Higher appellate authorities cannot consider new facts/pleas not raised before first appellate authority; no interference with lower order absent proven perversity.

JUDGMENT :
Ajay Mohan Goel, Judge

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

“i) That the dated 15-11-2016 impugned order (ANNEXURE P-5) may kindly be quashed by issuing the Writ of Certiorari.

ii) That the recommendations of the Divisional Commissioner, Mandi vide order dated 23-09-2014 (Annexure-P/4) may kindly be set-aside and the order passed by the Ld. Sub-Divisional Collector Ghumarwin may kindly be affirmed in the interest of law and justice.”

2. Brief facts necessary for the adjudication of this petition are that petitioner Dalip Singh applied for the partition of land that was jointly owned by the parties situated in Village Massour, Pargna, Tiun, Tehsil Ghumarwin, District Bilaspur, before Assistant Collector 1st Grade, Ghumarwin. The claim was allowed by Assistant Collector 1st Grade after summoning and hearing the parties and a mode of partition was framed. The Court stands informed that a Review was filed against the mode of partition by the private respondents herein, but the same was dismissed. Thereafter, after the mode of partition attained finality, partition was carried out on the spot through the Field Agencies and the same was confirmed by Assistant Collector 1st Grade on 01.03.2008. The private respondents herein assailed order dated 01.03.2008 by way of an Appeal, inter alia, on the ground that the appellant was not heard and possession of the parties was disturbed as the partition on the spot was not done as per the mode of partition. The Collector, Sub-Division, Ghumarwin, in terms of order dated 24.11.2009, Annexure P-3, dismissed the Appeal by holding that in terms of the report of the Field Agency dated 05.11.2007, the appellant was not only present but had also consented thereto in terms of the statement attached with the report. The Authority further held that this demonstrated that the appellant was adopting delaying tactics and was chronic in raising objections despite having consented before the Revenue Field Agencies as far as partition was concerned.

3. This order was assailed further by the respondents by way of an Appeal before Learned Divisional Commissioner, Mandi. In terms of order dated 23.09.2014, Annexure P-4, learned Divisional Commissioner recommended the Appeal to the Financial Commissioner for setting aside the order of the lower Court and remand the case to Assistant Collector 1st Grade. The relevant findings returned by the learned Divisional Commissioner are quoted hereinbelow:-

“I have heard both the parties at length and gone through the record placed in case file minutely. Perusal of record reveals that the petitioner has agitated in para No. 2 of the grounds taken in revision petition that petitioner No. 1 and respondent has also got land by filing a suit in civil court and that the mutation of same has been attested of Khasra No. 103. It has further been averred that this land was to be excluded from the present partition proceeding. In this regard the the order Ld. Additional District Judge Ghumarwin in case No. 54/13 titled as Harnam Singh etc, Versus Fulla Devi etc passed on 15.11.2006 was perused and it is found that Khasra No. 103 area measuring 0-3 Bigha has been given to one Smt. Fulla Devi to the tune of ½ share and remaining ½ share of this Khasra No. has been given to Shri Harnam Singh, Dalip Singh, Hakıni Devi and Shri Keshav Singh. The order dated 1.3.2008 of the Assistant Collector 1 Grade Ghumarwin shows that this entire Khasra No. has been allotted to Shri Harnain Singh, Keshav Singh and Smt. Hukmi Devi, whereas ½ share of it was to go to Smt. Fullan Devi meaning thereb