IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 54 of 2007. Reserved on: 18.11.2008. Decided on: 02.12.2008. Durga Singh. … … … Petitioner. Versus Financial Commissioner (Appeals) and Others. … … … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the petitioner: Mr. Subhash Sharma, Advocate. For the Respondents: Mr. R.K. Sharma, Senior Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General and Mr. Vikas Rathore, Deputy Advocate General for respondent No.1. Mr. G.R. Palsra, Advocate for respondents No.2 to 6. Rajiv Sharma, Judge: Brief facts necessary for the adjudication of this petition are that the petitioner had filed civil suit No.69 of 1999 in the Court of Sub Judge 1st Class, Sundernagar on 16.3.1999 for declaration with consequential relief of permanent prohibitory injunction. The suit was dismissed by the Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - learned Sub Judge on 2.6.2003. However, issue No.3 was decided in favour of the petitioner by the learned Sub Judge. The petitioner on the basis of the findings recorded in issue No.3 moved an application before the Assistant Collector 1st Grade (Tehsildar) on 14.10.2003 for carrying out corrections in the revenue records. The application was dismissed by the Assistant Collector 1st Grade, Sundernagar on 12.4.2004. He preferred an appeal before the Collector, Sundernagar on 6.5.2004. The same was dismissed by the learned Collector on 12.1.2005. He preferred a revision petition before the learned Commissioner, Mandi on 12.7.2005 assailing the order dated 12.1.2005 passed by the Collector, Sundernagar. The Commissioner accepted the revision and recommended his case to the Financial Commissioner (Appeals) for passing appropriate orders on 6.3.2006. The learned Financial Commissioner (Appeals) rejected the recommendations made by the Commissioner on 10.11.2006. Mr. Subhash Sharma has strenuously argued that the order dated 10.11.2006 passed by the Financial Commissioner (Appeals) is not sustainable. He then contended that on the basis of the findings recorded by learned Sub Judge in Civil Suit No.69 of 1999 decided on 2.6.2003 the necessary corrections were required to be made in the revenue record. He has relied upon Section 38 of the Himachal Pradesh Land Revenue Act, 1953. The learned Senior Additional Advocate General and Mr. G.R. Palsra have supported the order dated 10.11.2006. I have heard the learned counsel for the parties and perused the record carefully. - 3 - The petitioner has filed a civil suit as noticed above for declaration with consequential relief of permanent prohibitory injunction in the Court of learned Sub Judge 1st Class, Sundernagar. The trial Court has framed the following issues:- 1. Whether the suit land is irrigated with the waters of Siharal Kuhl, as alleged? … OPP. 2. Whether this kuhl is located on the boundary of Khasra No.299/300 and 682, as alleged? ….OPP. 3. Whether the order dated 21-11-1990 of ADM Mandi directing the land of the defendant in Khasra No.685 to be recorded as irrigated land, is null and void, as alleged? …OPP. 4. Whether the defendants uprooted the pipes of plaintiff meant for carrying water, as alleged? …OPP. 5. Whether the plaintiff is entitled for the relief of injunction, as alleged? …OPP. 6. Whether the plaintiff has acquired right of irrigation by way of easement, as alleged? …OPP. 7. Whether the suit is barred by limitation as alleged? …OPD. 8. Relief. The learned Sub Judge returned the following findings on issue No.3:- “…….. That apart the application of the defendant No.1 Ex. PW-1/D submitted by him before the District Collector Mandi disclosed that he was claiming irrigation right to his fields comprising in Khasra No.685 with the waters of a source situated in Government land comprising in Khasra No.682. He claimed that he has constructed a kuhal and has carried water from that source up to his fields in Khasra No.685, therefore, his rights be recorded in the - 4 - revenue record. The defendant No.1 could have acquired this right of irrigation from the water source comprising in Khasra No.682 either by way of prescription or by way of custom and the adjudication of this dispute exclusively was within the jurisdiction of Civil Court. The ADM Mandi while exercising the powers of District Collector Mandi, thus had no jurisdiction whatsoever to order that the defendant No.1 be ordered as having a right of irrigation of his fields in Khasra No.685 from the waters of source situated in Khasra No.682. The order dated 21-11-1990 of ADM Mandi thus is wrong, Null & void and without jurisdiction. Issue No.3 is decided in positive in favour of the plaintiff and against the defendants.” However, the suit was dismissed by the learned Sub Judge on 2.6.2003. It was only on the basis of the findings returned by the learned Sub Judge, Sundernagar on issue No.3 that he preferred an application before the Assistant Collector 1st Grade, Sundernagar on 14.10.2003 for carrying out necessary corrections in the revenue record. The Assistant Collector 1st Grade dismissed the application on 12.4.2004. He has opined that since the suit of the petitioner for declaration has been dismissed and no relief has been granted to the defendants therein, no action could be taken as requested by the applicant. The order passed by the Assistant Collector 1st Grade was confirmed by the Collector on 12.1.2005. However, the Commissioner in revision petition preferred by the petitioner came to the conclusion that the findings of the civil Court of competent jurisdiction are binding on the Revenue Courts and are to be given effect to in the record of rights as far as practicable. He has recommended the case to the Financial - 5 - Commissioner (Appeals). The Financial Commissioner (Appeals) has rejected the recommendations as noticed above on 10.11.2006. It will be apt at this stage to take into consideration Section 38 of the H.P. Land Revenue Act, 1953. Section 38 reads thus:- “38. Restriction on variations of entries in records. – Entries in records-of-rights or in [periodical] records, except entries made in annual records by patwaries under clause (a) of section 36 with respect to undisputed acquisitions of interest referred to in that section, shall not be varied in subsequent records otherwise than by – --- --- (b) making such entries as are agreed to by all the parties interested therein or are supported by a decree or order binding on those parties. ---“ From the bare perusal of Section 38 it is evident that what is binding upon the Revenue Authorities is a decree or order passed by the competent Court of jurisdiction. In the present case, though issue No.3 has been decided in favour of the petitioner, however, the suit has been dismissed by the trial Court. I am of the considered opinion that the revenue authorities are not entitled to enforce the findings given in a suit which has been dismissed. Section 38(b) of the Himachal Pradesh Land Revenue Act, 1953 is pari materia with Section 37(b) of the Punjab Land Revenue Act, 1887. The Hon’ble Punjab and Haryana High Court in Ram Kishan versus The Financial Commissioner, Punjab and Others, 1963 P.L.J. 64 has interpreted Section 37(b) of the Punjab Land Revenue Act. - 6 - The Hon’ble Single Judge has held that a decree dismissing the suit is no decree which could be given effect to under Section 37 of the Punjab Land Revenue Act and if a suit is dismissed, any adverse finding against a party against whom that suit is dismissed is of no consequence because the party against whom that finding is given has no right to challenge it by way of appeal. The Hon’ble Single Judge has held as under:- “This petition under Articles 226 and 227 of the Constitution is directed against the decision of the Financial Commissioner passing an order under section 37 of the Land Revenue Act. The facts are that one Smt. Chandanya who was an occupancy tenant became a full proprietor by reason of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act (8 of 1953). On the 30th December, 1952, she adopted the petitioner and gifted her land to him. The mutation followed the gift. This mutation was challenged by a suit by the Respondent (No.3) on the usual ground that the widow could not adopt and that the gift was invalid because the widow had only a life interest in the property. This suit was dismissed on the 22nd November, 1954, and an appeal against it also failed. The mutation was finally sanctioned on the 25th August, 1958, and a year after in August, 1959, Smt. Chandanya died. After her death of the 19th September, 1960, the respondent Bhim Singh made an application to the Assistant Collector under section 37 of the Land Revenue Act praying that effect should be given to the decree. The decree on which he relied is the decree dismissing his suit. It may be mentioned that in that decree there was a decision on the issue regarding adoption that the adoption was not valid. Be that as it may, the rule is settled that if a suit is dismissed any adverse finding against a party against whom that suit is dismissed is of no consequence because the party against whom that finding is given has no right to - 7 - challenge it by way of appeal. See in this connection, Midnapur Zamidari Co. Ltd. v. Naresh Narayan Roy (A.I.R. 1922 P.C. 241). The application was made by the respondent under section 37 of the Land Revenue Act, was rejected by the Assistant Collector. On appeal, the Collector reversed the decision of the Assistant Collector. On further appeal, the Commissioner reversed the decision of the Collector and restored that of the Assistant Collector. On revision the Financial Commissioner reversed the decision of the Commissioner and restored that of the Collector. He has also proceeded a step further that the property escheats to the State. There is obvious error of law in his decision. There is no decree which could be given effect to under section 37 of the Land Revenue Act. The respondent’s suit was dismissed and the Revenue authorities are not entitled to enforce a finding given in a suit which has failed. Moreover, after the coming into force of the Hindu Succession Act, 1956, Smt. Chandanya had become the full owner of the property, and the property had also ceased to be ancestral when she acquired the same under the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act. So far as the plaintiff is concerned, he has no right to this property, and this seems to have been accepted by the Financial Commissioner when he directed the property to escheat. Therefore, the plaintiff’s application according to his own finding should have been dismissed. I am, therefore, clearly of the view that the order of the Financial Commissioner is patently erroneous on the fact of it and being without jurisdiction is quashed, and that of the Assistant Collector is restored.” In the present case also, there is no decree which can be given effect to under Section 37(b) of the H.P. Land Revenue Act, 1953. The petitioner is not entitled to enforce the findings given in civil suit No.69 of 1999 which has been dismissed on 2.6.2003. The learned Financial - 8 - Commissioner (Appeals) has correctly appreciated the law and the facts while coming to the conclusion that it is a decree which is binding upon the revenue authorities and not any finding recorded if the suit is ultimately dismissed. In view of the observations made hereinabove, there is no force in the writ petition and the same is dismissed. However, there shall be no order as to costs. December 02, 2008. (Rajiv Sharma) (sck). Judge. - 9 - “37. Determination of disputes. – (1) If during the making, revision or preparation of any record or in the course of any enquiry under this Chapter a dispute arises as to any matter of which an entry is to be made in a record or in a register of mutations, a Revenue Officer may of his own motion or on the application of any party interested, but subject to the provisions of section 38 of this Act and after proper enquiry, determine the entry to be made as to that matter. (2) If in any such dispute Revenue Officer is unable to satisfy himself as to which of the parties thereto is in possession of any property to which the dispute relates, the Revenue Officer not below the rank of an Assistant Collector of the First Grade, shall ascertain through the Gram Panchayat constituted under the Himachal Pradesh Panchayati Raj Act, 1994 or any other agency, so prescribed by the State Government by holding proper enquiry in the prescribed manner as to who is the person best entitled to the property and shall by order direct, that, that the person be put in possession thereof, and that, an entry in accordance with that order, be also made in the record or register. (3) A direction of Revenue Officer under sub-section (2) shall be subject to any decree or order which may be subsequently passed by the Collector in exercise of his powers as Revenue Court as an original suit, but it shall not include the matters pertaining to the question of title.”