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2016 DIGILAW 1353 (HP)

THAKUR DASS v. SHER SINGH

2016-07-12

NARINDER CHAUHAN

body2016
ORDER : 1. The revision petition for exercising the revisional powers/jurisdiction under Section 17(4) of the H.P. Land Revenue Act, 1954 (hereinafter referred to as 'the Act'), is based on the recommendations dated 22.3.2012, made by the Id Commissioner, Shimla Division in revision petition no.242/08, whereby it has been recommended to quash the orders dated 13.8 2008, passed by the Sub-Divisional Collector, Shimla (Rural) and to direct he parties to seek remedy from the Civil Court. Briefly stated, the facts of the case are that deceased Shri Mani Ram, was absolute owner of land comprising khata/khatauni no.32/86, kitsa-3, area measuring 0-28-96 hect. and to the extent of 1/630 shares in khata/khatauni no.46/107-108, kita 5, area measuring hect.1-66-80 hect., situated in village Deog, Tehsil Suni, Distt. Shimla. During his life time, he adopted Shri Thakur Dass, present petitioner vide adoption deed No 226 on 29.9.1984.Subsequently, a registered 'will' was executed by Sh Mam Ram vide deed No. 63/88, dated 28 10.1988, to bequeath his land in favour of present respondent, Sh. Sher Singh(now deceased).After his death on 14 2.1998,mutation no. 55 was entered by the Patwari concerned and attested by the A.C.11nd Grade, Suni on 21 3.1998,on the basis of the said registered 'will' in favour of Sh. Sher Singh, respondent. 2. Feeling aggrieved with the order dated 21.3 1998 of the A.C.11nd Grade, passed in mutation no.55, the present petitioner filed an appeal No.7-VIII/98 before the Collector, Sub-Division, Shimla (Rural), mainly on the ground that the A.C.11nd Grade, attested the mutation in his absence without holding an inquiry on the spot and the mutation has not been taken up for disposal in the revenue estate where the land in question is situated, and that all the necessary parties and halqua lambardar could be associated in such proceedings. After hearing the parties and on perusal of the record, the Ld Collect, vide order dated 13.8.2008, dismissed the appeal. 3. Still dis-satisfied, the present petitioner filed a revision petition before the Commissioner, Shimla Division, who after going through the findings of the Sub-Judge (1V), Shimla, has observed that: "It has come on record that the adoption deed is also registered one. However, a close examination of the adoption deed reveals that it bears signature of two different Sub-Registrar i.e. on 28.9.1984.It has been signed by one sub-Registrar in presence of Sh. Som Kumar c/o Sh. However, a close examination of the adoption deed reveals that it bears signature of two different Sub-Registrar i.e. on 28.9.1984.It has been signed by one sub-Registrar in presence of Sh. Som Kumar c/o Sh. G.D. Verma, advocate(back page of first page of adoption deed placed on page 39-40 to 40 to 50 of the file of sub-Divisional Collector. Back page number 2 of the adoption deed has been signed by some others Sub-Registrar on 29.9.1984.The mutation number 55 was also attested on the basis of registered Will and, prima facie, no reasons or evidence has come on record either before the Civil Court or Sub-Divisional Collector to disbelieve the existence and legality of the registered will. From the facts and discussed above, I am convinced that intricate question of title is involved because of two registered documents i.e. one adoption deed and another Will deed in this case which can be adjudicated upon only by a Civil Court of competent jurisdiction and not by this Court because on such evidence or proof can be placed in the revision. In view of the above discussion, I am convinced that the impugned order of the Sub-Divisional Collector suffers from deficiency and illegality on account of law as well as facts. The right course for the Sub Divisional Collector was to direct the parties to seek remedy from the Civil Court. Therefore, invoking of revisional powers of the learned Financial Commissioner (Appeals) appears to be necessary in this case in order to do justice to both the parties..." Accordingly, the Id. Commissioner has-referred the revision petition to this court with his recommendations to accept the revision petition and to quash and set aside the order of the Collector. 4. During the pendency of revision petition, the responds has expired, therefore, his legal heirs have been brought on record as per CMA No 73/7104.70 Latest Himachal Law Judgments 2017. 5. Commissioner has-referred the revision petition to this court with his recommendations to accept the revision petition and to quash and set aside the order of the Collector. 4. During the pendency of revision petition, the responds has expired, therefore, his legal heirs have been brought on record as per CMA No 73/7104.70 Latest Himachal Law Judgments 2017. 5. I have heard the Id Counsel for the petitioner, who argued that mutatinno.55 was attested on the basis of a registered 'will' in favour of the respondent and ignored the adoption deed executed in favour of the petitioner After attestation of mutation, the respondent filed a civil suit for seeking permanent prohibitory injunction against the petitioner, which has been dismissed by the Sub-Judge(4),Shimla vide judgment dated 26 6.2001, which do not appear to have been further challenged by the present respondent, it proves that the petitioner is in possession of the suit land being an adopted son of late Shri Mani Ram. Further ,it has been argued that the mutation does not confer any title to the property and the respondent was required to prove his title but he has failed to so. Therefore the Id. Counsel has endorsed the recommendations made by the Id Commissioner, and argued to accept the same. 6. On the other hand, Id. Vice counsel for respondent who failed to argue the case on behalf of respondents, was directed to imitate the original counsel for the respondents to file written arguments within 15 days. But till date, no such written submission has been received on behalf of the respondents./therefore, I have proceeded to decide the matter on the basis of the record available, in so far as the contention of the respondents is concerned. 7. On perusal of record of the court below as well as the judgment of the Civil Court, the recommendations made by the Id. Commissioner is vindicated to the extent that the veracity of 'will' is not the subject matter of the jurisdiction of revenue Court. I am also of the opinion that the petitioner should have challenged the genuineness and veracity of the 'will' before Civil Court. Commissioner is vindicated to the extent that the veracity of 'will' is not the subject matter of the jurisdiction of revenue Court. I am also of the opinion that the petitioner should have challenged the genuineness and veracity of the 'will' before Civil Court. So far as the attestation of mutation based on the registered 'will', is concerned, the Revenue authorities are bound to attest the mutation on the basis of a document presented before them unless or until the same is not found/proved to be illegal or wrong by the competent court of jurisdiction. It is clear that even if the adoption of deed dated 29.9.1984, is held valid by a Civil Court, the 'will', being a registered 'will' in favour of the respondent is dated 28.10 1988 (a date subsequent to adoption) Therefore, giving effect to a registered 'with' by the revenue authorities is in order So far as setting aside the order of the Collector is concerned, the recommendation of the Commissioner to that extent cannot be allowed as the mutation has been attested on the basis of a registered document which has not been proved to be void, thus the attestation of mutation no.55 vide order dated 21.3.1998,by the A.C.11nd Grade, on the basis of registered 'will' which has been further upheld by the Collector, in appeal vide order dated 13..8.2008,require no interference. Therefore the Recommendations made by the Id. Commissioner, is partly allowed to the extent that the genuineness and veracity of both the documents i.e. registered adoption deed' and registered 'will', on the basis of which both parties are claiming property of deceased Shri Mani Ram, are issues which fall under the jurisdiction of Civil Curt. 8. Announced in the open court today the 12th July, 2016.The record of the courts below returned and the file of this court be consigned to the record room after due completion.