KRISHAN CHAND Vs. STATE OF H P

JUDGEMENT

(1.) RESPONDENT No.3 submitted an application comprised in Annexure P -I before the Consolidation Officer, Hamirpur, averring therein that land comprised in Khasra No. 2121 is recorded in the joint ownership of his mother Fulan and in the name of the father of respondent No.4, as divulged by Jamabandi for the years 1954 - 55, which pertains to the pre -consolidation year. He continued to aver therein that during the course of consolidation operations as were carried out in the Ilaqua/Mauja where the suit land is situated, the mother of respondent No.3 was allotted land to the extent of 4 kanals and one 1 marla towards the western side of the field. However, while preparing map and carving out Tatima the respondent No.3 and his mother have been untenably depicted to have been given land towards Eastern side wherefrom new Khasra Nos. 862 and 863 have been carved out. On his application, the staff of the consolidation department visited the site of the Khasra Numbers and recorded the statements of respondents No. 4 and 5, the father and brother of the petitioner. On strength of the statements of the father and brother of the petitioner, who are respondents No. 4 and 5, land measuring to the extent of 4 kanals and 1 marla belonging to the petitioner and respondents No. 4 and 5 was evacuated from the ownership of the petitioner, respondent No.4 and 5 and untenably allotted to respondent No.3. The order rendered by the Consolidation Officer was appealed by the petitioner before the Settlement Officer who, however, in his orders comprised in Annexure P -4 affirmed the orders rendered by the Consolidation Officer. The Divisional Commissioner, Mandi, while seized of the appeal, preferred under Section 54 of the H.P.Land Consolidation (Consolidation and Fragmentation) Act, 1971 as preferred against the orders comprised in Annexure P -4 did not in his wisdom deem it fit to interfere with the orders rendered in Annexure P -4. The petitioner is aggrieved by the orders rendered in Annexures P -2, P -4 and P -5 and prays for theirs being quashed and set -aside.

(2.) IN trite, the focused submission of the learned counsel for the petitioner in seeking the indulgence of this Court for quashing and setting aside the impugned annexures is anchored upon the factum of Annexure P -2 anvilled upon the statements of respondents No. 4 and 5, the father and the brother of the petitioner, comprised in Annexure P -3, carrying no effect in either whittling his right in the suit land nor being fastenable against him so as to dilute his rights therein, especially when he remained unheard. The submission aforesaid in repudiating and repulsing the impugned annexures gets waned in the face of respondents No. 4 and 5, the father and brother of the petitioner, too, having an interest common with the petitioner in the suit land, having recorded statements comprised in Annexure P -3. There is no communication by either respondents No. 4 and 5 that the statements attributed to them comprised in Annexure P -3 arise from exercise of compulsion or duress upon them by the staff of the Consolidation department. For omission of the above evidence, truth is to be imputed to their statements comprised in Annexure P -3, besides their statements are to be construed to be volitional. Apart there -from, when respondents No. 4 and 5 have an interest in the suit land common with the petitioner unless there was demonstrable evidence that there was no authority vested in them by the petitioner to, on his behalf record a statement before the Consolidation Officer, in sequel, in absence of the above material on record an invincible conclusion which ensues is that both respondents No. 4 and 5, the father and brother respectively of the petitioner, enjoyed an express or implied authorization imparted to them by the petitioner to record statements comprised in Annexure P -3. Naturally then, the effect of the statement of the father and brother of the petitioner is to be fastened also upon the petitioner. The natural concomitant effect of their statements is of theirs diluting and whittling his right in the suit land. Preponderantly, an examination of the record, as produced before this Court at the time of hearing of the petition unravels the fact that the petitioner has omitted to at an earlier stage urge before the authorities concerned who were seized of the lis that the statements attributed to respondents No. 4 and 5 were made by them in their individual capacity without theirs having carried his implied and explicit authorization hence statements comprised in Annexure P -3 are not binding upon him. In absence of the petitioner having initially omitted to raise the above ground for assailing the impugned orders baulks as well as estops him from agitating the efficacy of the orders on strength aforesaid. Moreover, it constitutes a waiver and abandonment of the above ground of attack. Consequently, he is barred from now assailing the orders on the score herein before referred.

(3.) IN view of the above discussion, we find no merit in the petition, which is accordingly dismissed, so also the pending application(s), if any. No costs.