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2001 DIGILAW 214 (HP)

DEV KUMAR v. RAJ KUMAR

2001-08-28

S.S.NEGI

body2001
ORDER S.S. Negi, IAS, FC. - This is an appeal filed by Shri Dev Kumar appellant against the order dated 18.12.1997 passed by the Commissioner, Shimla Division in revenue appeal No. 182/97 whereby the appeal of the present appellant was dismissed. 2. The facts of the case in brief are that the present responded Shri Raj Kumar made an application to the Settlement Collector Shimla Division for correction of revenue entries in the revenue record stating therein that father of appellant Shri Krishan Kumar was over in possession of land kita 8 measuring 1-70-23 Hect, Khata/Khautani No. 186/422 in village Telga, Tehsil Chirgaon, Distt. Shimla to the extent of 1/2 share but Shri Dev Kumar had been wrongly shown in possession of the land in settlement record and therefore requested that the land be shown in self cultivation. 3. The learned Settlement Collector after going through the case and making necessary enquiries into the matter ordered that the entries have since been altered behind the back of the owner, therefore the made be recorded in self-cultivation of the parties vide order dated 28.7.1997. 4. Against this order Shri Dev Kumar filed an appeal before the Divisional Commissioner Shimla on the grounds that the impugned order of the Settlement Collector below was contrary to law and facts for the reasons that the appellant was not afforded reasonable opportunity to defend his case and that the matter in dispute was sub-judge before the Sub Judge Rohru and the Additional District Judge Shimla who had passed an injunction against the present respondent and other legal heirs of Shri Krishan Kumar restraining them from interfering on the possession of the land. It was therefore, prayed that the case was pending trial in the said Court as such the learned Settlement Collector ought not to have passed the impugned order. 5. The learned Commissioner after hearing both the parties and going through the record, dismissed the appeal vide order dated 18.12.1997. 6. Feeling dis-satisfied with this order of the learned Commissioner dated 18.12.1997, the appellant has filed the present appeal before us. 7. The appeal being second in succession at the instance of Shri Dev Kumar, the first being before the Commissioner, Shimla Division, is not maintainable as the order passed confirming the order in appeal is not appealable further. 6. Feeling dis-satisfied with this order of the learned Commissioner dated 18.12.1997, the appellant has filed the present appeal before us. 7. The appeal being second in succession at the instance of Shri Dev Kumar, the first being before the Commissioner, Shimla Division, is not maintainable as the order passed confirming the order in appeal is not appealable further. But, in the interest of justice this appeal is treated as revision to scrutinize whether there is or not any material illegality or irregularity in the proceedings concluded by the lower Courts. 8. The learned Counsel for petitioner in his written arguments has submitted that the land in question is in possession of the petitioner since 1968. Petitioner paid the land revenue, throughout and settlement records correctly reflected his possession on the land. He has urged that the Settlement Collector wrongly ordered to delete his name from the column of possession and ordered to record the land in self cultivation. He has further submitted that he has become owner by way of adverse possession. 9. The submissions have been opposed by the Counsel for respondent in his written arguments wherein he has submitted that the petitioner Dev Kumar is the real brother of his father and looked after the aforesaid land in the capacity of Chowkidar and he had no statute to be recorded in possession of the land. It has been submitted that the land was in possession of Shri Krishan Kumar, his father and therefore, the lower courts have rightly ordered the same to be recorded in self cultivation. 10. On consideration of submissions made on behalf of both the sides and perusal of records it is an admitted position that the petitioner is the real brother of the father of respondent Krishan Kumar who purchase the said land in the sixties. The contention of the respondent that the petitioner looked after the land in question in the capacity of Chowkidar, and. The contention of the respondent that the petitioner looked after the land in question in the capacity of Chowkidar, and. the claim of the petitioner that he possesses the land adversely to the aforesaid Krishan Kumar/Raj Kumar seem to suggest that the land is perhaps in possession of petitioner which fact also seems to be substantiate from the field reports available on case file, but the nature of claim petitioner has raised with regard to ascription of title by way of adverse possession is not maintainable in this court, the Civil Court is the appropriate forum to entertain such a claim. The petitioner claims to have filed a suit in the Civil Court, which has not been denied by the respondent. Therefore the matter has been rightly raised by the parties in the competent court i.e. Civil Court. Under these circumstances the Settlement Collector has rightly ordered the entries to reflect status quo i.e. entries prevailing the pre-settlement and record the learned Commissioner has rightly affirmed the order. There is no justification to interfere with the impugned orders. Consequently, the revision petition is dismissed. 11. Orders be communicated to the parties and case file of this Court be consigned to the record room after due completion.