Jagjit Singh vs State Of H.P. & Ors.

Jyotsna Rewal Dua, J.

On a joint application moved by the petitioner and respondents No.6 to 9, Mutation No. 855 was attested on 18.06.2002 concerning partition of land jointly held by the parties. Petitioner’s appeal against the said mutation was allowed by the Sub Divisional Collector, Una, on 23.08.2007 and the mutation order dated 18.06.2002 was set aside.

Revision petition preferred by the private respondents against the order dated 23.08.2007 was allowed by the Divisional Commissioner, Mandi, holding additional charge of Divisional Commissioner, Kangra at Dharamshala, on 06.10.2018. The order attesting Mutation No. 855 dated 18.06.2002 was upheld. Petitioner’s revision against the order dated 06.10.2018 was dismissed by the Financial Commissioner (Appeals), H.P., on 10.08.2022, thereby affirming the order passed by the Divisional Commissioner on 06.10.2018 and confirming the attestation of Mutation No. 855 dated 18.06.2002. Feeling aggrieved, the petitioner has invoked the extraordinary jurisdiction of this Court by way of the present petition.

Heard learned counsel for the parties and considered the case file.

For the sake of brevity, the submissions made by learned Advocates and the discussion thereupon are being elaborated hereinafter: –

3(i) The first ground urged by learned Senior Advocate for the petitioner for setting aside the impugned orders dated 06.10.2018 & 10.08.2022 passed by the Divisional Commissioner and the Financial Commissioner, respectively is that the application was moved by the petitioner and private respondents No.6 to 9 on 29.03.2002 only with a prayer to get their joint land partitioned. The application was not accompanied by any memorandum of partition. Therefore, such application could not be deemed to be an application for entering and attesting mutation qua ‘Khangi Takseem’ (private partition). According to the petitioner, Section 135 of the H.P. Land Revenue Act, 1954 (in short, “the Act”), relied upon by the respondents in support of attestation of mutation, was not applicable to the fact situation of the case. I am not in agreement with the aforesaid submission advanced by learned Senior Advocate for the petitioner. Section 135 of the Act reads as under: -

Annexure P-1 is the application, admittedly jointly moved by the petitioner and the private respondents on 29.03.2002. The application bears the signatures of all the parties. The subject matter of the application itself contains the description of the land jointly held by the parties as per the Jamabandi for the year 1996-1997. The subject matter further indicates that the parties had moved the application for entering and attesting mutation qua Khangi Takseem (private partition) effected amongst themselves in respect of their joint land holding. The contents of the application are that the parties were joint owners of the land; They had carried out a private partition amongst themselves and they were in possession of their respective shares allotted in such private partition, and that none of the parties had any objection to the said private partition pursuant to which they were enjoying possession of their respective shares. On this basis, request was made in the application for entering and attesting mutation qua Khangi Takseem (private partition).

The application, having been jointly moved and duly signed by all the parties seeking attestation of mutation on the basis of a private partition already effected and implemented amongst them, attracted the provisions of Section 135(3) of the Act. As per Section 135(3), where all the co-sharers make a report in writing, duly signed by all of them, to the Patwari affirming that they have privately partitioned the land and amicably separated possession thereof, the Patwari is required to make an entry of such report in his diary and enter the mutation, which is thereafter to be decided by the Revenue Officer after hearing the parties within a period of three months.

In the instant case, on receipt of the application jointly moved by the petitioner and private respondents No.6 to 9, as per the reply filed by respondents No.1, 4 & 5 (the State Authorities), the application was sent to the concerned field revenue staff for further necessary action. It was found that the land had been partitioned into six ‘Kurras’, out of which, Kurra No.5 comprising Khasra Nos. 1524/1, 1644/1 and 1758/1, measuring 00-05-72 hectares, was allotted to the petitioner. The reply also traces the history as to how the petitioner had purchased the land in question. After verification, Mutation No.855 was sanctioned by the Assistant Collector, Una, in the presence of all the co-sharers, including the petitioner. All the parties had signed the mutation register. The parties present at the time of sanctioning of the mutation including the petitioner were identified by Shri Sansar Chand, the then Nambardar Halqua Kotla Kalan.

3(ii) Learned Senior Advocate for the petitioner next contended that Annexure P-1, the application jointly moved by the parties for entering and attesting the mutation qua Khangi Takseem, could not be treated as an application for recording Khangi Takseem, as no memorandum of partition accompanied the application. Rather, while referring to an agreement enclosed as Annexure P-1/A, dated 09.05.2002, it was asserted that the parties had not actually effected the partition, but had prayed for carrying out partition; Petitioner had desired to retain possession of Khasra No.1758, but the said khasra number was not allotted to him.

The reply filed by the State is categoric that no such agreement, now placed at Annexure P-1/A, accompanied the application appended at Annexure P-1. Though the respondents-State, in their reply, admitted that the application was not supported with any memorandum of partition, their stand is that the application itself was moved by all the joint holders, duly signed by them, with specific averments that they had effected a private partition amongst themselves and were in possession of their separate shares allotted to them pursuant thereto. It is thereafter that the procedure contemplated under Section 135(3) of the Act was followed, which led to the entering and attestation of Mutation No.855 on 18.06.2022 in the presence of all the parties.

I have no reason to disbelieve the factual assertions made in the reply filed by the respondents-State. No document to the contrary has been placed on record.

3(iii) Learned Senior Advocate for the petitioner also took up a plea that signatures of the petitioner on mutation were forged. Attention was invited to Annexure P-3 dated 10.10.2018, which is the complaint made in this regard by the petitioner to the Superintendent of Police, District Una. It was also apprised during hearing that the FIR registered on the basis of above complaint is still pending trial before the Court of learned Judicial Magistrate First Class, Una.

For the purpose of adjudication of this writ petition, suffice it to note that the said complaint was moved almost 13 years after attestation of the mutation. In any case, at this stage, and for the purpose of deciding the present writ petition, due credence is required to be accorded to the factual averments made in the reply filed by the respondents-State to the effect that the petitioner was present on the spot; He had signed the mutation register, and he was identified, along with other co-owners, by Shri Sansar Chand, the then Nambardar Halqua Kotla Kalan. The authorities below, i.e. the Divisional Commissioner, Kangra and the Financial Commissioner (Appeals), have justifiably observed that it was for the petitioner to avail appropriate recourse in accordance with law for establishing that his signatures on the mutation register and other documents, on the basis whereof Mutation No. 855 came to be attested, were forged.

Reliance placed for the petitioner upon S.P. Chengalvaraya Naidu Vs. Jagannath & Ors.^{22.(1994) 1 SCC 1} & A.V. Papayya Sastry & Ors. Vs. Government of A.P. & Ors.^{33.(2007) 4 SCC 221} to contend that a decree obtained by fraud or forgery is a nullity, would be of no help to the petitioner in the peculiar facts and circumstances of the present case.

3(iv) Respondents have also pointed out another significant factor of the matter. Mutation No. 855 was attested on 18.06.2002; Petitioner filed the appeal against this mutation on 19.02.2003. Admittedly, the petitioner had sold Khasra Nos. 1524/1 and 1644/1 measuring 00-05-14 hectares vide Mutation No. 871 sanctioned on 24.12.2002 in favour of S/Sh. Satish Kumar and Sumesh Kumar sons of Yashpal. In other words, even before filing the appeal against Mutation No. 855, the petitioner had already sold the land which was allotted to him as recorded in the aforesaid mutation i.e. Mutation No. 855. Learned authorities below justifiably observed that, on one hand, the petitioner was questioning the mutation and, on the other hand, he had acted upon the same mutation process under which the land had come to him in private partition and Mutation No. 855 had been attested. The petitioner had sold parts of the land and, if according to him the mutation had been wrongly attested and he was entitled to some other khasra numbers, then the land sold by him would have included the shares of the other private respondents. The conduct of the petitioner speaks for itself.

The appeal preferred by the petitioner before the Divisional Commissioner was also barred by limitation, yet no application accompanied the appeal seeking condonation of delay. Be that as it may, even on merits, petitioner’s case against Mutation No. 855 dated 18.06.2002 does not hold any ground. The Divisional Commissioner as also the Financial Commissioner (Appeals) had correctly turned down petitioner’s challenge to Mutation No. 855 attested on 18.06.2002.

In the given facts and circumstances, no case for interference with the impugned order dated 10.08.2022 passed by the Financial Commissioner (Appeals), H.P. Shimla affirming the order dated 06.10.2018 passed by the Divisional Commissioner Kangra, is made out. Petitioner’s challenge to Mutation No. 855 dated 18.06.2002 holds no ground. This writ petition, therefore, lacks merit and is accordingly dismissed. Pending miscellaneous application(s), if any, also stand disposed of.