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2010 Supreme(SC) 927
2010 (6) Supreme 653
SUPREME COURT OF INDIA
G.S. Singhvi and Asok Kumar Ganguly, JJ.
State of Himachal Pradesh and another — Appellants
versus
Shri Siri Dutt (Dead) by L.Rs. and others — Respondents
Civil Appeal Nos. 3751-3752 of 2002
with
Civil Appeal No. 4109 of 2002
Decided on : 29-9-2010
IMPORTANT POINTS
Adverse possession.
Payment of compensation is not a condition precedent to the taking over of possession by the State.
Headnote:(a) Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 – Section 3(1)(c) – Courts below recorded concurrent findings that the lands in question vested in the State Government on the date of enforcement of the Act, i.e., 29.8.1974 – No reason to interfere. (Para 9)
(b) Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 – Section 3(2)(a) – In absence of any tangible evidence to prove possession by ancestors or that of partition and individual possession, section 3(2)(a) does not apply. (Para 11)
(c) Adverse possession – No evidence adduced to show continuous and uninterrupted exclusive possession for more than 30 years – Jamabandi entries showing otherwise – Adverse possession not made out. (Para 12)
(d) Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 – Section 3(5) and (6) r/w Rules 3 to 5, Himachal Pradesh Common Lands Vesting and Utilization Rules, 1975 – High Court injuncting the State from dispossessing the respondents ignoring the fact that as early as in 1910 the land was shown to be in possession of village proprietors and not of any individual – Perverse – The only requirement is a notice by the Collector to hand over possession. (Paras 14 and 15)
(e) Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 – Section 3(3) – State Government obliged to pay compensation to the land owners whose rights are extinguished under Section 3(1) – Such payment, however, not a condition precedent to the taking over of possession. (Para 16)
Facts of the case:
1. The respondents filed Suit for grant of a declaration that they are the owners of land measuring 381 bigha 8 biswas comprised in Khewat Khatuni No.20/56-66 (old) and Khewat Khatuni No.23/53-63 (new) situated in Mauza Nehra Kandhol, Pargana Boachali, Tehsil and District Solan.
2. They pleaded that the land was in possession of their forefathers since time immemorial and after partition, the same was in their individual and exclusive possession. They also raised the plea of adverse possession by asserting that their possession over the suit land was continuous, open and uninterrupted and the same had never been used by the village community for common purposes.
3. They further pleaded that the land has been wrongly recorded as ‘Shamlat Deh’ in the revenue record and by taking advantage of the wrong entry, it was mutated in the name of the State and illegally allotted to some persons.
4. The trial Court partly decreed the suit and restrained the appellants from interfering with the respondents’ possession over land measuring 35.7 bighas comprised in Khewat No.22, Khatauni Nos.54 to 62 till they were ordered to hand over Possession
5. The learned Single Judge did not disturb the concurrent finding of the two courts.
Finding of the Court:
1. Vesting of the land in the State cannot be disputed.
2. Respondents could not make out a case of continuous, uninterrupted possession.
Result : Appeals allowed.
JUDGMENT
G.S. Singhvi, J. —
1. These appeals are directed against judgments dated 21.4.1997 and 20.5.1998 of the learned Single Judges of the Himachal Pradesh High Court whereby they allowed the second appeals preferred by the plaintiffs- respondents (hereinafter referred to as ‘the respondents’) and restrained the defendants-appellants (hereinafter referred to as ‘the appellants’) from interfering with their right, title and interest as well as possession over the suit properties without following the procedure established by law. In his judgment dated 21.4.1997 rendered in Second Appeal No. 98/1992, which is under challenge in Civil Appeal No.4109 of 2002, the learned Single Judge also made payment of compensation as a condition for taking possession of the land.
2. We shall first notice the factual matrix of Civil Appeal Nos. 3751- 3752 of 2002.
2.1 The respondents filed Suit No.44/1 of 1987 for grant of a declaration that they are the owners of land measuring 381 bigha 8 biswas comprised in Khewat Khatuni No.20/56-66 (old) and Khewat Khatuni No.23/53-63 (new) situated in Mauza Nehra Kandhol, Pargana Boachali, Tehsil and District Solan. They pleaded that the land was in possession of their forefathers since time immemorial and after partition, the same was in their individual and exclusive possession. They also raised the plea of adverse possession by asserting that their possession over the suit land was continuous, open and uninterrupted and the same had never been used by the village community for common purposes. They further pleaded that the land has been wrongly recorded as ‘Shamlat Deh’ in the revenue record and by taking advantage of the wrong entry, it was mutated in the name of the State and illegally allotted to some persons. They prayed for correction of the revenue entries, cancellation of the illegal allotments and for restraining the appellants from interfering with their ownership and possession.
2.2 In the written statement filed on behalf of the appellants, it was pleaded that the suit land had vested in the Government and the same is being used by the villagers as ‘Shamlat land’. The claim of the respondents that they are the owners in possession of the suit land since the time of their ancestors was controverted by asserting that they do not have any right, title or interest over it except the right of grazing etc. The respondents’ assertion that they are in individual possession of the suit land was also denied. It was then averred that the suit land is banzar and charad and the revenue entries are correct. The plea of adverse possession raised by the respondents was contested by asserting that the land was ‘shamlat’ and the same was being used by the villagers. The allotment made in favour of landless persons was defended by asserting that the State Government was competent to do so. The appellants also questioned the maintainability of the suit on the ground of non compliance of Section 80 of the Code of Civil Procedure (CPC).
Another plea taken by them was that the civil court does not have jurisdiction to decide the issues raised in the suit.
2.3 On the pleadings of the parties, the trial Court framed the following issues:
1) Whether plaintiffs from the time of forefathers are coming in possession of the suit land as owners, as alleged? OPP.
2) Whether the suit land has never been brought in use by the entire village for common use? OPP.
3) Whether revenue entries about the suit land are wrong, illegal? OPP.
4) Whether the suit is not maintainable? OPP
5) Whether this Court has no jurisdiction to try the suit? OPD.
6) Whether the suit is bad for want of compliance with section 80 C.P.C.? OPD.
7) Relief.
2.4 After considering the rival pleadings and evidence, the trial Court partly decreed the suit and restrained the appellants from interfering with the respondents’ possession over land measuring 35.7 bighas comprised in Khewat No.22, Khatauni Nos.54 to 62 till they were ordered to hand over possession in
