Ram Saran vs Rameshwari Devi and others

Chander Bhusan Barowalia, J.

1.The present petition, under Article 227 of the Constitution of India, is maintained by the petitioner, against the order dated 22.04.2017, passed by

learned Assistant Collector 1st Grade, in case No. 21/9 of 2016 and the order dated 09.08.2017, passed by the Collector, Ghumarwin Sub-Division,

District Bilaspur, H.P., in case No. 42/2 of 2017.

Briefly stating facts giving rise to the present petition are that the petitioner purchased a land, comprised in Khasra No. 66, situated at Village

Kalyana, Pargana Tiun, Tehsil Ghumarwin, District Bilaspur, H.P., vide registered sale deed No. 809/2014 and vide order dated 02.12.2014, passed by

learned Assistant Collector, 2nd Grade, Ghumarwin, got mutation of the said land attested in his favour, vide mutation No. 30. Subsequently, on

15.12.2014, respondent No. 1 filed an appeal against the said order before the learned Collector, Sub-Division, Ghumarwin. During the pendency of

the appeal, the petitioner had also moved an application for impleading him as a party in the partition proceedings, which was rejected by the learned

AC 1st Grade, Ghumarwin vide order dated 18.12.2014. On 17.08.2015, the appeal preferred by respondent No. 1 has been allowed and order of

mutation No. 30, dated 02.12.2014 was set aside and the case was remanded back to learned AC 2nd Grade, Ghumarwin to decide the same afresh.

Feeling aggrieved by the said order, the petitioner maintained an appeal before the learned Divisional Commissioner, Mandi, which was allowed and

vide order dated 29.04.2017, mutation No. 30 was confirmed. In the meantime, the petitioner has again moved an application, under Section 126 H.P.

Land Revenue Act and Order 1, Rule 10 CPC to implead him as a party in the partition proceedings No. 21/9 of 2016, which was rejected by learned

AC 1st Grade, Ghumarwin, vide order dated 22.04.2017. The petitioner challenged the said order before the learned Collector, Sub-Division

Ghumarwin, which was also rejected vide order dated 09.08.2017. Hence the present petition.

I have heard the learned counsel for the parties and have gone through the record carefully.

Learned counsel for the petitioner has argued that the application under Section 126 of H.P. Land Revenue Act and Order 1, Rule 10 CPC was

required to be allowed, however the learned Appellate Authority below has failed to exercise the jurisdiction vested in it and has not impleaded the

petitioner as a party to the partition proceedings. He has further argued that though the revision is maintainable, but that is not efficacious remedy, as

the partition proceedings are to be finalized after making the petitioner a party to the same.

On the other hand, learned counsel for respondent No. 1 has argued that the revision petition is maintainable before the learned Financial

Commissioner, not before this Court. Further the petitioner has no right to maintain an application and become a party, as the partition order was to be

finalized on the date the application was moved to become party and now the order has attained finality, as the petitioner was satisfied with the order

earlier, therefore the present petition may be dismissed, as not maintainable.

In rebuttal, learned counsel for the petitioner has argued that to meet the ends of justice, the present petition is required to be allowed, as revision

before the learned Financial Commissioner is not an efficacious remedy.

At this stage, this Court finds that the petitioner is one of the co-sharer after he purchased the land. The case of the respondent is that he could get

the land from the share of the co-sharer from whom he purchased the land after the partition, but he cannot join the partition proceedings, as the same

are at the final stage. The only question which is to be determined at this stage is whether the petitioner is one of the co-sharer or he is a purchaser

from one of the co-sharer. Admittedly, the petitioner purchased the land and become one of the co-sharer before the partition proceedings are

finalized. In these circumstances, this Court finds that had the partition proceedings been finalized and thereafter the petitioner purchased the land, he

could not have become one the co-sharer and interested in a partition. However in the instant case, he purchased the land and became one of the co-

sharer before the land was actually partitioned. In these circumstances, there is no other conclusion, but that the petitioner is interested as a party in

the partition proceedings.

Now coming to the arguments advanced by the learned counsel for the respondent that revision petition is maintainable before the learned Financial

Commissioner and present petition is not maintainable, this Court finds that the arguments of the learned counsel for the respondent has a force, as the

petitioner could have agitated his point before the learned Financial Commissioner, in spite of filing the present petition, but if at this moment, the

petitioner is directed to go to the learned Financial Commissioner, it will result into delay in the partition proceedings. However, learned counsel for the

respondent has vehemently argued that the revision petition is only alternative remedy, this Court also finds that the revision petition cannot be said to

be inefficacious remedy. So, this Court comes to the conclusion that before availing the remedy before this Court, the petitioner should have

maintained a revision petition before the learned Financial Commissioner, as provided under the Rules and as argued by the learned counsel for the

respondent. Resultantly, the present petition is disposed of by ordering that the petitioner will be at liberty to approach the learned Financial

Commissioner and in case, he approaches learned Financial Commissioner against the impugned order within a period of 60 days from today, the

partition proceedings will not be finalized within the said period and those will follow the order of learned Financial Commissioner. The time spent

before this Court will be deductable as per the law for calculating limitation to maintain revision petition before the learned Financial Commissioner and

the learned Financial Commissioner will dispose of the revision petition on merits, if the same is presented before it within 60 days from today.

The petition, so also pending miscellaneous application(s), if any, shall stand(s) disposed of accordingly.