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2014 DIGILAW 1971 (HP)

Prem Chand v. Partap Chand

2014-12-19

NARINDER CHAUHAN

body2014
ORDER Shri Narinder Chauhan, I.A.S. The revision petition preferred under section 114(3) of the H.P. Tenancy & and Reforms Act, 1972, is directed against the order dated 17.12.2007, passed by the Commissioner, Kangra Division, in Appeal No. 240/2003, whereby he has accepted the appeal and set aside the orders passed by both the courts below. 2. Briefly stated, the facts of the case are that present petitioners no.1 and 2 filed an application before the LRO-cum-A.C. 1st Grade, Dehra, on 4.10.1996, for correction of revenue entries qua ownership and possession of land comprising khata/khatauni no.44 min/46 min, khasra no.153 and 165, area measuring 1-07-69 hectares, situated in Mohal Bari Chalian, Mauza Sihorpian, Tehsil Dehra. District Kangra, as per jamabandi for the year 1990-91. The applicants requested for correction to the extent of their 2/15 share of the land mentioned therein in the column of ownership and possession, requesting that all the entries in favour of the respondent regarding ownership and possession were wrong and deserved to be corrected. According to the applicants, the land was previously owned and possessed by one Shri Tulsi Ram, and the applicants purchased the share from Tulsi Ram, along with other land in the year 1960, and mutations no.189 and 190, to this effect were also sanctioned and attested in their favour as recorded in the remarks column of jamabandi for the year 1959-60. The applicants never inducted respondent (Pratap Chand) as a tenant over their share nor the respondent ever cultivated the land, but the respondent in collusion with lower revenue staff wrongly got himself recorded as a tenant over the whole khata, that such entries were made without their knowledge and illegally. That the respondent got proprietary rights transferred in his favour vide mutation no.262 on the basis of wrong revenue entries. It was, therefore, prayed that correction qua 2/15 shares of the land mentioned above in favour of the applicants in the column of ownership and possession be made in the interest of justice. 3. That the respondent got proprietary rights transferred in his favour vide mutation no.262 on the basis of wrong revenue entries. It was, therefore, prayed that correction qua 2/15 shares of the land mentioned above in favour of the applicants in the column of ownership and possession be made in the interest of justice. 3. The LRO, Dehra inquired into the matter and allowed the application vide order dated 16.2.2002, holding that the respondent was not a tenant of the applicants (present petitioners), and as such, mutation no.262, conferring proprietary rights on the respondent qua their share in the impugned land was wrong, and he accordingly ordered substitution of new entry vide which the share of tenant (Pratap Chand) was ordered to be recorded as 9330 shares out of total 10769 shares. 4. Feeling aggrieved with this order of the LRO, Dehra, dated 16.2.2002, the present respondent, Shri Partap Chand, filed an appeal before the Distt Collector, Kangra, on the grounds that Shri Prem Chand and his wife Smt. Prabhati Devi, had no locus standi to file the Correction application and as such the correction has been wrongly ordered; that the LRO has passed an order in mutation no.262 wherein the appellant was declared owner on the strength of tenancy and thus the finding of LRO, dated 16.2.2002 are wrong and illegal; that the revenue entries were incorporated in various subsequent jamabandis, and in that case the LRO, had no authority to correct the same. Further that the LRO has failed to appreciate that in the jamabandis for the year 1959-60,1963-64 and 1968-69, Shri Tulsi Ram is recorded as owner along with his real brothers Shri Bhagwan Dass, Raghunath Sahay, Babu Ram and Babu Lal sons of Beeru, residents of Garli, Tehsil Dehra; that the LRO has travelled beyond his jurisdiction to try the case and to effect correction in the revenue documents i.e. jamabandis relating to 1962-63. The appellant further asserted that an order passed by any court cannot be again modified by the same court except by way of appeal or revision, in this case the same LRO had passed order of conferring proprietary rights under section 104 of the H.P. Tenancy & Land Reforms Act, on 18.11.1978 vide mutation no.262. That the LRO while declaring mutation 262 as illegal, has neither obtained permission to review his earlier order dated 18.11.1978, which were passed in the same capacity. That the LRO while declaring mutation 262 as illegal, has neither obtained permission to review his earlier order dated 18.11.1978, which were passed in the same capacity. It was further submitted that under the H.P. Tenancy & Land Reforms Act, the ownership rights were conferred on tenants ipso facto from the date of notification i.e. 30.10.1975, and as such all persons who were recorded as tenants became owners of that land, and that the land owners were free to agitate their rights under section 104(4) of the same Act, and they could not agitate the matter by adopting a method of correction of revenue records after lapse of 27 years. Lastly, it was prayed that the order dated 16.12.2002, passed by the LRO in case no.41 may be set aside and mutation no.262 and 56 be upheld. 5. The ld. Collector, after hearing both the parties and on perusal of the record, dismissed the appeal vide order dated 2.6.2003, holding that the mutation was validly attested as per the H.P. Tenancy & Land Reforms Act, 1972 para-V under section 28(1) and the correction was made under section 29 and section 93 of Chapter IX said Act. 6. Still feeling aggrieved and dis-satisfied with this order of the Collector, Shri Partap Chand filed a second appeal before the Commissioner, Kangra Division, on the same grounds as taken before the Collector. The ld. Commissioner, vide the impugned order has accepted the appeal and set aside both the orders of the LRO, Dehra and the Distt. Collector (ADM), Kangra, holding that correction could be done by the LRO, only during the process of conferring proprietary rights under the H.P. Tenancy & Land Reforms Act. In the instant case, the tenant was conferred proprietary rights in the year 1978, on the basis of entries in the revenue record and thereafter, settlement and consolidation operations have also been completed, and that the respondents submitted a correction application before the LRO in the year 1991. Land Reforms Officer was not competent to take any action on this application and he has travelled beyond ,his jurisdiction to decide the application. 7. Against the above impugned order of the ld. Commissioner, this revision petition has been filed by Shri Prem Chand & others before this Court. I have heard the ld. Counsels for both the parties. Shri S.C. Pandit, ld. 7. Against the above impugned order of the ld. Commissioner, this revision petition has been filed by Shri Prem Chand & others before this Court. I have heard the ld. Counsels for both the parties. Shri S.C. Pandit, ld. Counsel for the petitioners argued that Shri Prem Chand filed a civil suit in 1991 in the court of Civil Sub-Judge, Dehra claiming declaration that they are owner in possession and respondent was never inducted as a tenant, which suit was dismissed on 27.1.1995 in Civil Suit No. 127/91. Thereafter, an appeal was filed by them before the Distt. Judge, Kangra at Dharamshala, who while allowing the appeal, dismissed the impugned judgment and decree of the ld. Sub-Judge and ordered to return the plaint to the plaintiffs under Order 7, Rule 10 CPC. The ld. Counsel also referred to case of Chhuniya v. Jindu" [1991 SLC]. He further argued that the applicants filed an application before the LRO, in the year 1996 alleging that they purchased 2/15 share from one Shri Tulsi Ram and mutation no. 189 and 190 were sanctioned in their favour, which also find mention in the remarks column of jamabandi for the year 1959-60. The possession was also given to the applicants vide Rapat Roznamcha No. 24, dated 21.9.1962. The ld. Counsel has alleged that the respondent (Partap Chand) illegally and collusively got himself entered as tenant in 1959. He further argued that when the land was purchased by the petitioner, Shri Partap Chand, was a tenant of Tulsi Ram. The LRO-cum-A.C. 1st Grade, decided the application on 16.2.2002, in favour of the petitioners. An appeal was filed by the respondent before the Collector, who dismissed the same; respondent further went in appeal to the Commissioner, who passed an ex parte under in the absence of both parties and accepted the appeal. In support of his contentions the ld. Counsel cited [SLC 1991(2), page 222], [PLJ 1969, page 105] and [PLJ 1988 page 209], 8. In reply, the ld. Counsel for the respondents argued that in 1978, proprietary rights of the land held under tenancy were given to the respondents and uptil 1991, the petitioners never bothered to file a civil suit. Settlement operations took place in the year 1978-79, and consolidation operations were held in the year 1989-90, the petitioners never agitated the entries because they were never in possession. Settlement operations took place in the year 1978-79, and consolidation operations were held in the year 1989-90, the petitioners never agitated the entries because they were never in possession. Had they been in possession, they would have challenged fie entries. He further argued that the mutation qua proprietary rights in his favour under section 104(3) of the H.P. Tenancy & Land Reforms Act, was sanctioned in he year 1978, in his favour. The ld. Counsel further averred that correction application could only be given before the LRO when proceedings were pending before him and here in the instant case, no such proceedings were pending before the LRO. In support of his contentions, the ld. Counsel cited [SLC 1979, page 215], [1992, PLJ] page 339], 1997(2)SLC, page 521], [Latest HLJ 2001 (HP), page 126], Latest HLJ 2006(HP), page 791], [Latest HLJ 2007(HP), page 941], and 2006(3) SLJ, page 2125]. 9. I have considered the arguments advanced by the ld. counsels for both the parties and have also gone through the records of the courts below minutely. The case file of the trial court reveals that the petitioners no.1 and 2. Prem Chand and Prabhati Devi filed an application before the LRO-cum A.C. 1st Grade, Dehra on 4.10.1996, for correction of revenue entries qua ownership and possession respect of land described in Para No.2 supra. The ld. LRO-cum-A.C. 1st Grade, after hearing the parties and taking into consideration the entire revenue record and witnesses and evidence produced both the parties in their support, came to the conclusion that respondent Pratap Chand, was not a tenant of the applicants/petitioners, and as such, mutation no.262 conferring proprietary rights on the respondent qua their share in the impugned land, was wrong, and to make good the loss in area to the applicants in the revenue record, he ordered that present entry shall be substituted by the new entry as per detail given in his order dated 16.2.2002. 10. It is not disputed that the respondent Pratap Chand was conferred proprietary rights of the land held by him as a non-occupancy tenant under Section 104(3) of the H.P. Tenancy & Land Reforms Act, 1972. This fact is corroborated from the entries incorporated in the Misal Hakiat Jadid for the year 1978-79 (at page 71), prepared during settlement operations, wherein Shri Pratap Chand, respondent is found recorded as owner over new khasra nos. This fact is corroborated from the entries incorporated in the Misal Hakiat Jadid for the year 1978-79 (at page 71), prepared during settlement operations, wherein Shri Pratap Chand, respondent is found recorded as owner over new khasra nos. 242, 250, 251 and 252, carved out of old khasra no.168/114 min, and khasra nos. 272 and 273 (new) also carved out of old khasra no. 171/149, kita (6), total area measuring 1-07-69 hectares. In the aforesaid Misal Hakiyat Partap Chand, is recorded as owner to the extent of 43 shares out of total 45 shares, with Smt. Urmila widow of Raghunath Sahay for remaining 2 shares. In the column of cultivation/possession, he (Pratap Chand ) is recorded as owner in possession for 43 shares and as non-occupancy tenant for remaining 2 shares under Smt. Urmila co-sharer. Similar entries were carried forward with regard to ownership and possession during the consolidation operations as per Misal Hakiat for the year 1989-90(page 69), wherein new khasra no.242, 250, 251, 252 were clubbed in khasra no.153 and khasra no.272 and 273 clubbed in khasra no.165. None of these entries were ever challenged nor the mutation no.262 dated 18.11.1978, was challenged whereby proprietary rights were conferred upon Shri Pratap Chand, tenant. These unrebutted entries were further carried forwarded in the jamabandis prepared subsequently. Therefore, there was no justification for the petitioners to file the application for correction before the LRO-cum-A.C, 1st Grade, Dehra on 4.10.1996. 11. It is an established law that entries once reflected in the jamabandis cannot be corrected/altered except in the nature of clerical mistakes. These unrebutted entries were further carried forwarded in the jamabandis prepared subsequently. Therefore, there was no justification for the petitioners to file the application for correction before the LRO-cum-A.C, 1st Grade, Dehra on 4.10.1996. 11. It is an established law that entries once reflected in the jamabandis cannot be corrected/altered except in the nature of clerical mistakes. I find support from the authorities cited by the learned counsel for the respondent viz.[1992, PLJ page 339], Financial Commissioner, H.P. in "Revenue revision no.29/1991, State of H.P. v. Ved Prakash, decided on 31.3.1992" wherein it has been held: "Correction of entries incorporated in jamabandi - proper remedy before civil court entries incorporated in jamabandi - cannot be corrected unless happen to be of clerical nature - order passed on mutation found its way in subsequent jamabandi - correction can be ordered by civil Court." "Further, it has been held in Revenue revision no.84/87, decided on 21.3.2000 by the F.C.(HP) reported in [Latest HLJ) 2001, page 126]" H.P. Tenancy and Land Reforms Act - Section 104-Acquisition of proprietary rights by and in the favour of the non-occupancy tenants - Legal presumption attached to the revenue entries-Mutation whereby the proprietary rights were conferred being not assailed has become final-claim of the petitioner for correction of revenue entries not sustainable." Similarly, the Honble High Court of H.P has also held in "RSA No. 328 of 2005 decided on 22.5.2005" reported in/Latest HLJ 2006 (HP), P-791] in case Smt. Nirmla Devi & ors. v. Pyar Chand & ors. "H.P. Tenancy & Land Reforms Rules, 1972 - Rule 29- correction of revenue entry - jurisdiction - Assistant Collector 1st Grade directed to change the revenue entry despite the fact that no proceedings of resumption of land or for attestation of mutation for the conferment of proprietary rights under section 104 of the H.P. Tenancy & Land Reforms Act were before him - Held the order passed for correction of revenue entry by Assistant Collector 1st Grade is without jurisdiction..." 12. In view of the above settled law, the application for correction before the LRO-A.C. 1st Grade, Dehra was not maintainable and the above Officer has traversed beyond his jurisdiction to accept the application filed by the present petitioners no.1 and 2 and has wrongly order to modify the previous longstanding unrebutted and unchallenged revenue entries. Similarly, the ld. Distt. In view of the above settled law, the application for correction before the LRO-A.C. 1st Grade, Dehra was not maintainable and the above Officer has traversed beyond his jurisdiction to accept the application filed by the present petitioners no.1 and 2 and has wrongly order to modify the previous longstanding unrebutted and unchallenged revenue entries. Similarly, the ld. Distt. Collector (ADM), Kangra in appeal before him also failed to appreciate the correct and legal proposition of law land has wrongly dismissed the appeal of the present respondent. The ld. Commissioner, in further appeal before him, has gone into the entire legal aspect and has rightly set aside orders passed by both the courts below. Therefore, there is no reason to interfere in the impugned order of the ld. Commissioner which is hereby upheld. 13. In view of the foregoing reasons, the revision petition is without any force and the same is dismissed. 14. Announced in open court today the 19th December, 2014 at Dharamshala. The records of the courts below be returned and the file of this court be consigned to the record room after due completion.