2021 Supreme(HP) 498

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Vivek Singh Thakur, J.
Prithvi Chand - Appellant
Versus
State Of Himachal Pradesh & Ors. - Respondents
R.S.A. No. 202 of 2014
Decided On : 23-06-2021

Headnote:

CIVIL PROCEDURE CODE, 1908 - Order 41 Rule 27 - Application for additional evidence - Rejection - Tenancy Act, 1972 - Section 104(8) and 104(9) - Acquisition of ownership rights by tenants - Exceptions - Ceiling Act, 1972 - Section 11 - Vesting of surplus area in the State Government - Himachal Pradesh Public Premises and Land (Eviction and Rent Recovery) Act, 1971 - Jurisdiction of Civil Court - Maintainability of suit.

Fact of the Case:

Plaintiff filed a suit for declaration that he along with proforma-defendants is the owner of the land comprised in Khasra Nos. 1403/323/419 min (old) and Khasra Nos. 1403/323/419 min (old) denoted by new khasra Nos. 1779 and 1780 situated in village and mauja Nirath, Tehsil Rampur Bushehr, District Shimla with consequential relief of permanent injunction restraining the defendant State of HP from interfering in possession of plaintiff and proforma-defendants in any manner. Plaintiff has set up a claim that predecessors-in-interest of plaintiff and proforma-defendants were in possession of suit land, which is now in possession of plaintiff and proforma-defendants, as non-occupancy tenants under the owner Devta Surya Narayan, Temple Surya Narayan Nirath and on enactment of H.P. Ceiling on Land Holdings Act, 1972 (hereinafter referred as Ceiling Act) ownership of land was vested from Devta Surya Narayan to State of HP vide mutation No. 1746 dated 8.6.1975. It is the case of plaintiff that possession of suit land remained with plaintiff and proforma-defendants continuously, physically, actually and without any interruption and further that like predecessors-in-interest, plaintiff and proforma-defendants are still paying money and rendering the services to the Temple Surya Narayan whenever so required by Kardars of temple, however, actually and in law they have become owners automatically by operation of H.P. Tenancy and Land Reforms Act (hereinafter to be referred as Tenancy Act) which came into force from November 1975 and thus, they are not liable, now, to pay any money to Temple Surya Narayan or render service in lieu of rent of tenancy and thus, they are also not liable to be ejected from suit land by defendant/State. However, despite that, defendant/State has initiated ejectment proceedings against plaintiff and proforma-defendants which are pending before Authorized Officer-cum-Divisional Forest Officer, Rampur Bushehr with respect to Khasra No. 1779 whereas plaintiff and proformadefendants are neither encroachers nor in unauthorized possession, but, are in authorized possession as tenants of Surya Narayan Temple Nirath and continue as such also.

Finding of the Court:

1. The application for additional evidence was rightly dismissed by the first Appellate Court. 2. The first Appellate Court has committed a mistake of law by framing an issue with respect to maintainability of suit with reference to provisions of PP Act, as no such issue was framed or proposed to be framed on behalf of defendants during the trial and first Appellate Court has thus committed an error of law and jurisdiction by holding that jurisdiction of the Civil Court qua Khasra No. 1779, a part of suit land, is barred for application of provisions of PP Act. 3. The findings of fact recorded by the Courts below are not perverse and there is no perversity or illegality in rejecting the application under Order 41 Rule 27 CPC.

Issues: 1. Whether the application for additional evidence was rightly dismissed by the first Appellate Court? 2. Whether the first Appellate Court has committed a mistake of law by framing an issue with respect to maintainability of suit with reference to provisions of PP Act? 3. Whether the findings of fact recorded by the Courts below are perverse?

Ratio Decidendi: 1. The documents sought to be produced were not necessary to be examined to enable the Court to pronounce the judgment or for any substantial cause as these documents were not going to improve the evidence or facts on record in any manner as nothing new would have been established on record on allowing the production of these documents on record. 2. A person in possession cannot be ousted except by due process of law and a person who has acquired ownership rights even by way of adverse possession can not be ejected and acquisition of rights of ownership can be used by him as a sword being plaintiff as well as a shield being defendant. 3. In the light of provision of law discussed herein-above, there is nothing on record to establish that plaintiff and proforma defendants were and are having any right to be inducted as owners for their tenancy, if any, in the suit land.

Final Decision: Appeal dismissed along with application filed by applicant/respondent No. 4 Company.