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2014 DIGILAW 1047 (HP)

Lachhman Dass v. Kirpu

2014-08-05

NARINDER CHAUHAN

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ORDER : Narinder Chauhan, I.A.S. The revision petition has been preferred against the order dated 23.12,2010, passed by the Commissioner, Kangra Division, in Appeal No 55/2005, whereby he, has dismissed the appeal of the present petitioner and upheld the orders passed by both the courts below. 2. Briefly stated, the facts of the case are that the present respondent Kirpu was recorded as/gair maurusi' tenant in the column of possession to the extent of ?rd share, measuring 0-09-09 hectare, along with his two brothers namely Mangtu and Sohnu against 'galfa batai ba hissa nisfi'; over the "land comprised in khata/khatauni no. 83 min/210, khasra no. 249, area measuring 0-26-26 hectares, situated in mohal Rajot Uppena, Mauza Sagoor, Tehsil Baijnath. Distt. Kangra, as per jamabandi for the year 1999-2000 The proprietary rights were conferred in favour of the respondent and his two brothers under section 101(3) of the H P Tenancy & Land Reforms Act, 1972, vide mutation no. 265 dated 8.1.2002. 3. The present petitioner Shri Lachhman Dass, titled a suit for declaration with permanent and prohibitory injunction before the Collector, Sub-Division/. Baijnath, to the effect that the plaintiff is owner in possession of the suit land and that mutation no. 265, sanctioned in favour of the respondent is illegal, wrong null and void The main grounds taken in the suit was that the name of the defendant in the cultivation column as/gair maurusi" Has been entered wrongly in the revenue record which is not binding on the plaintiff; that mutation no 265 dated 8.1.2002, is illegal and not according to actual and factual position at the spot; further that the defendant never cultivated the "suit land as alleged whereas the was in actual physical and cultivating possession of the suit land for the last so many years It was also contended by the plaintiff that the defendant had also entered into a compromise before the Sub Judge 1st Class Palampur in Case No 14 of 1985. wherein the defendant had stated that he never came in possession of the suit land and that he had no objection if the wrong entry existing in his name was corrected in favour of the plaintiff. The plaintiff alleged that based upon the above compromise, he had handed never all the documents to the Patari halqua, but he has not implemented the same in the revenue record The Id. The plaintiff alleged that based upon the above compromise, he had handed never all the documents to the Patari halqua, but he has not implemented the same in the revenue record The Id. Collector, after hearing the parties and after deliberating upon the issues, dismissed the Case No. 1/2002 of the plaintiff vide order dated 2.2.2005, holding that the Plaintiff (petitioner) and Defendant (Respondent) are having an agreement to exchange land and that contents of statement of parties clearly real that defendant has rightly been recorded as a 'gair mouusi tenant'. 4. Feeling aggrieved and not-satisfied with the above order of the Collector, the present petitioner filed an appeal before the Commissioner, Kangra Division, It was asserted that the impugned judgment and decree of the lower court is based on conjectures and surmises, and the appellant, therefore, prayed for setting aside the same by accepting his appeal. The Id. Commissioner, after hearing both the parties and on perusal of the records, dismissed the appeal vide the impugned order dated 23.12.2010. 5. Now this revision petition has been filed by the petitioner before this court on the grounds that the findings of the Collector, Baijnath on issue no. 2 are wrong because the name of respondent in the cultivation column as 'gair maurusi', is illegal and the same is not borne out from the record as he has never been Inducted as a tenant by the petitioner, and neither cultivated the land in question. That the courts below have also failed to appreciate the fact that there was a civil suit filed by the petitioner before the court of Id. Civil Judge, Palampur, in which a compromise was arrived at between the parties wherein, the respondent has admitted the claim of the petitioner and has clearly admitted that the petitioner is in cultivating possession of the land, therefore the mutation no. 265 dated 8 1,2002 was wrongly attested by disregarding the record, which is per-se admissible before the court below. It has been further contended that the courts below have also failed to appreciate the fact that the compromise dated 19.7.1988, entered between the parties in case no. 14 of 1985 before the Sub-Judge, Palampur completely proved issue no 4 in favour of the petitioner and the Id. It has been further contended that the courts below have also failed to appreciate the fact that the compromise dated 19.7.1988, entered between the parties in case no. 14 of 1985 before the Sub-Judge, Palampur completely proved issue no 4 in favour of the petitioner and the Id. court below could not have gone beyond the compromise, which constitutes a final and clinching piece of evidence qua the question of cultivation and possession of the suit land. 6. I have heard the arguments advanced by the Id. counsels for both the parties, The Id counsel for the petitioner argued that the land under dispute is situated in Baijnath, which is owned/possessed by the petitioner and that mutation no 265 conferring proprietary rights upon the respondent, has been wrongly attested on 8.1.2002. He further argued that the said mutation has been challenged on the basis of a compromise arrived at between the parties before the Sub-Judge, Palampur in the year 1985, whereby the respondent had made a statement that he is not in possession of the land., 7. On behalf of the respondent, Shri Pawan Kumar Gautam Advocate, was appointed as a Legal Aid for providing legal assistance to him in the case, but the advocate failed to file his power of attorney and did not appear regularly on behalf of the respondent. On 1.7.2014, when the case came up for arguments, none was present for the respondent therefore, in the interest of Justice, Shri Giri Raj Singh, Distt Attorney (Rev.) was directed to watch the Interest of She respondent by providing him necessary legal assistance. 8. The Id, D.A.(Rev,) has argued that the respondent has been found recorded as 'gair marusi tenant" over the suit land, till 2002, when he was conferred proprietary rights. With regard to the compromise arrived between the parties before the Civil Court, the Id. D A argued that the same should have been implemented in the record of rights but the petitioner has not filed any application for correction of revenue entries on the basis of civil court judgment and agreement before the Land Reforms Officer under the relevant provisions of law The Id D.A., (Rev) has, therefore, stated that the respondent has been rightly conferred the proprietary rights through mutation no. 265 dated 8.1.2002, which is in consonance with law laid down for the same. 265 dated 8.1.2002, which is in consonance with law laid down for the same. Lastly, it has been argued that the orders passed by all the courts below are legally sustainable and require no alteration. 9. I have considered the arguments advanced by the Id. counsel for both the parties and have also gone through the record of the case. On appraisal of the arguments advanced by the parties as well as the case file of the trial court. It is borne out that the petitioner has based his claim on the allegedly wrong revenue entries of non-occupancy tenant coming in favour of the respondent as also a compromise arrived at between the petitioner and the respondent in the Court of Civil Judge, Palampur, in Case no 14 of 1985, decided on 19.7.1985, which has not been implemented in the revenue record It is also observed that in the aforesaid case the petitioner Shri Lachman Dass had filed a suit for declaration with permanent injunction against Shri Kirpu defendant (present respondent) to the effect that the plaintiff was owner in possession of the land in dispute which was in his self cultivation and the name of defendant was not binding upon the plaintiff. During the course of hearing, the parties had produced an agreement in the Court on 19..1985, wherein the respondent had agreed that the entry of his name in the revenue record was wrong and he had no concern with the land in dispute, and further that he had no objection, if the entry was corrected in the name of present petitioner. On the basis of the aforesaid a compromise and in view of the statements of the parties recorded by the Court, the suit was ordered to be withdrawn and it was consigned to the record room. 10. On the basis of the aforesaid a compromise and in view of the statements of the parties recorded by the Court, the suit was ordered to be withdrawn and it was consigned to the record room. 10. Mutation No, 265 ,was attested on 8.1.2002, by the A.C. 11nd Grade, conferring proprietary rights under section 103(3) of the H P Tenancy & Land Reforms Act, in favour of the recorded tenants, including the present respondent, no effort was made by the petitioner to correct the entries existing in favour of the present respondent on the basis of the aforesaid compromise reached at between the parties on 19.7.1985 However, the petitioner 'choose to file a suit for declaration with permanent and prohibitory injunction qua the land in dispute in the court of Collector Sub-Division, Baijnath, which has been dismissed vide his order dated 2.2.2005 After adjudicating on the issues framed by the Id Collector, he has come to a conclusion that "the defendant is legally recorded as "gair morusi tenant" in the revenue record and mutation no.265, sanctioned in his favour on 08.1.2002 is also legally valid Plaintiff and defendant have been in process of having a deal of exchange of suit land with the piece of land. And this deal has not materialized. Thus, the facts of the case are found to be mis-represented in the case. The Id. Commissioner also dismissed the appeal. 11. Since, it is established from the perusal of the record that the respondent along with his brothers Manglu and Sohanu have been recorded as non-occupancy tenants over khasra no. 249, measuring 0-26-26 hectares, comprised in khata/khatauni no. 83 min/210, which tenancy obviously has been inherited by them from their father, Therefore, I find no irregularity in the attestation of mutation no. 265, conferring proprietary rights under section 104(3) of the H P. Tenancy and Land Reforms Act, 1972, in favour of respondent Kirpu along with his brothers. The claim of the petitioner that the entry of "gair maurisi" qua khasra no. 249 to the extent of ?rd share, and subsequently attestation of mutation No 265, dated 8.1.2002 by the A.C. IInd grade in favour of the present respondent Shri Kirpu on the basis of so called compromise, is wrong and a compromise cannot be a guise to thwart the substantive provisions of law. 249 to the extent of ?rd share, and subsequently attestation of mutation No 265, dated 8.1.2002 by the A.C. IInd grade in favour of the present respondent Shri Kirpu on the basis of so called compromise, is wrong and a compromise cannot be a guise to thwart the substantive provisions of law. Thus, I do not find any illegality or irregularity in the orders passed by both the courts below and therefore, their orders are upheld. The revision petition which is without substance, is accordingly dismissed. 12. Announced in open court today the 5th August, 2014. The records of the courts below be returned and the file of this court be consigned to the record room after due completion.