Smt. Indira Devi vs Shri Hem Singh, Sh. Yadvinder and Smt. Janki Devi

Rajiv Sharma, Judge

This Regular Second Appeal is directed against the judgment and decree dated 07.01.2012, passed by the learned Additional District Judge (Fast Track Court), Mandi, District Mandi, H.P. in Civil Appeal No. 49 of 2008. Material facts necessary for adjudication of this Regular Second Appeal are that the appellant-plaintiff (hereinafter referred to as ''the plaintiff'' for the sake of convenience) had filed a suit for permanent prohibitory injunction and for declaration, on the allegations that the land comprised in Khata Khatauni No. 36 min/43 min, Khasra No. 446/2, measuring 0-7-8 bighas and Khasra Nos. 467, 472,473, 521, 527 and 530, measuring 3-0-0 bighas of Village Fatewahan/358 of Tehsil Sadar is recorded in the ownership and possession of the plaintiff and proforma defendant No. 3, Smt. Janki Devi (in the original plaint one Karam Singh was arrayed as proforma defendant, but his name was deleted vide order dated 01.08.2006). Defendant No. 3 is also successor of Shri Karam Singh. The land comprised in Khata Khatauni No. 40/47, Khasra Nos. 448 and 474, Kita 2, measuring 1-11-05 bighas, Khasra No. 448/1, measuring 0-0-8 bighas has been sanctioned in favour of Shri Govind Ram and rest of the land comprised in Khasra No. 448/2, measuring 0-16-3 bighas and Khasra No. 474, measuring 0-14-14 bighas, total measuring 1-10-17 bighas is recorded in the joint ownership and possession of proforma defendant, Smt. Janki Devi and others, in which she is having half share, measuring 0-15-6 bighas. The land measuring 3-7-8 bighas and measuring 0-14-14 bighas (hereinafter to be referred as ''the suit land'' for the sake of brevity), was purchased by the plaintiff from proforma defendants through registered sale deeds No. 11, dated 15.05.1996 and No. 26, dated 30.11.1996 and the possession of the land was also taken by the plaintiff on the same day. The mutation of the aforesaid land was also duly entered in the name of the plaintiff on the basis of the registered sale deed. The respondent-defendant No. 1 (hereinafter referred to as ''the defendant No. 1'' for the sake of convenience) has filed an application against proforma defendant Karam Singh and defendant No. 2, Yadvinder before the Consolidation Officer. The Consolidation Officer passed an order on 22.08.1996, deducting the land out of Khasra No. 473 and showing it Khasra No. 473/1, measuring 0-4-0 bighas and out of Khasra No. 474/1, measuring 0-11-0 bighas has been allowed to defendant No. 1. The Consolidation Officer also cancelled the entries of mutation in favour of the plaintiff and illegally entered the mutation No. 144, dated 07.03.2001 in favour of defendant No. 1, Shri Hem Singh, without calling the plaintiff. According to the plaintiff, the said mutation and entries in the consolidation record are liable to be declared null and void. It is in these circumstances, the plaintiff has filed the suit restraining defendant No. 1 from interfering in the suit land and further a decree for declaration to the effect that orders dated 22.08.1996 and 16.01.2002, passed by the Consolidation Officer be declared null and void.

The suit was contested by defendant No. 1. According to him, the suit was barred u/s 57 of the Himachal Pradesh Holdings (Consolidation) and Prevention of Fragmentation Act, 1971 and is also bad for non-joinder of necessary parties. According to him, the suit land alongwith other land was once owned and possessed by defendants No. 1 to 3 and husband of the plaintiff, Sh. Biri Singh as per jamabandi for the year 1986. It is further submitted that the defendant No. 1 was in possession of Khasra No. 905/719,907/720, 839 and 845 as per the copy of Istemal consolidation. The consolidation took place in the year 1989-90. The land was partitioned and the defendant No. 1 was allotted Khasra No. 839, though he was in possession in other khasra numbers, since the defendant No. 1 was not allotted any land alongwith the road side and also allotted less land then his entitlement, he challenged the order of partition, u/s 54 of the H.P. Consolidation Act before the Director of Consolidation. The application was filed on 04.11.1992. It was accepted on 18.10.1995 and the matter was remanded to the Consolidation Officer. The Consolidation Officer visited the spot and defendant No. 1 was allotted Khasra Nos. (old) 907/720, (New) 474/1, measuring 0-7-0 bighas and the land comprised in (old) Khasra No. 905/719, new Khasra number of which is 473/1, measuring 0-4-0 bighas. As such, the defendant No. 1 was allowed total land measuring 0-11-0 bighas in addition to the land earlier allotted to him. According to defendant No. 1, the plaintiff during the pendency of consolidation proceedings and also during the pendency of the revision filed by defendant No. 1, purchased part of the land from the other defendants.

Smt. Janki Devi has filed an independent written statement. She set up a claim that she did not sell any land to the plaintiff. However, the suit is stated to be pending in another court and no issue in this regard has been framed in the present suit.

Learned Civil Judge (Junior Division), Court No. 2, Mandi, District Mandi, H.P. framed the issues on 09.09.2004. He dismissed the suit on 30.07.2008. Plaintiff preferred an appeal before the learned Additional District Judge (Fast Track Court), Mandi, District Mandi, H.P. The same was also dismissed on 07.01.2012. It is in these circumstances that the present Regular Second Appeal has been filed by the plaintiff.

Mr. Vivek Sharma, learned vice counsel for the appellant, on the basis of substantial questions of law framed, has vehemently argued that the Courts below have come to a wrong conclusion that the Civil Courts jurisdiction was barred in view of the provisions of Section 57 of the H.P. Holdings (Consolidation) and Prevention of Fragmentation Act, 1971. He then argued that the statutory authorities under the H.P. Holdings (Consolidation) and Prevention of Fragmentation Act, 1971 have violated the principles of natural justice. He also argued that the husband of the plaintiff was not heard by the authorities constituted under the H.P. Holdings (Consolidation) and Prevention of Fragmentation Act, 1971.

I have heard Mr. Vivek Sharma, learned vice counsel for the appellant at length and gone through the judgments and pleadings carefully.

Plaintiff has appeared as PW-1. According to her, she has purchased 3-7-8 bighas of the land from Karam Singh for a consideration of Rs. 18,000/- through a registered sale deed Ex. PW-1/A, dated 15.05.1996. She also purchased 0-15-8 bighas of land for a consideration of Rs. 16,500/- from Janki Devi through registered sale deed dated 30.11.1996, Ex. PW-1/B.

PW-2, Shri Bhagirath has executed the sale deeds on the basis of instructions imparted to him by the vendor and vendee. PW-3 Prem Singh and PW-4 Kesar Singh are the witnesses of the sale deeds.

DW-1 has supported the averments made in the written statement. DW-2 has supported the version of DW-1.

What emerges from the facts enumerated hereinabove, is that the defendant No. 1 has filed a revision petition before the Director of Consolidation on 04.11.1992. It was accepted on 18.10.1995. The matter was remanded to the Consolidation Officer. The Consolidation Officer vide order dated 22.08.1996, Ex. PW-1/C allotted the land on road side to the defendant, Hem Singh, measuring 0-4-0 bighas, comprised in Khasra No. 473/1 and the land measuring 0-11-0 bighas of Khasra No. 474/1. The Consolidation Officer also allotted the land measuring 0-4-0 bighas in Khasra No. 473/1 to Karam Singh and land measuring 0-7-0 bighas from Khasra No. 474/1 to Yadvinder Singh. PW-1 has admitted that Hem Singh was not allotted any land adjoining to the road, but the land adjoining to the road was allotted to Karam Singh, Yadvinder and Biri Singh. Biri Singh is husband of the plaintiff. Plaintiff has also admitted that during consolidation in 1986, the land was partitioned. The defendant No. 1 has preferred a revision petition before the Additional Director, Land Record on the following grounds; (i) that Khasra No. 736/1 may be given to the petitioner alongwith the road side; and (ii) that value of the land comprised in Khasra Nos. 694,697 and 711 should have been corrected 12 anna and less land allotted to the petitioner be completed as per his share. The Consolidation Officer has visited the spot after the revision was accepted by the Additional Director on 18.10.1995. Shri Karam Singh was present before the Director, however, the summons were refused by the wife of Biri Singh (i.e., the present plaintiff). Thus, he was proceeded ex parte. Therefore, it cannot be presumed that the plaintiff did not know about the proceedings pending before the Additional Director, Land Record and the Consolidation Officer. The land has been allotted to defendant No. 1 as per H.P. Holdings (Consolidation) and Prevention of Fragmentation Act, 1971 after following the due procedure. The Consolidation Officer has also visited the spot. The Courts below have rightly come to the conclusion that the jurisdiction of the Civil Court was barred. The H.P. Holdings (Consolidation) and Prevention of Fragmentation Act, 1971 is a complete code. Plaintiff has not carried out any appeal/revision against the orders of the Consolidation Officer. The mutation has been attested after the orders were passed by the Consolidation Officer in favour of defendant, as is evident from the copy of jamabandi for the year 1995-96, Ex.-PX. The entries were also incorporated with regard to Khasra No. 630/473, measuring 00-04-00 bighas and Khasra No. 632/474, measuring 0-07-0 in the jamabandi for the year 2005-06, Ex. AW-1/A in favour of defendant No. 1, Hem Singh and he has been recorded owner in possession of the land measuring 0-11-0 bighas. Plaintiff has not challenged the revenue entries made in favour of defendants No. 1 and 2. The presumption of truth is attached to these entries. The Courts below have correctly come to the conclusion that the jurisdiction of the civil Court was barred in view of Section 57 of the H.P. Holdings (Consolidation) and Prevention of Fragmentation Act, 1971. The statutory authorities have correctly followed the procedure under the Act while passing the order dated 18.10.1995 followed by order dated 22.08.1996, passed by the Consolidation Officer vide Ex. PW-1/C. The Courts below have correctly appreciated the oral as well as documentary evidence. There is no substantial question of law involved in this Regular Second Appeal. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed, so also the pending application(s), if any. No costs.