SURAT RAM Vs. DIWAN CHAND THROUGH LRS.

JUDGEMENT

(1.) THESE are two revision petitions of which the first one i.e. revision petition No. 330/98 has been filed against an order dated 12.11.98 passed by the Divisional Commissioner, Shimla in revision petition No. 100/98 while the second, i.e. revision petition No. 322/98 has arisen from a recommendation dated 12.11.1998 made by the Divisional Commissioner, Shimla in revision petition No. 106/98. The facts, points at issue and the parties in these two revision petitions being the same, both are being disposed off vide this single order.

(2.) BRIEF facts of the case are that the parties in dispute are owners in possession of land situated in revenue villages Bahli, Bhuttidhar and Pamlai in Tehsil Kumarsain, District Shimla. Shi. Surat Ram applied for partition of the said land held in joint ownership before the Assistant Collector 1st Grade, Kumarsain. During the proceedings, Shi. Diwan Chand and Ors. filed a statement before the Assistant Collector that a private partition had taken place between the parties in the year 1955 and accordingly, the parties are in exclusive possession of the areas with them and they have invested in raising orchards etc. separately. In the partition applications pertaining to revenue villages Bahli and Pamlai. the Assistant Collector, 1st Grade held on 13 10 1995 that since the parties have raised a question of title on the basis of an unregistered document which can not be brushed aside simply because it is unregistered, the same has to be adjudicated upon by a Court of competent jurisdiction. Shri Surat Ram filed two appeals against this order of the Assistant Collector before the Sub Divisional Collector, Rampur Bushehar. In the meanwhile the third application for partition pertaining to revenue village Bhuttidhar was marked by the Assistant Collector 1st Grade to the Assistant Collector 2nd Grade for framing mode of partition. The plea of adverse possession was taken up before the Assistant Collector 2nd Grade who, after examining the document of private partition observed that the same has no reference to the land under partition and hence he rejected the plea of title and proceeded to frame the mode of partition on 11.10.1994. The Assistant Collector 1st Grade accepted the mode of partition on 20.8.1996 after observing that the parties never sought confirmation of the purported private partition under Section 145 of the H.P. Land Revenue Act, 1954. Shri Diwan Chand and others felt aggrieved with this order of the Assistant Collector, 1st Grade and they too filed an appeal before the Sub Divisional Collector, Rampur Bushehar. The learend Sub Divisional Collector decided all the three appeals vide a common order dated 19 3 1998 holding that no question of title is involved in the cases. He therefore, set aside the order of the Assistant Collector 151 Grade passed on 13 10 1995 relating to villages Bahli and Pamlai wherein the latter had held that a question of title was involved which the parties should get settled from a Court of competent jurisdiction. The learned Collector upheld the order dated 20 8 1996 of the Assistant Collector 1st Grade relating to laud situated in village Bhuttidhar, wherein the latter had held that no question of title was involved. Shri Diwan Chand and others assailed the order of the Collector before the learned Divisional Commissioner, Shimla on the grounds that the parties have executed a private partition in the year 1955 and have been separately and exclusively owning land which they have developed separately and hence a clear question of title was involved in this case. It was averred that they were not afforded opportunity to lead evidence in the matter otherwise they would have proved that the laud in question stood already partitioned. It was contended that Shri Surat Ram had not disputed the factum of private partition before the Assistant Collector, 1st Grade and that the Collector has also committed irregularity and illegality in passing his order. The learned Commissioner, held in both the revision petitions filed by Shri Diwan Chand and others that since the parties had executed a document of private partition and they were in long standing separate record of possession, therefore, a question of title was involved which must be settled by the civil Court. He therefore, set aside the order of the Collector and upheld the order of the Assistant Collector, 1st Grade Kumarsain dated 13 10 1995 qua the land situated in villages Bahli and Pamlai, whereby it had been held that a question of title was involved. At the same time he held that the orders of both the Assistant Collector as well as the Sub Divisional Collector holding that the question of title is not involved qua the land situated in village Bhuttidhar are required to be set aside. He has recommended the matter to this Court for passing of appropriate orders.

(3.) THE learned Counsel for Shri Diwan Chand and others stressed the issue of private partition and stated that the same could not be disturbed by way of partition proceedings being taken up before the Assistant Collector, 1st Grade. Since an issue of title had been raised, this was required to be resolved first before proceedings ahead in the matter.