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AJAY MOHAN GOEL, J. (ORAL) –

By way of this writ petition, the petitioner has, inter alia, prayed for the following relief:-

“(i) That this Hon'ble Court may kindly be pleased to quash and set aside impugned orders dated 04.08.2016 (Annexure P-4), 25.11.2016 (Annexure P-6), 06.11.2019 (Annexure P-8), 03.12.2021 (Annexure P-10), passed by 1Whether reporters of the local papers may be allowed to see the judgment? the Ld. Authorities below and Respondent no.4 may be directed to repartition the land after adopting proper procedure of law and after duly meeting with the objections raised by the petitioner.”

2. Brief facts necessary for the adjudication of this petition are that on an application filed by the private respondent herein, for the partition of the land jointly owned by the parties, a mode of partition was prepared. It is undisputed that this mode of partition was not assailed by the petitioner. Thereafter, the instrument of partition was prepared and feeling aggrieved, the petitioner assailed the same before the Court of learned Assistant Collector, 1st Grade, Fatehpur. The objections of the petitioner against the instrument of partition were dismissed on 04.08.2016, vide Annexure P-4. This order was challenged by the petitioner by way of an Appeal before the learned Sub-Divisional Collector, Fatehpur, inter alia, on the ground that the mode of partition was not carried out in terms of the procedure prescribed for preparation thereof and as per Clause 6 of the mode of partition, abadi/constructed area should have been allotted to Tamirkarta, but the two houses of the appellant were kept joint with the respondent and this was clear cut violation of the mode of partition. This Appeal was dismissed by the learned Sub-Divisional Collector, Fatehpur, vide Annexure P-6, dated 25.11.2016, by returning the following findings:-

“After hearing the arguments of both the Ld counsels, perusal of the case file and the documents attached therein, I arrive at the conclusion that the Mode of partition has been framed by the lower Court after hearing both parties. The appellant did not objected to non preparation of list of possession at that stage. Further the appellant did not mentioned this point in the earlier appeal before Ld Collector Sub Division Jawali. It is relevant to mentioner here that Ld AC 1st Grade visited the suit land twice and the appellant remained associate throughout. In view of this the contention of the appellant is not valid hence the appe deserves to be rejected. The constructed portion and path has rightly been kept in joi possession as mentioned in the Mode of Partition.”

3. The Revision filed by the petitioner against the said order before the learned Divisional Commissioner, Kangra, also met the same fate in terms of order dated 06.11.2019, Annexure P-8 and the subsequent Revision preferred under Section 17 of the H.P Land Revenue Act, before the learned Financial Commissioner, was also dismissed by the said Authority in terms of Annexure P-10, dated 03.12.2021.

4. Fearing aggrieved, the petitioner has filed this writ petition.

5. Learned Senior Counsel for the petitioner has argued that the orders passed by the Authorities are perverse and not sustainable in the eyes of law for the reason that the Authorities erred in not appreciating that as the mode of partition was not carried out in consonance with the provisions provided for carrying out the mode of partition, this inherent defect therein, could not have been brushed aside on the ground that the mode of partition was not assailed by the petitioner. He further submitted that alternatively Authorities erred in not appreciating that even the subsequent partition, which was carried out by the Authorities, was bad in law, as it was not in consonance with the mode of partition. He specifically referred to the grounds of appeal and submitted that said issue raised by the petitioner, was not addressed by any of the Authorities in the impugned orders.

6. On the other hand, learned Senior Counsel appearing for the private respondent submitted that in light of the fact that the mode of partition was not assailed by the petitioner, he is now estopped from laying any challenge thereto. He further submitted that the mode of partition culminated into final partition and this final partition has been given effect to in terms of Rapat No.5, dated 12.06.2017. He further submitted that it is incorrect on the part of the petitioner to state that the final partition was not in consonance with the mode of partition. He stated that the final partition was strictly in terms of the mode of partition and this is apparent and evident from the orders passed by the Authorities and, therefore, as there is no merit in the present petition, the same dismissed.

7. I have heard learned Senior Counsel for the parties and have also gone through the orders under challenge.

8. The facts as have been mentioned by me hereinabove, are not much in dispute. It is a matter of record that the mode of partition that was prepared by the Revenue Authorities, was not assailed by the petitioner and challenge was laid only to the final partition. It is settled law that until and unless the mode of partition is assailed by a party, it is precluded from assailing the same subsequently as well as the instrument of partition on the said ground. As far as the contention raised by learned Senior Counsel that the final partition was not in consonance with the mode of partition and this aspect of the matter was not taken into consideration by the Authorities concerned, a perusal of the orders passed by the Authorities demonstrate that they have dealt with this aspect of the matter also. To illustrate this fact, this Court is referring to the order passed by the learned Financial Commissioner, in Para-8 whereof, learned Financial Commissioner has observed as under:-

“8. As far as the issue regarding partition of land in contravention of the terms of mode of partition is concerned, the record of the trail court shows that the land in dispute has been partitioned in accordance with the share of parties after following the terms and condition of the mode of partition. The record also reveals that the AC 1st Grade has personally visited the spot in order to resolve the objections raised by the petitioner during the partition proceedings. The partition has now been finalized by framing the instrument of partition and petitioner has failed to point out and substantiate any specific irregularity and illegality in the orders of the courts below.”

9. Therefore, it is incorrect on the part of the petitioner to state that the final partition was not in consonance with the mode of partition or this issue was not dealt with by the Authorities. Not only the Authorities have dealt with the issue, but they have returned concurrent findings against the petitioner.

10. At this stage it is pertinent to mention that this Court in exercise of its power of judicial review, is not to act as an Appellate Authority and re-appreciate the evidence. This Court has to look into procedural infirmities, if any, coupled with perversity, if any, that can be demonstrated by the parties concerned. In the present case, no procedural infirmity in the course of the adjudication by either of the Authorities, has been found. Further, from the perusal of the orders under challenge, this Court finds no perversity therein, because the orders that have been passed by the Authorities are based on the records of the case and the findings returned are clearly borne out from the record. The findings returned by the learned quasi-judicial Authorities that the mode of partition was not assailed by the petitioner, is a matter of record. The findings returned by the Authorities that the final partition was in consonance with the mode of partition is also evident from the fact that it is mentioned in the orders that Assistant Collector, 1st Grade, personally visited the site to resolve the objections raised by the petitioner during the partition proceedings and it could not be demonstrated that these findings were perverse or not borne out from the record.

11. Therefore, in the light of the above observations, as the Court finds no merit in the present petition, the same is dismissed. Interim order, if any, stands vacated. Pending miscellaneous application(s), if any, also stand disposed of accordingly.

Petition dismissed.

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