IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA R.S.A. No. 238 of 1999 Date of Decision : September 21, 2010 Sh. Krishan Kumar and others Appellants Versus Sh. Paras Ram and others Respondents Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellants : Mr. Shrawan Dogra, Advocate, for the appellants. For the respondents : Mr. Y. Paul, Advocate, for respondent No. 1. Sanjay Karol, J. (Oral) Copy of Jamabandi for the year 1962-63 taken on record. 2. This is a regular second appeal filed under Section 100 of the Civil Procedure Code. 3. The original appellant Sh. Chandu Lal, now substituted by his legal heirs, is aggrieved of the judgment and decree dated 23.9.1994 passed by the learned Sub Divisional Judicial Magistrate, Sundernagar, District Mandi, H.P. in Civil Suit No. 142 of 1991, titled as Paras Ram versus Chandu and others which stands affirmed by Whether reports of Local Papers may be allowed to see the judgment? 2 the learned District Judge, Mandi, H.P. in Civil Appeal No. 83 of 1994, titled as Sh. Chandu Lal versus Sh. Paras Ram and others, decided on 24.5.1999. 4. Plaintiff Sh. Paras Ram filed a suit against Sh. Chandu (defendant No. 1), Sh. Pritam Singh (defendant No. 2) and Smt. Karamjit Kaur (defendant No. 3) for partition of land comprising khasra number 686 measuring 24 sq. meters and khasra numbers 693 and 691 both measuring 202.57 sq. meters, situated in Bhojpur, Tehsil Sundernagar, Distt. Mandi, H.P. Allegedly land is jointly owned and possessed by the parties. 5. Defendant No. 1 contested the suit inter alia on the ground that similar suit filed by the plaintiff was earlier dismissed. Revenue officials had made incorrect entries in the revenue record during the settlement proceedings showing the parties to be joint owners in possession of the suit land. In the revenue record parties were shown as co-sharers of land which was in excess of the actual land holding. Appropriate action, in accordance with law, for correction of the same was taken. In the year 1960-61 defendant constructed a house on khasra number 693. Plaintiff and other defendants have no right, title or interest on the same. Defendant No. 1 is exclusive owner in possession of khasra No. 691 measuring 14.70 sq. metres. Khasra No. 693 (149.52 sq. metres) is also in his exclusive ownership and possession. 3 6. The trial Court struck the following issues:- “1. Whether the revenue record pertaining to the entire suit land showing both the parties as co- sharers is wrong? OPD 2. Whether the house situated over khasra No. 693 was exclusively constructed by defendant No. 1 in the year 1960? OPD 3. Whether the present suit is not maintainable in view of preliminary objection No. 1? OPD 4. Whether the plaintiff is estopped by the principle of acquisence? OPD 2-A. Whether defendant No. 1 is exclusive owner in possession of the land comprising khasra No. 691 measuring 14.70 sq. metres khasra No. 693 measuring 149.52 sq. metres as alleged? OPD 5. Relief.” 7. Undisputedly during pendency of the suit settlement officer passed an order dated 12.11.1992 (Ext. PA) and the mistake which had crept in the revenue record during the settlement proceedings was corrected. However since the operation of this order was stayed by the appropriate appellate authority in the plaintiff’s appeal trial Court held the order to be “null and void”. Consequently on the material on record trial Court decreed the suit by holding the parties to be joint owners. 8. The lower Appellate Court dismissed the appeal filed by defendant No. 1 by holding that since the order passed by the settlement officer stood set aside by the appellate authority and that 4 the parties to the suit were joint owners of the suit land hence plaintiff was entitled to a decree for partition. 9. This appeal was admitted on the following substantial questions of law:- “1. Whether the Lower Appellate Court has misread Ext. PX the order dated 10.5.1996 passed by Ld. Divisional Commissioner passed in appeal against the order dated 28.7.1992 of Settlement Officer? 2. Whether the interim order of staying the operation of impugned order has any effect when the impugned order had been implemented before granting such stay? 3. Whether the presumption of truth attached to long standing revenue entries is not effectively rebutted when the Revenue Authorities themselves correct such entries?” 10. The Courts below, in my considered view, have not correctly appreciated facts and the relevant documentary evidence. This has led to passing of a palpably erroneous order resulting into miscarriage of justice. The lower Appellate Court misread the order (Ext. PX) and interpreted it to mean that during the pendency of the suit the order passed by the Settlement Officer was set aside by the appellate authority. Trial Court also erroneously held that the order passed by the Settlement Officer, upon being stayed by the appellate authority, was “null and void”. 11. As is evident from the revenue record (jamabandi pertaining to the year 1962-63) Sh. Chandu (defendant No. 1) was the 5 exclusive owner in possession of khasra Nos. 1086/104 measuring 0 – 5 bighas, khasra No. 1087/104 measuring 0 – 2 bighas, khasra No. 1089/947/105 measuring 0 – 6 bighas. These khasra numbers were renumbered and new khasra numbers assigned after the settlement proceedings. From the record it is evident that Sh. Chandu had constructed a house on one of the khasra numbers. From the very same document it is also evident that Sh. Chandu is also a co-sharer with plaintiff (Sh. Paras Ram) and other persons in land comprising khasra No. 1092/946/105 measuring 0 – 5 bighas. The position thus emerging from the revenue record is that prior to the year 1965 plaintiff was exclusively owning and possessing approximately 17 biswas of land. It is not in dispute that thereafter settlement proceedings took place in the area by the revenue authorities. During these proceedings it appears that even though Sh. Chandu continued to be in actual possession of the land exclusively owned by him but however in the revenue record his area was reduced from 17 biswas to 11 biswas and remaining 7 biswas, on the record, was added into the land jointly owned by the plaintiff and Sh. Chandu. Such entries continued to be reflected in the revenue record. Only when plaintiff filed the instant suit in the year 1991 this mistake was discovered by defendant Sh. Chandu who promptly took action in getting the mistake rectified by filing appropriate proceedings before the Settlement Officer, Kangra Division at Dharamshala. 6 12. In terms of order dated 28.7.1992 Settlement Officer corrected the mistake and directed that old khasra No. 691/1 be read as khasra No. 1089/947/105 instead of 1192/946/105; old khasra No. 692/1 be read as 1086/104/min instead of 1192/946/105 min measuring 210 sq. mts; and old khasra No. 693/1 be read as 1089/947/105 min instead of 1192/946/105 measuring 149.62 sq. mts. Importantly notice was issued to the concerned parties and plaintiff participated in these proceedings. Not only that, as is evident from the order itself, Tehsildar Sundernagar himself visited the spot and carried out demarcation and measured the areas and the land in question. Order reveals that at the spot none of the parties had any objection to the same. Thus in effect action was taken by the Settlement Officer on the basis of the consensus which had emerged between the parties being the correct factual position on the ground. It is stated at the bar that based on the order of the Settlement Officer necessary corrections were also carried out in the revenue record. 13. Undisputedly order dated 28.7.1992 passed by the Settlement Officer was stayed by the appellate authority in the appeal filed by plaintiff Paras Ram against defendant Chandu. This is evident from interim order dated 23.7.1998 (Ext. RX). But however it cannot be disputed that not only this order was vacated but appeal filed by Sh. Paras Ram was dismissed by the Commissioner Mandi Division, Mandi, H.P. on 10.5.1996. This is evident from the order (Ext. PX) itself. Importantly appeal was dismissed on merits. The appellate 7 authority found that Sh. Paras Ram had not objected to the correction proposed by the Settlement Officer at the time of spot verification which ultimately stood reflected in his order. The appellate authority observed that Collector had obtained reports on two occasions. Matter had been investigated in detail. 14. The factum of dismissal of the appeal obviously was wrongly recorded by the lower appellate authority. Undisputedly order passed by the revenue authority attained finality. The Courts below not only misappreciated but in fact misread the same. Question No. 1 is answered accordingly. 15. In view of the final order passed by the appellate authority question No. 2 does not arise for consideration in the present circumstances. 16. For the reason that the revenue authorities rectified the mistake which had erroneously crept in during the settlement proceedings no presumption can be attached to the long standing revenue entries in favour of the plaintiff. 17. Mr. Y. Paul, learned counsel has referred to the following decisions of the Apex Court to contend that entries made in the mutation record do not confer title:- Suraj Bhan and others versus Financial Commissioner and others, (2007) 6 SCC 186; Rajinder Singh versus State of Jammu and Kashmir and others, (2008) 9 SCC 368; Parag Construction versus State of Maharashtra and others, (2008) 16 SCC 198; Narasamma and others versus State of 8 Karnataka and others, (2009) 5 SCC 591; and Ramesh Dutt and others versus State of Punjab and others, (2009) 15 SCC 429. 18. There cannot be any dispute on this proposition of law. In fact it is the plaintiff who is basing his case on long standing entries of mutation carried out in the revenue record. Hence the ratio of law laid down in the aforesaid cases is inapplicable to the instant case. The defendant is not basing its claim on the basis of the entries made in the revenue record but on the orders passed by the appropriate statutory authority. 19. Consequently the findings and the judgment of the Court below needs to be set aside. 20. The plaintiff’s suit, as framed also needs to be dismissed. It is clarified that with respect to the land which is jointly owned by the parties it is always open for the plaintiff to take appropriate action in accordance with law. 21. For the aforesaid reasons the appeal is allowed. The judgment and decree dated 24.5.1999 passed by the learned District Judge, Mandi, H.P. in Civil Appeal No. 83 of 1994, titled as Sh. Chandu Lal versus Sh. Paras Ram and others, and also passed by the trial Court are set aside. (Sanjay Karol), Judge. September 21, 2010 (PK)