SHANKARI Vs. KHAZANA

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India takes exception to the order passed by the learned first appellate Court on 23.06.2018, whereby it confirmed the order passed by the learned trial Court on 04.05.2018 and the application filed by the plaintiff/petitioner under Order 39, Rule 1 and 2 CPC was ordered to be dismissed.

(2.) The facts as necessary for adjudication of the present petition are that the petitioner filed a suit for declaration and consequential relief of injunction on the ground that the suit land is recorded in the ownership of the petitioner and the respondent in equal share, but in the column of possession, the same is recorded in the exclusive possession of the petitioner. The possession of the petitioner was in the knowledge of her father-in-law deceased Sh. Sant. It was averred that during the consolidation, a wrong entry in the column of possession was made whereby the entry of 'kast v kabja' Smt. Shankari Hissadaran V Sarakhat Sant Sasur Ansh was changed to 'kashat and kabja sawain' without any order of the competent authority which entry was shown in the jamabandi for the year 1992-93. It was further averred that such entry was subsequently ordered to be corrected by the Director of Consolidation vide order dated 25.02.2013 and mutation to this effect was also carried out which was reflected in the jamabandi for the year 2011-12. It was also averred that deceased Sant had two sons namely Sh. Rothal and Sh. Khazana and the petitioner was married to Rothal during the year 1960, but after the marriage Rothal passed away, leaving behind petitioner and Sant. The whereabouts of Khazana were not known for more than 25 years till the year 1980.

(3.) The petitioner filed a suit for permanent prohibitory injunction with regard to the suit land against the defendant which was dismissed by the learned Sub Judge, Sarkaghat vide judgment and decree dated 10.02.1998. Against the judgment and decree dated 10.02.1998, an appeal was filed before the learned District Judge, Mandi which was decided on 24.04.2001 and the defendant and others were restrained through a decree of injunction from interfering in the suit land and as a remedy the defendant was left to apply for partition to seek joint possession. It was also averred that the defendant in connivance with the consolidation staff got manipulated and changed the entry from 'kast v kabja Smt. Shankari Hissadaran Sarakhat Sant Sasur Ansh to kashat and kabja sawain' in the column of possession in missal haqiyat consolidation 1989-90 and thereafter got this entry entered in the jamabandi for the year 1992-93. The defendant on the basis of this entry filed an application under Section 123 of the H.P. Land Revenue Act for partition of the suit land as well as some other land in order to get rid of the question of title during the partition proceedings. The petitioner filed objections challenging the entry as wrong, but A.C. 1st Grade, Sarkaghat, decided that there is no question of title involved as the jamabandi attached with the partition application showing the joint ownership and possession of suit land and dismissed the objections by denying the question of title and framed the wrong mode of partition on the basis of false jamabandi. It was also averred that appeal was filed against the order of mode of partition specifically on the ground of denial of question of title, but all the appellate Courts relying upon the wrong entries made in the jamabandi dismissed the legal contention of the plaintiff. Vide order dated 25.04.2013 the wrong revenue entries were also ordered to be corrected by the Director of Consolidation which were incorporated in the revenue record by way of mutation No. 350 and as such the petitioner filed objections on 19.07.2014 before A.C. 1st Grade on the ground that since the entries in the jamabandi for the year 1992-93 on the basis of which partition application was filed has been ordered to be corrected, therefore, the mode of partition and the order dated 02.05.2002 are not sustainable in the eyes of law. The objections of the petitioner were rejected by the A.C. 1st Grade, Sarkaghat and he passed partition order dated 19.07.2014 and the same was challenged before the Sub Divisional Collector, Sarkaghat, who remanded the matter back to A.C. 1st Grade with a direction that the objections of the petitioner be redressed with due vigilance, but A.C. 1st Grade again on 03.10.2015 confirmed the mode of partition dated 02.05.2015. It was further averred that the appeal preferred before the Sub Divisional Collector against the order dated 03.10.2015 was dismissed on 23.03.2016 and this order was challenged before the Divisional Commissioner, Mandi, but the same was dismissed on 18.11.2016 observing that the question being raised by the petitioner is of similar nature and such question of law cannot be decided by the revenue officer in summary proceedings and the parties were left to get the same decided from the competent court of law. The order dated 18.11.2016 was challenged before the Financial Commissioner (Appeals),Shimla, by way of revision, but the same was dismissed on 28.06.2017. The petitioner averred that her husband Shri Rothal died during the year 1960 and thereafter the petitioner entered in possession of suit land and at that time whereabouts of defendant/respondent were not known, as a result of which, the defendant was ousted from possession of the suit land and the petitioner became owner by way of adverse possession. The petitioner had become owner of the suit land of the share of the defendant as he was ousted from the suit land. The defendant is seeking possession on the basis of wrong partition order dated 19.07.2014 which was passed on the basis of wrong entries made in the jamabandi. Along with the suit, an application under Order 39, Rule 1 and 2 CPC for grant of interim injunction was also filed.