Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 356 (HP)

Param Dev v. State of H. P.

2014-04-07

TARLOK SINGH CHAUHAN

body2014
JUDGMENT : - Tarlok Singh Chauhan, Judge (Oral) The plaintiff-predecessor-in-interest of the appellants had instituted a suit for declaration with consequential relief of permanent injunction against the defendants/respondents on the allegation that he is owner-in-possession of the land comprised in Khasra Nos.226/1, 2, 12, 222/218 corresponding to new Khata Khatauni No.20/27, Khasra Nos. 226/1, 2,16, 222/218/27, measuring 6-1-1 bigha situate in Muhal Otta, Illaqua Balh, Tehsil and District Mandi. The learned trial Court vide his judgment and decree dated 31.08.1990 dismissed the suit of the plaintiff which resulted in the filing of the appeal at his behest before the learned lower appellate Court. Even the learned lower appellate Court vide his judgment and decree dated 06.02.1998 dismissed the appeal and resultantly the judgment and decree passed by the learned trial Court have been upheld. 2. The appeal was admitted by this Court on 08.07.2002 on the following substantial question of law:- Whether the suit filed by the plaintiff was not within limitation? 3. I have heard Mr.Pankaj Negi, Advocate vice Mr.Rajiv Jiwan, Advocate, for the appellants, Mr.Virender Kumar, learned Additional Advocate General, for respondent No.1 and Mr. Umesh Kanwar, Advocate vice counsel for respondents No. 2 to 4, 6 to 10 and 13 and with their able assistance have gone through the records of the case. The learned counsel appearing for the appellants have strenuously argued that plaintiff had been allotted the suit land vide order dated 30.07.1973 passed by the Sub Divisional Collector. The mutation in this regard had been attested in his favour on 16.11.1975. The predecessor-in-interest of the private respondents had manipulated the cancellation of the allotment of a portion of the suit land in favour of the plaintiff. 4. The categorical stand of the plaintiff is that once he had been allotted the suit land vide order dated 30.07.1973, the Sub Divisional Collector could not have proceeded to review the allotment. It is his further case that the plaintiff had taken possession and thereafter developed the same by investing huge amount. It is also contended that the Sub Divisional Collector could not have proceeded to review allotment of a portion of the suit land already granted in favour of the plaintiff simply because Thakur Dass, predecessor-in-interest, of the private respondents had also applied for allotment of the suit land to the State Government on 11.03.1966. It is also contended that the Sub Divisional Collector could not have proceeded to review allotment of a portion of the suit land already granted in favour of the plaintiff simply because Thakur Dass, predecessor-in-interest, of the private respondents had also applied for allotment of the suit land to the State Government on 11.03.1966. On this basis, the orders dated 08.07.1974 and 31.08.1974 passed by the Sub Divisional Collector were stated to be wrong, illegal and void. The orders passed by the Commissioner, who had affirmed the orders passed by the Sub Divisional Collector, were also assailed being null and void. 5. From the records, it is established that the predecessor-in-interest of the private respondents, Shri Thakur Dass, had applied on 11.03.1966 to the State Government for allotment of land bearing Khasra No.27/1 measuring 1-6-14 bigha and Khasra No.16. The Patwari had demarcated these two khasra numbers for allotment in favour of Thakur Dass in 1966 or thereabout. Whereas, plaintiff, on the other hand, applied for allotment of this land subsequently on 27.04.1972. No doubt, the suit land vide order dated 30.07.1973 was allotted in favour of the plaintiff, however, review petition had been preferred by the predecessor-in-interest of the private respondents and vide order dated 08.07.1974 the Sub Divisional Collector after approval of the District Collector had reviewed the allotment of Khasra Nos.27/1 and 16 in favour of the plaintiff. It is on the basis of this order that the mutation of the suit land came to be attested in favour of the defendants on 31.08.1974 against which order the plaintiff preferred the appeal before the Commissioner, who too vide his order dated 04.09.1985 had rejected the appeal of the plaintiff. 6. From the records, I find that the plaintiff has not assailed the order dated 08.07.1974 which was the order passed by the Sub Divisional Collector on the review petition filed by the predecessor-in-interest of the private respondents. It was on the basis of this order that the right, title and interest of the plaintiff was adversely affected and, therefore, this order was essentially required to be challenged by the plaintiff. What appears from the record is that the plaintiff, infac t, only challenged the mutation order passed by the Sub Divisional Collector dated 31.08.1974 which in turn was based on the review order dated 08.07.1974. What appears from the record is that the plaintiff, infac t, only challenged the mutation order passed by the Sub Divisional Collector dated 31.08.1974 which in turn was based on the review order dated 08.07.1974. Subsequently, when the Sub Divisional Collector had rejected his claim regarding mutation, he had preferred an appeal before the Commissioner, who vide his order dated 04.09.1985 had rejected the appeal of the plaintiff. 7. It is well settled law that mutation does not confer any title. The mutation proceedings are summary in nature and are only for fiscal purpose to determine the land revenue and cannot be considered to be evidence about title. The Hon’ble Supreme Court in Sankalchan Jay Chand Bhai Patel and others versus Vithal Bhai Jay Chand Bhai Patel and others (1996) 6 SCC 433 held as under:- “Mutation entries are only to enable the State to collect revenues from the persons in possession and enjoyment of the property and the right, title and interest as to the property should be established dehors the entries. Entries are only one of the modes of proof of the enjoyment of the property. Mutation entries do not create any title or interest therein.” (Para 7) 8. In Smt. Sawarni vs. Smt. Inder Kaur and others AIR 1996 SC 2823 the Hon’ble Supreme Court held as under:- “7 Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person revenue in question. The learned Additional District Judge was wholly in error in coming to a conclusion that mutation in favour of Inder Kaur conveys title in her favour. This erroneous conclusion has vitiated the entire judgment.” 9. Thus, in the teeth of the order dated 08.07.1974, whereby the allotment of ‘nautor’ made in favour of the plaintiff-appellants vide order dated 30.07.1973 had been reviewed and the same had attained finality, the suit filed before the learned trial Court could not be said to be within limitation as the cause of action for filing the suit arose to the plaintiff on 08.07.1974 and could not in any case be computed and reckoned from the order passed by the Commissioner on 04.09.1985. Admittedly, the suit was instituted by the plaintiff only on 02.01.1988 after nearly 14 years of the accrual of the cause of action. Admittedly, the suit was instituted by the plaintiff only on 02.01.1988 after nearly 14 years of the accrual of the cause of action. Even on merits, the plaintiff has not been able to establish a case in his favour. Though, plaintiff had examined two witnesses in support of his possession over the suit land, however, the evidence was absolutely vague, indefinite and perfunctory. 10. The appeal does not call for any interference as pure findings of fact have been recorded concurrently by the Courts below against the appellants and in favour of the respondents. The suit filed by the plaintiff-appellants was not within limitation. The substantial question of law is answered accordingly. Resultantly, the appeal is dismissed along with pending application (s), if any, leaving the parties to bear their own costs.