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2015 DIGILAW 1993 (HP)

Gian Chand v. Shri Ram Lal

2015-12-30

NARINDER CHAUHAN

body2015
ORDER : Shrf Narinder Chauhan, I.A.S. - The revision petition preferred under Section 17(4) of the H.P. Land Revenue Act, 1954 (hereinafter referred to as the Act'), is directed against the order dated 7-4-2011, passed by the Id. Commissioner, Mandi Division, in Case No. 301/2009, whereby Id. Commissioner has dismissed the appeal of the present petitioner by upholding the order dated 6.2.2009, passed by the Id. Settlement Collector, Kangra in case no. 19/07/ASO. 2. Brief facts of the case are that the land comprised in khata/khatauni no. 84/101, khasra no. 724, area measuring 0-03-72 hectares, situated in Mauza Pahlu, Tehsil Barsar, was recorded in the ownership of Shamlat Deh Hasab Hissa Varnit Shajra Nasab and in the column of possession in the name of Ram Lal, present petitioner as hissadar. On the basis of judgment and decree of the Distt. Judge, Hamirpur, dated 8-2-2006, passed in Civil Appeal no. 18 of 2004, the Assistant Collector, IInd Grade (Settlement), Circle Bhota, recorded joint possession of both the petitioner and the respondent as hissadari in the column of possession, vide mutation 8, attested on 29.8.2007. The present respondent Shri Ram Lal, filed an appeal before the Id. Settlement Collector, Kangra on the ground that the mutation was attested totally against the facts and law as there is a residential house, cowshed - cum- snop of the appellant since the time of his ancestors and the respondent is neither in possession of any part of the land nor he has any legal right over the land in question; that the Revenue Officer attested mutation no. 8 on the basis of decision of Distt. Judge Hamirpur dated 8.2.2006, who although dismissed the appeal of the present appellant but had neither given nor recorded any entry in favour of the respondent to change the revenue entries, then how the Naib - Tehsildar (Settlement), Bhota, passed the order by attesting mutation no. 8 in favour of Gian Chand. Ld. Settlement Collector, after hearing the parties and on perusal of the record as well as the copy of judgment/decree passed by the Disit Judge, on the basis, the mutation no. 8 was attested, allowed appeal no. 19/07/ASO, of the present respondent(Ram Lal), vide order dated 6.2.2009, holding that the Distt., Judge, has dismissed the appeal of the plaintiff present respondent(Ram Lal) on the basis of points no. 8 was attested, allowed appeal no. 19/07/ASO, of the present respondent(Ram Lal), vide order dated 6.2.2009, holding that the Distt., Judge, has dismissed the appeal of the plaintiff present respondent(Ram Lal) on the basis of points no. 1 and 2, but in the said judgment, there was no order/direction to record Shri Gian Chand as hissadar to the extent of half share. Therefore, the lower court has not implemented the order dated 8.2.2006, passed by the Distt. Judge, Hamirpur, in accordance with the procedure and had passed a wrong and illegal order. 3. Feeling aggrieved with the above order dated 6.2.2009, of the Id Settlement Collector, Shri Gian Chand, present petitioner challenged this order before the Commissioner, Mandi Division by filing appeal no. 301/2009, who after hearing the parties, has upheld the above order of the Id. Collector settlement and dismissed the appeal vide the impugned order dated 7.4.2011. Hence, the present revision petition has been filed before this court. 4. I have heard the id. Counsel for both the parties. Ld. counsel for the petitioner has reiterated the contents of the revision petition and argued that mutation no. 8 was sanctioned on the basis of judgment and decree of the Distt. Judge, Hamirpur dated 8.2.2006, vide which the petitioner was recorded in possession of suit land to the extent of half share that the para no. 20 of judgment dated 4.2.2004, passed by the Civil Judge(Jr,. Div.) Barsar, and para no. 16 of the judgment dated 8.2.2006 of the Distt. Judge, Hamirpur, clearly held that the defendant (present petitioner) is owner in possession of the suit property/land and the plaintiff (present respondent) failed to prove and establish his ownership of the suit property and therefore, further held that the plaintiff is not entitled to possession of the suit property. Therefore, the Id. Counsel for the petitioner averred that the A.C. IInd Grade has not committed any error while attesting the mutation no. 8 dated 29.8.2007, by recording his name as co - sharer with the respondent to the extent of half share. Further, it has been argued that although the civil suit and the appeal of present respondent have been dismissed by Civil-Judge(Jr.Div) and the Distt,. Judge, have neither given nor recorded any entry in respect of the respondent then how Naib - Tehsildar(Settlement), Bhota, has passed this attested mutation no. Further, it has been argued that although the civil suit and the appeal of present respondent have been dismissed by Civil-Judge(Jr.Div) and the Distt,. Judge, have neither given nor recorded any entry in respect of the respondent then how Naib - Tehsildar(Settlement), Bhota, has passed this attested mutation no. 8 in favour of the petitioner, therefore, the revision petition is liable to be dismissed. 5. In reply, Id. counsel for the respondent argued that on perusal of the judgments no issue has been framed whether the petitioner is owner in possession, although the respondent failed to show his possession and qua the same, the petitioner has never filed any suit nor agitated the above judgments of the Civil Courts. 6. On considering the averments made on behalf of both the parties, it is appropriate to go through the judgment dated 4.2.2004 passed by the Id. Civil Judge(Sr. Div.), in civil suit no. 43/99 filed by the present respondent (Ram Lal) for possession of land in question Ld. Court has framed as many as 11 issues for adjudication out of which the main issue no. 1, 2, 5, 8 to 10 have been decided against the plaintiff i.e. present respondent and issues no. 3 and 4 have been decided in favour of the defendant i.e. present respondent The main issues no. 1 to 5 were as under; Issue No.1. Whether the plaintiff is owner of the suit land as alleged ? OPP 2.Whether the plaintiff is stopped to a decree for possession as claimant? OPP5. Whether the plaintiff has a cause of action? OPP. The Id. Civil Judge(Sr. Div). Barsar has decided all these three issues against the plaintiff i.e. present respondent, which clearly shows that the respondent failed to prove his claim before the Id. Court and his suit was dismissed The issues no. 3,4,6 and 7 have been decided in favour of defendant/petitioner and issues no. 3 and 4 which are relevant for disposing present revision petition are reproduce below; Issue No.3. Whether the revenue entries are wrong and illegal as alleged? OPD. 4 Whether the defendant is the owner in possession of the suit property after purchase as alleged ? OPD These issues have been decided by the Id. Civil Judge (Sr. Div). 3 and 4 which are relevant for disposing present revision petition are reproduce below; Issue No.3. Whether the revenue entries are wrong and illegal as alleged? OPD. 4 Whether the defendant is the owner in possession of the suit property after purchase as alleged ? OPD These issues have been decided by the Id. Civil Judge (Sr. Div). Barsar in favour of the defendant/present petitioner which clearly proves that the revenue entry qua the suit land is wrong and illegal and the defendant/petitioner is owner in possession of the same. In para no. 20 of the said judgment, the Civil Judge, has clearly observed that the defendant/petitioner is owner in possession of the suit property and the entries existing in the name of plaintiff with respect to suit land/property are wrong and illegal. 7. Further, in Civil Appeal No. 18 of 2004 filed against the aforesaid order of Civil Judge (Sr. Div.), Barasar, before the Distt. Judge, Hamirpur. The Id. Court also framed following three points for adjudication vide his judgment dated 8.2.2006:- (1) Whether the plaintiff is owner of the shop along with Varandah, Kitchen and cow - Shed in dispute ? (2) Whether the plaintiff is entitled to possession of the suit property from the defendant (3) Final Order. The Id. Distt. Judge, decided the first two issues against the appellant i.e. present respondent and in the relevant lines of his judgment in para no. 16, it has been clearly observed that; "The defendant, therefore, could not be treated in unauthorized possession of the suit property. The plaintiff had to succeed on the strength of his own case. He could not be allowed to take benefit of weakness, if any, in the defence of the defendant. The defendant is owner in possession of the suit property comprising Shop, Varandah, Kitchen and Cowshed in dispute. The Plaintiff had failed top prove and establish his ownership of the suit property. The plaintiff is not entitled to possession of he suit property. The Id. Civil Judge had rightly answered issues no. 1,2 and 5 against the plaintiff, issues no. 3,4 had been rightly answered in favour of the defendant..." Finally, the id. Distt. Judge, Hamirpur, found no merit in the appeal of the plaintiff/respondent against the defendant/present petitioner and dismissed the same. 8. The Id. Civil Judge had rightly answered issues no. 1,2 and 5 against the plaintiff, issues no. 3,4 had been rightly answered in favour of the defendant..." Finally, the id. Distt. Judge, Hamirpur, found no merit in the appeal of the plaintiff/respondent against the defendant/present petitioner and dismissed the same. 8. Hence, in view of the findings of the Civil Court there is a mistake in the revenue entries, and the Id. A.C.IInd Grade (Settlement), Bhotta has rightly proceeded to carry out vide mutation no. 8 dated 29.8.2007. It appears that the Id. Collector and the Commissioner, have not gone through the judgments of the Civil Court minutely and thus erred to set aside the above order of the A.C.IInd Grade However, it is not clear as to how and why the name of present respondent (Ram Lal) has been retained in the column of possession because the Civil Courts have clearly observed that his entry in column of possession is wrong and illegal. Since, the petitioner has not contested the entry to this effect, therefore, no order is being passed on this issue. Thus, I find legal force in the present revision petition and the same is allowed and as such, the orders passed by the id. Collector Settlement dated 6.2.2009, and that of the Id. Commissioner, Mandi Division, dated 7.4.2011, passed in case no. 19/07/ASO and 301/2009 respectively, are set aside. The order dated 29.8.2007, passed by the Id. AC.IInd Grade(Settlement), Bhotta attesting mutation no. 8, is upheld. 9. Order be communicated to the parties. The record of the courts below be returned and the file of this court be consigned to the record room after due completion.