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2013 DIGILAW 1013 (HP)

RATTAN CHAND v. NANKU

2013-12-10

DEV DARSHAN SUD

body2013
JUDGEMENT DEV DARSHAN SUD, J.- 1. THIS appeal has been preferred by the plaintiff against the judgment and decree of learned Appellate Court, partly reversing the judgment and decree passed by the learned trial Court decreeing the suit of the appellant-plaintiff restraining the defendant from causing any interference in the ownership and possession of the plaintiff and proforma defendant over the suit land comprised in Khewat No. 43 min Khatauni No. 50 min, Khasra No. 162 measuring 0-09-52 hectares situated in village Harlyan Illaqua Hatli, Tehsil Sarkaghat, District Mandi. The learned trial Court further restrained the defendant from raising any construction on the suit land by extending other boundary marks affixed. The revenue authorities were also directed to carry out the necessary corrections in accordance with the settlement musabi by incorporating the correct karukans of Khasra No. 162. 2. THE defendant appealed. The learned District Judge reconsidered and re-appreciated the entire facts and evidence on record. The suit was filed by the plaintiff for permanent prohibitory injunction and in the alternative for mandatory injunction with respect to the suit land comprised in Khasra No. 162, measuring 0-09-52 hectare situated in village Harlyan which was earlier recorded in the ownership and possession of Shri Sukh Ram, father of the plaintiff and now inherited by the plaintiff and proforma defendant in equal shares. It was pleaded that adjoining to the suit land, land comprised in Khasra No. 161, measuring 0-01-84 hectare is recorded in the ownership of the defendant and his brother deceased Hari Singh. Consolidation proceedings were concluded in the year 1984-85 and the defendant applied for demarcation of these two Khasra Nos. 161 and 162, which was carried out by the field agency when the plaintiff's area was reduced by one metre in width and 29 metres in length. This demarcation was not accepted nor any report was submitted by the Kanungo. The case pleaded was that taking undue advantage of wrong demarcation, the defendant- respondent wanted to raise construction on the land belonging to the plaintiff for which a decree for permanent prohibitory injunction and decree of mandatory injunction, in case any construction was raised, was prayed for. Preliminary objections were taken up with regard to jurisdiction of the Court to try the suit, maintainability and cause of action etc. Seven issues were settled and on the decided issues, the suit of the plaintiff was decreed. Preliminary objections were taken up with regard to jurisdiction of the Court to try the suit, maintainability and cause of action etc. Seven issues were settled and on the decided issues, the suit of the plaintiff was decreed. The learned Appellate Court referred to the documentary evidence on record, which is Ext.PA a copy of Misal Hakiat for the year 1984-85 showing the ownership and possession of Sukh Ram, father of the plaintiff, over the suit land, Ext.PF the copy of Misal Hakiat Bandobast Jadid with regard to a part of the land comprised in Khasra No. 472 and other Khasra numbers, carved out from this Khasra number, Ext.PB copy of Misal Haqiat and Ext.DB copy of jamabandi for the year 1990-91, Ext.DE copy of jamabandi for the year 1984-85, Ext.DF copy of jamabandi for the year 1995-96 with respect to Khasra No. 161 owned and possessed by Nanku and Hari Singh in equal shares who are the defendant and his brother, Ext.DD copy of Bandobast Jadid with respect to Khasra No. 161 (earlier Khasra No. 464), Ext.PC copy of Aks tatima, Ext.PD copy of report of Patwari which shows that boundaries of Khasra No. 162 were not properly fixed at the time of demarcation, Ext.PE copy of order sheet of the Assistant Commissioner II Grade which the learned Court held to be not relevant. 3. ON the oral evidence, the learned Appellate Court concluded that the suit was rightly filed for permanent prohibitory injunction and for mandatory injunction in case the defendant succeeded in carrying out construction over Khasra No. 162, owned by the plaintiff or the boundary of Khasra Nos. 161 and 162. The Court then proceeds that to prove that construction has been raised by the defendant over the land owned and possessed by the plaintiff, demarcation should have been obtained from the revenue agency and such report should have been proved in accordance with law to substantiate the submission that construction had been raised over this part of the land of the plaintiff. This course of action was never followed. Instead of applying for demarcation and appointment of the Local Commissioner, the plaintiff filed an amended plaint. The suit was filed for declaration in the form of mandatory injunction for correction of the revenue record. Issues were also settled on these pleadings. This course of action was never followed. Instead of applying for demarcation and appointment of the Local Commissioner, the plaintiff filed an amended plaint. The suit was filed for declaration in the form of mandatory injunction for correction of the revenue record. Issues were also settled on these pleadings. The learned Court then considers that the learned trial Court has rendered its findings on some observations made by the Patwari though he was not competent to carry out demarcation with respect to clerical errors that may have crept up in the revenue record during consolidation. The appropriate remedy for the plaintiff according to the learned Appellate Court was to apply to the Consolidation authorities by filing an application or revision before the Consolidation authorities for correction of any clerical error which may have crept up which course was not followed. 4. THIS appeal was admitted on the following substantial question of law:- Whether the Civil Court has jurisdiction to decide the correctness of the dimensions (Karu-kans) of the land prepared during the course of consolidation after de- notification of the consolidation proceedings? Adverting to this question, which was raised in the pleadings by the defendant, the learned Appellate Court relied upon the decision of this Court in Mathura Devi and others vs. Sukhdev Singh 2000(2) S.L.J. 1165 holding that once it is shown that the statutory authorities, envisaged under the Act of 1971 (Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971) have exercised jurisdiction vested in them in a wrong manner or that they failed to comply with the procedure prescribed under the Act, then Section 57 of the Act debarring the jurisdiction of the Civil Court cannot be invoked to oust its jurisdiction. In these circumstances, it was held that jurisdiction of the Civil Court cannot be ousted. 5. THE learned Appellate Court holds that neither the plaintiff has challenged the order passed by the consolidation authorities alleging that exercise of jurisdiction was in wrong/illegal/improper manner nor alleged that the authorities have failed to comply with the procedure prescribed under the Act. The plaintiff has simply approached the Court on the question that the application filed for demarcation transpired that there was some kind of error. 6. ADVERTING to Section 54 of the Act, the Hon'ble Court holds that simple suit for correction does not lie without the plaintiff having exhausted his remedy under the consolidation/revenue Act(s). The plaintiff has simply approached the Court on the question that the application filed for demarcation transpired that there was some kind of error. 6. ADVERTING to Section 54 of the Act, the Hon'ble Court holds that simple suit for correction does not lie without the plaintiff having exhausted his remedy under the consolidation/revenue Act(s). Referring to Section 54 of the Act, the Court holds that in Mathura Devi's case (supra), it is clear that powers could be exercised by the Government at any point of time. In these circumstances, the appeal was partly accepted and findings of learned trial Court on issue No. i(a) and (ii) which were that as to whether the consolidation department has committed a clerical mistake by describing incorrect Karukan of Khasra No. 162, as such, these are liable to be corrected on the record in accordance with the settlement Mussabi as alleged and . whether in the alternative, the plaintiff is entitled for mandatory injunction as prayed for, were reversed and the plaintiff was held entitled to decree of permanent prohibitory injunction as granted on issue No. 1, which was as to whether the plaintiff was entitled for relief of permanent prohibitory injunction, as prayed for on the facts. What is urged before me is that the consolidation authorities had ceased to have jurisdiction once the operation of consolidation had come to an end. What I find from the entire discussion of the learned Appellate Court is that the decree for permanent prohibitory injunction is maintained in favour of the plaintiff-appellant and findings on jurisdiction of the Civil Court have not been illegally arrived at more especially in view of (supra). In these circumstances, the Mathura Devi's case substantial question as urged for determination in this appeal becomes academic since the decree is maintained as prayed for by first issue, which does not adversely affect the rights of the plaintiff-appellant. Appeal stands disposed of. All miscellaneous pending application(s) disposed of.