CWP No.3763 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.3763 of 2008 Date of Decision: 29.3.2010 Mehar Singh .....Petitioner Vs. State of Punjab and others ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. Dhirinder Chopra, Advocate for the petitioner. Mr. S.S. Sahu, AAG, Punjab, for respondents no.1 to 5. .... RAJIVE BHALLA, J (Oral) The petitioner prays for issuance of a writ in the nature of Certiorari for quashing orders dated 13.12.2007, 30.10.2000, 14.2.1996 and 7.7.1993, passed by the Financial Commissioner, Appeals-I,Punjab, the Divisional Commissioner, Patiala Division, Patiala, the Collector, Patiala and the Assistant Collector, Ist Grade, Patiala, respectively. Pursuant to judgement and decree dated 22.3.1971, the contesting respondents Balbir Singh and others (respondents no.6 to 8) were declared owners of half share in land measuring 163 Bighas 6 Biswas and 4 Biswasis. Balbir Singh and others filed an application for partition of the land in dispute. The Assistant Collector, Ist Grade, Patiala, allowed the application vide order dated 7.1.1974. Against this order, Naurata Singh (father of the petitioner) filed an appeal, which was allowed by the CWP No.3763 of 2008 2 Collector, Patiala,by setting aside the order dated 7.1.1974 and remitting the matter to the Assistant Collector, Ist Grade, Patiala, for a fresh decision. After remand, as no one put in appearance, the application was dismissed on 22.12.1976. On 10.3.1988, Balbir Singh and others filed an application before the Assistant Collector, Ist Grade, Patiala, for sanction of a mutation on the basis of the decree dated 22.3.1971. The application was allowed on 10.12.1988. The petitioner and proforma respondents no.9 to 12 filed an appeal, which was accepted by the Collector, vide order dated 4.10.1989 and the matter was remitted to the Assistant Collector, IInd Grade, Patiala, to decide the matter afresh. After remand, the Assistant Collector, IInd Grade forwarded the matter to the Assistant Collector, Ist Grade, Patiala, by holding that the mutation is contested. Vide order dated 7.7.1993, the Assistant Collector, Ist Grade sanctioned a mutation in favour of the contesting respondents by holding that a decree for declaration does not require execution and, therefore, has to be reflected in the revenue record. The petitioner thereafter filed an appeal, which was dismissed on 14.2.1996. An appeal filed before the Commissioner was dismissed on 30.10.2000 and the revision filed before the Financial Commissioner was dismissed on 13.12.2007. Counsel for the petitioner submits that the Assistant Collector, Ist Grade, Patiala, could not have sanctioned a mutation 17 years after the decree dated 22.3.1971. It is further submitted that as partition proceedings were dismissed for non prosecution and as the Collector had already held in his order dated 4.10.1989 that the prayer for mutation is barred by limitation, the Assistant Collector, Ist Grade has committed an error in CWP No.3763 of 2008 3 entering a mutation after 17 years. It is prayed that as the application for sanction of a mutation was barred by limitation, the present petition should be allowed and orders passed by revenue officers should be reversed. I have heard counsel for the petitioner, perused the impugned orders and find no reason to accept the prayer made in the present petition. The revenue officers, from the Assistant Collector, Ist Grade to the Financial Commissioner have held that mutation has to be entered on the basis of the declaratory decree dated 22.3.1971. The argument that as the Collector held in his order dated 4.10.1989 that the application for mutation is barred by limitation, the Assistant Collector, Ist Grade could not have sanctioned the mutation, cannot be accepted. The Collector merely expressed an opinion while remanding the case to the Assistant Collector, IInd Grade. Upon remand the matter was referred to the Assistant Collector, Ist Grade. After considering the nature of the decree, the Assistant Collector, Ist Grade rightly held that the application is not barred by limitation. An argument that mutation proceedings are barred, as the application for partition was dismissed in default ignores the fact that dismissal for non prosecution, particularly of an application for partition does not operate as res judicata. An application for entering a mutation on the basis of a civil court decree, particularly where the decree is declaratory, cannot be refused on the ground of delay, as such an application can not be equated with execution of a decree. A revenue entry neither confers nor divests a party of its proprietary rights and, therefore, a revenue officer cannot refuse to enter a mutation where the declaratory decree sets at rest proprietary and/or possessory rights of parties. CWP No.3763 of 2008 4 As the impugned orders do not suffer from any error, the writ petition is dismissed with no order as to costs. 29.3.2010 (RAJIVE BHALLA) GS JUDGE