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2018 DIGILAW 1405 (HP)

Taro Devi v. Mehar Chand

2018-07-30

AJAY MOHAN GOEL, SANJAY KAROL

body2018
JUDGMENT : Ajay Mohan Goel, J. By way of this appeal, appellants have laid challenge to the judgment passed by learned Single Judge in CWP No. 10575 of 2011 dated 15.5.2018, vide which petition filed by respondent Mehar Chand praying for setting aside order passed by learned Financial Commissioner (Appeals), H.P. in Revision Petition No. 178 of 2007 dated 28.6.2011 and for upholding the order passed by Settlement Collector was allowed. A perusal of the judgment passed by learned Single Judge demonstrates that learned Single Judge has held that record demonstrated that there were consistent revenue entries in favour of the petitioner therein right from the years 1917-1918 to 1992-1993 and this fact had even not disputed by the respondents therein i.e., present appellants. Learned Single Judge further held that it stood therefore established from the revenue records that a path measuring 8-5 kanals stood duly recorded therein. Learned Single Judge further held that there was presumption of truth attached to entries in records of rights, as was evident from Section 45 of the H.P. Land Revenue Act. Learned Single Judge further held that as far as the entries in Wajib-ul-arz were concerned, it was more than settled that there is presumption of truth attached to the said entries even if the same were not repeated in later settlement. While arriving at the said finding, learned Single Judge has relied upon the judgment of Hon’ble Supreme Court in Raja Rajinder Chand Vs. Mst. Sukhi and others, AIR 1957 S.C. 286 wherein, it was held by the Hon’ble Supreme Court that though Wajib-ul-arz does not create a title, yet it gives rise to a presumption in its support unless the presumption is promptly displaced. Learned Single Judge has also relied upon the judgment of Hon’ble Supreme Court in State of Punjab Vs. M/s Vishkarma and Co. and others, 1993 (Supp.) 3 SCC 62 wherein it was held that Wajib-ul-arz is a document included in the records-of-rights, therefore, it cannot be disputed. Learned Single Judge has also relied upon the judgment of Hon’ble Supreme Court in Ramkanya Bai and another Vs. Jagdish and others, (2011) 7 SCC 452 , wherein it was held that the Wajib-ul-arz is the record of customary easements and if Wajib-ularz records or shows the customary easements, then there is no need for detailed evidence to establish the custom. 2. Jagdish and others, (2011) 7 SCC 452 , wherein it was held that the Wajib-ul-arz is the record of customary easements and if Wajib-ularz records or shows the customary easements, then there is no need for detailed evidence to establish the custom. 2. Learned Single Judge also took note of the fact that only reason which prevailed upon the Divisional Commissioner to set aside the order of the Settlement Officer was that he could not comprehend that the path in question could be so wide. Learned Single Judge held that Divisional Commissioner erred in not appreciating that he was dealing with the customary rights which so stood recorded in Wajib-ul-arz where an individual’s opinion and perception have no place. 3. With regard to the order passed by the learned Financial Commissioner (Appeals) learned Single Judge held that said authority simply held that it was the duty of the settlement department to enter the factual position at site at the time of preparation of records, as it was for this purpose that the settlement operations are carried out, without appreciating that customary rights as had been recorded in Wajib-ul-arz was binding and would continue to bind the parties so long as it was not contrary to public policy or law. Learned Single Judge further held that as far as the issue of decree of Civil Court being binding on Revenue Court was concerned, it was more than settled that judgment and decree of Civil Court was binding on the Revenue Court and has not on vice versa. On these reasoning, learned Single Judge allowed the writ petition. 4. During the course of arguments, learned counsel for the appellants could not demonstrate as the how the said findings returned by learned Single Judge were perverse. The contention of learned counsel that the matter be remanded back to the settlement officer or some committee be constituted to ascertain the factual position is without merit for the reason that when this Court is satisfied that there was no perversity in the findings returned by learned Single Judge and there is no need to interfere with the said judgment, there is no occasion for the Court to accede the request so made by the learned counsel. 5. We have perused the order passed by the Divisional Commissioner, Mandi appended with the appeal as Annexure P-2. 5. We have perused the order passed by the Divisional Commissioner, Mandi appended with the appeal as Annexure P-2. A perusal of the same demonstrates that said authority set aside the order of the Court below only on the ground that breadth of the land shown as path was about 30 to 40 meters wide on the spot, which sounded very impractical that there could be a path on the spot so wide that too on the land of private parties. 6. Similarly, a perusal of the order passed by learned Financial Commissioner (Appeals), which is appended with the petition as Annexure P-3 also demonstrates that he upheld the order passed by Divisional Commissioner by observing that it was the duty of the settlement department to enter the factual position at site at the time of preparation of records and as in the case in hand, the property of the respondents (present appellants) was being converted into a path, whereas the spot report indicated that it was an agricultural field, therefore, if revenue entries were correct as per the settlement order, the respondents (present appellants) would loose their land which would cause them irreparable lose. 7. These findings have been set aside by learned Single Judge by assigning cogent and valid reasons. Learned Single Judge has rightly held that Divisional Commissioner could not have had passed orders based on his personal whims by ignoring the customary rights which stood recorded in Wajib-ul-arz. Similarly, learned Single Judge has also correctly set aside the order passed by learned Financial Commissioner (Appeals) by observing that learned Financial Commissioner (Appeals) lost sight of the fact, while passing the order, that when customary rights stood recorded in Wajib-ul-arz, all parties were bound by it provided the same were not contrary to public policy or law. Before us, during the course of arguments, learned counsel for the appellants could not demonstrate as to how the customary rights which were so recorded in Wajib-ul-arz were contrary to public policy or law. Therefore also, the judgment passed by learned Single Judge does not calls for any interference. Accordingly, as we do not find any merit in this appeal, the same is dismissed in limine, so also pending miscellaneous applications, if any.