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PETITIONER: STATE OF HIMACHAL PRADESH

       Vs.

RESPONDENT: SHRI KESHAV RAM AND ORS

DATE OF JUDGMENT:       08/10/1996

BENCH: K. RAMASWAMY, G.B.PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T PATTANAIK, J.      Leave granted.      State of  Himachal Pradesh  has preferred  this  appeal against the  judgment of  the High Court of Himachal Pradesh dated 4.5.1994 in R.S.A. No. 122/86,      The respondents  filed the  suit for a declaration that they are  the owners  in possession of the land comprised in Khasra No.  153/1 measuring 30 bighas and 18 biswas situated in Chak  Dakana  and  for  restraining  the  appellant  from interfering with  the possession  of the respondents. It was alleged in  the plaint that the disputed land stood recorded in the settlement papers in the year 1950 in the name of the State as  the owner. When the plaintiffs came to know of the same  an   application  for  correction  was  made  and  the settlement authority after holding a detailed enquiry passed an order  for correction  and pursuant  to  the  said  order necessary  correction   was  made   in  the   register.  The plaintiffs, therefore, filed an application under Section 37 of the  Himachal Pradesh  Land Revenue Act but the Assistant Collector deciding  the  matter  directed  that  the  matter should  be  referred  to  the  Civil  Court  and  hence  the plaintiffs filed  the suit for relief as already stated. The State contested the suit denying the allegations made in the plaint. It  was also  averred in  the written statement that the land  in question  was initially recorded in the name of Raja Sahib of Keonthal and after intermediary interest stood abolished the  State became  the owner  of the  land. In the Revenue papers  State was  recorded as  the  owner.  The  so called order  of the  Assistant Settlement  Officer on which the plaintiffs  relied will  not confer  any  title  on  the plaintiffs. According to the defendant - State, the disputed land originally  stood recorded in the name of Raja Sahib of Keonthal and  thereafter the  State was  recorded to  be the owner of  the land  in the  record of  right prepared in the year 1949-50, therefore, the suit is liable to be dismissed. The learned  Sub Judge,  Ist Class.  Theog,  Distt.  Shimla, however, relying  upon the  order passed  by  the  Assistant Settlement Officer  came to  hold that  plaintiffs  are  the owners in  possession of  the  land  in  dispute  and  hence

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decreed the suit. The State carried the matter in appeal and the lower  Appellate Court  came to  the conclusion that the entry in  the Revenue  register for the year 1949-50 showing the State  to be  the owner was an error and the Trial Court rightly held  the plaintiffs  to be  owners in possession of the disputed  land. With  this conclusion,  the judgment and decree of  the Trial  Court having  been confirmed  and  the appeal of  the State  having been  dismissed, the matter has been carried to the High Court in second appeal.      The learned  Single Judge  of the  High  Court  by  the impugned judgment dismissed the second appeal solely relying upon the order of the Assistant Settlement Officer and hence the present appeal.      The  learned   counsel  appearing   for  the  appellant contends that  the very  order  of  the  Settlement  Officer directing correction  of the entry in record of right is not there on  record and  at any  rate on  the basis of the said order plaintiffs’  title to the disputed land could not have been declared  as an entry in the settlement papers does not create or extinguish title and at the most has a presumptive value that  on the  date when  entry  was  made  the  person concerned was  in possession  of the land. It is accordingly contended that  the courts  below committed errors of law in declaring plaintiffs  title on  the basis  of the  aforesaid order of  the  Assistant  Settlement  Officer.  The  learned counsel, for  the respondents  on the  other hand  contended that the plaintiffs title having been declared by the courts below on consideration of the entire materials on record, it would not  be proper  for this  Court to  interfere with the same  in   exercise  of  power  under  Article  136  of  the Constitution of India.      In view  of the  rival contentions,  the question  that arises for consideration is whether the plaintiffs have been able to  establish their  title and  the courts  below  were justified in declaring plaintiffs’ title. As has been stated earlier the only piece of evidence or which the courts below relied upon  to decree  the plaintiffs’  suit is the alleged order made  by the  Assistant Settlement.  Officer directing correction of  the record of right. The order in question is not there  on record  but the  plaintiffs  relied  upon  the register where  the correction  appears to  have been  given effect to. The question, therefore, arises as to whether the entry in  the settlement  papers recording  somebody’s  name could create  or extinguish  title in  favour of  the person concerned?  It   is  to  be  seen  that  the  disputed  land originally stood  recorded in  the name  of  Raja  Sahib  of Keonthal and  thereafter the  State was  recorded to  be the owner of  the land  in the  record of  right prepared in the year 1549-0.  In the  absence  of  the  very  order  of  the Assistant Settlement  Officer directing necessary correction to be  made in  favour of the plaintiffs, it is not possible to visualize  on what basis the aforesaid direction had been made. But  at any  rate such an entry in the Revenues papers by  no  stretch  of  imagination  can  form  the  basis  for declaration of title in favour the plaintiffs. To our querry as to  whether there  is any  other document on the basis of which the plaintiffs can claim title over The disputed land, the learned  counsel for  the plaintiffs-  respondents could not point  out any  other document  apart from  the  alleged correction made in the register pursuant to the order of the Assistant Settlement Officer. In our considered opinion, the courts below  committed serious  error of  law in  declaring plaintiffs’ title  on the  basis of  the aforesaid  order of correction  and  the  consequential  entry  in  the  Revenue papers. In  the circumstances  the appeal is allowed and the

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judgment and  decree passed  in all the there forums are set aside. The  plaintiffs’ suit  stand dismissed. There will be no order as to costs.