SUBHASH CHAND MEHENDRA Vs. STATE OF H.P.

JUDGEMENT

(1.) The petitioner has filed the present petition for seeking review of the judgment dtd. 4/11/2023, passed by this Court in RSA No. 323 of 2022, titled Subhash Chander Mahendra (deceased through LRs) Vs. State of Himachal Pradesh. It has been asserted that this Court concluded that petitioners/appellants were seeking a decree of declaration based on the revenue record, which cannot be granted. Reliance was placed upon the judgment of the Hon'ble Supreme Court in State of H.P. Vs. Keshav Ram 1996 (2) SCC 1957. This Court ignored the pleadings of the parties. The petitioners gave the details of the suit land and asserted that they had purchased the land in 1973-74. This fact was not specifically denied in the written statement, and the contents of para No. 1 were partly admitted. The admitted facts need not be proved as per Sec. 58 of the Indian Evidence Act, and there is an error in the findings recorded by this Court. There was no dispute of title between the parties as the State of H.P. never set up the title regarding the suit land. The declaration could have been granted by the Court because of undisputed and unrebutted revenue entries. The evidence of defendant No.1 was closed by the order of the Court on 16/1/2014, and the defence taken by the defendant in the written statement was not proved. The petitioners had proved their case by presenting satisfactory evidence. This Court ignored the fact that no evidence was led by the defendants. The petitioners averred in para-1 that the settlement operation in Mauja Shainal, Pargna Gothangi, Tehsil and District Shimla was completed and a final certificate was prepared. Defendant No.1 or any other person had no right to carry out a correction in the revenue record. The Settlement Officer had no jurisdiction to pass an order. The record does not suggest that the proceedings under Sec. 163 of the HP Land Revenue Act were ever initiated against the petitioners. The Settlement Officer had also ordered a change in the classification of the land. The change in classification was without any basis and violated the principles of natural justice. The land holding of the plaintiffs was decreased from 17 biswas to 12 biswas, and the land holding of the State was increased. The plaintiffs had not made any encroachment upon the Government land. The First Appellate Court held that the suit was barred by res judicata. This Court held that the suit was not barred by res judicata. The matter was required to be remitted to the First Appellate Court to enable it to return findings on merits. The law propounded by the Hon'ble Supreme Court in Santosh Hazari Vs. Purshotam Hazari 2001 (3) SCC 179 was not properly appreciated. It was wrongly held that the injunction cannot be granted to the petitioners against the true owner. The Court relied upon the case law not cited by the parties. Therefore, it was prayed that the present petition be allowed and the judgment passed by this Court be reviewed.

(2.) The petition is opposed by a filing reply by respondent No.1, making a preliminary submission regarding the lack of maintainability. The contents of the petition were denied on merits except those regarding the judgment delivered by this Court. It was asserted that there is no error apparent on the face of the record. Review petition cannot be an appeal in disguise, and the party cannot be permitted to argue the matter which was addressed and answered by the Court. The power of review does not extend to the re-examination of the evidence or reappreciation of facts which were originally considered. It was rightly held that the declaration cannot be granted based on the revenue record. Manish Mahindra (PW3) stated that the suit land was purchased by his father in the year 1973-74, but the sale deed was not produced before the Court to show the extent of the land purchased by him. There was a passage over Khasra Nos. 23 and 24, which was obstructed by the plaintiff. Settlement Officer reviewed the matter and found that Khasra Nos. 27, 29, 30 and 32 were prepared from Khasra Nos. 28 and 29 min which were in the ownership and possession of the State. The plaintiffs failed to prove their case. The Settlement Collector had made a proper inquiry after visiting the spot in the presence of the parties. This order was upheld by the Commissioner, and the Revision was dismissed by the learned Financial Commissioner. This Court had rightly rejected the plea taken by the petitioners that the Settlement Officer had no jurisdiction to pass the order. The Court had rightly held that the plea of res judicata does not apply to the present case. Revenue authorities never determined the title of the petitioner. Therefore, it was prayed that the present petition be dismissed.

(3.) A rejoinder denying the contents of the reply and affirming those of the petition was filed.