Punjab-Haryana High Court

Paras Ram And Ors vs Ganpat Ram on 6 May, 2024

Author: Alka Sarin

Bench: Alka Sarin

                            RSA-298-1991                                                            1


                            136

                                    IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                                   CHANDIGARH

                                                                   RSA-298-1991 (O&M)
                                                                   Reserved on : 02.05.2024
                                                                   Date of Decision : 06.05.2024


                            Paras Ram & Ors.                                                ....Appellants

                                                              VERSUS

                            Ganpat Ram                                                      ....Respondent



                            CORAM : HON'BLE MRS. JUSTICE ALKA SARIN


                            Present :    Mr. Rajinder Goel, Advocate for the appellants.

                                         Mr. V.K. Jindal, Senior Advocate with
                                         Mr. Pankaj Gautam, Advocate for the respondent.


                            ALKA SARIN, J.

1. The present appeal has been preferred by the plaintiff-

appellants challenging the concurrent findings of fact returned by the Trial

Court and the First Appellate Court vide judgments and decrees dated

30.11.1987 and 22.09.1990, respectively.

2. Briefly stated, the facts of the case are that the predecessor-in-

interest of the plaintiff-appellants i.e. Devi Sahai filed the present suit.

During the pendency of the suit, on the death of Devi Sahai, his legal

representatives were impleaded as plaintiffs. The dispute relates to a site

identified by letters 'ABCD' in the plan (Ex.P1) attached with the plaint.

integrity of this order/judgment.

The case set up by the plaintiff-appellants was that the site was part of plot

No.212 which was owned by the plaintiff-appellants and that the defendant-

respondent, whose house adjoined the site in dispute towards North, had

illegally opened a door at site 'D' in the southern wall of his house and

through the door the defendant-respondent had gained access to the site in

dispute and constructed a chabutra and hence the suit for prohibitory

injunction directing the defendant-respondent to close the door and also to

remove the chabutra and an injunction for restraining the defendant-

respondent from interfering in the possession of the plaintiff-appellants on

the site in dispute. Written statement was filed by the defendant-respondent.

It was averred in the written statement that in front of house of the plaintiff-

appellants there was an open chowk which was part of shamlat deh and that

the site in dispute was a subject matter of Civil Suit No.75 dated 10.04.1952

titled as Ganpat Vs. Bishamber decided on 28.01.1953 wherein it was held

that the site in dispute was a part of the chowk, a common land vesting in the

Panchayat.

3. On the basis of the pleadings, the following issues were framed

by the Trial Court :

1. Whether the plaintiff is owner in possession of the

land shown by letters ABCD in the site plan as alleged,

if so its effect ? OPP

2. Whether the plaintiff is estopped from filing the

present suit by his act and conduct ? OPD

integrity of this order/judgment.

3. Relief.

4. The Trial Court, on the basis of the pleadings and the evidence

on the record, dismissed the suit of the plaintiff-appellants vide judgment

and decree dated 30.11.1987. Aggrieved by the same, an appeal was

preferred by the plaintiff-appellants before the First Appellate Court which

appeal was also dismissed vide judgment and decree dated 22.09.1990.

Hence, the present regular second appeal.

5. Learned counsel for the plaintiff-appellants would contend that

Plot No.212 measuring 14 marlas was recorded to be in the ownership of the

plaintiff-appellants and Ex.P6 was a copy of the mutation sanctioned by the

Consolidation Authority whereby Plot No.212 was allotted to the plaintiff-

appellants. It is further the contention of the learned counsel that once the

mutation had been sanctioned in the name of the father of the present

plaintiff-appellants vide Ex.P6, he was a recorded owner and that since the

mutation was never challenged he continues to be owner of the said

property.

6. Per contra the learned senior counsel appearing on behalf of the

defendant-respondent would contend that vide judgment and decree dated

28.01.1953 (Ex.D2) and the judgment and decree dated 17.04.1953 (Ex.D3),

the father of the plaintiff-appellants had admitted that the property was

shamlat deh and that once the property was shamlat deh, the same could not

have been allotted at the time of consolidation. In support of his contention

the learned senior counsel has relied upon the judgment of the Division

integrity of this order/judgment.

Bench of this Court passed in Gram Panchayat of Village Hoshiarpur Vs.

State of Punjab & Ors. [CWP No.4493 of 2007 decided on 31.10.2012]. It

is further the contention of the learned senior counsel for the defendant-

respondent that a mutation would not confer any title on the person. In

support of his contention he has relied upon the judgment of the Supreme

Court in the case of Jitendra Singh Vs. The State of Madhya Pradesh &

Ors. [2021 (4) RCR (Civil) 883]. The learned senior counsel for the

defendant-respondent would further contend that though the suit was filed

for Plot No.212 which was pre-consolidation number 257, however, Ex.P8

which is nakal khatauni/pamayash reveals that pre-consolidation number

257 was allotted Plot No.221. It is further the contention of the learned

senior counsel for the defendant-respondent that PW3-Patwari had stepped

into the witness box and had stated that pre-consolidation number 257 was

given a number 221 post-consolidation.

7. In rebuttal, the learned counsel for the plaintiff-appellants

would contend that there is an error on Ex.P8 linking 257 with 212.

8. No other arguments have been raised by the learned counsel for

the parties.

9. Heard.

10. In the present case, admittedly the land pre-consolidation was

shamlat deh. The Division Bench of this Court in the case of Gram

Panchayat of Village Hoshiarpur (supra) held as under :

"The jurisdiction of consolidation authorities to partition the "Shamilat Khewat" or to hold that "Shamilat Land"

integrity of this order/judgment.

does not vest in a Gram Panchayat, came up for consideration before the Hon'ble Supreme Court in the following cases:- G.P.Nurpur versus State of Punjab and others 1997(1) PLJ, 269 and Gram Panchayat Sidh versus State of Punjab, 1997(1) PLJ, 313. After considering the provisions of the 1961 Act, it was held that consolidation authorities have no jurisdiction to hold whether land described as "Shamilat Deh" vests or does not vest in a Gram Panchayat or to order partition of this land amongst proprietors. The only authority vested with such power is the Collector, exercising powers under section 11 of the 1961 Act. It is near impossible for us to accept that the appellate authority was not aware of these judgments or of sections 11 and 13-B of the 1961 Act. Section 13-B of the 1961 Act clearly postulates that notwithstanding anything to the contrary contained or held in any order passed by any authority or court, the provisions of the 1961 Act, shall prevail. It is, therefore, beyond debate that as order passed by the Additional Director, Consolidation on 10.6.1997 was without jurisdiction, by the Director, Rural Development and Panchayats, Punjab, was required to ignore it under section 13-B of the 1961 Act. Even otherwise, an order passed by an authority that had no jurisdiction, is not binding upon the forum conferred with jurisdiction, to decide a question of title, in this case the Collector and the Director, Rural Development and Panchayat."

11. Learned counsel for the plaintiff-appellants has not been able to

deny the fact that in the earlier proceedings the father of the present plaintiff-

appellants had admitted that the suit land was shamlat deh. That being so, as

integrity of this order/judgment.

per the judgment of the Division Bench of this Court, the Consolidation

Authority had no right to partition the land amongst the proprietors and to

allot the land to the plaintiff-appellants. Further still, the argument of the

learned counsel for the plaintiff-appellants that since there was a mutation in

his favour, hence, he had become legal owner of the plot also deserves to be

rejected in view of the law laid down by the Supreme Court in the case of

Jitendra Singh (supra). Hon'ble Supreme Court in the case of Jitendra

Singh (supra) held as under :

"5. We have heard Shri Nishesh Sharma, learned Advocate appearing for the petitioner.

It is not in dispute that the dispute is with respect to mutation entry in the revenue records. The petitioner herein submitted an application to mutate his name on the basis of the alleged will dated 20.05.1998 executed by Smt. Ananti Bai. Even, according to the petitioner also, Smt. Ananti Bai died on 27.08.2011. From the record, it emerges that the application before the Nayab Tehsildar was made on 9.8.2011, i.e., before the death of Smt. Ananti Bai. It cannot be disputed that the right on the basis of the will can be claimed only after the death of the executant of the will. Even the will itself has been disputed. Be that as it may, as per the settled proposition of law, mutation entry does not confer any right, title or interest in favour of the person and the mutation entry in the revenue record is only for the fiscal purpose. As per the settled proposition of law, if there is any dispute with respect to the title and more particularly when the mutation entry is sought to be made on the basis of the

integrity of this order/judgment.

will, the party who is claiming title/right on the basis of the will has to approach the appropriate civil court/court and get his rights crystalised and only thereafter on the basis of the decision before the civil court necessary mutation entry can be made.

6. Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137, this Court had an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter.

6.1 In the case of Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186, it is observed and held by this Court that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. Entries in the revenue records or jamabandi have only "fiscal purpose", i.e., payment of land revenue, and no ownership is conferred on the basis of such entries. It is further observed that so far as the title of the property is concerned, it can only be decided by a competent civil court. Similar view has been expressed in the cases of Suman Verma v. Union of India, (2004) 12 SCC 58;

Faqruddin v. Tajuddin (2008) 8 SCC 12; Rajinder Singh v. State of J&K, (2008) 9 SCC 368; Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342; Bhimabai Mahadeo Kambekar v.

integrity of this order/judgment.

Arthur Import & Export Co., (2019) 3 SCC 191; Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259; and Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70."

12. There is also no cogent explanation coming regarding the

pre-consolidation and post-consolidation numbers as depicted in Ex.P8

produced by the plaintiff-appellants themselves. The argument of the learned

counsel for the plaintiff-appellants that post-consolidation number 257 was

allotted number 212 cannot be accepted in view of the document (Ex.P8) as

well as the statement of the Patwari who stepped into the witness box as

PW3.

13. In view of the above, no fault can be found with the judgments

and decrees passed by both the Courts. No question of law, much less any

substantial question of law, arises in the present case. The appeal being