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2004 DIGILAW 28 (HP)

SHRI RANJHU v. KEWAL RAM

2004-02-27

body2004
ORDER 1. This revision petition has been filed by the petitioners against an order of the Divisional Commissioner, Mandi dated 27.2.2004 whereby the orders of the Collector, Settlement, Hamirpur dated 28.8.1997 and that of the Assistant Collector Second Grade, Badsar, dated 29.3.1996 have been set aside. 2. Brief facts of the case are that one Shri Phula executed a registered gift deed in favour of the present respondent No.1 who was then a minor, on 16.12.1964. Shri Phula, thereafter mortgaged the land with one Smt. Sheela Devi w/o Ranjhu Ram on 29.4.1965. After the death of Shri Phula, the respondent No.1, filed a suit for declaration to the effect that since the suit land had already been gifted in his favour on 16.12.1964, Sh. Phula could not mortgage the same with Smt. Sheela Devi. The suit was whoever dismissed by the Id. Sub Judge, Hamirpur on 19.9.1988 holding that the land in dispute had been mortgaged with Smt. Sheela Devi who had been in possession of the same throughout. The Ld. Sub Judge also held that a valid gift deed had not been executed in favour of the respondent No.1. This decision was also upheld by the Id. District Judge, Hamirpur in appeal decide don 21.12.1993. In pursuance to the order and decree passed by the civil court, the Assistant Collector, Second Grade (Settlement) Barsar, attested mutation No. 518 dated 29.3.1996 reverting the gifted land in favour of the present petitioners who are the legal heirs of late Sh. Phula. This order of the Assistant Collector, Second Grade was assailed in appeal before the Collector Settlement, Hamirpur, by the respondents who rejected the same on 28.8.1997. The present respondent No.1 filed a revision petition before the Commissioner, Mandi Division who accepted the same on 27.2.2004 holding that the mutation was sanctioned behind the back of the petitioners. It was also observed that the Assistant Collector had wrongly held that the mutation could not be attested on the basis of the order of the civil court because judgments of civil courts do not find entries into the record of rights automatically until and unless backed by an instrument in the form of a decree. 3. It was also observed that the Assistant Collector had wrongly held that the mutation could not be attested on the basis of the order of the civil court because judgments of civil courts do not find entries into the record of rights automatically until and unless backed by an instrument in the form of a decree. 3. The present revision petition has now been filed against the said order of the Commissioner, Mandi Division on the grounds that the orders of the trial as well as the appellate courts are legally as-well as factually correct and these have been wrongly set aside by the first revisional court. The respondent No.2 has been proceeded exparte on 31.3.2006 for non appearance despite service upon him. 4. The record of the case has been called for and examined. The arguments advanced by the Id. Counsel for the parties have been heard. The learned counsel for the petitioner had reiterated the submissions made in the revision petition and has argued that the order passed by the learned Settlement Collector is well reasoned and no point of law was raised before the learned Commissioner on the basis of which the order of the Settlement Collector could have been set aside. He further argued that the respondent No.1 had no locus standi to file the revision petition before the Commissioner. According to them, the revision filed before the Commissioner was hopelessly the barred, yet the learned Commissioner failed to appreciate this fact and entertained the petition. It was contended that as Shri Chaju Ram,, who was holding the generalpower of attorney of the respondent No.1 was present at the time of attestation of the mutation No.518, it cannot be claimed that, he was unaware of the same. He further argued that it had been established before the Id. Sub Judge, Hamirpur and thereafter the Id. District Judge, Hamirpur that the gift deed executed in favour of the respondent No.1 was not valid. He contended that the Commissioner had wrongly held that the orders of the civil courts passed in the present case are not backed by a decree. 5. The Id. Counsel for the respondents No.1 argued that no notice was ever given to the respondent No.1. Besides, a registered gift deed had been executed in favour of the respondent No.1 and this fact had been appreciated by the Id. Commissioner. He contended that the Id. 5. The Id. Counsel for the respondents No.1 argued that no notice was ever given to the respondent No.1. Besides, a registered gift deed had been executed in favour of the respondent No.1 and this fact had been appreciated by the Id. Commissioner. He contended that the Id. Commissioner had rightly afforded in opportunity to the parties to be present when the mutation shall be re-attested. 6. Having heard the arguments advanced by the Id. Counsel for the parties and perused the record, I have arrived at the conclusion that the contention of the respondent No.1 that he was not informed of date of attestation of mutation No.518 does not appear to be tenable as Shri Chhaju Ram, the holder of general power of attorney of the respondent No.1 was present when the mutation was attested. I also find that the orders of the civil courts are supported by decree sheets, copies of which are on the record. This belies the observation of the learned Commissioner that these orders are not supported by decree. I have also observed that the learned Commissioner has set aside the order of the courts below on 27.2.2004 after an amendment had been carried out in Section 17 of the H.P. Land Revenue Act, 1954 on 8th January, 2004 which was published in the Rajpatra on 9th January 2004 which had the effect of withdrawing" revisional powers from the Commissioners. If the learned Commissioner was of the opinion that the orders of the subordinate courts required modification or reversal he could only recommend the matter to the Financial Commissioner for passing the appropriate order. On this account the order passed by the learned Commissioner dated 27.2.2004, is beyond jurisdiction and thereafter not sustainable. 7. For the reasons discussed herein above, I accept the revision petition and set aside the order dated 27.2.2004 passed by the Divisional Commissioner, Mandi. Announced in the open court today on the 3.7.2006.