Dev Raj vs Sub Divisional Collector Una And Ors

Bipin Chander Negi, J

Heard counsel for the parties, perused the impugned order and the records appended along with the petition.

Appeal inter se the private parties was decided by the District Judge, Una in Civil Appeal No.75/2007 on 16.12.2008. While allowing the appeal, the following relief had been granted by the First Appellate Court. The same reads as follows:-

Relief:- 21. Judged in the light of my findings on the foregoing point, the appeal succeeds partly and is allowed in part. Suit of the plaintiff is decreed to the extent that the entries in the name of defendant as Kabiz over the suit land are null and void and not binding upon the right, title or interest of the plaintiffs and the plaintiffs are declared to be in joint possession of the suit land as tenants. To this extent the judgment and decree passed by the ld.trial court is set aside. In view of the facts and circumstances of the case there is no order as to costs. A decree sheet be drawn and the file after completion be consigned to records. The record of the ld. Lower court together with a copy of this judgment be sent back.

Since there existed a clerical/typographical error in the operative part of the judgment reproduced hereinabove, therefore, the present petiti ner filed an application for rectification of he operative part of the judgment. The application so moved was allowed vide order dated 31.01.2009 in the following terms. The same is reproduced hereinbel w f r ready reference:-

“31.1.2009: Present: Sh. Ajmer Singh, Advocate, for the applicant/respondent.

Sh. C.M. Sharma, Advocate, for the respondents/appellants. The present applicant has been filed by the respondent in appeal titled Harnam Dass vs. Dev Raj. The ld. counsel appearing for the appellants has made no objection on this application. This application has been moved on the ground that in the operative portion of the judgment in the 8th word in the 5th line it has been wrongly typed by mistake as "plaintiffs" instead of "parties". Perusal of the record shows that the said typographical mistake has cropped up in the operative part of the judgment inadvertently. In view of the no objection as well as the facts and circumstances of the case the application is allowed and the word "plaintiff" as mentioned in para 21 (relief clause) of the judgment be substituted by the word "parties to the lis". Let necessary correction be made in the judgment as well as in the decree sheet. The application stands disposed of accordingly.”

In view thereof, the relief clause finally reads as follows:-

“Relief:- 21. Judged in the light of my findings on the foregoing point, the appeal succeeds partly and is allowed in part. Suit of the plaintiff is decreed to the extent that the entries in the name of defendant as Kabiz ver the suit land are null and void and not binding upon the right, title or interest of the plaintiffs and he parties to the lis are declared to be in joint possession of the suit land as tenants. To this extent the j dgment and decree passed by the ld. trial c urt is set aside. In view of the facts and circumstances of the case there is no order as to costs. A decree-sheet be drawn and the file after completion be consigned to records. The record of the ld. Lower court together with a copy of this judgment be sent back.”

On the basis of unamended judgment, a mutation bearing No.712 dated 24.01.2020, was got attested. Feeling aggrieved by the same, the present petitioner preferred an appeal bearing No.2/21, titled Dev Raj Vs. Harnam Dass, pending consideration before the Collector, Sub Division, Una, HP. Since on the basis of the mutation so attested on 24.01.2020 (Mutation No.712), the revenue authorities were proceeding to get the demarcation done, therefore, the petitioner was constrained to approach this Court. This Court vide order dated 19.03.2021, had passed the following order.

CMP No. 3130 of 2021.

Notice in the aforesaid terms. In the meanwhile, the Sub Divisional Collector, Una and the Assistant Collector, Grade-I (Tehsildar) Una, are restrained from carrying out any demarcation of the suit land comprised in land measuring 0-17-08 bearing Khata No. 23, Khatauni No. 102, Khasra No. 811, 812, 815 as en ered in the Misal Hakiat Bandobast Jadid Sani for the year 1990-91, situated in Village Badoli, Tehsil and District Una, H.P. and further directed to produce the records of Case No.2/2021/Appeal Mutation titled Dev Raj vs. Harnam Dass and others before this Court on the next date of hearing.”

In t e aforesaid facts and attending circumstances, it is evident that mutation bearing No.712 dated 24.01.2020, attested on the basis of unamended judgment passed by the Civil Court in appeal decided on 16.12.2008, is pending consideration (subject matter) before the Appellate Authority i.e. Collector, Sub Division, Una.

In the case at hand, this Court is informed that one Regular Second Appeal is pending adjudication against the final corrected judgment passed by the District Judge, Una dated 16.12.2008.

In the aforesaid facts and attending circumstances, the present petition is disposed of with a direction to the Collector, Sub Division, Una, HP to decide the pending appeal on its own merit. Till the adjudication of the appeal, no proceedings for demarcation of the suit land shall be conducted.

Pending miscellaneous application(s), if any, shall also stand disposed of.