Point of Law: Partition of land - Power to call for, examine and revise proceedings of Revenue Officers - In exercise of revisional jurisdiction by the Commissioner, he cannot modify or reverse orders of his subordinate revenue officers and such powers also vests in Financial Commissioner.

JUDGMENT :

Satyen Vaidya, J.

Since the common question of law and facts are involved in both these appeals, therefore, the same are being decided by this common judgment.

2. By way of these Letters Patent Appeals, the appellant has assailed the judgments dated 20.8.2008 passed by learned Single Judge of this Court in CWP No. 633 of 2006 and CWP No. 634 of 2006

BRIEF FACTS :

3. Petitioner filed two separate applications under Section 123 of the Himachal Pradesh Land Revenue, Act (hereinafter referred to as the ‘Act’ in short) for partition of land comprised in Khasra Nos. 2, 3, 74, 76 and 101 situated in Tikka Chalbara, Tappa Nauhangi, Tehsil Nadaun, District Hamirpur, H.P. and land comprised in Khasra Nos. 171 and 174 situated in Tikka Lahar Nauhangi, Tehsil Nadaun, District Hamirpur before the Assistant Collector 1st Grade, Nadaun in 1991. Both the cases i.e. 36/91 & 44/91 were proceeded simultaneously. The mode of partition were framed on 23.05.1992 and final partition were sanctioned by Assistant Collector 1st Grade, Nadaun on 22.04.1994

4. Predecessors-in-interest of respondents No. 2 to 4 and respondents No. 5(i) to (viii) filed separate appeals i.e. 10 of 1994 & 27 of 1993 before the Collector Hamirpur under Section 14 of the Act against the orders dated 22.04.1994 passed by Assistant Collector 1st Grade, Nadaun. The appeals were dismissed by the Additional District Magistrate, Hamirpur exercising the powers of Collector under the Act on 01.03.1995. Sh. Shambu and Sh. Sita Ram, the predecessors-in-interest of respondents No. 2 to 4 and respondents No. 5(i) to (viii) filed revision petition Nos. 65 of 95 & 64 of 95 under Section 17 of the Act before Commissioner, Mandi Division against the order dated 01.03.1995 passed by Collector, Hamirpur. Commissioner Mandi Division dismissed the revision petition Nos. 435/96 & 436/96 on 22.08.1996. Sh. Shambu and Sh. Sita Ram filed further revision before the Financial Commissioner (Appeals) Himachal Pradesh, against the order dated 22.08.1996 passed by Commissioner, Mandi Division. The Financial Commissioner (Appeals) accepted the revision petitions on 05.05.2006 and directed the Assistant Collector 1st Grade to keep in view classification of land and valuation thereof while finalizing the partition proceedings to ensure that justice is done to both the parties.

5. Appellant assailed the orders dated 05.05.1996 passed by the Financial Commissioner (Appeals) before this Court by filing CWP No. 633 of 2006 and CWP No. 634 of 2006 under Articles 226/227 of the Constitution of India. Learned Single Judge of this Court dismissed both petitions vide separate judgments dated 28.08.2008 with the direction to the Assistant Collector 1st Grade to carry out the partition strictly as per mode of partition drawn on 23.05.1992, within a period of 10 weeks from the date of judgments.

6. The appellant has laid challenge to the judgment passed by learned Single Judge mainly on the following grounds :

(a) Scope of interference in the writ petition was to examine only ground as set-up in the writ petition and there was no scope to travel beyond. Learned Single Judge could have examined only the legality and validity of the order passed by the Financial Commissioner.

(b) Learned Single Judge has taken a wrong view of the whole matter, in view of the fact that the parties had raised no objection before Assistant Collector 1st Grade on 22.04.1994 and presumption was attached to such orders.

(c) The learned Single Judge could not have gone into partition proceedings and his jurisdiction was confined only to decide the question as to whether the order of Financial Commissioner was lawful or not.

7. At the time of hearing of the matter, learned Senior Advocate representing the appellant has canvassed the preposition that the second revision under the Act was not maintainable.

8. Per contra, learned counsel for the respondents has made specific submissions that writ petition filed by the appellant was not maintainable a