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2005 DIGILAW 104 (HP)

RAMESHWAR v. GHUNGAR SINGH

2005-04-26

A.R.BASU

body2005
ORDER This revision petition has been filed by Shri Rameshwar Dass, petitioner through his counsel Shri Mohinder Verma, Advocate against an order passed by the learned Collector, Sub-Division, Kalpa on 06.07.2000 whereby an order dated 24.6.2004 passed by the Assistant Collector, 1st Grade Sangla was set aside. 2 Briefs facts of the case are that the present respondent Shri Ghungar Singh filed an application before the Assistant Collector 1st Grade, Sangla for correction of revenue entries qua the column of possession of land comprising Khasra Nos. 871 situated in Up Mohal Kuppa, Tehsil Sangla. It was claimed in the application that entries in the column of possession pertaining to said Khasra Nos. as depicted in the Jamabandi for year 1995-96 which show, one Shri Vidhya Ram, father of the present petitioner, to be in possession .of the same, were wrong-The Assistant Collector, 1st Grade got the matter inquired into and thereafter he himself visited the spot on 22,5.2000 and partly allowed the application by ordering that Shri Ghungar Singh is best entitled to the possession of the land composed in Khasra No 871 only The present petitioner filed an appeal before the Collector Kalpa on the ground that forefathers of the petitioners were in possession of the land in dispute for more than last 60 years and in the Jamabandi and Misal Haquiat of Bandobast Jadid 1982 the same remained undisputed and are long standing entries which could not be ordered to be corrected by the Assistant Collector 1st Grade. The learned Collector, vide an impugned order dated 6.7.2004, held that while the learned Assistant Collector 1st Grade was competent to order correction in the revenue record, the inquiry made by the Assistant Collector 1st Grade was not sufficient and conclusive. He has, vide the impugned order dated 6.7.2004 directed Assistant Collector 1st Grade to inquire into the matter denovo. It is against this order that the present revision petition has been filed. 3. The entire record of the courts below were called for and perused carefully. The oral arguments by Shri Mohinder Verma, learned counsel for petitioner as well as the written arguments submitted by the respondent through his power of attorney have been duly considered. 4. It is against this order that the present revision petition has been filed. 3. The entire record of the courts below were called for and perused carefully. The oral arguments by Shri Mohinder Verma, learned counsel for petitioner as well as the written arguments submitted by the respondent through his power of attorney have been duly considered. 4. Shri Mohinder Verma, learned counsel for petitioner reiterated the submissions made in the revision petition and argued that entries already incorporated in the record of rights cannot be changed by a Revenue Officer and therefore, the application under Section 37 of the HP. Land Revenue Act could not be entertained by the Assistant Collector 1st Grade. It has also been submitted that the entries as incorporated in the jamabandi were finalized during the course of settlement by the Collector Settlement and therefore the Assistant Collector 1st Grade was not competent to entertain the application for correction of revenue entries. It has been further contended that one Shri Dilli Bhagat being the recorded owner of ½ share over the land in dispute other necessary parties had not been impleaded by the present respondent in his application before the Assistant Collector 1st Grade. According to the petitioner, the learned Collector, too, had failed to appreciate the facts of the case. He has prayed that while setting aside the impugned orders, he may be held to be entitled to the possession over Khasra No.871 and 872. 5. It has been submitted in the written arguments filed on behalf of the respondent that the learned Collector has rightly reached the conclusion of examining the case denovo to determine the legality of the vague and prima facie rebuttable entry, regarding the alleged possession of the present petitioner i.e. "Kabza Bila Sift". It has been further submitted while the Assistant Collector 1st Grade was competent to entertain the application for correction, subsequent entries can be varied if such facts are provide or admitted to have occurred. In "Durga & Others versus Milkhi Ram and others, PLJ 1969" it has been held that 6. It has been further submitted while the Assistant Collector 1st Grade was competent to entertain the application for correction, subsequent entries can be varied if such facts are provide or admitted to have occurred. In "Durga & Others versus Milkhi Ram and others, PLJ 1969" it has been held that 6. “When the earlier revenue entries were changed in the later revenue entries and the change was effected without any mutation and there was no order of the revenue authorities showing how the change was made, held, although the presumption was rebuttable and it would stand rebutted by the facts that the alteration in the later entries was made unauthorizedly or mistakenly, there being no material to justify the change of entries." 7. It has been further submitted that Shri Dilli Bhagat was jointly married along wjth the respondent and he has died long ago. Hence, the respondent was the only necessary party before the Assistant Collector 1st Grade. According to the respondent, the entry of the possession of the father of the petitioner was made behind the back of the respondent and was illegal. According to section 46 of the HP. Land Revenue Act. "Suit for declaratory decree by persons aggrieved by an entry in a record. If any person considers himself aggrieved as to any right of which he is in possession by an entry in a record of rights or in (annual) record, he may institute a suit for a declaration of his right under (Chapter VI of the specific Relief Act, 1987"). The respondent has prayed that entries made in the column of cultivation of Khasra No. 871 and 872 may be ordered to be rebutted. 8. Having duly considered the arguments advanced by both the parties and perusing the entire record of the courts below, the fact that emerges from the entire controversy is that the present respondent had filed an application for correction of revenue entries vide which one Shri Vidhya Ram, the father of the present petitioner had been recorded to be in possession of the land in dispute for the first time during the course of settlement. Prior to this, the land was recorded in the ownership and in possession of the respondent as per the copies of jamabandi for the years 1967-68 and 1977-78 available on the case file of Assistant Collector 1st Grade. Prior to this, the land was recorded in the ownership and in possession of the respondent as per the copies of jamabandi for the years 1967-68 and 1977-78 available on the case file of Assistant Collector 1st Grade. The entry of the Misal Haquiat prepared during settlement was later incorporated in the Jamabandi for the year 1995-96 which was challenged before the Assistant Collector 1st Grade by the present respondent. It is a settled law that entries once incorporated in the jamabandi are rebuttable in a regular suit filed before a competent court of law. This is, however, applicable to the entries made in favour of the present respondent also as in his favour the entries existed prior to the respondent proceedings. 9. Section 38 of the H.P. Land Revenue Act, 1954 provides that, "Entries in the record of rights or in periodical records except entries made in (periodical) records by Patwaris under clause (1)of section 36 with respect to undisputed acquisition of interest referred to in that section shall not be varied in subsequent records otherwise than by> (a) making entries in accordance with facts proved or admitted to have occurred. (b) making such entries as are agreed to by all the parties interested therein or are supported by a decree or order binding on those parties; and (c) making new maps where it is necessary to make them. 10. Hence, it has been laid down that entries in a revenue record can be varied only under the aforesaid three circumstances namely;- (i) when facts sustaining such a variation are proved or admitted to have occurred. (ii) with consent of all the parties interested therein or by a decree or order binding upon them, (iii) making of new maps. 11. It is therefore clear that entries in the record of rights cannot be varied unless facts leading to such a variation are proved or admitted. Such a proof or admission has to be made before a competent court and has to be followed by an order requiring the variation to be made in the record on the basis of such proof or admission. It is in furtherance of the said provision of law that a presumption of truth is attached to any entry made in the record of rights. To rebut such a lawful entry, convincing evidence has to be led in a competent court of law. 12. It is in furtherance of the said provision of law that a presumption of truth is attached to any entry made in the record of rights. To rebut such a lawful entry, convincing evidence has to be led in a competent court of law. 12. In the instant case, the entries in the record of rights, prior to settlement was in favour of the present respondent, apparently due to his having inherited the land and entries were made in his favour as consequence of inheritance. The entries could only be varied by an order of a competent court or authority subsequent to proceedings under Section 38 of the Act or other legal provisions as laid down elsewhere. The present petitioner has claimed in his grounds of appeal before the learned Collector that his forefathers have been in continuous possession of the disputed land for more than last sixty years and the onus to prove the same, in order to rebut the entries existing prior to settlement, lies upon him. There is nothing on record to show that the entries made in the record of rights during the settlement proceedings were in accordance with legally sustainable orders of any competent court or authority. 13. The directions of the learned Collector, therefore, as to an enquiry into the entries of the father of the present petitioner being as Kabza Bila Sift are based on the provisions of law in this regard. 14. As far the non-impleading of all the necessary parties before the Assistant Collector 1st Grade, this issue was neither raised before the Assistant Collector 1st Grade nor before the appellate authority and hence is not allowed to be raised in revision at this stage. 15. In view of the detailed discussion hereinabove, the orders of learned Collector dated 26.06.2004 are upheld. The revision petition is dismissed. 16. Announced in the open court today the 26th April, 2005. 17. Order be communicated to the respondent and case file of this court be consigned to the record room after due completion.