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1992 Supreme(HP) 71
High Court Of Himachal Pradesh
BHAWANI SINGH
NEK RAM - Appellant
Versus
STALE OF HIMACHAL PRADESH - Respondent
Second Appeal No. 112 of 1991
Decided On : 06/23/1992
For the appellant(s) :Sh. K. D. Sood, Advocate. For the respondent(s):Sh. M. L. Chauhan, Assistant Advocate General.
The Himachal Pradesh Village Common Lands Vesting and Utilisation Act, 1974 provides for the vesting of certain common lands in the State Government, but there are exceptions to this vesting, including land that has been partitioned, transferred, or built upon by an inhabitant.
Headnote:
VILLAGE COMMON LANDS VESTING AND UTILISATION ACT, 1974 - SECTION 3 - VESTING OF RIGHT IN THE STATE GOVERNMENT - INTERPRETATION AND APPLICATION - LAND VESTED IN THE STATE GOVERNMENT - EXCEPTION - PROCEDURE FOR TAKING POSSESSION - DISPUTE REGARDING ENTRY OF LAND VESTED IN THE STATE GOVERNMENT - JURISDICTION OF COLLECTOR.
Fact of the Case:
Plaintiffs filed a suit for declaration of joint ownership and separate possession of land, challenging the mutation in favor of the defendant and seeking a declaration that the land was not shamlat land and could not vest in the State Government. The defendant contested the claim, asserting that the land was banjar, had, kcharand, etc., and had been rightly vested in the defendant.
Finding of the Court:
The trial court and the District Court dismissed the suit, holding that the plaintiffs failed to prove their ownership and possession of the land and that the land was rightly vested in the State Government under the Himachal Pradesh Village Common Lands Vesting and Utilisation Act, 1974.
Issues: 1. Whether the plaintiffs are joint owners in separate and distinct possession of the suit land? 2. Whether Mutation Nos. 288 and 289 dated 12-8-1975 showing defendant as owner of the suit land are wrong and illegal and not binding on the plaintiffs? 3. Whether legal and valid notice under section 80, C. P. C. has been served? 4. Whether this Court has no Jurisdiction to try the suit? 4-A. Whether the plaintiff has become owner of the suit land by adverse possession?
Ratio Decidendi: The High Court held that the land was not liable to be vested in the State Government under the Himachal Pradesh Village Common Lands Vesting and Utilisation Act, 1974, as it fell within the exception provided under sub-section (2) of section 3 of the Act. The Court also held that the Collector had not issued a notice under sub-section (5) of section 3 read with Rule 3 of the Himachal Pradesh Village Common Lands Vesting and Utilisation Rules, 1975, and therefore, the plaintiffs had not had an opportunity to raise objections to the entry of land in favor of the State.
Final Decision: The High Court allowed the appeal, set aside the impugned judgment, and restrained the defendant from interfering with the possession of the plaintiffs over the suit land. The Court directed the defendant to initiate proceedings under sub-section (5) of section 3 of the Act and serve notice on the plaintiffs, who would be at liberty to raise objections before the Collector.
Bhawani Singh, J.—This appeal is directed against the judgment of District Judge, Solan, in Civil Appeal No. 4-S/13 of i990, dated 2-1-1991 whereby the judgment of Senior Sub-Judge, Solan, incase No. 309/1 of 1986 dated 20-11-1989, has been confirmed.
2. Plaintiffs have filed a suit for declaration to the effect that they are Joint owners of the land comprised in khewat No 22, khatauni No. 50 to 58, Kitas 40, measuring 31714 bighas, situated in village Shaluminna, Tehsil & District Solan, as per copy of Jamabandi for the year 1972-73 and the land is separately possessed by the plaintiffs at the spot as per their shares in the Khewat and mutation attested in favour of the defendant behind the back of the plaintiffs vide No 288 and 259, dated 12-8-1975, is wrong, without jurisdiction and not binding on them.
3. The plaintiffs have also stated that the land was never a shamlat land and could not vest in the State Government, so a decree of declaration is sought against this vestment and they also state that they have been paying the land revenue to the defendant and the defendant be restrained from interfering with their peaceful possession. In the alternative, it has been claimed that they have become owners of the suit land by adverse possession.
4. The defendant has contested the claim of the plaintiffs. It has been stated that the suit land had never been in the individual cultivation of the plaintiffs It is banjar, had, kcharand etc and has rightly been vested in the defendant and the mutation to that effect was sanctioned in an open Ajlas The suit is not maintainable nor the court has jurisdiction to try it. It has also been stated that no notice under section 80 of the Code of Civil Procedure was given to the defendant before filing the present suit.
5. On the pleadings of the parties, the following issues were framed by the trial Court:
"1 Whether the plaintiffs are joint owners in separate and distinct possession of the suit land? OPP
2. Whether Mutation Nos. 288 and 289 dated 12-8-1975 showing defendant as owner of the suit land are wrong and illegal and not binding on the plaintiffs? OPP.
3. Whether legal and valid notice under section 80, C. P. C. has been served? OPP.
4. Whether this Court has no Jurisdiction to try the suit? OPD. 4-A. Whether the plaintiff has become owner of the suit land by adverse possession? OPP.
5. Relief."
6. The trial Court decided issue Nos. 1, 2 and 4-A against the plaintiffs while issue No 3 was decided in favour of the plaintiffs and issue No 4 against the defendant. The suit was accordingly dismissed on 20-11-1989. This decision was challenged before the District Judge, however, without success, hence this appeal before this Court.
7. It was contended by the learned Counsel for the plaintiffs that the revenue entries relating to this land ate wrong. The land has been in their possession since the time of their ancestors. It has been divided according to their respective shares. They have also constructed houses and other structures over this land. Land revenue is being paid to the State for the lands in their possession. The revenue record describes this land as Shamlat Deh’ in the possession of Makbuja Malkan’. It is ‘Gair mutnkia khad, charand and path’. Only a very small portion of this land has been shown under cultivation Plaintiffs have sought to prove their case through witnesses Jike Nek Ram (PW-1), Keshva Nand (PW-2), Jai Ram (PW-3). and Mohan Dutt (PW-4), However, their evidence is not exact nor similar. Nek Ram (PW-1) has said that in the land there are cultivated fields and fruit bearing trees. It is in their possession since the time of their ancestors. He has not said anything about the construction on it nor has he said which portion of the land is in possession of which plaintiff. Other witnesses have also not been able to describe the position of the land clearly. On this kind of evidence, it cannot be said that the plaintiffs have succeeded in assailing the entries in the
