Full Judgment Text
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PETITIONER:
STATE OF MADHYA PRADESH & ORS.
Vs.
RESPONDENT:
SETH BALKISHAN NATHANI & ORS.
DATE OF JUDGMENT:
30/01/1963
BENCH:
SUBBARAO, K.
BENCH:
SUBBARAO, K.
DAYAL, RAGHUBAR
MUDHOLKAR, J.R.
CITATION:
1967 AIR 394 1964 SCR (1) 793
ACT:
Land Reform-Execution of perpetual patta and entries in the
subsequent Revenue Records--Recognition as Pattadar and
settlement of assessments by Deputy Commissioner Land
Reforms-Nistar Officer correcting records and reopening
orders of the Deputy Commissioner-Jurisdiction-The Madhya
Pradeah Abolition of Proprietary Rights (Estates, Mahals,
Alienated Lands) Act, 1950 (Madhya Pradesh 1 of 1951), ss. 3
(2), 4 (2), 13 (1), 15 (1), 40-The Central Provinces Land
Revenue Act, 1947 (C. P. Act II of 1947) ss. 45 (1) (2) (4),
46, 47 (1) (2).
HEADNOTE:
Respondent No. 1 in both the appeals was the proprietor and
lambardar of two Mouzas. He executed perpetual pattas in
favour of the other respondents. With regard to one of the
Mouzas in the subsequent annual papers the Mouza was
recorded as occupancy Tenancy Holding of respondents 2 and 4
to 6. Similar recordings were made with regard to t he other
Mouza in the names of respondents 2 to 6. Thereafter the
Madhya Pradesh Abolition of Proprietary Rights (Estates,
Mahals, Alienated Lands) Act, 1950, came into force and
under s. 3 of the Act the estate of respondent I was
notified. The Deputy Commissioner Land Reforms acting under
s. 40 of the Act recognised respondent as the pattadar and
settled the assessment payable by him in respect of the
first of the Mouzas. Subsequently the Nistar Officer
started proceedings for correction of old annual papers with
a view to reopen the earlier order made under s. 40.
Respondent No. 1 raised an objection that he had no
jurisdiction to do so which objection was rejected. The
appeal filed by the respondent before the Revenue Board was
also rejected. With regard to the other Mouza the Nistar
Officer made an order that the transfers made by respondent
I was bogus and that the landlord was not cultivating the
land. The respondents then filed writ petitions in the High
Court against the said two orders of the Nistar Officer.
The High Court held that the Nistar Officer had no power
either under s. 15 (3) of the Act or under s. 47 (1)
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of the Central Provinces Land Revenue Act, 1917. The
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present appeals are by way of special leave.
It was contended before this Court that (1) under s. 47 (1)
of the Land Revenue Act the Nistar Officer bad jurisdiction
to correct entries made for earlier years in a subsequent
year on the ground of mistake and (2) the said officer has
also jurisdiction to review under s. 15 (3) of the Act the
order made by him under s. 40 thereof.
Held, that neither s. 13 nor s. 15 (3) has any relevance in
the context of an order made by the Deputy Commissioner
under s. 40 thereof.
Section 47 (1) of the Central Provinces Land Revenue Act
does not cover a case of correction of the entries on the
ground of mistake.
Mangloo v. Board of Revenue, 1. L. R. 1954 Nag. 143,
approved.
Nistar Officer has no jurisdiction to correct the entries
with a view to reopen the matter already closed under s. 40
of the Act.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 370 and
371 of 1960.
Appeals by special leave from the judgment and order dated
March 8, 1956, of the former High Court of " judicature at
Nagpur (now High Court of Madhya Pradesh at jabalpur) in
Misc. Writ Petitions Nos. 22 and 274 of 1955.
B. Sen and I. N. Shroff, for the appellants.
G. B. Pai, J. B. Dadachanji, Ravinder Narain and 0.
C. Mathur, for respondents Nos. 2 to 6.
1963. January 30. The judgment of the Court was delivered
by
SUBBA RAO, J.-These two appeals by special leave are filed
against the common judgment of a
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Full Bench of the High Court of judicature at Nagpur in writ
petitions Nos. 92 of 1955 and 274 of 1956 filed by
respondents 1, 3 to 6 herein in the said court.
The facts in Appeal No. 370 of 1960 may be stated first.
Respondent 1, Seth Balkishan Nathani, was the proprietor and
lambardar of Mouza Sonpairi in Tahsil and District Raipur.
On January 14, 1947. he executed perpetual pattas in favour
of his wife, Vashodabai, since deceased, and respondents 4,
5 and 6 in respect of khudkasht and grass lands of Mouzz
Sonpairi. In Tabdili jamabandi of the year 1946-47 the said
lands were recorded as the Occupancy Tenancy Holdings of the
said respondents 4 to 6 and respondent 2, Govindlal Nathani,
the legal representative of Vashodabai. The same entry was
found in the jamabandis of the subsequent years The Madhya
Pradesh Abolition of Proprietary Right,, (Estates, Mahals,
Alienated Lands) Act, 1956 (1 of 1951), hereinafter called
the Act, came into force on January 22, 1951. Thereafter,
in due course the estate of the said proprietor was duly
notified under s. 3 of the Act. On March 25, 1952, the
Deputy Commissioner, Laid Reforms, acting under S. 40 of the
Act, recognized the said Balkishan Nathani as the pattadar
and settled the assessment payable by him in respect of
Khasra Nos. 28912 and 366/7 of Mouza Sonpairi. No appeal
was preferred against that order. Thereafter, appellant 2,
the Nistar Officer cum Additional Deputy Commissioner
Raipur, started proceedings against the respondent for the
correction of old annual papers in MouzSonpairi. with a view
to reopen the earlier order made under s. 40 of the Act, as
the earlier order was passed on the basis of the entries
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found in Tabdil’ jamabandi of the year 1946-47 and
subsequent year,, Respondent 1, Seth Balkishan Nathani,
raised a. objection that appellant 2 had no jurisdiction to
initiate the proceedings. Appellant 2 overruled the
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objection and made the following order :
"On the next hearing, 5, witnesses may be
produced for proving cultivation. The names
of the purchasers, to whom the lands have been
sold, be obtained from the Patwari, and a
notice be served on them that they should file
their statements as well as should bring the
sale-deeds along with them. Hearing fixed for
date 4-8-1954. The non-applicants may file
other evidence, which they wish to file."
it will be seen from the said order that the second
Appellant purported to make an inquiry in regard to he
factum of cultivation as well as the validity of he sale-
deeds whereunder respondent 1 created interests in the other
respondents. Respondent I preferred an appeal from that
order to the Board of Revenue, Madhya Pradesh, but the same
was Dismissed on the ground that it was premature. hereupon,
the respondents filed the writ petition No. 22 of 1955 in
the High Court of Madhya pradesh.
Civil Appeal No. 371 of 1960 relates to patti To. 1 of Mouza
Kachna in Tahsil and District kaipur. Respondent I was the
Proprietor and ambardar of the said Mouza. On February 19,
1948, the said Seth Balkishan Nathani executed perpetual
pattas in respect of the said lands in favour of the same
respondents as in the other appeal. In he annual papers the
said lands were recorded as the Occupancy Tenancy Holdings
of respondents 2 to 6. on December 8, 1954, appellant 2 made
an inspection of the said lands and made the following order
on December 9, 1954:
" x x x x X x
.lm15
2. There were found to be obvious mistakes in Government
documents-Khasra,Jamabandi and Tabdilat. Mistakes
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discharged (discovered) by me in Patwari papers have been
corrected.
3. Ex-proprietors (1) Balkishan Nathani and others and (2)
Narayanrao made absolutely bogus transfers in favour of
their family members, namely,
(i). (a) Kamlabai, (b) Pana Bai,
(c) Yashoda bai, (d) Chhote Bai of Nathani family.
(ii)Kamla Bai Chitnavis, wife of Narayanrao, ex-proprietor.
Patwari entered names without cultivation and agricultural
possession against Land Record Manual, Volume 1.
4. Mistakes found in patwari records have been corrected
by me after spot inspection. These papers be now filed."
It will be seen from the said order that the second
appellant found that the transfers made by respondent I in
favour of the other respondents were bogus and that he also
corrected the entries in the annual papers to the effect
that the landlord was not cultivating the lands as recorded
in the earlier papers. The respondents filed writ petition
No. 274 of 1955 in the High Court to quash the said order.
A Full Bench of the High Court held that neither s. 15 (3)
of the Act nor s. 47 (1) of the Central Provinces Land
Revenue Act, 1917 (C. P. Act No. II of 1917), hereinafter
called the Land Revenue Act, conferred a power-on the Nistar
officer to review orders already made in respect of the
factum of cultivation or the occupancy rights recognized
under the relevant provisions of the said Acts. In the
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result, it allowed
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the two writ petitions quashing the proceedings started by
the Nistar officer in the case of Mouza Sonpairi and the
order dated December 9, 1954, passed by him in the case of
Mouza Kachna and prohibiting him from taking further
proceedings which may affect the occupancy tenancy rights of
the petitioners in the lands in dispute. Hence the two
appeals.
Mr. Sen, learned counsel for the appellants, raised before
us the following two points : (1) Under s. 47 (1) of the
Land Revenue Act the Nistar officer has jurisdiction to
correct entries made for earlier years in a subsequent year
on the ground of mistake ; and (2) the said officer has also
jurisdiction to review under s. 15 (3) of the Act the order
made by him under s. 40 thereof.
Mr. Pai, learned counsel for the respondents, argued at the
outset that the appeals have abated for two reasons, namely,
(1) the second petitioner died after the arguments were
heard by the High Court and before the judgment was
delivered and the petition filed by the appellants to set
aside abatement was dismissed, and (2) the second respondent
in the appeals died on March 7, 1956 and the application
filed on June 28, 1957, to set aside the abatement and to
bring his legal representatives on record was out of time.
On the merits, he sought to sustain the judgment of the High
Court for the reasons mentioned therein.
As we are inclined to agree with the view expressed by the
High Court on the two questions raised by the learned
counsel for the appellants, we do not propose to consider
the preliminary objection raised by the learned counsel for
the respondents.
The two questions raised in this case are in a way
interrelated and the answer to them depends
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upon the construction of the relevant sections of the Act
and the- Land Revenue Act. It would be convenient to read
the relevant provisions.
The Madhya Pradesh Abolition of Proprietary
Rights, (Estates, Mahals, Alienated Lands)
Act, 1950 (Act 1 of 1951).
Section 3. (2) After the issue of a
notification under subsection (1), no right
shall be acquired in or over land to which the
said notification relates, except by
succession or under a grant or contract in
writing made or entered into by or on behalf
of the State : and no fresh clearings for
cultivation or for any other purpose shall be
made in such land except in accordance with
such rules as may be made by the State
Government in this behalf.
Section 4. (2) Notwithstanding anything con-
tained in sub-section (1), the proprietor
shall continue to retain the possession of his
homestead, homefarm land, and in the Central
Provinces also of land brought under cultiva-
tion by him after the agricultural year 1948-
49 but before the date of vesting.
Section 13. (1) On receipt of the statement of
claim, or if no such claim is received within
the prescribed period, the Compensation
Officer shall, after making such enquiry as he
thinks fit and giving an opportunity to the
claimant to be heard, decide the amount of
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compensation due to the claimant and record in
a statement in the prescribed form, the
details of the land which shall vest in the
State Government after its acquisition in lieu
of the payment of such compensation and such
other details as may be prescribed.
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Section 15. (1) Any person aggrieved by the
decision given or the record made under
section 13 by the Compensation Officer may
appeal to the Deputy
Commissioner...............
x x x x x x
(3) The Compensation Officer, the Deputy
Commissioner or the Settlement Commissioner,
may, either on his own motion or on the
application filed within the prescribed period
by any party interested, review an order
passed by himself or his predecessors in
office and pass such order in reference
thereto as he thinks fit.
x x x x x x
Section 40. (as amended on October 22,
1951).
(1) Any land not included in home-farm but
brought under cultivation by the proprietor
after the agricultural year 1948-49 shall be
held by him in the rights of an occupancy
tenant.
(2) Any person becoming an occupancy tenant
under rule I shall be a tenant of the State.
(3) The Deputy Commissioner shall determine
the rent on the land and it shall be payable
from the date of the vesting of the
proprietary rights.
Section 84. Except where the provision of this
Act provide otherwise, from every decision or
order of a Revenue Officer under this Act or
the rules made thereunder, an appeal shall lie
as if such decision or order has been passed
801
by such officer under the Central Province
Land Revenue Act, 1917, or the Berar Land
Revenue Code, 1928, as the case may be.
The Central Provinces Land Revenue Act, 1917.
Section 45. (1) A record-of-rights for each
mahal or estate shall be prepared or revised,
as the case may be, by the Settlement Officer
at settlement and, for such mahals or estates
as the Provincial Government may direct, by a
Revenue Officer empowered by the Provincial
Government in that behalf during the currency
of a settlement..
(2) The record-of-rights of a mahal shall
consist of the following documents
(a) Khewat or statement of persons
possessing proprietary rights in the mahal,
including inferior proprietors or lessees or
mortgagees in possession, specifying the
nature and extent of the interest of each
(b) Khasra or field-book, in which shall be
entered the names of all persons cultivating
or occupying land, the right in which it is
held, and the rent, if any payable;
(c) jamabandi or list of persons cultivating
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or occupying land in the village
x x x x x
(4) The documents specified in sub-section
(2) shall be prepared in ’Such form and shall
contain such additional particulars as may be
prescribed by rules made under section 227.
802
Section 46. On the application of any person
interested therein or of his own motion, the
Deputy Commissioner may, without prejudice to
other provisions of this Act, modify any entry
in the record-of-rights on one or more of the
following grounds :-
(a) that all persons interested in such
entry wish to have it modified; or
(b) that by a decree in a civil suit it has
been declared to be erroneous; or
(c) that, being founded on a decree or order
of a Civil Court or on the order of a Revenue
Officer, it is not, in accordance with such
decree or order; or
x x x x x x
Section 47. (1) The Deputy -Commissioner shall
cause to be prepared, in accordance with rules
made under section 227, for each Mahal
annually or at such longer intervals as may be
prescribed, an amended set of the documents
mentioned in section 45, sub-section (2),
clauses (b), (c) and (d), and the documents so
prepared shall be called the "’annual papers".
(2) The Deputy Commissioner shall cause to be
recorded.- in accordance with rules made under
section 227, all’ charges that have taken lace
in respect of, and all transactions that have
affected, any of the proprietary rights and
interests in any land.
x x x x x x x
The scheme of the Act so far as it is relevant to the
present enquiry may be summarized thus: On the
803
issue of a notification by the State Government under s. 3
of the Act in respect of an estate, all proprietary rights
in such estate vest in the State. The Compensation Officer,
on a claim made by the proprietor, after making the enquiry
prescribed under the- said Act, decides the amount of
compensation due to him and the details of the land that
vests in the State. But the Act saves some interests in the
proprietor from its total operation : one of such is lands
in the Central Provinces brought under cultivation by the
proprietor after the agricultural year 1948-49, but before
the date of the vesting (see s. 4 (2) of the Act) .
Under s. 40 (1) of the Act, such a land shall be held by him
in the rights of an occupancy tenant; under sub-s. (2)
thereof he becomes a tenant of the State; and under sub-s.
(3) the Deputy Commissioner shall determine the rent on the
land and it shall be payable from the date of the vesting of
the proprietary rights. Section 84 confers a right of
appeal on an aggrieved party against the order of the Deputy
Commissioner to the prescribed authority. There is no
provision in the Act which authorizes the Deputy
Commissioner to review an order made by him under. the said
sub-section and, therefore, an order made by him, subject to
appeal, becomes final. It is, therefore, manifest that the
order made by the Deputy Commissioner in respect of lands in
question determining the rent on the basis that the
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proprietor was an occupancy tenant had become final. If so,
the Nistar Officer, i. e., the second appellant, had no
jurisdiction to initiate proceedings for reopening the order
made in respect of Mouza Sonpairi or in making the order
reviewing the earlier order made by him in respect of Mouza
Kachna, for the said, orders had become final and there is
no provision under the Act for reviewing them. But the
learned counsel for the appellants contends that s. 1 5 (3)
of the Act confers such a power. Under s. 15.(3) of the
Act, the
804
authority concerned can review an order made by him under s.
13 of the Act. Section 13 of the Act deals with ’an order
made by the Compensation Officer deciding the amount of
compensation due to .the claimant and recording in a
statement in the prescribed form the details of the land
which shall vest in the State. Neither s. 13 nor s. 15 (3)
has any relevance in the context of an order made by the
Deputy Commissioner under s. 40 of the Act.
This conclusion would be sufficient. to dispose of the
appeals. But, as an argument was made on the construction
of s. 47 (1) of the Land Revenue Act and as the game was
considered by the High Court, we shall also deal with it.
The argument based upon the said provision is relevant more
to the nature of the evidence available to the Deputy
Commissioner to come to a decision under s. 40 of the Act
than to the validity or the finality of the order made by
him thereunder. The question that a Deputy Commissioner has
to decide by necessary implication under s. 40 of the Act is
whether the proprietor has cultivated the land after the
agricultural year 1948-49 and before the vesting of the
estate in the State. One of the most important pieces of
evidence that will be available to him is the annual papers
prepared under s. 47 of the Land Revenue Act. It is not
disputed that in the annual papers prepared earlier it was
shown that the proprietor was cultivating the lands in
question after 1948-49. But it is said that under s. 47
(1), the Deputy Commissioner can correct the said entry in
the year 1952 and 1954 as he purports to do, so as to make
the entry to the effect that between 1949 and the date of
the investigation the proprietor was not in cultivation of
the land. This argument, if we may say so, is contrary to
the scope and tenor of the relevant provisions of the Land
Revenue Act and the rules made thereunder. Under ss. 45, 46
and 47 the
805
Provisions whereof we have extracted earlier, the procedure
prescribed is as follows : A record of rights shall consist
of Khewat, Khasra, jamabandi and other papers; and they arc
prepared in the manner prescribed by the rules made under s.
227. On the application of any person interested therein or
of his own motion, the Deputy Commissioner may modify. any
entry in the record-of-rights on specified grounds, namely,
that all persons interested in such entry wish to have it
modified, that by a decree in a civil,suit it has been
declared to be erroneous, that, being founded on a decree or
order of a civil court or on the order of a Revenue Officer,
it is not in accordance with such’ decree or order, and that
being so founded, such decree or order has subsequently been
varied on appeal, revision or review. It will be seen that
a mistake in a Khasra or jamabandi of an earlier year in
regard to the factum of cultivation by a particular person
is not a ground for modification under s. 46 of the Land
Revenue Act. Section 47 empowers the Deputy Commissioner to
cause to be prepared annually or at such longer intervals as
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may be prescribed, an amended set of the documents mentioned
in cls. (b), (c) and (d) of sub-s. (2) of s. 45 of the Land
Revenue Act, and the documents so prepared shall be called
the "annual papers". The rules made under s. 227 of the
Land Revenue Act are found in Ch. III of the Central
Provinces Land Records Manual, Vol.I, pp. 13-16. The rules
relevant to the preparation of Khasra and jamabandi direct
the Patwari to record such changes annually as he finds to
have taken place after local enquiry and actual inspection.
It is, therefore clear that a record of-rights consists of
Khewat, Khasra, jamabandi etc. and till it is revised again
it will hold the field. The entries therein can be modified
only for the grounds mentioned in s. 46 of the Land Revenue
Act. The Provisions of s. 47, if contrasted with those of
s. 46, make it clear that the said section intends to bring
806
the said documents up-to-date by recording the subsequent
changes based on supervening events. The scope of the
annual papers is only to record the existing facts on the
basis of spot inspection at the beginning of a fasli and to
record changes occurring during the course of the year after
the year is closed. It is not the province of the annual
papers to investigate and decide on the correctness of
otherwise of the entries made in the earlier annual papers
as on the date they were made.
The said section came under judicial scrutiny of a Division
Bench of the Nagpur High Court in Mangloo v. Board of
Revenue (1). The facts in that case were that on the death
of one Gaindoo who was a tenant of mouzu Matia, on an
application made by his nephew and his widow, their names
were entered in the annual papers as joint tenants of the
land by the Assistant Superintendent of Land Records; there-
after, the widow applied to the Superintendent of Land
Records for striking off the petitioner’s name from the
annual papers and her application was allowed ; in appeal,
the Additional Deputy Commissioner declined to interfere on
the ground that the initial order of the Assistant
Superintendent of Land Records was passed by him in his
executive capacity and as such the Superintendent of Land
Records was competent to modify it in his own executive
capacity; the second appeal , preferred to the Board of
Revenue was summarily rejected; and it was contended before
the High Court that the decision of the Board of Revenue
contravened the provisions of s. 47(1), read with s.
33(2)(c) of the Central Provinces Land Revenue Act, 1917.
In that context, the learned judges of the High Court
considered the scope of S. 47(1) of the Land Revenue Act and
the rules made under s. 227 of the said Act, and observed
thus :
"As we read section 47(1) of the Act and the
rules governing it, we are of opinion that
these
(1) I.L.R. 1954 Nag. 143, 146.
807
provisions deal only with the preparation of
the annual papers and not with their
correction if the entries are found to be
erroneous. They are only enabling provisions
which import no restriction on the power of
the Revenue Officers to correct the mistakes
or remove any irregularities, committed in the
preparation of the annual papers. Neither the
annual papers nor the corrected entries affect
any questions of title or vested interest, of
any party. The power of the. Revenue
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Officers in this regard, is analogous to the
untrammelled right of a person to correct his
private documents, which cannot be questioned
in a Court of law by any one whose right or
interest is not affected thereby."
The learned counsel contends that the said passage comprises
conflicting ideas inconsistent with each other-the first
part of it denying a right to correct the entries and the
second part permitting such corrections. We cannot accept
this interpretation of the passage. The learned judges were
dealing with two aspects of the question: one is the scope
of the preparation of the annual papers and the other is
whether correction of mistakes therein give a cause of
action to the person aggrieved. The first they answered by
stating that s. 47(1) of the Land Revenue Act and the rules
made under the said Act deal only with the preparation of
the annual papers and not with their corrections if the
entries are found to be erroneous and the other with the
right of a party affected by the correction of the mistakes
therein. The observations made in regard to the scope of s.
47(1) are made clear by the discussion found earlier in the
judgment at p. 145. After adverting to the provisions of s.
47 and the rules made under the Act governing the
preparation of annual papers, learned judges observed :
"This would normally be done in the beginning
808
of the agricultural year which, under s. 2(1)
of the Act, commences’ on the first day of
June. No changes in the entries are
contemplated during the course of the
agricultural year and the changes taking place
during that period are obviously to be
recorded after the year is closed. The action
taken by the Superintendent of Land Records
and ratified by the Additional Deputy
Commissioner has, therefore, no reference to
the preparation of the annual papers under s.
47(1 ) of the Act and we are not shown any
other provision of law which governs it."
The Division Bench held that there was no provision for
correcting the wrong entries made in the annual papers, for
their scope is very limited. This view was followed by the
Full Bench of the High Court in their judgment which is now
under appeal. The Full Bench confirmed the view of the
Division Bench in the following words :
"............... Section 47(1) of the Central
Provinces Land Revenue Act contemplates
entering only such changes in the annual
papers as take place during the course of the
agricultural year. That section, therefore,
does not cover a case of correction of the
entries on the ground of mistake."
We entirely agree with this view,. It follows that the
Nistar Officer has no jurisdiction to correct the said
entries with a view to reopen the matter already closed
under s. 40 of the Act. We, therefore, agree with the
conclusion arrived at by the High Court.
In the result, the appeals fail and are dismissed with
costs. One set of hearing fees.
Appeals dismissed.
809