IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.:809/2006 Reserved on: 23.12.2008 Decided on:9.1. 2009 Raj Kumar and others. …Petitioners. Versus State of Himachal Pradesh and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No For the petitioners : Mr. Ajay Sharma, Advocate . For the Respondents : Mr. R.K. Sharma, Senior Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General for respondents No.1 and 2. Mr. Naresh Kaul, Advocate for respondent No.3. Rajiv Sharma, J. Brief facts necessary for the adjudication of this petition as culled out from the pleadings of the parties are that one Sh. Nanak Chand son of Sh. Bansi Lal, resident of Kotwali Bazar, Dharamshala, District Kangra, H.P. had instituted a suit for possession. The suit was decreed by the learned Sub Judge in favour of the plaintiff on 2.3.1983. The appeal was preferred against the judgment and decree passed by the Sub Judge before the learned Additional District Judge-1, Kangra at Dharamshala. 1 Whether the reporters of Local Papers may be allowed to see the judgment? No 2 The same was dismissed by the learned Additional District Judge-1 on 20.3.1988. The predecessor-in-interest of the present petitioners Sh. Mulakh Raj and Sh. Ramesh Chand preferred a Regular Second Appeal bearing No. 207/88. The matter was compromised by the parties. Consequently vide judgment dated 30.7.1992, the judgment and decree passed by the courts below were set aside and the suit of the plaintiff was dismissed with a further direction that the compromise mark ‘X’ shall form part of the decree. In sequel to the judgment and decree passed by this Court, the petitioners moved an application for correction of the revenue entries. The Assistant Collector 2nd Grade attested the mutation on 21.1.1993 whereby the name of respondent No.3 was deleted and instead the entry was made in favour of Sh. Mulakh Raj son of Sh. Nihal Chand and Ramesh Chand son of Sh. Ram Lal in equal shares who were earlier entered in the column of cultivation and possession as Kabizan and accordingly some changes were also effected in the column of cultivation. The Mutation was attested on the basis of the judgment rendered by this Court. The Municipal Council, Dharamshala preferred an appeal before the Collector. The appeal was dismissed by the Collector on 31.7.1996. Respondent No.3 preferred an appeal before the Divisional Commissioner, Kangra against the order dated 31.7.1996. The Divisional Commissioner, Kangra recommended the case to the Financial Commissioner (Appeals) vide order dated 15.9.1998. The Financial Commissioner (Appeals) accepted the recommendations on 30.5.2006 and set aside the orders passed by the Assistant Collector 2nd Grade dated 21.1.1993 and the order of the Collector dated 31.7.1996. The case was remanded to the Assistant Collector for deciding the matter afresh by affording an opportunity to all the parties. The present petition has been preferred by the petitioners against the order dated 30.5.2006. 3 Mr. Ajay Sharma, Advocate has strenuously argued that the order dated 15.9.1998 and 30.5.2006 are not sustainable in the eyes of law. His simple case is that the mutation bearing No. 514 has been attested in favour of the petitioners on the basis of the judgment rendered by this Court in RSA No. 207/88 decided on 30.7.1992. His further contention was that once the revenue entries were changed, the remedy, if any, available to respondent No.3 was to file a civil suit as stipulated under section 46 of the Himachal Pradesh Land Revenue Act, 1953. Mr. R.K. Sharma, Senior Additional Advocate General and Mr. Naresh Kaul, Advocate appearing on behalf of the respondents have supported the impugned orders dated 15.9.1998 and 30.5.2006. I have heard the learned counsel for the parties and perused the record carefully. The judgment rendered by this Court in RSA No. 207/88 is not disputed by the parties. The revenue entries were altered and mutation was attested in favour of the petitioners by the Assistant Collector 2nd Grade on 21.1.1993 on the basis of this judgment. It will be apt at this stage to take note of sections 38 and 46 of the Himachal Pradesh Land Revenue Act, 1953, which read thus: Section- 38. Restrictions on variations of entries in record. Entries in record of rights or in [periodical] records except entries made in 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 - (a) making entries in accordance with facts proved or admitted to have occurred; 4 (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; and (c) making new maps where it is necessary to make them. Section-46. [Suit for declaratory decree by persons aggrieved by an entry in a record. If any person considers himself aggrieved as to any right of which he is in possession by an entry in a record-of-rights or in a [periodical] record, he may institute a suit for a declaration of his right under Chapter VI of the Specified Relief Act, 1963].” It is evident from the plain reading of section 38 that the entries can be altered on the basis of a decree or order binding inter se between the parties. The mutation has been attested by the Assistant Collector 2nd Grade on 21.1.1993 as per the judgment of this Court in RSA No. 207/88. The procedure adopted by the Assistant Collector 2nd Grade while attesting the mutation cannot be faulted with. Mr. Naresh Kaul has strenuously argued that the mutation could not be attested in the absence of respondent No.3. The mutation has been attested in favour of the petitioners on the basis of the judgment rendered by this court in the Regular Second Appeal. The judgment of this Court was binding and the Assistant Collector 2nd Grade had no alternative but to make entries on the basis of the judgment. In case respondent No.3 felt aggrieved by the attestation of the mutation by the Assistant Collector IInd Grade on 21.1.1993 it was open for it to institute a suit for declaration of its rights. Respondent No.3 had not chosen to assail the entries recorded initially by filing a civil suit. The learned Divisional Commissioner and Financial Commissioner could not ignore the judgment rendered by this Court in RSA No. 207/88 on the 5 basis of which the mutation had been attested. They have exceeded their jurisdiction by ignoring the judgment rendered by this Court. Respondent No.3 had also filed a civil suit for possession in the court of learned Sub Judge, Kangra. The suit was dismissed by the learned Sub Judge on 5.6.1975. The petitioners had also instituted a civil suit in the court of learned Senior Sub Judge, Kangra at Dharamshala for permanent prohibitory injunction. The Municipal Corporation, Dharamshala was added as party-respondent. The suit was decreed in favour of the petitioners and the defendant was restrained from interfering with the peaceful possession of the ownership of the plaintiff. The counter-claim filed by the defendant i.e. respondent No.3 was dismissed by the learned Senior Sub Judge, Kangra at Dharamshala. The Divisional Commissioner and Financial Commissioner could not be oblivious to the judgments and decrees passed by the courts of competent jurisdiction, as noticed above. The judgments rendered by the competent courts of law cannot be brushed aside as has happened in the present case. The presence of respondent No.3 was not necessary at the time of attestation of the mutation by the Assistant Collector 2nd Grade since he was only implementing the judgment of this Court Consequently in view of the observations made hereinabove, the writ petition is allowed. The orders Annexures P-3 and P-6 dated 15.9.1998 and 30.5.2006, respectively are quashed and set aside. However, the liberty is reserved to respondent No.3 to assail mutation No. 514 attested by the Assistant Collector-2nd Grade on 21.1.1993 by instituting a suit. There will, however, be no order as to costs. 9.1. 2009 (Rajiv Sharma ), J. *awasthi*