No. 16 of 1970).” Para 14.15 prescribes the procedure to be followed by the Assistant Collector: “On receiving the file from the investigating officer, the officer empowered to decide the case should if he finds that there is a dispute between the parties on any of the points connected with the proposed mode of partition fix a date of hearing the case, and have the parties duly informed thereof, so as to give them an opportunity of appearing before him. On the date so fixed, he should examine, so far as may appear necessary, any of the parties who may be present, and should then record with his own hand his orders as to the method of partition, the amount of costs and the proportion in which they are to be recovered from the different parties. The orders as to the method of partition should be clear and unmistakable, and care should be taken that every essential question raised by the investigation officer's report, or contained in the pleadings, is decided. Even in cases in which the investigating officer has indicated alternative courses, and a decision is required between them, it is too common to find vague and general terms of sanction used, such as "the method of partition proposed by the investigating officer is sanctioned." The case will then be returned to the investigating officer. Before taking any step to carry out the partition, the investigating officer should direct the parties to deposit the whole amount of the costs in cash by a fixed date. If the money is not deposited within that period, the case should be forwarded to the officer empowered to decide it for orders. If the applicant is in earnest in desiring the partition he is often willing to pay in the whole costs, if the amount is not large, and the shares due from defaulters can ultimately, under section 103 (a), of the Himachal Pradesh Land Revenue Act, be 10 recovered as arrears of land revenue and made over to the applicant. But if it appears to the Revenue office that the applicant has paid in his share of the costs, but that the respondent, in order to delay the case, refuses or neglects to pay his share he should order the amount due from the respondent to be at once recovered as an arrears of land revenue. All sums received as costs will be credited in the Revenue Deposit accounts and paid into the treasury, the number and date of the dakhila being noted under the tehsildar's signature in the tehsil register of partition cases. Such costs, as are not susceptible of speedy disbursement, should be treated as revenue deposits (civil) account Code, article 195). Receipts for all disbursements will be put on the partition file.” The method of carrying out the partition has been provided under para 14.16 which reads thus: “If the partition is to be made by the patwari, the tehsildar should give him on the spot, if possible detailed instructions from which he should not be allowed to deviate. As little as possible should be left to the patwari' s discretion, and he should not be called on to decide how land should be classified or to its respective value. Points of this sort are for the parties to agree upon among themselves; if they cannot agree, the tehsildar must decide them himself. He may, however, appoint arbitrators to do so, if the parties desire it, and he thinks their appointment is likely to lead to an equitable and speedy decision. The patwari should only be required to make a correct survey and record of the land to be partitioned, and of the manner in which they have been divided. Measurements are necessary if numbers are broken up, and in order to determine the proper boundaries of the joint fields, if these have been encroached upon to a serious extent by any of the shareholders. If the shares are equal and the particular 11 parcels of land to be allotted to each shareholder are to be decided by lot, 'Kurras', in the form of Khatauni slips, should be prepared for each share, the names being left blank. When the partition is completed, the following papers must be drawn up by the patwari and put on the file:- (a) A tracing from the shajra showing the new field numbers. If the village has been measured on the square system, the square should be shown on the map and the position of the new numbers within the square should be correctly indicated. (b) A khatauni showing the names of the shareholders, and a full list of the fields allotted to each with their areas. (c) A field-book of all new fields. (d) A statement showing in separate columns the area to which each shareholder was entitled according to his recorded share and the area which he has actually received. A specimen form PTN. 2 is given in the appendix, but it may be modified to whatever extent appears desirable.” The manner in which the instrument of partition has to be prepared has been provided under para 14.26. Para 14.26 reads thus: “When sanction has been received, any further correction the papers which is rendered necessary by the order of the sanctioning officer must be made and communicated to the patwari and kanungo and to the parties. The kanungo should point out to the parties any changes in the allotment of land made under the order finally passed, and should correct their khataunis, after the period for appealing has elapsed without any appeal being lodged, or after any appeal that has been presented has been decided an instrument of partition must be drawn upon stamped paper by the officer empowered to decide the case. It should describe the claim and give a detail of the division effected with a 12 reference to the order sanctioning it. The date on which the partition is to take effect must be noted. The form Ptn-3 given in the appendix may conveniently be followed and to each such instrument of partition in which new field numbers are shown in column 4 of the schedule a copy of the tracing of shajra referred to in paragraph 14.16 (a) supra should be attached. The instrument of partition should thus be complete in itself so as to enable a civil court in any subsequent litigation to ascertain from it without reference to any other files or records (1) what belonged to whom jointly; and (2) who got what severally. This object will be secured if the schedule of the form of instrument of partition given in the appendix is carefully filled up. Before sending the case to the record room, the deciding officer should ascertain that the sums paid in as costs have all been disbursed and that vouchers for the expenditure are on the file. If there is any balance he should pass a distinct order as to the manner in which it is to be disposed of.” It will also be apt at this stage to take note of few paras of the Punjab Land Administration Manual dealing with the partition proceedings. Paras 455, 456, 457, 458, 459 and 460 read thus: “455. Any joint owner and any joint tenant who has a right of occupancy in his holding may apply for partition; (a) his share is entered in the last jamabandi, or (b) his right to a share has been established by decree of court, or (c) his title has been admitted in writing by all persons interested in the admission or denial thereof. The mere fact that a man is a landowner as defined in section 3(2) of the Land Revenue Act does not entitle him to apply unless he fulfils one or other of the above three conditions. 456. Partition cases are decided by revenue officers of a class not below that of Assistant Collector, of the 1st Grade, and usually by the Revenue Assistant. No officer 13 who is not himself empowered to settle the case should receive an application for partition. A qualified officer to whom an application has been presented can either conduct the whole enquiry himself, or refer it for report to Assistant Collector of the 2nd grade, that is, as a rule, to tahsildar or naib-tahsildar. The latter course is generally the best to follow. But the officer before whom the case has been instituted is responsible for its proper conduct throughout and should exercise close supervision over the proceedings of the official to whom he has referred it for investigation. An Assistant Collector, who in a disputed partition case is content to pass orders on reports received from the tahsildar without ever having the parties before himself, and without, if need be, inspecting the land to be divided, certainly fails in his duty. 457. No branch of revenue work used in former days to be worse done than partition cases. Scandalous delays were allowed to occur. No proper care was taken to lay down clearly the mode of partition or to define accurately the limits of the land assigned to each share holder, or to point these out on the spot to the parties interested. Years after an elaborate partition