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2017 DIGILAW 71 (HP)

Sarswati Devi v. Bisan Chand

2017-01-23

NARINDER CHAUHAN

body2017
ORDER Narinder Chauhan, I.A.S. - This revision petition has been preferred under section 17 of the Himachal Pradesh Land Revenue Act, 1954 (hereinafter referred to as ''the Act'') against the order dated 23.11.2009, passed by the Ld. Divisional Commissioner, Shimla Division, in appeal No. 249/2004, whereby the Ld. Commissioner has upheld the orders dated 31.7.2004, passed by the Ld. Collector Settlement, Shimla in case No. 144/04. 2. Briefly stated, the facts of the case are that the present petitioners filed an application dated 8-7-2002(registered as Missal No. 144/2004) before the Settlement Collector, Shimla, for correction of revenue entries comprised in khewat No. 7, khatauni nos. 10, 11 and 12, khasra nos. 143, 235, 223, 227, 233, 240, 242, 245, 249, 170, area measuring 24-5 bighas, Mohal Bhont, Tehsil and Distt. Shimla, stating therein that they were successor-in-interest of one Smt. Kanchanu Devi wife of Shri Shiv Dutt, having immovable property at Mohal Bhont-Kot and Karand, Tehsil & Distt. Shimla and after her death, the land situated in Mauza Kharand had been mutated in favour of the predecessor-in-interest of the applicants/petitioners, but the land situated in Mauza Bhont (which has now been further bifurcated into another Mohal i.e. Kot) could not be mutated in the name of predecessor-in-interest of applicants/present petitioners (i.e. Sh. Puran Chand and Chet Ram), due to inadvertence. That in fact mutation No. 86 dated 21.1.1954 of land belonging to Shri Shiv Dutt was attested in the name one Smt. Kanchanu, but in the revenue record i.e. jamabandi for the year 1954-1955 inadvertently the entry has been made in the name of Smt. Kokila shown as wife of Shiv Dutt. That due to this clerical mistake, the land has been entered into the name of Smt. Kokila, who was in fact wife of Sh. Lachami Singh, predecessor-in-in-interest of present respondent and after her death the land in question has been mutated in the name of respondent Shri Bishan Chand. That this fact of wrong entries came to their knowledge/notice only during the settlement operations and prior to that they were under the impression that the mutation of the property of late Smt. Kanchanu had been entered and attested in their favour. The Id. That this fact of wrong entries came to their knowledge/notice only during the settlement operations and prior to that they were under the impression that the mutation of the property of late Smt. Kanchanu had been entered and attested in their favour. The Id. Collector settlement got the matter inquired into through the Naib-Tehsildar(Settlement), who after perusal of the old entries and visiting the spot, proposed for necessary correction in favour of the applicants'' petitioners vide his report dated 4.9.2003. On considering the above report and after hearing both the parties, the Id. Settlement Collector came to the conclusion that the entry in dispute is coming in the record rights for the year 1954-55 and the same entry has been further incorporated in the Missal Hakait prepared during current settlement operations, which cannot be changed without the consent of the owner. Referring to the provision of para 8.54 of the H.P. Land Records Manual, the Id. Settlement Collector, vide order dated 31.7.2004, turned down the proposal/recommendations of the field agency and rejected the application being barred by jurisdiction. 3. Feeling aggrieved with the above order of the Id. Settlement Collector, the present petitioners filed an appeal before the Ld. Commissioner, Shimla Division, on the grounds that the Settlement Collector has passed the impugned order without affording an opportunity of hearing to them and has thus violated the principles of natural justice. That the Id. Settlement Collector has not appreciated their version and entries in the revenue papers available on record; that the perusal of the old and new records clearly proves beyond doubt that the entries in the jamabandis showing the respondents as the owners of the land is incorrect. Further, it was contended that the order under challenge is erroneous as the same has been passed in contravention of the law, that the lower court ought to have passed the order on the basis of revenue record available and the inquiry reports submitted by the revenue official, but the Id. Settlement Collector passed the order by ignoring all records and on some extraneous consideration. Settlement Collector passed the order by ignoring all records and on some extraneous consideration. Further that it is clearly shown in the revenue record that Smt. Kokila is the wife of Shri Lachmi Singh and she has no relation with late Shri Shiv Dutt and she has been wrongly shown as wife of Shri Shiv Dutt, in the old jamabandi and consequently a wrong mutation on the basis of said wrong entry was passed in favour of the respondents. After hearing the parties and on perusal of the record, the Id. Commissioner, vide impugned order dated 23.11.2009, passed in Revenue Appeal No. 249/2004, has observed as follows:- "11 have gone through the record carefully. The issue is of longstanding revenue entries which has to be seen separately and differently from correction of revenue entries during making of record of rights. The Lower Court has appreciated the legal point correctly wherein it has been said that the entries arise from jamabandi of 1954-55, the same need to be agitated and resolved by the Civil Court. In this matter detailed evidence has to be led with respect to pedigree and entitlement which is not within the jurisdiction of this court, determination of question of title is the province of the Civil Court and has been up held in many judgments. Hence, the matter has to be adjudicated after leading detailed evidence and comes within the purview of Civil Court as revenue entries are very old, they are not consequence of clerical error during settlement, the appreciation of this fact by the Lower Court is correct and order accordingly is upheld and the appeals rejected. " Hence, the present revision petition has been filed on similar ground as were taken before the Id. Commissioner in appeal. 4. I have heard the Ld. Counsel for the petitioners, whereas the Id. Counsel for the respondent has filed written arguments. Ld. Counsel for petitioners while reiterating the grounds of the revision petition, argued that in revenue village Bhont, the entry of mutation No. 86 in one khata, Smt. Kanchanu has been shown as widow of Shiv Dutt, while in another khata Smt. Kokila has been shown as widow of late Shri Shiv Dutt, but the lower courts have acted illegally while passing the orders under challenge otherwise the real point of controversy could have been determined on the basis of record. Ld. Ld. Counsel further argued that it is a well established principle of law that anything committed wrongly or wrong benefit should not be allowed to be perpetuated specially when the material mistakes and errors have been committed by the revenue authorities at the time of preparation of revenue record. Ld. counsel further averred that the very purpose of settlement operations is defeated if during the preparation of the record wrong entries are not corrected according to the admitted and settled possession. Ld. Counsel has also added that there is no bar for correction of entries which have wrongly been prepared due to clerical mistake or error, and the respondent has also not been able to set up or prove as to how and on what basis entries were made in favour of Smt. Kokila wife of Shri Lachmi Singh with regard to Civil Court jurisdiction, referring to the provisions of section 171(6) of the H.P. Land Revenue Act, 1954, the Id. counsel argued that such revenue entries are required to be corrected by the Revenue Officers and as a matter of fact, jurisdiction of the Civil Court is debarred. In support of his contents, the Id. Counsel also cited 1988 PLJ, page 462, Gobind Ram v. Kaura Ram ) and (Latest HLJ 2007(HP), page 684, Devinder Singh v. The D.C. Una and ors. ). Accordingly, the Id. Counsel urged that the orders passed by both the courts below may be set aside and the application for correction of revenue entries filed by the present petitioners, be allowed. 5. In reply, the Ld. Counsel for the respondent in written arguments has referred to the provisions of para No. 854 of the H.P. Land Records Manual and submitted that the entries cannot be corrected and the same can be done by way of a civil suit, as the entry prior to settlement is existing in favour of respondent and during settlement operation the same cannot be changed as the Id. Settlement Officer has no power to-do so. Further, that the order passed on a mutation cannot be changed/corrected by way of correction and the petitioners could have challenged the mutation within the period of limitation as envisaged under the H.P Land Revenue Act, It has also been contended that long standing entries cannot be changed as a presumption of truth is attached to all the jamabandis. Further, that the order passed on a mutation cannot be changed/corrected by way of correction and the petitioners could have challenged the mutation within the period of limitation as envisaged under the H.P Land Revenue Act, It has also been contended that long standing entries cannot be changed as a presumption of truth is attached to all the jamabandis. It has further been contended that Shri Shiv Dutt, had not died issue-less as is clear from the pedigree table drawn on mutation No. 100 of Smt. Kanchnu of Mohal Bhont and mutation No. 49 of Mauza Karand. Lastly, Id. Counsel asserted that the lower courts have rightly held that there is no power of correction by referring to the provisions of para 8.54 of H.P. Land Records Manual, as such, the present revision petition is liable to be dismissed. 6. I have considered the arguments advanced by the Ld. Counsels for both the parties and have gone through the record of the Courts below. On considering the pleadings of both the parties, the point in issue is that as to whether the entry of Smt. Kokila, as wife of late Shri Shiv Dutt in revenue estate Bhont which took place in the year 1954-55 onwards in the record of rights, is right or wrong, and if wrong, then whether the Revenue Courts are competent to adjudicate upon such issues or not. On perusal of copies of mutations No. 86 (available at page 20 and 21 of the file of collector Settlement) pertaining to Mauza Bhont, it is clear that land bearing khasra/khatauni No. 2/2 and 4/8, was mutated in the name of Smt. Kanchanu wife of late Shri Shiv Dutt, but while giving effect to this mutation in the record of right i.e. jamabandi for the year 1954-55, name of Smt. Kokila and reference of khewat No. 1 was given against khata/Khatauni No. 4/8 and there is no reference/justification qua this entry in the remarks column of jamabandi. Further, from the perusal of reports of the settlement field agencies available at pages 27 to 33 which includes the reports of the Naib-Tehsildar, Tehsildar and Assistant Settlement Officer, Shimla. It is clear that the entry qua khata/khatauni No. 4/8 was wrong and contrary to the entries in mutation No. 86. From the perusal of copy of mutation no. Further, from the perusal of reports of the settlement field agencies available at pages 27 to 33 which includes the reports of the Naib-Tehsildar, Tehsildar and Assistant Settlement Officer, Shimla. It is clear that the entry qua khata/khatauni No. 4/8 was wrong and contrary to the entries in mutation No. 86. From the perusal of copy of mutation no. 100, pertaining Mauza Bhont, attested on 8.8.1967 (available at page 22 of the trial court file). Smt. Durga has inherited the landed property of Smt. Kanchanu being successor as per Shajra Nasab drawn on the mutation sheet. Moreover, on perusal of the statements of Shri Bishan Singh (available at 36 and 37 of the trial court file) made before the Kanungo and Naib-Tehsildar (Settlement), it is apparent that the respondent was even not aware with the fact that as to how such entry has been incorporated in the record of right and further he has even failed to produce any documentary evidence in support of legality of entries in his favour or in favour of his predecessor-in-interest. Hence, it is prima facie apparent that there is a clerical mistake or an error apparent on the face of the record. 7. In order to determine the issue of jurisdiction, it would be appropriate to reproduce the provisions of section 38A of the H.P. Land Revenue Act, 1954 as follows:- "38A. Correction of clerical errors:- Clerical or arithmetic mistake or an error apparent on the face of record, arising from any accidental slip or omission, found in the record-of-rights of an estate or sub-estate during making of, or special revision of, any record-of-rights or documents mentioned in sub-section (2) of section 32 of this Act, may, either of his own mutation or on the application of any of the parties, be corrected by the Collector, making, or specially revising, the record-of-rights." 8. From the perusal of the provisions of aforesaid section, it is clear that the Collector making or specially revising the record-of-rights, is competent to correct the clerical or arithmetic mistake or an error apparent on the face of record, arising from any accidental slip or omission found in the record-of-rights of an estate or sub-estate during the making of or special revision of any record-of-rights or documents mentioned in sub-section (2) of section 32 of this Act. This section nowhere stipulates a restriction on the Collector for correction of a clerical or arithmetical mistake or an error apparent on the face of the record on the ground of existence of such wrong entry for a long period i.e. in more than two jamabandis. As far as the provisions of para 8.54 of the H.P. Land Records Manual which is reproduced below is concerned, the same is merely a restriction on correction of an entry in the jamabandi by entering and sanctioning the mutation. Para 8.54:- when an entry has been incorporated in the jamabandi a mutation should not be entered up or sanctioned for the purpose of correcting it, except to correct a clerical error(where this cannot be done by a fard Badar) or in consequence of a patent fact. The party aggrieved by such an entry, must seek his remedy by suit(LLT1934, page-2). In view of the above discussion, the Collector making or specially revising the record-of-rights, is competent to make such corrections by exercising the powers under section 38A of the Act. However, the facts of the case are required to be examined and inquired into thoroughly, so that the real/actual owners of right holders of the land in question may not suffer. 9. In view of above observations, the orders dated 31.7.2004, passed by the Id. Settlement Collector, Shimla in case No. 144/2004, and the order dated 23.11.2009 passed by the Id. Divisional Commissioner, Shimla in case No. 249/2004, upholding the orders of the Id. Settlement Collector, Shimla, are hereby set aside. The case is remanded to the Settlement Collector, Shimla for denovo inquiry disclosing factual spot position on the spot and after providing an opportunity of being heard to the interested parties, and to decide the matter afresh in accordance with flaw. 10. Orders be communicate to parties. The records of the courts below be returned and file of this court be consigned to the record room after due completion.