Sohan Singh and Another Vs State of Hp and Others

____________________________________________________ _ For the petitioners : Mr. J.R. Poswal, Advocate. For the respondents : Mr. Pushpinder Jaswal, Additional Advocate General, for respondents No.1 to 4-State. Mr. G.R. Palsra, Advocate, for respondents No.5 and 6.

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Ajay Mohan Goel, Judge (Oral)

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By way of this petition, the petitioners have , inter alia ,

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prayed for the following relief:-

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“ (i) That impugned order dated 23.06.2017 23.06 (Annexure P-7) passed by the Leamed Financial Commissioner (Appeals) Himachal Pradesh in Revision Petition No. 44/2015, order dated 30.01.2015 (Annexure P. 5) pasted by Learned Divisional Commissioner Mandi Division in Case No. 400/2012, order dated 16.06.2012 (Annexure P-3) passed By the Learned Collector, SubDivision Sunder Nagar, District Mandi, H.P. in Case No. 35/2011, may kindly be quashed and set aside by Issuing writ of certiorari and justice may be done .”

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1 Whether reporters of the local papers may be allowed to see the judgment?

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Brief facts necessary for the adjudication of this petition are that feeling aggrieved by entry of mutation carried out by Assistant Collector 2^nd Grade, i.e. mutation No.341, dated 24.09.2011, of Mouza Neri Hadbast No.17, Tehsil Sundernagar, District Mandi, the petitioner preferred an appeal under Section 14 of Himachal Pradesh Land Revenue Act, inter alia , on the ground that the respondents had purchased land measuring 2-9-15 bighas vide Sale Deed No. 299, dated 22.06.1988, however, the impugned mutation was carried out ignoring this fact that in terms of the Sale Deed, only land measuring 2-9-15 bighas was sold to the respondents.

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The appeal was dismissed by Sub-Divisional Collector, Sundernagar, vide Annexure P-3, i.e. order dated 16.06.2012, by inter alia , holding that during the Consolidation Operation vide mutation No.184, dated 22.08.1993, Consolidation Officer, Sundernagar had ordered the correction in the area of Khasra No.437, measuring measuring 2-9-15 bighas to 4-11-4 bighas, which was later on converted into Khasra No.437/1, presently Khasra No. 283, measuring 2-19-3 bighas and Khasra No. 437/2, presently Khasra No.284 measuring 1-12-1 bigha. Sub-Divisional Collector also observed that in a civil litigation between the parties,

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that is Civil Suit No.194/93 decided on 07.01.1998, which was filed by the respondents against the present petitioners, eight Issues were framed and Issues No.3 and 4 framed therein were as under:-

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“ Issue No.3- Whether the plaintiffs have purchased only 2-9-15 bighas of land vide registered sale deed dated 22.06.1988 and mutation has also been attested in their favour, as alleged? OPD".

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"Issue No.4- Whether the predecessor-in-interest of the defendants was a tenant over a portion of the suit land i.e Khasra No. 437/1, measuring 2-19-3 bighas and the defendants have become owner in possession of the same, as alleged? OPD. ".

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The Sub-Divisional Collector observed that in terms of the judgment and decree passed by the learned Civil Judge, Sundernagar, Issue No.3 was answered in affirmative and Issue No.4 was decided against the defendants, i.e. the present petitioners. The Officer also observed that the Civil Court in Para-7 of the judgment and decree held that it could be safely said that Khasra No.437, measuring 2-915 bighas was possessed by the plaintiffs as owners and that element of interference was there at the behest of defendants and, therefore, the plaintiffs were entitled for the relief of permanent injunction.

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Sub Divisional Collector, thereafter, held that the mutation under challenge was correctly attested by the learned lower

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Court, based on the judgment and decree of the Civil Court, dated 07.01.1988 and factual position regarding the suit land and the order of Consolidation Officer, Sundernagar increasing the area of Khasra No.437 from measuring 2-9-15 bighas to 4-11-4 bighas.

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In the revision petition that was preferred by the petitioner against the order passed by the Sub-Divisional Collector, the Revisional Authority in terms of order dated 30.01.2015 (Annexure P-5) upheld the order passed by the Sub-Divisional Collector by reiterating that it was clear that Assistant Collector, 1^st Grade, Sundernagar had attested the mutation as per law and on the basis of the judgment and decree of the Civil Court and also the order of Consolidation Officer, Sundernagar, increasing the area of Khasra No.437 from measuring 2-9-15 bighas to 4-11-4 bighas.

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Learned Financial Commissioner also, in terms of the order again passed in a revision petition dated 23.06.2017 (Annexure P-7) upheld the orders passed by the said two Authorities by returning the following findings:-

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“ I have considered the arguments advanced on behalf of both the parties and have minutely gone through the record of the courts below. The only issue which requires adjudication at this level is whether the AC 2^nd Grade, has attested the mutation No.341 on 24.09.2011, in accordance with law or not? From the perusal of the

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mutation No.341, it is clear that the same has been attested in compliance to the Judgment and Decree dated 7.1.1998, passed by the Civil Judge (Sr.Division), Sundernagar in Civil Suit No.194/93, in open court at Mahadev in the presence of present respondents who were identified by Sh. Dugla Ram, Namberdar. The mutation also discloses that Sh. Sohan Singh, present petitioner No.1, was also present before the AC 2^nd Grade as he has affixed his signature on the mutation sheet. Neither the record shows nor the petitioners have substantiated that the order of the Civil Judge (Sr. Division) has ever been challenged by them, and as such the same had attained finality and the AC 2^nd Grade, has merely attested the mutation on the basis of said order of the Civil Court. Moreover, the Revenue Officers are duty bound to Incorporate entries in revenue record in consonance with the order of the Civil Courts, unless and until such order is set aside or modified by the competent court of jurisdiction. It is for the interested parties to challenge such an order before the competent court of jurisdiction within the stipulated period, if any of them are aggrieved with such orders. Thus, there is no illegality or irregularity in the order of mutation attested by the Ld. AC 2^nd Grade, Sundernagar, District Mandi..

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8. Further, from the perusal of the order dated 16.6.2012, passed by the Ld. Collector, Sundernagar, in case No.35 of 2011, it is clear that the Ld. Appellate Court has adjudicated upon all the issues raised by the petitioner, in

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its right perspective, after going through the record of the court below and taking into consideration the pleadings of the parties, which order has further been upheld by the Ld. Commissioner, Mandi Division vide impugned order dated 30.1.2015, passed in Case No.400/2012. Moreover, the present petitioners have failed to substantiate any irregularity or illegality in the orders of the courts below.

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9. In view of discussions I find no illegality or irregularity in the orders of the court below and as such the same are hereby upheld. Accordingly, the present revision petition is dismissed, being devoid of any merit .”

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Learned Counsel for the petitioner could not demonstrate that the judgment and decree passed by the learned Trial Court in the Civil Suit, which was filed by the present respondents against the petitioners had not attained finality in favour of the present respondents. It could also not be demonstrated that the findings written by the learned Quasi Judicial Authorities to the effect that the Consolidation Officer, Sundernagar during consolidation operation, vide mutation No. 184, dated 22.08.1993, had ordered the correction in the area of Khasra No. 437, measuring 2-9-15 bighas to 4-11-4 bighas were correct findings. This being so, as the order of mutation under challenge was based both on the judgment and decree passed by the learned Civil Court referred to hereinabove as also the orders passed by the Consolidation Officer,

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Sundernagar, dated 22.08.1993 which order had attained finality, this Court does not find any perversity in the orders under challenge.

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The foundation of the impugned mutation obviously are (a) the order of the Consolidation Officer dated 22.8.1993, in terms whereof, correction in the area of Khasra No.437, measuring 2-9-15 bighas to 4-11-4 bighas was ordered and the judgment and decree passed by the learned Civil Court in Civil Suit No. 194/93, decided on 07.01.1998.

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Because the foundation of the subsequent mutation remained intact, obviously without assailing the foundation the genesis thereof could not have been assailed successfully by the present petitioners.

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This is also the crux of the order that had been passed by the learned Quasi Judicial Authorities, because all the learned Quasi Judicial Authorities have concurrently held that there was no infirmity in the mutation under challenge as the same was based on the order passed by the Consolidation Officer dated 22.08.1993 as well as the judgment of the learned Civil Court dated 07.01.1998.

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