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JYOTSNA REWAL DUA, J. –

Petitioners are aggrieved against the order dated 29.08.2023 passed by the Divisional Commissioner, Mandi Division, affirming the order dated 09.05.2023 passed by the Sub Divisional Collector, Kullu. In terms of these orders, Mutation No.11639 attested on 18.03.2021 was set aside by allowing an appeal preferred by respondent No.4, a stranger to the subject land. This mutation had been attested for giving effect to the family partition of the subject land held jointly by the petitioners.

2. Following factual background of the case is not in dispute:-

2(i). Present petitioners, i.e. S/Sh. Gurdas, Sh. Karam Chand and Sh. Tek Chand all sons of Sh. Gulaba, filed Civil Suit No.196 of 1996 seeking permanent prohibitory injunction against S/Sh. Tulsi Ram, Shiba, Ram Diyal, Sher Singh and Sh. Kishan-successors/sons of Sh. Budhu. The suit land was comprised in Khasra No.7331/5337 measuring 7 Bighas 10 Biswas situated in Phati Shilihar Kothi Kotkandi, Tehsil & District Kullu. The civil suit was dismissed by the learned Trial Court on 15.12.1999. The appeal preferred by the plaintiffs was also dismissed by the learned District & Sessions Judge.

2(ii). The plaintiffs instituted Regular Second Appeal No.170 of 2001 against the aforementioned judgments and decrees. Their appeal was allowed on 01.10.2008. Decree for injunction was granted in favour of the plaintiffs and against the defendants. The defendants were restrained by way of permanent prohibitory injunction from interfering with the possession of the plaintiffs over the suit land measuring 7-10 bighas.

2(iii). The defendants in the aforesaid civil suit preferred Special Leave to Appeal (Civil) No.7228 of 2009 (Tulsi Ram & Ors. vs. Karam Chand & Karma & Ors.). The Hon’ble Apex Court passed following order in this SLP on 06.04.2009:-

“Issue notice.

Meanwhile, the parties are directed to maintain status-quo, as to today.”

The SLP is still stated to be pending adjudication and the aforesaid order passed therein is still in force.

2(iv). Present respondent No.4-Sh. Janak Singh instituted a Civil Suit for injunction, inter alia, in respect of Khasra Nos.7331/5337, 7108/5323 & 5324. The civil suit was instituted against the present petitioners. Along with the civil suit, an application under Order 39 Rules 1 & 2 of Civil Procedure Code was also moved seeking temporary injunction for restraining the present petitioners (defendants therein) from interfering in the aforesaid Khasra numbers. Learned Trial Court vide order dated 31.12.2020 injuncted the present petitioners from interfering over the suit land. Learned First Appellate Court affirmed the above order on 07.01.2022. Present petitioners, who were defendants in the civil suit instituted by respondent No.4, preferred CMPMO No.18 of 2022 against the temporary injunction orders dated 31.12.2020 and 07.01.2022 passed by the learned Trial Court and learned First Appellate Court respectively. They were successful in their pursuit. CMPMO No.18 of 2022 was allowed by this Court on 25.11.2022. The impugned orders dated 31.12.2020 passed by learned Trial Court and 07.01.2022 passed by learned First Appellate Court were set aside. Consequently, the application moved by respondent No.4 before the learned Trial Court under Order 39 Rules 1 & 2 CPC for interim injunction was dismissed.

It is an admitted position of the parties that the aforesaid order dated 25.11.2022 passed by this Court has attained finality and the civil suit instituted by respondent No.4 against the petitioners seeking injunction with respect to the suit land is still pending adjudication.

3. President dispute.

3(i). The present petitioners are admittedly Co-owners of Khasra No.7331/5337/3 measuring 6-11-13 bighas situated in Mohal Shilihar/37/91. It is also an admitted position that family partition (‘Khangi Takseem’) was carried out between the petitioners, which was given effect to in the revenue records by attesting Mutation No.11639 on 18.03.2021. It is again not in dispute that respondent No.4 is not the owner or in possession of the subject land, i.e. Khasra No.7331/5337/3. He, however, filed an appeal under Section 14 of the Himachal Pradesh Land Revenue Act, 1954, for setting aside Mutation No.11639 attested on 18.03.2021. His appeal was allowed by the learned Collector, Sub Division, Mandi, on 09.05.2023. Feeling aggrieved, the petitioners preferred Second Appeal under Section 14 of the Himachal Pradesh Land Revenue Act, 1954, before the learned Divisional Commissioner, Mandi Division. The petitioners’ appeal was dismissed on 29.08.2023 thereby affirming the order passed by the Collector on 09.05.2023.

3(ii). It is in the aforesaid background that petitioners have now taken recourse to this writ petition under Article 226 of Constitution of India. The substantive reliefs prayed for by the petitioners read as under:-

[i] set aside the order dt 9/5/2023 passed by the learned Sub Divisional Collector, Kullu [case no. 06SDM/MT/2021 titled Janak Singh vs Karam chand and others;

[ii] set aside the order dt 29/08/2023 passed by learned Divisional Commissioner, Mandi Division, Mandi HP in appeal No. 26/2023 titled Karam Chand vs. Janak Singh.

4. Submissions

4(i) Learned counsel for the petitioners submitted that the Revenue Authority-Collector, Sub Division, Kullu (respondent No.3) had no jurisdiction to entertain the appeal preferred by respondent No.4 under Section 14 of the Himachal Pradesh Land Revenue Act for setting aside the Mutation No.11639. The order passed by the Collector, Sub Division, Kullu on 09.05.2023 as affirmed by the Divisional Commissioner on 29.08.2023 suffers from want of jurisdiction. Both the learned Authorities had no occasion to set aside a mutation that had taken cognizance of the family partition effected between the co-owners of the subject land, more particularly, when none of the co-owners was aggrieved against the family partition. Respondent No.4 was an absolute stranger to the subject land. He could not have agitated the mutation No.11639 that was attested on the basis of the family partition effected between the co-owners. Prayer was accordingly made for setting aside the impugned orders.

4(ii). Countering the above submissions, learned counsel for respondent No.4 submitted that:- (a) The impugned orders were passed by the revenue authorities in light of the order passed by Hon’ble Apex Court on 06.04.2009 directing the parties to maintain status quo over the subject land. (b) It was also submitted that respondent No.4 had right of way to the extent of 2 Karams over the subject land. In order to protect his such right, which had been interfered with as a consequence of attestation of Mutation No.11639, the appeal was instituted by respondent No.4 assailing the aforesaid mutation. (c) Learned counsel for respondent No.4 also submitted that vide impugned order dated 09.05.2023, learned Collector, Sub Division, Kullu, had not only decided the application moved by respondent No.4 but another similar application filed by one Sh. Shiv Ram son of Sh. Katku Ram was also decided. Present petitioners have not agitated the order passed in the case of Sh. Shiv Ram, that order still stands. Therefore, no relief can be granted to the petitioners in the instant petition as the similar order passed in case of one Sh. Shiv Ram, has not been assailed by them; (d) One additional objection of maintainability of this writ petition was also taken on the ground that alternate available remedy of preferring revision petition before the Financial Commissioner (Appeals) had not been availed by the petitioners.

5. Heard learned counsel for the parties and considered the case file.

I am in agreement with the submissions made by learned counsel for the petitioners that the Revenue Authorities had no jurisdiction to entertain the appeal preferred by respondent No.4-Sh. Janak Singh under Section 14 of the H.P. Land Revenue Act against Mutation No.11639 dated 18.03.2021. This is on account of following reasons:-

5(i). Mutation No.11639 dated 18.03.2021 was entered and attested to give effect to the family partition carried out by the petitioners, i.e. co-owners of the joint land (subject land). Respondent No.1 was admittedly a complete stranger to the joint land co-owned by the petitioners. He cannot have any grievance against the partition carried out between the co-owners (the petitioners) with respect to the joint land. The appeal preferred by him under Section 14 of the H.P. Land Revenue Act against the Mutation No.11639 attested on 18.03.2021 was not maintainable at all. It could not have been entertained.

5(ii). The Collector, Sub Division, Kullu, vide its impugned order dated 09.05.2023, has set aside the Mutation No.11639 only on the ground that the Hon’ble Apex Court had directed maintaining status quo with respect to the subject land. The order dated 09.05.2023 and reasoning given therein has been affirmed by the Divisional Commissioner on 29.08.2023.

In my considered view, both the learned Revenue Authorities went astray in concluding that Mutation No.11639 dated 18.03.2021 was required to be set aside in view of the order passed by Hon’ble Apex Court:-

* The Hon’ble Apex Court in SLP(C) No.7228 of 2009 had directed the parties to maintain status quo. Respondent No.4-Sh. Janak Singh was not a party to the aforesaid litigation before the Hon’ble Apex Court. The parties to the litigation, i.e. present petitioners and S/Sh. Tulsi Ram, Shiba, Ram Diyal, Sher Singh and Kishan, were directed to maintain status quo. The parties to the litigation before the Hon’ble Apex Court have not alleged any violation of the status quo order.

*Attestation of mutation is simply a ministerial act consequent upon the partition of the joint land having been effected between the co-owners. This is to keep the revenue record straight.

5(iii) It is also pertinent to notice here that respondent No.4 has admittedly filed his own civil suit against the petitioners qua the subject land seeking to restrain the petitioners from interfering over the subject land. Respondent No.4’s application under Order 39 Rule 1 & 2 CPC instituted in the aforesaid civil suit has been dismissed by this Court on 25.11.2022. Respondent No.4 has not agitated this order any further. Once the Civil Court has declined to grant any relief to respondent No.4 for temporarily injuncting the petitioners from interfering with the subject land, it is not understandable as to how the revenue court proceeded ahead and set aside the Mutation No.11639 dated 18.03.2021.

5(iv) In case respondent No.4 desires to exert some right over the subject land, it is for him to plead his case in accordance with law in the civil suit instituted by him, which is still pending for adjudication. There is no premise for the Revenue Courts to set aside Mutation No.11639 dated 18.03.2021 lawfully entered & attested for giving effect to the partition of the land jointly held by the co-owners (present petitioners), in an appeal instituted by respondent No.4-a third-party-a complete stranger to the subject land. The objection concerning the maintainability of the writ petition without availing alternate remedy, is not tenable. It would also be profitable to take cognizance of M.P. State Agro Industries Development Corpn. Ltd. and another Versus Jahan Khan¹ [¹(2007) 10 SCC 88], wherein it was reiterated that “the High Court may not entertain a writ petition under Article 226 of the Constitution on the ground of availability of an alternative remedy, but the said rule cannot be said to be a of universal application. The rule of exclusion of writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of the availability of an alternative remedy, a writ court may still exercise its discretionary jurisdiction of judicial review, in at least three contingencies, namely, (I) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In these circumstances, an alternative remedy does not operate as a bar”.

Instant is a case where the revenue courts passed the impugned orders in an appeal, which was not maintainable. In such situation, writ petition invoking jurisdiction under Article 226 of the Constitution can be maintained. Held accordingly.

5(v). The objection taken by respondent No.4 regarding petitioners’ not assailing a similar order allegedly passed against them in a case filed by one Sh. Shiv Ram, is also without substance. According to learned counsel for the petitioners, no such order has actually been passed by the revenue authorities in the case filed by Sh. Shiv Ram, similar to the ones impugned herein. No such separate order actually passed in case of Sh. Shiv Ram has been produced on record. It is no doubt true that the impugned order passed by the Collector states that the said order will also dispose of an application/appeal filed by one Sh. Shiv Ram. However, neither the memo of parties therein carries the particulars of that another case filed by Sh. Shiv Ram nor any separate and similar order passed in case of Sh. Shiv Ram has been produced on record. Hence, petitioners cannot be said to be at fault for not assailing a non-existent order.

For the foregoing reasons, this writ petition succeeds and is allowed. Impugned order dated 29.08.2023 passed by the Divisional Commissioner, Mandi Division, as also the order dated 09.05.2023 passed by the Sub Divisional Collector, Kullu, are quashed and set-aside.

Pending miscellaneous application(s), if any, also stands disposed of.

Petition allowed.

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