Jeevan Singh And Another vs District Magistrate/Collector Nainital And Others

Sharad Kumar Sharma, J

In village Mauja Simlakha, chak pawal, there lies a piece of land in khata No. 59 bearing khet Nos. 289, 291, 294, 295, 296, 297, 298M, 300, 302, 304, 307, 309, 310, 311, 313, 315, 326 and 385 having a total area of 37 Nali 7 Mutthi. The said property admittedly was recorded in the Revenue Records as an "Asami land", falling in the category of tenure holders as contained and defined under Section 129(3) to be read with Section 133 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P.Z.A. & L.R. Act, 195).

The recorded owner, Mr. Diwan Singh on 18th November 1951, is said to have gifted the property to Zila Parishad, Nainital for the purposes of establishment of a Junior High School (Girls) over the land in question. Mr. Diwan Singh, who was the then karta of the family had executed the Gift Deed on 18th November 1951, and the same continued to subsist; but in pursuance to it as per the documents, which has come on record, it is contended that the possession of the property was never handed over to the Zila Parishad or consequently to the Primary School, where the proposed Girls Junior High School was supposed to be established.

Subsequently, based on the right, as recorded with Diwan Singh, he on 12th October 1971, is said to have instituted a Suit, praying for a decree of permanent injunction as against the defendant to the Suit, which included the Zila Parishad, District Nainital and Pradhan Adhyapak, Primary Pathshala, Simalkha, Tehsil and District Nainital as defendants to the Suit against whom the decree for permanent injunction was sought.

What is important to be referred herein is that in the said Suit, as preferred by the plaintiff against the defendant in the pleadings, a reference was made to the Gift Deed dated 18th November 1951 by virtue of which the land was gifted for the Girls High School, and a reference was also made in the pleadings with regards to the factum that in pursuance to it, neither the possession was transferred nor the property in question was ever utilised for the said purpose. Ultimately, a Civil Suit which was a registered as Civil Suit No. 305 of 1971, Shri Diwan Singh v. District Zila Parishad and others was decreed by virtue of the judgement dated 15th May 1972.

There is nothing on record to show that as against the said judgement and decree in relation to the property in dispute, which was subject matter of gift deed dated 18th November, 1951, any further proceeding was drawn by the defendant/respondent, questioning the validity of the said judgement and decree dated 15th May, 1972, hence it would be presumed that Diwan Singh, the plaintiff who was a decree holder and the respondents who were the judgement debtors. In the absence of any action being taken thereafter, the respondents in order to override the effect of decree, have adopted a recourse of invoking the provisions of Section 33 to be read with Section 39 of the Land Revenue Act, by filing an Application on 29th July 2011, wherein they have made a prayer before the Assistant Collector, First Class to record their names on the basis of a Gift Deed dated 18th November 1951, which was already the subject matter of the Suit No. 305 of 1971, Shri Diwan Singh v. District Zila Parishad and others, which stood decreed on 15th May 1972, in favour of the present petitioners.

The said application under Section 33/39 was considered by the Court of Assistant Collector and the Assistant Collector, First Class vide his judgement dated 11th October 2013, as rendered in Case No. 22/18 of 2012-13, Government Inter College Simlakha v. Assistant Collector, First Class, Phargana Kosiya Kutoli, had allowed the application under Section 33/39, and thereby they had directed to record the names of the present respondents in the Revenue Records.

What is relevant to be pointed out at this stage is that in the finding which has been recorded by the Assistant Collector, First Class, while allowing the Application under Section 33 to be read with Section 39 of the Land Revenue Act, the entire judgement, nowhere records a findings with regards to the effect of the judgement and decree dated 15th May 1972, rendered in Civil Suit No. 305 of 1971, Shri Diwan Singh v. District Zila Parishad and others.

Being aggrieved against the said judgement dated 11th October 2013, the successors of late Mr. Diwan Singh i.e. Mr Jeevan Singh and Kundan Singh thereafter had preferred a LR Revision No.15 of 2013-14, Shri Jeevan Singh and another v. Government Inter College, and others, before the Court of Commissioner, Kumaon Mandal, invoking the provisions contained under Section 219 of the Land Revenue Act. The Revisional Court too by the impugned judgement dated 17th March 2015, had dismissed the revision and had affirmed the judgement of the Assistant Collector, First Class dated 11th October 2013.

Yet again, it is important to refer at this stage itself that even the Revisional Court also does not make any reference to the effect of the judgement and decree as rendered in the Suit, preferred by Mr. Diwan Singh. As against the judgement of the Assistant Collector, as well as that of the Commissioner, Kumaon Mandal rendered in Revision No. 15/2013-14, the present writ petition has been preferred.

Normally, it is the settled law that as against the judgement rendered by the Assistant Collector or by the Commissioner under the provisions of the Land Revenue Act particularly, Section 33/39, where a mutation is sought by the applicant to the application under Section 33/39 based on the Gift Deed dated 18th November 1951, and if the same is allowed by the Revenue Courts, the writ could not have been the remedy available to the petitioner as in that eventually, he ought to have been relegated to get his title decided in a regular proceedings in view of the provisions contained under Section 40A of the Land Revenue Act.

The said preposition has been settled down by the Coordinate Bench of this Court in a judgment reported in 2004(97) RD 696 'Smt. Manorama Devi & Others vs. Board of Revenue U.P. Lucknow & Others', which reads as under:

"The main contention of the petitioners is that the proceedings under Sections 33/39 of the Land Revenue Act are summary in nature, therefore, the correction of entries in the said proceedings was not legally maintainable and that the long standing entries should not have been corrected. In support of their contention regarding maintainability of the writ petition, the petitioners have relied on the Ruling of the Allahabad High Court in the case of 'Tauzi -UI-Haq and others v. Board of Revenue and others.' In the present case, as already narrated above, it has been found by the Board of Revenue that the name of the applicant-respondent no.3 Smt. Kunwari Devi was found to have been left by slip of pen and without order of the Competent Court. In para No.19 of the case law, the High Court of Allahabad has observed that "But from the facts in the present case it would be evident that the application for correction of entries is not legally maintainable and attracts the abuse of the process of the Court, referred to in Appendix X of the U.P. Revenue Court Manual. The error in the revenue entries of which correction can be sought should be obvious one and particularly of a clerical nature." In the instant case, the correction ordered by the Assistant Collector vide his order dated 22.9.1990 was purely of a clerical nature, especially because the entries in the name of applicant-respondent no.3 in the disputed Khatas were existing from before and her name has been left in the subsequent Khataunis without the order of the Competent Court, therefore, the Board of Revenue has rightly observed that the mistake had occurred by slip of pen and the Assistant Collector has passed a legal order. I am unable to take a different view in the matter. The case-law referred to by the learned counsel for the petitioners is of no avail to the petitioners, rather the same supports the case of the respondent no.3, Smt. Kunwari Devi.

The learned Counsel for the petitioners has also relied on the ruling in the case of M/s Mahalakshmi Land and Finance Company Pvt. Ltd. v. Board of Revenue, U.P. Lucknow and others, in which similar view has been taken by the Allahabad High Court and it has been observed that section 33 of the Land Revenue Act stipulates correction of errors and not declaration of title. The learned Judge has held in para 8 of the said judgment that the Member, Board of Revenue, ignoring the earlier orders passed on regular side by Ceiling Authorities and the Board of Revenue has passed an order which not only sets at naught those orders but also decides title without giving an opportunity of hearing. The learned Member could not have gone beyond the jurisdiction that sections 33/39 of the U.P. Land Revenue Act provides. It is only to correct clerical errors and that too after giving an opportunity of hearing. It has also been observed by the learned Judge that "Here specifically it is so called correction in the record of rights. In the instant case also, the Assistant Collector, Ist Class, Kotdwar has corrected the Annual Register on the basis of previous Khatauni. The learned Judge further held in para 11 that "there is no real dispute between the parties and the only question is whether any accidental or clerical error was made in the previously prepared register. In the present case, the name of respodnent no. 3 Kunwari Devi was recorded in the Khatauni of the previous years; but due to clerical or accidental erros, her name could not find place in Patwari Khataunis, therefore, correction of clerical error alone has been ordered by the Assistant Collector Kotdwar. By the impugned order, the Assistant Collector Kotdwar has not decided any title of the petitioners or of the respondent no. 3. Therefore, this ruling too is of no avail to the petitioners because the learned Single Judge has held that the High Court would interfere, where they are not restricted to question of possession but also decide the question of title. The case of "Rudrapratap and another v. Board of Revenue, U.P. and others", relied on by the learned counsel for the petitioners is also of no avail to the petitioners. In that case, reference was made to the case of Jaipal Minor v. The Board of Revenue, U.P. Allahabad, and it has been held by the High Court that "mutation proceedings ordinarily relate to the question of possession and do not decide the question of title for which there is a separate remedy by way of a suit and as such the High Court should not interfere in the order assessed in mutation proceedings. But it was also observed in that case that this consideration should not be applied in cases where the question of title is also decided in mutation proceedings." As has been mentioned earlier, in the present case, in the correction proceedings only clerical error was ordered to be corrected and it was not a case deciding title of the parties, therefore, this case law is also not helpful to the petitioners.

The learned Counsel for the petitioners has lastly relied on the case-law "Roshan Deen v. Preeti Lal, in which supervisory and extraordinary jurisdiction envisaged under Article 227 of the Constitution has been dealt with. In that case, in para 12 of the judgment, the Hon'ble Supreme Court has observed that "the very purpose of such constitutional powers being conferred on the High Courts is that no man should be subjected to injustice by violating the law. The lookout of the High Court, is therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law." I am in full agreement with the view of the Hon'ble Apex Court. In the present case, had the Board of Revenue not confirmed the order of the Assistant Collector, then, in my opinion, injustice would have resulted to the respondent No. 3, who was admittedly recorded a Bhumidhar in the earlier revenue records, but due to slip of pen, her name could not be shown in the Khatauni prepared by the Patwari for subsequent years and her name was omitted without order of the Competent Court. Therefore, this case-law is of no avail to the petitioners.

Section 39 deals with corrections of mistakes in annual register and section 40 deals with settlement of disputes as to entries in annual register. Both these sections are reproduced hereunder:

Correction of mistakes in the annual register-

(1) An application for correction of any error or omission in the annual register shall be made to the Tehsildar.

(2) On receiving an application under sub-section

(1) or any error or omission in the annual register coming to his knowledge otherwise, the Tehsildar shall make such inquiry as appears necessary and then refer the case to the Collector, who shall dispose it of, after deciding the dispute in accordance with the provisions of section 40.

Provided that nothing in this sub-section shall be construed to empower the Collector to decide a dispute involving any question of title.

(3) The provisions of sub-sections (1) and (2) shall prevail, notwithstanding anything contained in the U.P. Panchayat Raj Act, 1947.

Settlement of disputes as to entries in annual register-

(1) All disputes regarding entries in the annual registers shall be decided on the basis of possession.

(2) If in the course of inquiry into a dispute under this section the Collector or the Tehsildar is unable to satisfy himself as to which party is in possession, he shall ascertain by summary inquiry who is the person best entitled to the property and shall put such person in possession.

40-A. Savings as to title suits -No order passed under section 33, section 34, section 39, section 40, section 41, or section 54 shall bar any suit in a competent Court for relief on the basis of a right in a holding."

A perusal of the above provision in section 40-A would show that a person aggrieved by the order passed in the correction proceedings under section 33/39 of the U.P. Land Revenue Act can challenge it on regular side and judgment of Court shall over-ride the order passed in correction proceedings. Moreover, in the case of "Jaipal v. Board of Revenue, U.P. Allahabad and others" a Division Bench of the Allahabad High Court, in a writ petition under Article 226 made against the order of Board of Revenue entering name of certain person in record of rights has observed that "it has been the consistent practice of Allahabad High Court not interfere with orders made by the Board of Revenue in cases in which the only question at issue is whether the name of the petitioner should be entered in the record of rights. That record is primarily maintained for revenue purposes and an entry therein has reference only to possession. Such an entry does not ordinarily confer upon the person in whose favour it is made any title to the property in question." Ultimately, the writ petition has been dismissed."

But, in the instant case, the situation is just the converse, for the reason being that the Gift Deed dated 18th November 1951, which was the foundation for getting themselves mutated by filing of an application in 2011, apart from the fact that it suffered from delay and also the fact remains that it was preferred much after the decree dated 15th May 1972 as rendered by the Civil Court in the Civil Suit No. 305 of 1971, Shri Diwan Singh v. District Zila Parishad and others in favour of the petitioner, in which the respondents were the party/judgement debtors.

In this peculiar circumstance, where decree has been rendered by the regular civil Court in favour of a plaintiff and where the Court has also considered the impact of the Gift Deed dated 18th November 1951, and thereafter has decreed the Suit in favour of the plaintiff and the judgement and decree thus rendered on 16th May 1972, has attained finality, as the present respondents had not challenged the same, in that eventuality, the summary proceedings under Section 33 to be read with Section 39 the Land Revenue Act, the recourse of which was taken by the judgement debtor in 2011, cannot be utilised to overcome the effect of the regular decree, which has been passed by the regular Civil Court. Further, more particularly, while passing the impugned orders in summary proceedings, both the Courts had not recorded any finding pertaining to the effect of the regular decree dated 15th May 1972, and had proceeded to allow the application which was filed under Section 33 to be read with Section 39 of the Land Revenue Act, preferred by the respondent.

This Court is of the considered view that when the plaintiff/petitioner's right over the property in question seeking a decree of injunction after making a reference to the Gift Deed dated 18th November 1951, has been crystallized by the judgement and decree dated 15th May 1972, in that eventuality, the recourse to the summary proceedings at subsequent stage by filing of an Application under Sections 33/39 cannot be resorted to overcome a regular decree. In that eventuality, and under these circumstances, the writ petition is allowed and the impugned orders dated 11th October 2013 rendered by the Assistant Collector, First Class and the order dated 17th March 2016 as rendered by the Commissioner, Kumaon Mandal stand quashed. Accordingly, the writ petition is allowed. However, there would be no order as to cost.