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2014 DIGILAW 210 (HP)

Jai Krishan v. Lekh Ram

2014-03-18

RAJIV SHARMA

body2014
Judgment Rajiv Sharma, J. This petition is directed against the order dated 16.7.2013 passed by the Financial Commissioner (Appeals), Himachal Pradesh in Revision Petition No. 174/2011. 2. “Key facts” necessary for the adjudication of this petition are that parties are successor-in-interest of late Sh. Nandu. Parties are real brothers. Registered “will” was executed by late Sh. Nandu on 2.2.1998 in favour of respondent No.1. The Assistant Collector IInd Grade, Sundernagar attested mutation No. 359 of Mohal Sadwahan/77, Tehsil Sundernagar, District Mandi on 16.7.1998 vide Annexure P-1. Petitioners filed an appeal against the mutation dated 16.7.1998 before the Sub Divisional Collector on 26.8.2008. They have also moved an application under section 5 of the Limitation Act. 3. The Sub Divisional Collector dismissed the appeal on merits on 7.1.2009. Petitioners preferred revision petition before the Divisional Commissioner, Mandi against the order dated 7.1.2009 rendered by the Sub Divisional Collector, Sundernagar in case No. 43/2008. He dismissed the same on 19.5.2011. Thereafter, petitioners filed yet another revision petition before the Financial Commissioner (Appeals) bearing Revision Petition No.174/2011. He rejected the same on 16.7.2013. 4. Mr. Lalit K. Sharma has vehemently argued that civil litigation is pending between the parties. He then contended that Sub Divisional Collector, Sundernagar should have decide d the application under section 5 of the Limitation Act instead of deciding the case on merits. 5. Mr. Digvijay Singh has supported the orders passed by the authorities below. 6. What emerges from the facts enumerated hereinabove is that “will” was execute d by late Sh. Nandu in favour of respondent. Mutation was attested by the Assistant Collector IInd Grade, Sundernagar on 16.7.1998. Petitioners have filed Civil Suit No. 9 of 2000 in the Court of Civil Judge (Senior Division), Sundernagar challenging the “will” dated 2.2.1998. Respondent was arrayed as sole defendant. Civil Judge (Senior Division), Sundenagar has dismissed the suit on 25.9.2007. Petitioners preferred an appeal against the judgment and decree dated 25.9.2007 bearing Civil Appeal No. 8/2007. The same was dismissed by the Presiding Officer, Fast Track Court, Mandi on 30.6.2008. Petitioners have also filed RSA No. 527/2008 and respondent has also filed RSA No. 560/2008 against the judgment and decree dated 30.6.2008 rendered by the learned Presiding Officer, Fast Track Court, Mandi. No interim order has been passed in both the appeals. 7. The same was dismissed by the Presiding Officer, Fast Track Court, Mandi on 30.6.2008. Petitioners have also filed RSA No. 527/2008 and respondent has also filed RSA No. 560/2008 against the judgment and decree dated 30.6.2008 rendered by the learned Presiding Officer, Fast Track Court, Mandi. No interim order has been passed in both the appeals. 7. It is true that petitioners have filed an appeal under section 14 of the H.P. Land Revenue Act, 1954 against the order of mutation dated 16.7.1998. An application under section 5 of the Limitation Act was also filed alongwith the appeal. The Sub Divisional Collector has passed a reasoned order on 7.1.2009. There is no merit in the contention of Mr. Lalit K. Sharma that petitioners did not know about the mutation dated 16.7.1998. Petitioners, as noticed above, filed civil suit thereby challenging the “will” dated 2.2.1998. The suit was instituted on 6.1.2000. It was decided on 25.9.2007. They have also filed an appeal before the appellate court. The appeal before the Sub Divisional Collector has been filed after the petitioners lost before the Civil Judge (Senior Division) and Presiding Officer, Fast Track Court. There is no illegality in the order dated 7.1.2009 passed by the Sub Divisional Collector whereby he has decided the matter on merits and has also taken into consideration all the contentions raised by the petitioners for condonation of delay. It was not necessary for the Sub Divisional Collector to decide the application under section 5 of the Limitation Act separately since he has decided the case on merits. The Sub Divisional Collector has taken into consideration the civil litigation pending between the parties. It has also come in the order passed by the Sub Divisional Collector that one of the petitioners Sh. Jai Krishan was present at the time of attestation of mutation. Thus, it can safely be presumed that petitioner Nos.2 and 3 had also implicit knowledge of the attestation of mutation on the basis of “will” dated 2.2.1998. Mutation has been attested strictly on the basis of “will” No. 21 dated 2.2.1998. Only those khasra numbers, which are mentioned in the “will”, have been given to respondent while attesting mutation. Orders passed by the Sub Divisional Collector dated 7.1.2009, Divisional Commissioner dated 19.5.2011 and Financial Commissioner (Appeals) dated 16.7.2013 are speaking orders. Mutation has been attested strictly on the basis of “will” No. 21 dated 2.2.1998. Only those khasra numbers, which are mentioned in the “will”, have been given to respondent while attesting mutation. Orders passed by the Sub Divisional Collector dated 7.1.2009, Divisional Commissioner dated 19.5.2011 and Financial Commissioner (Appeals) dated 16.7.2013 are speaking orders. The contentions raised by the parties have been taken into consideration by the authorities below. Parties were not strangers to the proceedings. Attestation of mutation does not confer any title. Pendency of Regular Second Appeals has no bearing on the orders passed by the authorities below. 8. In view of above analysis and discussion, there is no merit in the petition and the same is dismissed. Pending application(s), if any, also stands disposed of. No costs.