IMPORTANT POINT
An unchallenged mode of partition results in the finality of the partition instrument, making subsequent challenges to the instrument unsustainable.

JUDGMENT :

Ajay Mohan Goel, J.

By way of this petition, the petitioners have, inter alia, prayed for the following reliefs:-

“i. That writ in the nature of certiorari may very kindly be issued and impugned order Annexure P-7, Annexure P-6 may very kindly be quashed and set aside.

ii. That writ in the nature of mandamus may very kindly be issued by directing the respondents authorities not to act upon in furtherance of impugned order dated

20/11/2023 i.e. Annexure P-7.”

2. Brief facts necessary for the adjudication of the present petition are that the private respondents herein filed an application for partition of the property which culminated into preparation of mode of partition, dated 17.10.2011 (Annexure P-2), which was assailed by the present petitioners before Collector, Theog, District Shimla, H.P. and in terms of decision dated 27.11.2012 (Annexure P-3), the appeal filed by the present petitioners was allowed in the following terms:-

“I have carefully gone through the entire averments placed before me and am convinced that the Court below had not complied with the orders of this Court passed on dated 31.12.2008. He passed the impugned orders in haste. Therefore, I accept these appeals and set aside the impugned orders dated 17-10-2011. These cases are remanded back to Ld. A.C. 1^st Grade, Theog with the direction to pass the fresh orders after taking into consideration the provisions of Para14(3) of H.P. Land Records Manual. Also, Ld. A.C. 1^st Grade is directed that opportunity of being heard the interested parties. A copy of order be placed on these three files and a copy of order be sent to A.C. 1^st Grade, Theog for strict compliance.

3. Thereafter, post remand, Assistant Collector, 1^st Grade Theog again passed order dated 06.09.2016 (Annexure P-4), which reads as under:-

“Sh Tulsi Ram and others have filed three partition applications with respect to the land situated in Chaks namely Chack Mandla, Chak Shai, Chak Tiyali, which are numbered as 6/05, 7/05, 8/05. In all these cases mode of partition were framed on 20.01.2005 by my predecessor and these orders were assailed before the Collector by the Respondent and these cases were remanded back mentioning following quotations:-

1988 Civil Court Cases 138 (Allahabad High Court Lucknow Bench) titied R.K.Mathur Versus Rajinder Mohan Mathur and another. "Family Settlement amongst its members neither requires to be reduced into writing nor the registration."

Except these some other findings of the Hon'ble Courts regarding family settlement or arrangement has been recorded in the order dated 31.12.2008 by the Collector and it has been affirmed that family settlement and private partition are two different things and observing further that mere not reporting the matter to the Patwari concerned could not become reasonable grounds for ignoring the rights of appellants.

Second time the Mode of Partition was framed on 17.10.2011 by the Assistant Collector Grade-l and the same was again assailed before the Ld. Collector and the matter has again been remanded by ld. Collector on 27.11.2012 with the direction to pass fresh orders after taking into the consideration the provisions of Para 14(3) of H.? Land Records Manual and opportunity of being heard be afforded to all the interested parties. Id Collector has also held that the MOP has not been passed as per orders dated 31.12.2008 (as per family Settlement/family partition).

In the mean time one of the respondent Sh Ashok Kumar, S/o Ramji bass submitted an application before this Court with the contention that Fard Kabja is not as his name is not appearing in the Revenue Record. This application has been posed of by my predecessor in office vide order dated 10.09.2015 with detailed reasons that he is the son of co-sharer and there is no documentary proof on record regarding the separate possession of Ashok Kumar in the record of right i.e Jamabandi and thus it was not possible for the Field Kanungo to mention the separate possession of Ashok Ku