Uttarakhand High Court
WPMS/861/2007 on 26 February, 2021
WPMS No. 861 of 2007
Hon'ble Sharad Kumar Sharma, J.
Mr. Prabhat Bohra, Advocate, for the
petitioners.
Mr. M.S. Bisht, Brief Holder, for the
State.
Mr. Bhupendra Singh, Advocate, for
the private respondent(s).
Being aggrieved against the
proceedings for mutation, which was decided
by the Assessment Committee of Nagar
Palika Parishad, Haldwani, by virtue of an
order dated 30.08.1999, mutating the names
of the respondents in the revenue records, on
the basis of the settlement of coparcenary
rights and the appeal too, which was
preferred before the Court of Chief Judicial
Magistrate, was also dismissed by the
impugned judgment dated 20.04.2007,
against which the present writ petition has
been filed.
The respondents were noticed, and
respondent No. 1, had filed his detailed
counter affidavit, wherein he has annexed the
copy of the plaint of Civil Suit No. 91 of
2009, which was instituted by the
plaintiffs/petitioners, wherein, in the suit in
question, the plaintiffs/petitioners had sought
a decree of declaration, as well as for the
recovery of possession, on the basis of the
claim of coparcenary rights being devolved
from predecessor Pitamber Dutt.
The relief(s) in the suit was initially
modulated, as to be the relief for declaration
and recovery of possession, but later on it
was confined and restricted only to the
recovery of possession only. The said suit, as
preferred by the plaintiffs (petitioners herein)
which was numbered as Suit No. 91 of 2009,
Madan Mohan Kapilashrami (deceased) by
legal heirs and others Vs. Ramesh Chandra
Joshi and others.
The argument of the learned counsel
for the respondent is that the said suit which
was filed by the petitioners, had been
dismissed by the Court of 1st Additional Civil
Judge (Junior Division), Haldwani, District
Nainital, by judgment dated 17.08.2015, and
it has also been argued that the dismissal of
the said Suit dated 17.08.2015, has attained
finality.
In such an eventuality, where the
petitioners' suit itself for declaration of their
rights and for possession has been dismissed
by regular Civil Court, in that eventuality, the
writ petition as against the order passed by
the Assessment Committee of mutating the
names of the respondents in the municipal
records, which was also consequently stood
affirmed by the Court of Chief Judicial
Magistrate, in a Mutation Appeal No. 09 of
1999, vide its judgment dated 20.04.2007,
cannot be said to be suffering from any
apparent error, because otherwise also, the
mutation entries which has been put to
challenge, are only fiscal in nature and it will
not have an overriding effect to a decree,
which has been rendered by the competent
Civil Court and that too in the suit, which was
preferred by the plaintiffs/petitioners
themselves.
Hence, the present writ petition lacks
merits and the same is accordingly dismissed.
(Sharad Kumar Sharma, J.)
26.02.2021
Mahinder/
