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2013 DIGILAW 1061 (HP)

Chandermani v. Ghamanda Ram

2013-12-28

NARINDER CHAUHAN

body2013
ORDER : Narinder Chauhan, Financial Commissioner This appeal under Section 14 of the H.P. Land Revenue Act, is directed against the order dated 23.12.1985, passed by the Commissioner, Shimla Division, in Revenue Appeal No. 133/ 79. The Ld. Commissioner vide the impugned order had granted proprietary rights to Shri Dhari Ram, the predecessor-in interest of the present respondents, in respect of the land comprised in khasra Nos. 263 and 265, measuring 9-6-8 bighns, situated in village Phagwar, Tehsil Chachiot, Distt. Mandi, subject to the payment of current market value to be assessed by the Tehsildar concerned on the basis of one year's average sales of similar land in the estate/adjoining estate. 2. Briefly stated, the facts as emerge from the perusal of the record are, that during the settlement operations, in Mandi District, during the year 1964-65, Shri Dhnni Ram and Shri Twaru, the predecessor-in-interest of the present respondents and appellants, were found to be in unauthorised occupation of the Government land referred to above. The Settlement Officer passed an ejectment order against them under Section 163 of the H.P. Land Revenue Act, on 26.3.1971 in Case No. 5907/S.O. Against this order Shri Dhari Ram alais Dhnni Ram filed an appeal before the Commissioner, Shimla Division on 3.3.1979, who after hearing the parties and perusal of the record, passed the above referred impugned order. After a lapse of more than twenty five years, the present appeal has been filed before this Court on the grounds that the appeal filed before the Commissioner was against a dead person Shri Twaru (predecessor-in-interest of the present appellants). Further, that the land under appeal is in the possession and enjoyment of the appellants after the death of their predecessor, to the extent of half share and their residential house is til so exiling thereupon. On issue of limitation, it has been submitted that the appellants fame to know about the impugned order on 14.6.2011 from the Patwari Halqua and thereafter they applied for copies and filed this appeal. 3. I have heard the learned Counsels for both the parties. The learned Counsel argued that the land was in joint possession of Shri Twaru Ram and Dhari Ram (predecessor-in interest of the appellants and respondents). That after ejectment order of the Settlement Officer; when the appeal was filed by Shri Dhari Ram alias Dhani Ram, Shri Twaru Ram had died. I have heard the learned Counsels for both the parties. The learned Counsel argued that the land was in joint possession of Shri Twaru Ram and Dhari Ram (predecessor-in interest of the appellants and respondents). That after ejectment order of the Settlement Officer; when the appeal was filed by Shri Dhari Ram alias Dhani Ram, Shri Twaru Ram had died. That the learned Commissioner had allowed the appeal and granted land to him. The learned Counsel has, therefore, asserted that the impugned order of the Id. Commissioner is a nullity in the eyes of law as the order is against a dead person. The learned Counsel further argued that Twaru Ram and Dhari Ram had a common ancestor and both have equal possession over the land in question. He also produced a photocopy of death certificate showing that Shri Twaru Ram had expired on 1.1.1976. The learned Counsel questioned that it was not feasible for Sh. Twaru Ram to file an appeal as he had expired. Further, it has also been argued that the respondents claim of being in sole possession since 1955 is not substantiated with any documentary proof. It has been asserted that the file of the Settlement Officer clearly indicates that both the parties were in possession. Lastly, the learned Counsel averred that the order of the learned Commissioner, is without a legal base and it has been passed behind their back since they have never been served. In support of his contentions, the learned Counsel has cited [1973 SC, page 1136]. 4. In reply, the learned Counsel for the respondents argued that during the settlement operations, mistakenly, the name of predecessor-in-interest of the appellants Shri Twaru, was also recorded as being in joint possession as also in the eviction order of Settlement Officer dated 26.3.1971. According to the learned Counsel, Shri Twaru had expired after a lapse of 5 years of passing of the order dated 26.3.1971, and although he was not in possession, still he was made party before the Commissioner. He referred to an application under Order 1, Rule 10 of CPC (at page 27) filed before the Commissioner for impleading the Lrs. of deceased Twaru as necessary parties. He also referred to other pages of the Commissioner's file i.e. 41, 47, 53, 56, 57, 61 and 63 regarding service of appellants, which shows that they did not appear. He referred to an application under Order 1, Rule 10 of CPC (at page 27) filed before the Commissioner for impleading the Lrs. of deceased Twaru as necessary parties. He also referred to other pages of the Commissioner's file i.e. 41, 47, 53, 56, 57, 61 and 63 regarding service of appellants, which shows that they did not appear. Further, it has been averred that even the ejectment order passed by the Settlement Officer was never appealed by the present appellants. After grant of the land, the respondents had paid market price of the land allotted to them. Lastly, in support of his contentions, the learned Counsel cited Dumnu Ram v. Madan Lal and others, [ AIR 2002 H.P. 141 ], Kanshi Ram v. Harbhajan Singh Bhajji, [ AIR 2002 H.P. 154 ] and Babu Sukh Ram Singh v. Ram Dular Singh and others, [ AIR 1973 S.C. 204 ]. 5. I have considered the arguments advanced by learned Counsels for both the parties anil have also gone through the records of the Courts below: 6. Since the present appeal has been filed against the impugned order dated 22.12.1985, passed by the Ld. Commissioner after a period of more than 25 years, but neither the appellant have filed any application for condonation of delay under Section 5 of the Indian Limitation Act along with the appeal nor the respondents have at any stage raked the issue of limitation before this Court. However, this Court on its own considers it expedient to decide this issue first before deciding the appeal on merits. 7. Firstly, it is established from the photocopy of the Pariwar Register produced by the appellants that Shri Twaru, the predecessor-in interest of the appellants, had expired on 1.1.1976 i.e. long before the appeal was filed before the learned Commissioner, on 3.3.1979. Thus, the assertion of the appellants that the impugned order has been passed against a dead person and is, therefore, a nullity in the eyes of law, appears to be correct, Secondly, since the impugned order has been passed behind the back of the appellants, therefore, it can be easily gathered that the appellants were not in the knowledge of the order passed by the Ld. Commissioner. Commissioner. Thirdly, valuable rights of the appellants have been affected by giving proprietary rights only to Shri Dhari Ram alias Dhani Ram, the predecessor-in-interest of the respondents, and ignoring the genuine right of late Sh. Twaru. All these factors together with the principle of equity and natural justice demand that the delay in filing the present appeal should be condoned and it is condoned accordingly. 8. Now coming to the merits of the case, it is evident from the report of the Naib-Tehsildar (Settlement), as also the order of ejectment passed by the Settlement Officer, Mandi, dated 26.3.1971, that an encroachment case had been prepared against both S/Shri Dhani Ram son of Haria and Twaru son of Shri Karam Dass, the predecessor-in-interest of the present respondents and the appellants in equal half share each. The ejectment order was also passed by the Settlement Officer against both these persons but an appeal against the impugned order was filed only by Shri Dhari Ram alias Dhani Ram before the learned Commissioner in which Shri Twaru son of Shri Karam Dass, was only impleaded as proforma respondent. Though, the LRs of the deceased Twaru were later on brought on record but they were proceeded against ex-parte for non-appearance before the Commissioner. However, the learned Commissioner, while upholding the findings of the Settlement Officer, has at the time of granting proprietary rights of the land in question to Shri Dhan Ram, overlooked the fact that the encroachment case had been prepared against both Shri Dhari Ram and Twaru. He granted proprietary rights only in favour of Shri Dhari Ram subject to the payment of market price to be assessed by the Tehsildar concerned on the basis of one year of average sale of similar land in the estate/adjoining estate ignoring the claim of the appellants. 9. The fact of joint possession of Shri Dhari Ram and Twaru on the Government land in equal share over khasra Nos. 263 and 265, kita (2), measuring 9-6-8 bighas is also corroborated from the copy of Misal Haquiat Bandobast Jadid of Mohal Phanghwar, Tehsil Chachiot, and also subsequent jamabandis prepared thereafter. At the time of consolidation operations in the area, in the Missal Haquiat for the year 1993-94 of Mauza Phangwar, prepared by the Consolidation staff, the unauthorised possession of both Dhari Ram and Twaru has also been reflected over khasra Nos. At the time of consolidation operations in the area, in the Missal Haquiat for the year 1993-94 of Mauza Phangwar, prepared by the Consolidation staff, the unauthorised possession of both Dhari Ram and Twaru has also been reflected over khasra Nos. 265 and 263, corresponding to new khasra Nos. 247 and 249 respectively, which entry was also found recorded in the subsequent jamnbandi for the year 1996-97. It is an established law that presumption of truth is attached to the entries of revenue records unless these are rebutted. In the instant case, neither Shri Dhari Ram nor his successor-in interest i.e. the present respondents have ever challenged these entries to date. Thus, the continuing entries in the revenue record are still unrebutted and presumed to be correct. Therefore, while granting proprietary rights to Shri Dhari Ram, the learned Commissioner, has erred in ignoring Shri Twari from the benefit of such conferment of proprietary rights, which has resulted in gross injustice to the present appellants. It would be therefore, in the interest of justice and equity the ownership rights be also conferred upon the present appellants to the extent of half share qua the land comprised in old khasra No. 265 and 263, corresponding to new khasra Nos. 247 and 249 respectively, against market value already assessed and paid to the Government by the respondents. However, the appellants will refund to the respondents the half amount of the assessed market value already paid by them to the Government. 10. For the aforesaid reasons, the present appeal is accepted and the order of the learned Commissioner is amended to the extent discussed herein above only. 11. Announced in open Court today the 28th December, 2013 at Mandi. The records of the Courts below be returned and the file of this Court be consigned to the record room after due completion.