Mohammad Iqbal vs Government of India and Others

A.L. Vaidya, J.—The present appeal has been directed against the judgment and decree dated 24.9.1987 passed by the learned District Judge, Chamba.

The facts as reflected from the record are that plaintiff Mohammad Iqbal, the present appellant claimed before the trial Court that he was owner in possession of the suit land and during settlement operation, on account of some negligence committed by the settlement staff, the suit land was wrongly recorded in the name of Mst. Minjru, widow of Mohammad Asak. According to plaintiff, this lady Smt. Minjru had migrated to Pakistan in 1947 and she was alleged to have come to Chamba in the year 1960 when before the revenue office she admitted this mistake and the revenue entries were corrected in favour of the plaintiff and in this behalf, mutation was entered and sanctioned in favour of the plaintiff and he was recorded as owner in possession of the suit land. This mutation was sanctioned on 28.1.1960. Ex.P-2 was the certified copy of the mutation. The sit land, as pleaded in the plaint, has been described in Khasra No.8891/7342 measuring 2081 sq. yards and 3 sq.ft. situated in Mohal Jullakari of Chamba Town. According to plaintiff, actually Smt. Minjru was owner of old Khasra No.19/1, 18/1, 19/3 and 3/1 measuring 6 Kanals 16 marlas, which land in the settlement should have been given khasra number 7295 to 7304 and 7337, 7329, but the settlement staff, as pleaded by the plaintiff, recorded the land wrongly under Khasra No.7342 in the ownership of Minjru and plaintiff, as such, was not bound by such an entry made by the settlement staff. It was pleaded that Minjru neither possessed nor owned this Whasra No.7342. According to plaintiff staff, out of this khasra number, land measuring 1092 sq. yards 6 sq.ft. was acquired by the government and plaintiff was paid compensation of Rs.4513.90, as owner. It was further pleaded that the Tehsildar, Chamba on 8.10.1968 without notice or consent of the plaintiff reviewed the order of imitation (Ex. P.2) and recorded the Custodian as owner of the suit land which order of the Tehsildar was illegal and not binding upon the plaintiff The copy of the review order on record is Ex.P.5.

On the basis of the aforesaid allegations, the plaintiff filed a suit for declaration that he was owner in possession of the suit land and as a consequential relief, permanent prohibitory injunction had been asked for.

The defendants contested the suit and plaintiffs plea that he was owner in possession of the suit land, was denied. However, it was pleaded that plaintiff got wrongly mutated this land in his favour vide mutation Ex.P-2. On the basis of this wrong mutation, which was attested on 28.1.1960. plaintiff manipulated to procure the compensation for acquisition of a part of the khasra No.7342. It was further pleaded that subsequently this mutation Ex.P-2 was reviewed on 8.10.1968 which order was confirmed in appeal before the Collector preferred by the present appellant. It was pleaded that Smt. Minjru migrated to Pakistan in 1947 and the land owned by her was declared as evacuee property.

Parties were put to trial on the following issues:

Whether the suit is within limitation''. ''OPP

Whether this Court has jurisdiction to try this suit? OPP

Whether the plaintiff is estopped from filing the present suit by his past acts and conduct, as alleged in the written statement? OPD

Whether the plaintiff is owner in possession of Khasra No.8891/7342 as alleged? OPP.

Relief

Issue No. 1 was decided in the negative and under issue No.2 it was held that the Court had non-jurisdiction on account of Section 46 of the Administration of Evacuee Property Act. Issue No.3 was not pressed while issue No.4 was decided against the plaintiff and it was held that the plaintiff had failed to prove that he was owner in possession of the suit land.

The aforesaid judgment and decree were assailed in an appeal preferred before learned District Judge, Chamba who, after hearing the parties, dismissed the appeal and maintained the judgment and decree passed by the trial Court.

The aforesaid judgment and decree have been assailed in the present appeal on various pleas.

Learned counsel for the parties have been heard and the entire record has been scrutinised.

Learned counsel for the appellant has based his submissions on the following pleas:

(a) there is evidence on record to prove that plaintiff was owner in possession of the land, especially on the basis of mutation, the certified copy of which on record is Ex.P-2;

(b) the review of mutation sanctioned vide Ex.P-2 was illegal, effected behind the back of the plaintiff and has, as such, to be ignored:

(c) There is evidence on record that a part of khasra number in disputes was acquired by the Stale Government and the compensation for ownership was paid in favour of the plaintiff:

(d) the land under dispute has not been declared as evacuee property in accordance with the provisions of the Administration of Evacuee Property Act: and

(e) the oral evidence has established the title and possession of the plaintiff over the suit land.

It may be refereed at this stage that according to plaintiff, he was owner in possession of the suit land even prior to settlement and after settlement it has been wrongly entered in the name of Smt. Minjru. It is really very sorry to note that the khasra number of the suit land has not at all been connected with any land owned and possessed by the plaintiff or his predecessor prior to settlement, as has been his case, through any revenue entry at all. The plaintiff has pleaded in his plaint that Smt. Minjru was owner of old Khasra numbers 19/1. 18/1. 19/3 and 3/1 measuring 6 kanals 16 marlas and which land in the settlement should have been khasra Nos.7295 to 7304, 7337 and 7329. If it was so. the plaintiff was required to identify the suit land by means of earlier khasra numbers also, but this identification has not been proved at all in accordance with law.

Ex.P-2 is the document which is being much stressed for in order to prove the ownership and possession of the plaintiff over the suit land. There is no doubt that vide mutation Ex.P-2 sanctioned on 28*1.1960, plaintiff has been recorded owner in possession of the suit land. Earlier, the entry of this khasra number was recorded as under, which has been reflected from the mutation itself:

Name of the owner: Smt. Minjru. Bewa Mohammad Asak, Kom Musalman Mahajir Name of the occupant: In possession of Custodian. Department through Ishwar Dass l/3rd. Bishan Dass l/3rd and Hukam Singh l/3rd - non-occupancy tenants.

The aforesaid entry was changed in the name of plaintiff in the column of ownership and also he was recorded in possession in column of occupation through the aforesaid mutation.

Needless to say, mutation in itself does not create any title. In this behalf, Kanwarani Madna Vati and Another Vs. Raghunath Singh and Others, and 1988 PLJ 249. Shri Shetu v. Shri Dolu and Another can safely be referred. In these reported cases, it has been held that mutation as a matter of fact, does not confer any title on a person in whose favour it is so attested and that mutation proceedings are not judicial proceedings and they do not decide any title nor it is evidence of exclusion from property.

It may be pointed out here, the manner, the revenue officer while sanctioning the mutation Ex.P-2. has behaved in the present case. The revenue officer appears to have done away with the statutory procedure while sanctioning the mutation Ex.P-2. No doubt, mutation proceedings are of summary nature, but that does not mean that summary proceedings do not call for any inquiry where it was otherwise legally necessary What has happened in this case? A lady, named Smt. Minjru. admittedly had migrated to Pakistan in the year 1947 and the property owned by her. which included the property in suit also, was declared as an evacuee property. She all of a sudden happened to be in Chamba in January. I960 and made a report to the revenue officer that the properly in dispute which has been recorded in her name, actually was owned by plaintiff and on the basis of that report, the revenue officer, without inquiring to this report, immediately enters the plaintiff to be owner in occupation of the aid p property. Absolutely no inquiry was conducted by him which was more essential in the present case, especially when the property in dispute owned by that lady after her departure to Pakistan in 1947 had been declared as an evacuee property and was recorded in revenue papers in occupation of the Custodian Department. The learned revenue officer accepted the representation of the lady without there being any occasion for such an acceptance and not only changed the entry in the column of ownership, but in the column of possession also, without giving any notice lo the Custodian or without making any inquiry whatsoever. This procedure adopted by the revenue officer was alien to the provisions of the H.P. Land Revenue Act. Section 35 onwards of the aforesaid Act deals with the procedure for making records and in a case of present nature, inquiry was required to have been conducted, more so when the property had been declared as an evacuee property and the revenue officer has. in a way. not only changed the ownership of the suit property in the name of plaintiff but also has done away with the property having been declared as evacuee property in occupation of the Custodian Department by making an entry recording plaintiff to be in actual occupation of this property. This type of document (Ex.P-2) is being relied upon to prove title. The document, effecting change in favour of the plaintiff, as discussed above, has to be totally ignored. Even on factual side, the presence of minjru at the time of sanction of this mutation Ex. P. 2 has been disputed.

Thus, until and unless, there is an independent evidence brought on record establishing the plea of the plaintiff that he was the owner in possession of the suit land since his fore-fetchers, this mutation, referred to above, will not. in any manner, create title in favour of the plaintiff. This mutation Ex P-2 has been reviewed vide Ex.P. 5 and the name of the plaintiff has been removed, substituting the name of Central Government as owner in occupation of Custodian Department.

There is no doubt that Ex.P.5 reviewing the earlier mutation Ex.P.2. has also been sanctioned behind the back of the plaintiff but that alone will not make this review mutation to be illegal, especially when it has come on record that the present plaintiff had assailed it by preferring an appeal before the Collector, which was rejected on 30.12.1967 vide Ex. DA, the order, passed by the Collector, after hearing the present plaintiff. In this order, the presence of Minjru at the time of sanction of Ex.P.2 has been very much doubted. ''

Thus, on the basis of the aforesaid factors, it cannot be said that Ex.P.2 was a valid document, creating title in favour of the plaintiff and Ex.P.5 was wrongly sanctioned.

It has been contended that a part of Khasra number was acquired and the plaintiff was paid compensation in that behalf. It may not be out of place to mention that after the sanction of Ex.P.2, the land was recorded, in subsequent revenue entries, in the name of plaintiff as owner in possession and it was on that account when those wrong entries continued, that a part of the khasra number was acquired and compensation was paid to the plaintiff en the basis o those wrong entries. It cannot be said that the compensation paid to the plaintiff on the basis of wrong entries, which were subsequently corrected, his title over the khasra number stood legally established.

At this stage, the statement of plaintiff made on oath can be taken note of. The plaintiff was working as a patwari when those revenue entries were changed by way of mutation Ex.P.2. He stated that it was incorrect that after conniving with other officers, he got the mutation in his name, but admitted that on thus score, he was dismissed from service.

Plaintiff, as per his statement, referred to above, was a revenue officer himself and the likelihood of his manipulating all these entries could not be ailed out. especially when through a departmental inquiry for committing such a misconduct, as per plaintiff himself, he was dismissed from service.

The oral evidence examined, which included the statement of plaintiff. 5/ Shri Shiv Lal. Noor Mohammad, Ram Chand and Nidia Ram will not, in any manner, improve the case of the plaintiff for establishing title over the suit land. These witnesses have been made a general statement that plaintiff was in occupation of the suit land. The occupation, as stated by these witnesses, will not in any manner make the plaintiff to be owner of this land. The evidence of occupation otherwise does not inspire confidence on the basis of the circumstances present in this case.

Last but not the least, it has been contended on behalf of the appellant that the property in dispute was not declared as an evacuee property in accordance with the provisions of Administration of Evacuee Property Act and according to learned counsel. the property cannot be said to be evacuee at all. Even if, for arguments sake, this plea is favorably considered, it will not help the case of the plaintiff at all. as he nowhere claimed himself to be the successor of Smt. Minjni. the owner of this property. Otherwise also, there is practically no evidence on record to suggest, even remotely, as to how the said plea is being supported. The letter dated 31.3.1956 alleged to have been issued by the Deputy Commissioner referred in Ex.P.5 cannot be taken as a notification issued under the Administration of Evacuee Property Act. It is a letter which has not been brought on record, but on the basis of which, the review petition has been sanctioned. There is no presumption in favour of the official acts to have been performed in a regular manner. The property owned by Minjm who left for Pakistan has been declared as an evacuee property, as referred in the revenue papers discussed above, and there is nothing on record except the bald statement of the plaintiff to dislodge that entry'', which statement, under-the circumstances, cannot be accepted.

On the basis of the aforesaid discussion, it cannot at all be said that the two Courts below acted illegally in dismissing the case of the plaintiff. On the other hand, the concurrent findings given by the two Court below do not require any interference whatsoever, on account of the factors present in this case, as discussed above.

In view of the foregoing reasons, this appeal, being devoid of any merit, whatsoever, is dismissed with costs.