Ashok Kumar and Others vs Moti Ram Deceased Through His L.Rs.

Dharam Chand Chaudhary, J.—Plaintiffs are in Regular Second Appeal before this Court, as an appeal registered as Civil Appeal No. 13-K/2000 against the judgment and decree passed by learned Sub Judge 1st Class (II), Kangra, District Kangra, H.P. in Civil Suit No. 65/96/91, they preferred has been dismissed by learned Additional District Judge-II, Kangra at Dharamshala vide judgment and decree under challenge herein.

The appeal has been admitted on the following substantial question of law.

Whether settlement authorities are debarred from making correction of the revenue entries as per the H.P. Land Revenue Act during the course of field to filed partial, if any, impugned judgments and decrees taking contrary view stand vitiated and liable to be quashed and set aside.

The plaintiffs claim themselves to be owner of the land entered in khata No. 73, khatoni No. 157, Khasra No. 828 measuring 0-01-02 hectares situated in Ansoli, Mauza Ansoli, Tehsil and District Kangra, H.P. (hereinafter referred to as the suit land), as per entries in the jamabandi Ext. P-1 for the year 1988-89. Their case, in a nut-shell, is that defendant has unauthorizedly laid a plinth for raising construction in the month of June, 1991 over a portion thereof. He has, therefore, been sought to be dispossessed from the suit land by way of demolition thereof, as according to the plaintiffs he has nothing to do with the suit land. He allegedly is stated to be a trespasser over the suit land. A decree, mandatory in nature i.e. restoration of the suit land to the plaintiffs by demolition of the construction raised over the suit land, therefore, has been sought.

In written statement, the defendant by way of raising preliminary objections qua limitation, locus-standi acquiescence, non-joinder of necessary and proper parties as well as valuation has sought the dismissal of the suit. On merits also, it is denied that the plaintiffs are owner of the suit land. Entries in the revenue record showing them to be the owner thereof are stated to be false and fictitious having been made by the revenue staff in connivance with the plaintiffs.

In replication, the plaintiffs have denied the contents of preliminary objections being wrong and on merits, reiterated the case, as set out in the plaint.

On the pleadings of the parties following issues were framed by the Court on 6.11.1993:

Whether the plaintiffs are entitled to the possession by demolition of plinth, as alleged? OPP.

Whether the revenue entries are wrong as alleged? OPD

Whether the suit is within time? OPD.

Whether the plaintiffs have got no locus standi and cause of action to sue? OPD

Whether the act, conduct, acquiescence and silence of the plaintiffs is a bar to the present suit? OPD

Whether the suit is bad for non-joinder of necessary and proper parties as alleged? OPD

Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD

Whether the suit is barred under Order 2 Rule 2 CPC, as alleged? OPD

Whether civil court has no jurisdiction to try the suit? OPD

Relief.

Learned trial Court has answered issue No. 1 against the plaintiffs and issue Nos. 2 and 4 in favour of the defendant and has concluded that the plaintiffs having no locus-standi and cause of action to file the suit on the basis of false revenue entries are not entitled to the possession of the suit land by demolition of the construction raised thereon by the defendant. Issue No. 3 pertaining to limitation has been answered in favour of the plaintiffs. Similarly, though in issue wise findings issue No. 9 pertaining to jurisdiction has been answered against the plaintiffs, however, the findings recorded on this issue reveals that Civil Court was found to have the jurisdiction to try and entertain the suit and as such, this issue has also been answered in favour of the plaintiffs. The remaining issues i.e. 5 to 8, however, have been answered against the defendant. The cumulative effect of the findings on issues No. 1, 2 and 4, however, was dismissal of the suit.

The plaintiffs though assailed the judgment and decree passed by the learned trial Judge, however, unsuccessfully. The legality and validity of the impugned judgment and decree has been assailed on the grounds inter-alia that both Courts below have miserably failed to appreciate the given facts and circumstances of this case and evidence available on record. The evidence available on record is rather stated to be misread and mis-construed. The Courts below while deciding the lis allegedly traveled beyond the jurisdiction vested in them. It has been highlighted that the correction in the revenue entries was made by the competent Revenue Officer during the course of settlement after following the procedure prescribed thereto. The order so passed was never challenged by the defendant. The said order is even not challenged in the present proceedings also, therefore, on the basis of the said order, mutation Ext. P-3 was rightly attested and sanctioned in favour of Shri Raju, their predecessor-in-interest. The ratio of the judgment of the Hon''ble Apex Court is stated to be wrongly applied to the given facts and circumstances of this case. It has, therefore, been submitted that the impugned judgment and decree being perverse and vitiated, deserves to be quashed and set aside.

On analyzing the submissions made by learned counsel representing the appellants-plaintiffs and also learned Senior Advocate, who appeared on behalf of the defendant-respondent, I find the present a case where no question of law what to speak of the substantial question of law, as formulated in the appeal, arises for determination. I am drawing support to the conclusion so arrived at from the material available on record.

The competent revenue authority, no doubt, can order correction of the entries in the revenue record, however, only in accordance with the procedure prescribed thereto. As except for bald assertion in the plaint, nothing suggesting that such prescribed procedure has been followed by the Revenue Officer, who has passed the so called order, which as a matter of fact, has not seen the light of the day, on the basis whereof, mutation Ext. P-3 was ordered to be attested and sanctioned in favour of Shri Raju, predecessor-in-interest of the plaintiffs has come on record. There is nothing to show that the defendant was given an opportunity of being heard. The possibility of mutation of the land in dispute i.e. Khasra No. 828 measuring 5 marlas having entered and attested in connivance with the revenue staff, as is the case of the defendant, cannot be ruled-out. The competent Revenue Officer, no doubt, can order the correction of revenue entries as per provisions contained in the H.P. Land Revenue Act, however, only in accordance with law. The question of legality and validity of the order so passed, on the basis whereof mutation Ext. P-3 was attested in favour of Shri Raju, predecessor-in-interest of the plaintiffs could have only been determined, had the same been produced in evidence by the plaintiffs. It has been urged that the defendant has not assailed the said order before the competent authority including these proceedings. It is not established at all that any such order qua correction of the revenue entries was passed by a competent Revenue Officer by associating and hearing the defendant. Otherwise also, the plaintiffs were required to stand on their own legs and should have produced the order of correction in evidence to remove all doubts qua the genuineness and authenticity of the mutation Ext. P-3. They, however, have miserably failed to produce any such evidence on record in the learned lower Appellate Court and for that matter even in the learned trial Court also. The learned trial Court has, therefore, not committed any illegality and irregularity in dismissing the suit. The law laid down by the Hon''ble Apex Court in State of Himachal Pradesh Vs. Keshav Ram and others, is fully attracted in the given facts and circumstances of this case.

In view of what has been stated hereinabove, the Courts below have not committed any illegality or irregularity while dismissing the suit nor the impugned judgment and decree can be said to be perverse or vitiated on account of any infirmity. The same rather deserves to be upheld.

In view of the above, this appeal fails and the same is accordingly dismissed. Parties are left to bear their own costs.