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2001 DIGILAW 415 (HP)

NAGINDER SINGH v. TARAN SINGH

2001-12-31

S.S.NEGI

body2001
ORDER S.S. Negi, IAS :- This is an appeal filed by Shri Naginder Singh son of Shri Uttam Singh resident of Village Ghuttanpur. Tehsil Paonta Sahib. Distt. Sirmour against the order dated 15.3.1994 passed by the Commissioner Shimla Division in Revenue Appeal No. 45/93 whereby the appeal filed by the present respondent Sh. Taran Singh was accepted. 2. The facts of the case in brief are that on the basis of the judgment delivered the learned Distt. Judge Sirmour on 9.8.1991 in Civil appeal No. 2-N/13 of 1991/90. the Assistant Collector II Grade Paonta Sahib vide mutation No. 279 dated on 10.4.1992 mutated proprietary rights to the extent of l/3rd share of land pertaining to khata No. 9 min and 10 situated in Mauza Ghuttanpur. Tehsil Paonta Sahib. Distt. Sirmour in favour of Shri Taran Singh the present respondent. 3. Against this order of the Assistant Collector Ilnd Grade Paonta Sahib dated 10.4.1992. Shri Naginder Singh the present appellant filed an appeal before the Sub-Divisional Collector. Paonta-Sahib on the grounds that the order under appeal was illegal, without jurisdiction and against the judgment of the civil court and that he had not been afforded any opportunity of being heard while attesting the impugned mutation on 10.4.1992 by the Assistant Collector Ilnd Grade and that he being not a party to the litigation in the Civil Court his rights could not be affected by enforcing the said judgment of the Civil Court. It was averred that according to the civil court judgment no relief could be given to the present respondent Shri Taran Singh alleging that as per the judgment Smt. Mehtab Kaur was held entitled to l/3rd share estate of Uttam Singh subject to the law of limitation and other facts if raised. It was further contended that there was no such decree of the Civil Court on the execution of which the learned Assistant Collector Ilnd Grade could attest the impugned mutation holding the present respondent Taran Singh co-owner to the extent of l/3rd share in the property i.e. estate of Shri Uttam Singh. 4. The learned Collector. Paonta Sahib after hearing both the parties and going through the impugned order, accepted the appeal of the present appellant Sh. Naginder Singh vide his order dated 11.1.1993 and remanded the case to the Assistant Collector Ilnd Grade for decision afresh after hearing all the parties. 5. 4. The learned Collector. Paonta Sahib after hearing both the parties and going through the impugned order, accepted the appeal of the present appellant Sh. Naginder Singh vide his order dated 11.1.1993 and remanded the case to the Assistant Collector Ilnd Grade for decision afresh after hearing all the parties. 5. Aggrieved of this order of the Sub-Divisional Collector Paonta-Sabib dated 11.1.1993. Shri Taran Singh the present respondent filed an appeal before the Divisional Commissioner Shimla on the grounds that the impugned order of Sub-Divisional Collector. Paonta was absolutely wrong and the Assistant Collector below in compliance of judgments of civil court had rightly sanctioned the mutation No. 279 on 10.4.1992 by giving him l/3rd share in the estate of deceased Shri Uttam Singh and that the present appellant Shri Naginder Singh and his brother Shri Sewa Singh had no appeared before Assistant Collector despite proper service to them. 6. The learned Commissioner after hearing the parties and having perused the case records accepted the appeal of present respondent Shri Taran Singh vide order dated 15.3.1994 and set-aside the order of the Sub-Divisional Collector dated 11.1.1993 and upheld the order dated 10.4.1992 passed by the Assistant Collector Ilnd Grade Paonta Sahib in mutation No. 279 of mauza Ghutanpur. 7. It is against this order of the Commissioner Shimla Devision dated 15.3.1994. that Sh. Naginder Singh has filed the present appeal before us. 8. The matter has been heard and the records available on the case file have been perused. 9. It may be pointed out at the outset that the present appeal, being third in succession, first and second since having been filed before the Collector and Commissioner, is not maintainable under section 14 of the H.P. Land Revenue Act. But however in the interest of justice, it was considered appropriate to hear the parties in order to examine the legality and propriety of the proceedings of see if the same could be taken recognizance of. as the revision petition. 10. The learned counsel for the petitioner Naginder Singh has primarily based his arguments on the point that no judgment or decree has any force against him as he was not the party to the proceedings before the Civil Court and the High Court, and therefore the attestation of mutation by the Assistant Collector and affirmation thereof by the learned Commissioner is illegal. The learned counsel for the respondent No. I submitted that the entitlement of the respondent to the property is based on the judgment of civil courts and Honble High Court and the Assistant Collector rightly attested the mutation in his favour. 11. The admitted position of the matter is that petitioner Naginder Singh. Sunder Singh and Sewa Singh were sons of one Uttam Singh and inherited his property in equal shares after his death. After death of Sh. Sunder singh. his wife Mehtab Kaur succeeded to his share. After death of Sunder Singh Mehtab Kaur lived with his real brother Sewa Singh as husband and wife and respondent Taran Singh was born out of their relationship. These facts have been established in the Civil Courts. The Honble High Court in the judgment delivered on 22.12.1997 has pointed out specifically that the parties are agriculturist Sikhs and as per the general custom amongst the agriculturist Sikhs of this region including Punjab and Haryana. on re-marriage with brother of her deceased husband the widow does not forfeit her right to inherit the estate of her deceased husband. Accordingly the Hon"ble High Court held her entitled to the l/3rd share in the estate of Uttam Singh. Respondent No. 1 Taran Singh, who is the son of said Mehtab Kaur was also held entitled to succeed to Mehtab Kaur. In view of the findings of the Civil Courts as affirmed by Honble High Court, respondent Taran Singh has been rightly shown to succeed to the share of Smt. Mehtab Kaur vide the impugned mutation. Therefore the contention that the aforesaid decree and judgment is not binding on the petitioner is not tenable. Consequently revision petition is without any force and is therefore dismissed. 12. Orders be communicated to the parties and the case file of this court be consigned to the record room after due completion. -