IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA LPA No.20 of 2003. Judgment Reserved on:18.11.2008 Decided on: December 03, 2008. Dhian Singh & Ors. …..Appellants. VERSUS Sher Singh & Ors. …..Respondents. Coram The Hon’ble Mr. Justice Jagdish Bhalla, Chief Justice. The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellants: Mr.K.D.Sood, Advocate. For the Respondents: Ms.Jyotsna Rewal Dua, Advocate for respondents No.1 to 4. Mr.Ankush Dass Sood, Additional Advocate General, for respondent No.5. Per Kuldip Singh, Judge. This appeal has been directed against the judgment dated 1st August, 2003 passed by learned Single Judge in CWP No.113 of 1995 setting aside order dated 22.9.1994 passed by Financial Commissioner (Appeals) to the extent that order had set aside the order of mode of partition and upholding 1 Whether the reporters of the local papers may be allowed to see the Judgment? …2… rest of the order dated 22.9.1994 of the Financial Commissioner (Appeals). 2. The facts, in brief, are that Lachhman father of respondents No.1 to 3 in the year 1976 filed two applications for partition of land, which were consolidated. The mode of partition was prepared which was approved and sanctioned on 16.5.1980 by the Assistant Collector 1st Grade. The final order of partition was passed on 1.4.1981. The possessions were also delivered to the parties on 6.6.1981. 3. The appellant No.1 Dhian Singh filed appeal against the final order of partition which was accepted by Collector Dharamshala on 5.7.1982 and the partition order dated 1.4.1981 was set aside and the case was sent back to Assistant Collector 1st Grade, Dehra to decide the case in accordance with law. Respondent No.1 Sher Singh filed appeal against the order dated 5.7.1982 which was dismissed by Divisional Commissioner on 22.8.1986. 4. The Assistant Collector 1st Grade rejected the objections of appellant No.1 Dhian Singh vide order dated 6.11.1987 and affirmed the final order of partition dated 1.4.1981. Appellant No.1 Dhian Singh etc. filed appeal against the order dated 6.11.1987 of Assistant Collector 1st Grade which was dismissed on 3.7.1989 by Collector Dehra. Dhian Singh etc. filed revision before Divisional …3… Commissioner, Kangra against the order dated 3.7.1989 which was dismissed on 30.3.1992. Dhian Singh etc. assailed order dated 30.3.1992 which was allowed by Financial Commissioner (Appeals) on 22.9.1994, the orders of revenue officers were set aside and the Assistant Collector 1st Grade, Dehra was directed to prepare fresh mode of partition and pass final order in the case respecting the possession of parties which existed on the date of application of partition i.e. in the year 1976. The respondents No.1 to 3 challenged the order dated 22.9.1994 passed by Financial Commissioner (Appeals) in CWP No.113 of 1995 which was partly allowed by learned Single Judge on 1.8.2003, as noticed above. The learned Single Judge directed Assistant Collector 1st Grade Dehra to proceed with the partition proceedings after the stage of mode of partition and decide the same in accordance with law. The judgment dated 1.8.2003 has been assailed by Dhian Singh etc. in the present appeal. 5. We have heard learned counsel for the parties and gone through the record. Mr.K.D.Sood, learned counsel for the appellants, has submitted that mode of partition dated 16.5.1980 was approved and sanctioned without notice and in absence of the appellants by Assistant Collector 1st Grade which had caused serious prejudice to the appellants. The Financial Commissioner (Appeals) has closely gone into the …4… matter under Section 17 of the H.P. Land Revenue Act, 1954 (for short ‘the Act’) and thereafter set aside the mode of partition and directed the Assistant Collector 1st Grade to partition the land. The order dated 22.9.1994 passed by Financial Commissioner (Appeals) is just, equitable and in accordance with law, the learned Single Judge has erred in setting aside the order dated 22.9.1994 vide which the Financial Commissioner (Appeals) had set aside mode of partition. Ms.Jyotsna Rewal Dua, learned counsel for respondents No.1 to 4, has submitted that Dhian Singh accepted the mode of partition, he did not assail mode of partition order. He had only assailed final order of partition. In these circumstances, Financial Commissioner (Appeals) vide order dated 22.9.1994 has erred in setting aside the mode of partition order of Assistant Collector 1st Grade. She has submitted that the learned Single Judge has remanded the case to Assistant Collector 1st Grade to proceed beyond the stage of mode of partition order and in the facts and circumstances of the case no fault can be found with the impugned judgment. 6. It is admitted case of the parties that mode of partition was prepared on 27.2.1980 and ultimately approved and sanctioned on 16.5.1980 by Assistant Collector 1st Grade and the final order of partition was …5… passed on 1.4.1981. Dhian Singh on 10.2.1982 filed appeal against the final order of partition dated 1.4.1981 which was accepted by Collector Dharamshala on 5.7.1982 and the case was remanded to Assistant Collector 1st Grade to decide the case in accordance with law. The perusal of order dated 5.7.1982 would show that Dhian Singh raised no grievance before the Collector with respect to preparation of mode of partition on 27.2.1980 and order dated 16.5.1980 approving and sanctioning the mode of partition. The order dated 5.7.1982 was assailed by Sher Singh before Divisional Commissioner who dismissed the appeal on 22.8.1986. The Divisional Commissioner in the order dated 22.8.1986 had observed that the Collector had not disturbed the mode of partition and the same is final for all intents and purposes. The Assistant Collector 1st Grade vide order dated 6.11.1987 upheld the final order of partition dated 1.4.1981, the possessions have already been delivered to the parties. Dhian Singh and others for the first time filed appeal against the mode of partition and final order of partition dated 6.11.1987 on 15.2.1988 which was dismissed on 3.7.1989. The Collector in the order dated 3.7.1989 had observed that the limitation for filing the appeal against the mode of partition is 30 days, the appeal was not filed against the mode of partition within …6… the period of limitation. The order dated 3.7.1989 passed by Collector was upheld by Divisional Commissioner in revision on 30.3.1992. The Divisional Commissioner in the order dated 30.3.1992 noticed the order dated 22.8.1986 of his predecessor vide which mode of partition was held final for all intents and purposes as it was never challenged. The order dated 30.3.1992 was assailed before the Financial Commissioner (Appeals) under Section 17 of the Act. The Financial Commissioner quashed the orders dated 22.8.1996, 30.9.1992 (sic 30.3.1992) of Divisional Commissioner, 3.7.1982 (sic 5.7.1982) of Collector Dharamshala, 5.7.1989 (sic 3.7.1989) of Collector Dehra, 1.4.1981, 6.11.1987 of Assistant Collector 1st Grade, Dehra and order dated 27.2.1980 of Assistant Collector 2nd Grade, Dehra. The Assistant Collector 1st Grade Dehra was directed to prepare a fresh mode of partition and pass final order in the case. The Financial Commissioner (Appeals) had not set aside the order dated 16.5.1980 of Assistant Collector 1st Grade approving and sanctioning mode of partition. 7. It has been submitted on behalf of the appellants that learned Single Judge has erred in directing the Assistant Collector 1st Grade to proceed from the stage of mode of partition. It has also been submitted that …7… learned Single Judge should not have modified the order and directions given by the Financial Commissioner. The appellants had accepted the order dated 16.5.1980 of Assistant Collector 1st Grade approving and sanctioning mode of partition, they never assailed in appeal order dated 16.5.1980 within the period of limitation, therefore, later on in the appeal against final partition order they could not assail the mode of partition order dated 16.5.1980. The mode of partition order dated 16.5.1980 had attained finality which could not have been disturbed in appeal or revision against the final order of partition. The Financial Commissioner had remanded the matter to Assistant Collector 1st Grade. The Financial Commissioner had also not set aside the approved and sanctioned mode of partition order date 16.5.1980. Therefore, learned Single Judge was justified in directing the Assistant Collector 1st Grade to proceed from the stage of mode of partition. In these circumstances, appellants have failed to make out any case for interference. 8. No other point was urged. 9. The result of above discussion, appeal fails and is accordingly dismissed with no order as to costs. The case is quite old, therefore, the Assistant Collector 1st Grade is directed to decide the case in six months from the date of …8… receipt of certified copy of this judgment. The parties through counsel are directed to appear before the Assistant Collector 1st Grade on 31.12.2008. (Kuldip Singh),J. (Jagdish Bhalla), C.J. December 03, 2008 (soni)