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2015 DIGILAW 414 (HP)

MAN SINGH v. BRAHAMU RAM

2015-04-28

NARINDER CHAUHAN

body2015
ORDER : 1. This revision petition is based on the recommendations dated 16.3.2011, made by the Ld. Commissioner, Mandi Division, in Case No. 282/2006. 2. Briefly stated, the facts of the case are that the Shri Brahamu Ram etc., present respondents, filed an application before the Settlement Collector, Kangra, for correction of khasra girdawari requesting therein that there was a cow-shed of the applicant over land comprising in khata no. 43 min, khatauni no. 55, khasra no. 47 min old, corresponding to new khasra no. 282, measuring 0-00-44 hectares, situated in Tikka Ghata Panga, Tappa Garli, Tehsil Barsar, Distt. Hamirpur, since the times of their ancestors but during settlement operations, the factual position as existing on the spot was not recorded in the revenue record in the names of petitioners/applicants. That the above land was never in possession of the respondents. It was further averred that the area of khasra nos. 282, 283, 284, 285, 286, 287 new and old khasra no. 47 have been shown in the revenue record to be 21 marlas whereas on the spot as per measurement the area of these khasra nos. is more than 21 marlas. 3. The Ld. Settlement Collector, got the matter investigated through the Naib-Tehsildar (Settlement), who recommended necessary corrections. On receipt of the spot report, the Settlement Collector, after perusal of the same, ordered necessary corrections in the revenue record vide order dated 6.12.1999, passed in Case No.164/99/SO. 4. Feeling aggrieved with the above orders of the Settlement Collector, Shri Man Singh etc., present petitioners, filed a revision petition before the Commissioner, Mandi division. The Ld. Commissioner, after hearing the parties and after perusal of the record of the trial court, accepted the revision petition no. 64/2003, vide order dated 20.11.2004, by setting aside the order of the Settlement Collector with a direction to the parties to approach the competent authority for redressal of any grievances pertaining to any entry in the record of rights within a reasonable time. 5. The order of the Ld. Commissioner, was further assailed in a revision petition by the present respondents before this court which was registered as Revision petition no. 96/2005. My Ld. predecessor vide order dated 03.07.2006, accepted the revision petition observing therein that the Ld. 5. The order of the Ld. Commissioner, was further assailed in a revision petition by the present respondents before this court which was registered as Revision petition no. 96/2005. My Ld. predecessor vide order dated 03.07.2006, accepted the revision petition observing therein that the Ld. Commissioner, Mandi Division, had exceeded his jurisdiction and therefore, the impugned order dated 20.11.2004, was set aside with a direction to the parties to appear before him on 04.08.2006 to pursue their case before his court. 6. After remand, the Ld. Commissioner, has re-registered the case as revision petition no. 282/2006. After hearing both the parties, the Ld. Commissioner has recommended the case to this court with his observations that Shri Brahamu Ram, present respondent, has failed to prove his possession before the Civil Court also and the order passed by the Settlement Collector below in their favour is totally wrong and is liable to be set aside. 7. I have heard the Ld. counsel for both the parties. In addition to their oral submissions, written arguments have also been filed on behalf of both parties. On behalf of the petitioners, it has been submitted that Shri Brahamu Ram, has not come up with clean hands and he has suppressed material facts with a mala fide intention and ulterior motive in order to cause wrongful loss to them. Further that the respondents are dragging the petitioners into unwarranted litigations again and again. According to the petitioners, the application for correction filed by Shri Brahamu Ram, is not maintainable as he filed a correction application earlier before the A.C. Ist Grade which was dismissed on merits on 5.8.1997, thus, subsequent application is not legally maintainable. It has been further averred that Shri Brahamu Ram filed a Civil Suit no. 85/2005 as per relevant law, which was dismissed by the Civil Judge (Jr. Division), Barsar on 16.02.2008. it has, therefore, been contended that the Revenue Courts are bound to follow the judgment and decree of Civil Court and due effect is to be given to the same. 8. On the other hand, the Ld. counsel for the respondents, has submitted that it is evidently clear from the perusal of the record that there is a cow-shed of the respondents over khasra no. 282 since the time of their ancestors which is in their possession. 8. On the other hand, the Ld. counsel for the respondents, has submitted that it is evidently clear from the perusal of the record that there is a cow-shed of the respondents over khasra no. 282 since the time of their ancestors which is in their possession. Further that the respondents are the co-sharers over the Shamlat Tikka of Tikka Ghata Panga and have the right on every inch of the land being co-sharers. Therefore, the respondents have prayed for declining the recommendations made by the Ld. Commissioner and requested for upholding the order of the Settlement Collector dated 06.12.1999. In support of his contentions, the Ld. counsel has also cited [PLJ 1975 Page 48], wherein it has been held that "Khasra Girdawari entries must reflect true position as seen on the spot-Evidence if establishes actual cultivating possession of a person-Entitled to have Khasra Girdawari entries in his favour". He further referred (PLJ 1975 Page 323] wherein it has been held that "Correction of any entry in revenue record-Within purview of revenue Officers-Civil Court cannot direct Revenue Authorities to make corrections in record of rights or in Khasra Girdawaris." 9. I have considered the arguments advanced by the Ld. counsel for both the parties and have also perused the record of the courts below. The Ld. Commissioner has recommended the matter to this court relying on the judgment passed in Civil Suit no. 85/2005, decided on 16.2.2009, by the Ld. Civil Judge (Jr. Div.) Barsar, Distt. Hamirpur. A copy of the aforesaid judgment available on the file of the Commissioner has been perused which reveals that Shri Brahamu Ram, herein respondent no.1, had filed a suit for permanent prohibitory injunction and relief for possession against the present petitioners qua the suit land comprised in khata/khatauni no. 48/78, khasra no. 279, area measuring 0-00-45 hectares and khata/khatauni no.43 min/55min, khasra no. 282, measuring 0-00-44 hectares as per Missal Hakiat (Settlement) for the year 1993-94, situated in Tikka Ghata Panga, Tappa Garli, Tehsil Barsar, Distt. Hamirpur. 10. In the present revision petition only khasra no. 282 is a subject matter of dispute. The Ld. Civil Judge while adjudicating upon various issues has finally dismissed the suit. In para no. 13 of the judgment, the Ld. Court has specifically mentioned "...meaning thereby the title pertaining to khasra no. Hamirpur. 10. In the present revision petition only khasra no. 282 is a subject matter of dispute. The Ld. Civil Judge while adjudicating upon various issues has finally dismissed the suit. In para no. 13 of the judgment, the Ld. Court has specifically mentioned "...meaning thereby the title pertaining to khasra no. 282 is under challenge before the revenue authorities, hence, the plaintiff cannot be said to be the owner in possession over the said khasra nos... The perusal of the revenue record shows that earlier khasra no. 282 was exclusively owned and possessed by the defendants and the nature of the same has been shown as 'gair mumkin gohar'. Meaning thereby, since the cow-shed of the defendants is existing over khasra no. 282 and since the correction made in favour of the plaintiff is under challenge, therefore, suit for injunction, filed by the plaintiff, is not maintainable as the title of the part of the suit land is under challenge. In view of my aforesaid discussions, since the title of the part of the suit land comprised in khasra no. 282 is under challenge before Higher Revenue Authority and since the plaintiff remained failed to prove on record that the defendants are causing interference over the part of the suit land comprised in khasra no. 279, therefore, the plaintiff cannot be held entitled for relief of injunction. Hence, the question of possession and mandatory injunction does not arise at all. Accordingly, all these issues are decided against the plaintiff." 11. Thus, in view of the above judgment passed by the Civil Court, it is evident that Civil Court has left the matter for final decision qua correction of khasra no. 282 on the revenue authorities. The Ld. Settlement Collector, Dharamshala, on the application of Shri Brahamu Ram etc, after receiving a detailed report from the field staff, vide his order dated 6.12.1999, passed in case No. 164/99/SO, has ordered necessary corrections in respect of khasra no. 282 to the extent that Khasra no. 282/1 measuring 0-00-18 hect. may be excluded from khata no. 43/55, by giving description of entry of old khasra no. 177/87 min and recorded in khata no. 38/1, khatauni no. 42 as Shamlat Tika under the possession of Brahamu etc. as 'Hissadaran' and the remaining area of 0-00-26 hect. of khasra no. 282/2 shall remain intact in the old khata no. 47 min. 12. may be excluded from khata no. 43/55, by giving description of entry of old khasra no. 177/87 min and recorded in khata no. 38/1, khatauni no. 42 as Shamlat Tika under the possession of Brahamu etc. as 'Hissadaran' and the remaining area of 0-00-26 hect. of khasra no. 282/2 shall remain intact in the old khata no. 47 min. 12. However, the matter was agitated in revision petition before the Ld. Commissioner, Mandi division, by the petitioner assailing the above order of the Collector, the Ld. Commissioner, vide his order dated 20.11.2004 passed in case no. 64/2003, after hearing the parties and perusal of the record, had observed that the Settlement Collector had passed the impugned order on the basis of the report of Settlement Naib Tehsildar without affording opportunity of being heard to the affected parties and thus the order was against the principles of natural justice and thus bad. The Ld. Commissioner, further observed that the perusal of the impugned order shows that addition/deletion has been ordered from certain khata/khatauni nos. to other khata/khatauni nos. by creating new khasra nos. i.e. 282/1 and 282/2 but no reasons have been assigned for doing so. In the absence of the cogent reasons for doing such addition/deletion, the order was bad and not sustainable. Therefore, finding merit in the revision petition, the Ld. Commissioner, had accepted the same by setting aside the impugned order of the Collector Settlement at his own level without referring the matter to this court as envisaged under section 17(3) of the Act. 13. As stated above, the aforesaid order of the Ld. Commissioner, was set aside by my Ld. predecessor vide order dated 3.7.2006, passed in revision petition no. 96/2005, for a fresh decision on grounds of having exceeded jurisdiction. The Ld. Commissioner, has therefore, decided the matter afresh and recommended the matter to this court. 14. On appraisal of the record, it is observed earlier that the Ld. Commissioner, in his order dated 20.11.2004 had dealt the matter in detail. In para-6 of his order, he had observed that two issues have been clubbed in application dated 26/23-8-1997 filed by the respondents viz-a-viz (a) correction in khasra girdawari, (b) correction in measurement of new khasra no. 282 to 287 corresponding to old khasra no. 47 after visiting the spot pertaining to the appellants/respondents. According to the Ld. In para-6 of his order, he had observed that two issues have been clubbed in application dated 26/23-8-1997 filed by the respondents viz-a-viz (a) correction in khasra girdawari, (b) correction in measurement of new khasra no. 282 to 287 corresponding to old khasra no. 47 after visiting the spot pertaining to the appellants/respondents. According to the Ld. Commissioner, this application/plaint has not been examine in the lower court as per Standing Order no. 2 of the Financial Commissioner, H.P. Further that two issues referred above fall within the competencies of two different authorities i.e. (a) falls in the competence of Assistant Collector-IInd Grade, (b) falls within the competence of Settlement Collector... Application dated 26/23-8-1997 of the respondents/applicants under section 37 of the Act is (or correction in khasra girdawari whereas correction in dimensions of certain khasra nos. have been affected through the impugned order, thus the order is bad ab initio. Further in sub-para-(iv), the Ld. Commissioner, has observed that the Settlement Collector had passed the order on the basis of report of Settlement Naib Tehsildar, stated above without affording opportunity to the affected parties. Thus, the order is against principles of natural justice also. In para (v) of his order, the Ld. Commissioner, had also observed that the perusal of the impugned order shows that addition/deletion has been ordered from certain khata/khatauni nos. to other khata/khatauni nos. by creating new khasra nos. i.e. 282/1 and 282/2 but no reasons have been assigned for doing so. In the absence of the cogent reasons for doing such addition/deletion, the order was bad and not sustainable in the eyes of law. 15. For the reasons mentioned above, I find no reason to disagree with the observations made by the Ld. Commissioner, in his order dated 20.11.2004, therefore, the subsequent recommendations made by the Ld. Commissioner, on 16.3.2011 are accepted. Accordingly, the revision petition is allowed and the order dated 6.12.1999 passed by the Settlement Collector, in Case No. 164/99/SO, is set aside. 16. Order be communicated to the parties. Record of the courts below be returned and the file of this court be consigned to the record room after due completion.