Kewal Singh & others vs Smt. Savitri & others

Sureshwar Thakur, J.

The instant appeal is directed, against, the concurrently recorded verdicts by both the learned Courts below, whereby, the plaintiff's suit for

rendition, of, a decree for possession , qua the suit khasra number(s), was, hence dismissed.

Briefly stated the facts of the case are that the plaintiffs have filed the suit for possession of the land measuring 41-00 sq. meters, comprising

Khewat No.238 min, Khatauni No.577, Khasra Nos. 1759 and 1760, situated in UP Mahal Basdehra Brahmna, Village Basdehra, Tehsil and District

Una, H.P. It is pleaded by the plaintiffs that the suit land is owned and possessed by them and the defendants have no right, title or interest thereon. It

is averred that during the settlement operation in the village, the defendants, procured wrong entries, showing them in possession over the suit land.

However, such entries have been effected in the absence and without notice of the plaintiffs. Therefore, the revenue entries in favour of the

defendants are wrong and illegal. It is on the basis of the said wrong revenue entries, the defendants have encroached upon the suit land near about

six months back and they have raised construction in khasra No.1760 and opened the doors towards Khasra N.1759. It is averred that the defendants

are again threatening to cover the whole area of the suit land. All these illegal acts are being done by the defendants despite the request being made

by the plaintiffs for not doing such things. Hence the suit.

The defendants contested the suit and filed written statement, wherein, they have denied that the plaintiffs ever owned and possessed the suit land.

It is claimed that the suit land was never part of pre-settlement of Khasra No.624. On the other hand, it is asserted that this was a part of old khasra

No.621 and where there are old abadies of the defendants. It is admitted that the settlement authorities have recorded wrong revenue entries in the

record. They are in possession of the suit land for the last more than 20 years. In the alternative, it is submitted that if the suit land is not found to be

part of old khasra number 621, then they have become owners of the suit land by way of adverse possession.

The plaintiffs filed replication to the written statement of the defendants, wherein, they denied the contents of the written statement and re-affirmed

and re-asserted the averments, made in the plaint.

On the pleadings of the parties, the learned trial Court struck the following issues, inter-se, the parties at contest:-

Whether the plaintiff is entitled for the relief of possession, as alleged? OPP.

Whether the suit land is part of khasra No.621, as alleged?OPD.

If issue No.2 is not proved, whether the defendants have become owners by way of adverse possession?OPD.

Whether the plaintiff is estopped to file the present suit?OPD.

On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court, dismissed the suit of the plaintiffs/appellants herein. In

an appeal, preferred therefrom by the plaintiffs/appellants herein, before, the learned First Appellate Court, the latter Court dismissed, the appeal, and,

affirmed the findings recorded by the learned trial Court.

Now the plaintiffs/appellants herein, have instituted the instant Regular Second Appeal, before, this Court, wherein he assails the findings, recorded

in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, this Court, on 20.07.2007, admitted

the appeal, instituted by the plaintiffs/appellants, against, the judgment and decree, rendered by the learned first Appellate Court, on, the hereinafter

extracted substantial questions of law:-

Whether both the Courts below were correct in dismissing the suit of the plaintiffs and holding the defendants to be in adverse possession of the suit

land, when the title of the plaintiffs had been denied?

Substantial question of Law No.1:

The substratum of the res controversia, hereat, is, embodied in the factum of the suit land, being a part of pre-settlement khasra No.624, or ,a part

of old khasra No.621. Furthermore, also, in, the factum of the entries, existing in the revenue record, apposite, to the suit land, with a display therein, of

the defendants being “kabaz†thereof, being meritworthy, (i) arising, from there occurrence, in the record, apposite to the suit land, being a sequel,

of validly recorded orders, by the revenue authorities concerned. Even though, Ex.P-5 and Ex.P-6, both concurrently, carry reflections of the suit land,

being a part of old khasra No.624, yet prima facie no validity can be imputed thereto, (ii) given the entries, occurring, in the subsequent thereto,

revenue records, comprised in Ex. D-1, exhibit whereof comprises, the jamabandi appertaining, to, the year 1997-98, and, stood prepared during the

course of settlement proceedings, held, in the area whereat, the suit land is located, carrying, contrary therewith reflections (a) vis-a-vis, the earlier

therewith jamabandi(s), respectively, borne in Ex.P-4, and, in Ex.P-5, exhibits whereof stood prepared in consonance, with the Misal Hakiyat

Bandobast, comprised in Ex.P-6, and, also in consonance, with, the Misal Hakiyat Istemal, borne in Ex.P-5, all whereof rather unravel, the trite factum

qua inter se contradictions vis-a-vis therewith, Ex. D-1, especially qua hence the area of the suit land, being constituted, in an area of 0-12 marlas, (b)

whereas, reiteratedly all the records hence prepared, at the time contemporaneous, to, the drawing of settlement proceedings, contrarily therewith

rather revealing, its carrying dimensions, of, 317.18 sq. meters, (c) area whereof, is, rather the total area of khasra Nos. 1888, 1759 and 1760, all latter

khasra numbers whereof, had evidently come to be carved, from, khasra No. 624, (d) hence, the area of the suit land, previously reflected, in aforesaid

exhibits, is visibly much in excess, of, its apt area reflected in Ex.P-6, subsequently drawn at the time, of, holding, of, settlement proceedings. (e)

Thereupon, the apt reflections, borne, in the latter revenue records, even, if preceding(s) therewith, valid orders were rendered by the competent

revenue officer(s), also does not constrain any inference, qua the presumption of truth carried by them, being conclusive, rather the apt presumption, is

rebutted, by, (f) the plaintiffs failing, to purvey any tangible explanation, for the aforesaid increases, occurring, in the area of the suit land, apt

occurrence(s) whereof, emanated since the prior preparation(s), of, Ex.P-4, and, Ex.P-5, and, the subsequent thereto, hence preparation, of Ex.P-6.

(g) Contrarily, with the defendants, being aggrieved, by the aforesaid untenable increases, besides apparent rife contradictions, spurring inter se, the

area of the suit land, as reflected in Ex.P-4 and Ex.P-5, vis-a-vis, the subsequent thereto prepared jamabandi, suit land whereof, is borne in old khasra

No.624, were hence led to file, an apt application, before, the Consolidation Officer, whereon, as divulged by Ex.D4, an affirmative order was

pronounced. (h) However, the pronouncement, occurring in Ex. D4, was challenged by the plaintiffs, before the Settlement Officer, Hamirpur, and,

upon their apposite motion, the latter made an order of remand, qua the plaintiffs' grievance, to the Consolidation Officer, and, on remand, the latter

proceeded, to, affirm the orders previously, borne in Ex,. D-4, by his rendering a pronouncement, borne in Ex. D-3. (i) Since, the aforesaid order,

borne in Ex. D-3, acquires conclusivity, hence, reverence is to be meted thereto, and, also meteings of deference thereto, by both the learned Courts

below, is both appropriate, and, apt, it being anchored, on well grooved tangible reasons, (j) thereupon also the affirmative findings, as, recorded qua

the defendants, qua theirs being kabaz, vis-a-vis, the suit land, rather being a sequel of a valid and efficacious order, made, on 11.9.1991 by the

Settlement Officer, are merit worthy, and, also rather hence displace the presumption of truth enjoyed, by the entries, as relied upon by the plaintiff, (k)

rather hence the entries in the revenue record, displaying the defendants, as “kabazâ€, upon the suit land, acquire conclusivity. Since, the order

directing, the recording of the defendants, as “kabazâ€, vis-a-vis, the suit land, is, preceded by a valid order, recorded by the Revenue Officer

concerned, (l) more so, when no evidence, is, adduced, by the plaintiffs, of it being stained with vices of infractions, of, principles of natural justice, or,

the revenue officer concerned, in rendering, the apposite order, his rendering it, without bearing in mind, the apposite record, maintained, with respect

to the suit land,(m) besides when the plaintiffs omitted, to, render any tangible explanation qua untenable increases, occurring, in the area, of the suit

land, (n) besides their canvassings, qua the suit land, being purportedly, a part, of old khasra No.624, area whereof, is uncontestedly recorded in Ex.P-

5, and, in Ex.P-6, exhibits whereof respectively comprising the copies of Misal Hakiyat Istemal or Misal Hakiyat Bandobast, to be borne, in, an area of

0-12 marlas, are all hence unmeritworthy, (o) thereupon, the untenable increases,meted qua the apt area, as reflected in Ex.P-6, warranted its

correction, as tenably, done under Ex.D-3.

However, at this stage, the learned counsel appearing for the respondents, has submitted, with much vigour, before this Court qua with the

provisions, borne in subsection 2(vi) of Section 171 of the H.P. Land Revenue Act, provisions whereof stand extracted hereinafter;-

Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers. - Except as otherwise provided by this Act-

(1) A Civil Court shall not have jurisdiction in any matter which the State Government or a Revenue Officer is empowered by this Act, to dispose of

or take cognizance of the manner in which the State Government or any Revenue Officer exercises any powers vested in it or him by or under this

Act; and in particular-

(2) A Civil Court shall not exercise jurisdiction over any of the following matters, namely-

(i) any question as to the limits of any land which has been defined by a Revenue Officer as land to which this Act does or does not apply;

(ii) any claim to compel the performance of any duties imposed by this Act or any other enactment for the time being in force on any Revenue

Officer, as such;

(iii) any claim to the office of kanungo, or village officer, or in respect of any injury caused by exclusion from such office, or to compel the

performance of the duties or a division of the emoluments thereof;

(iv) any notification directing the making or revision of a record-of-rights;

(v) the framing of a record-of-rights or [periodical] record or the preparation, signing or attestation of any of the documents included in such a record;

(vi) the correction of any entry in a record-of-rights, [periodical] record or register of mutations;

(vii) any notification of the undertaking of the general re-assessment of a district or tehsil having been sanctioned by the State Government;

(viii) the claim of any person to be liable for an assessment of land-revenue or of any other revenue assessed under this Act;

(ix)...................................................................â€​

(i) making a graphic display, of,Civil Court(s) concerned, being barred to exercise jurisdiction, in all matters appertaining, to, correction of entries,

existing in, the records of rights, (ii) thereupon, the instant suit maintained, by the plaintiffs, being not maintainable, given it being statutorily barred, to,

exercise jurisdiction thereon.

However, the aforesaid submission, addressed before this Court, by the learned counsel, appearing for the respondent, is unworthy of any merit,

as, he has not borne in mind, the provisions occurring in Section 38, and, in Section 46 of the H.P. Land Revenue Act, provisions whereof stand

extracted hereinafter:-

Restrictions on variations of entries in records. - Entries in records-of-rights or in [periodical] records, except entries made in [periodical] records

by patwaris 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;

(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.

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

Specific Relief Act, 1963],

(a) wherewithin, rather jurisdiction, is, vested in Civil Courts, to even, after the Revenue Officer, makes an order, for correction, of the revenue

entries, or, he refuses to make any apposite affirmative order thereon, hence, test validity thereof, (b) AND emphatically, within the domain, of, the apt

mandate(s) occurring therewithin, through, exercise, of, jurisdiction, under Section 46 of the H.P. Land Revenue Act, hence render a decree, upon, the

apposite civil suit, preferred, therebefore, by the litigant concerned, wherein, he casts a challenge, vis-a-vis, the apposite orders, made by the Revenue

Officer, hence directing or omitting to direct the making, of, correction(s), of, entries hence occurring, in the revenue records. (c) corollary whereof,

qua the aforesaid statutory betowments upon civil court(s), is, hence the verdicts recorded, by civil court(s), rather holding paramount predominance,

vis-a-vis, any purported untenable assumption, of jurisdiction, by any revenue officer(s), vis-a-vis, alike therewith matters, or, in respect(s) whereof,

the Civil Court, previously render their verdict. In other words, the decrees, pronounced by the Civil courts concerned, (d) hold predominance, and,

paramountancy, vis-a-vis, any order(s) made even, by any officer in the highest echelon(s), of, the hierarchy, of, revenue officers, and, are always

enjoined, to be meted fullest deference thereto, by all courts, inclusive, the revenue courts, (e) and, any motion cast before, the revenue officers

concerned, subsequent, to the rendition, of decree(s) by civil Court(s), vis-a-vis, any matter, holding alikeness therewith, rather enjoins all revenue

officers concerned, to mete deference, vis-a-vis, verdicts of civil courts, (f) also, in case the decree/verdict, pronounced, by the court of first instance,

is, challenged before superior thereto civil court concerned, thereupon, the revenue officers, being enjoined, to stay the proceedings, upon apposite

motions, being made before them, till a decision, is pronounced, by the courts superior, to, the court of first instance.

The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court as also by the learned trial Court, being based,

upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court as well as the learned

trial Court, have not excluded germane and apposite material from consideration. Accordingly, the substantial question of law is answered in favour of

the respondents/defendants and against the appellants/plaintiffs.

In view of the above discussion, there is no merit in instant Regular Second Appeal and it is dismissed. In sequel, the judgments and decrees

rendered by both the learned Courts below are affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand

disposed of. No order as to costs. Copy of this judgment be forthwith forwarded to the learned Financial Commissioner (Revenue), and, he is directed

to ensure that no decrees/verdicts, of, the civil courts are flouted or attempted to be flouted, by any Revenue Officer concerned.