Prakash Chand v. State of H.P & Anr.

Mr. Rohit Sharma and Mr. Anuj Gupta, Advocates. For the Respondents: Ms. Menka Raj Chauhan, Deputy Advocate General, for respondent No.1. Mr. Dinesh Bhanot, Advocate, respondent No.2. ------------------------------------------------------------------------------------ Jyotsna Rewal Dua, Judge Petitioner’s appeal against the final partition order passed by the Assistant Collector First Grade, Ramshahar, District Solan, H.P. was dismissed by the Sub Divisional Collector Nalagarh, District Solan,

16.12.2022. Revision Petition moved by the petitioner against the aforesaid order was also dismissed by the Financial Commissioner (Appeals) Himachal Pradesh on 1Whether reporters of print and electronic media may be allowed to see the order? Yes. 2

26.09.2023. Petitioner seeks to assail the above orders in this writ petition. 2 Respondent No.2 moved an application in the year 2019 for partition of land held by him jointly with the petitioner. Following mode of partition was sanctioned on

07.01.2019 by the assistant Collector First Grade, Ramshahar, District Solan:- 3 The case was then processed further by the Revenue Authorities for partitioning the joint land in accordance with the sanctioned mode of partition. The partition as carried out on spot was objected to by the petitioner on the ground that the same was not in consonance with the sanctioned mode of partition; That Khasra No. 94 abutting the road was required to be partitioned in accordance with sanctioned mode of partition in equal shares, but out of this khasra number in all measuring 7-12 bighas, petitioner has been allotted the land in partition only to the extent of 1-8 bighas, whereas, the remaining 6-4 bighas of land has been given to respondent No.2. Petitioner’s objections were brushed aside by the Assistant Collector Frist Grade Ramshahar and final partition order was passed on 17.02.2021. Feeling aggrieved, petitioner preferred appeal under Section 14 of the Himachal Pradesh Land Revenue Act, 1954. The appeal was turned down on 16.12.2022. Petitioner’s Revision Petition was also dismissed by the Financial Commissioner (Appeals) Himachal Pradesh on 26.09.2023.

Heard learned counsel for the parties and considered the case file. 4

The Appellate as well as the Revisional Authority have concluded that in terms of mode of partition, existing possession of the parties had to be kept intact. The possession was to be disturbed only in case a co-sharer was found in possession of more land than his share in that quality of land. Petitioner did not claim respondent No.2 to be in possession of more than his share, therefore, dispossession of respondent No.2 from Khasra No. 94, on which he was in possession, would amount to violation of Clause 3 of the mode of partition (reproduced above in para-2). Apparently, the Appellate as well as Revisional Authority have not given due credence to Clause 9 of sanctioned mode of partition, in terms of which, the joint land abutting the road had to be partitioned in accordance with shares of the parties. Once there is a specific and separate Clause in the sanctioned mode of partition governing partition of the joint land abutting the road side, the same was required to be looked into and considered by the Authorities in deciding petitioner’s objections relating to partition of Khasra No.94. Petitioner’s contentions are that Khasra No. 94 measuring 7-12 bighas, abuts the road; Out of this area, 6-12 bighas has been allotted to 5 respondent No.2 only on the ground that he was in possession of this area prior to the carrying out of partition. The impugned orders have only acknowledged Clause 3 of the mode of partition. Petitioner’s contention is that in view of Clause 9 of the mode or partition, he is required to be given 50% share in Khasra No. 94 that abuts the road. That petitioner is ready and willing to leave proportionate land from the other joint holdings allotted to him. These aspects have not been delved led into by the authorities in the impugned order.

In view of above, I find merit in the instant writ petition. The same is allowed. Impugned order dated

26.09.2023 (Annexure P-6) passed by the Financial Commissioner (Appeals) Himachal Pradesh, is quashed and set aside. The Financial Commissioner (Appeals) Himachal Pradesh, is directed to consider and decide petitioner’s Revision Petition afresh in accordance with law. Parties through their learned counsel are directed to appear before the Financial Commissioner (Appeals) Himachal Pradesh, on 19.06.2026. Pending miscellaneous application(s), if any, also to stand disposed of. May 29, 2026 R.Atal Jyotsna Rewal Dua Judge