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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
AJAY MOHAN GOEL, J.
PADAM DEV S/O SHRI PARAS RAM (DECEASED) – Appellant
Versus
STATE OF HIMACHAL PRADESH – Respondent
Regular Second Appeal Nos. 177, 200 of 2009
Decided On : 26-05-2022
Himachal Pradesh Village Common Land Vesting and Utilization Act, 1974 - Section 3(5), 10 r/w Rule 9 - Appeals -Suit for declaration - Whether the Lower Appellate Court has misunderstood and misapplied the provisions of Pepsu Village Common Land Act, Punjab Village Common Land Regulation Act, 1961 and H.P. Village Common Land (Vesting and Utilization) Act, 1974 to hold that Civil Court does not have the jurisdiction to entertain the dispute involved in the suit - Whether Lower Appellate Court has put undue reliance on the revenue entries which were not at all relevant by misreading the same and misconstruing the real import of such revenue entries, especially when the plaintiffs-appellants were claiming title to the suit property much before the enfocement of the aforesaid Act Has not Lower Appellate Court acted in erroneous and perverse manner to hold that the land was a Shamlat land, when such characteristic of land was lost much before the enforcement of aforesaid statutes and regulations - If inquiry as envisaged under Section 3(5) of the Himachal Pradesh Village Common Lands (Vesting and Utilization) Act read with Rule 9 of the Rules framed thereunder stood made, then the Collector shall be competent to proceed against the plaintiff in accordance with law for his dispossession (Para 8).
Findings of the Court :
Court is of the considered view that as the suit initiated before coming into force of the 1974 Act, then by no stretch of imagination, the suit could have been held to be bad in law on the basis of the statutory provisions of the said Act. This belies logic. Section 10 of the 1974 Act provides that save as otherwise expressly provided under the Act, no order made by the Collector or the State Government or any officer authorised by it, as the case may be, shall be called in question by any Court or before any officer or authority. It is reiterated that when the plaintiff filed the suit, he was not aggrieved by any order passed by any authority envisaged under the 1974 Act. The reliefs which were prayed for in the original suit, stood incorporated in the amended suit also, i.e. declaration to the effect that mutation No. 80, dated 12.08.1956, attested in favour of Gram Panchayat, Dharampur was void, ineffective and inoperative as regards the rights of the plaintiff and defendants No. 2 and 3. This extremely important aspect of the matter has been over looked by the learned Appellate Court while decreeing the suit and therefore, this Court holds that the learned Lower Appellate Court misapplied the provisions of the Himachal Pradesh Village Common Land Vesting and Utilization Act, 1974 - Court finds the judgment and decree passed by the learned Appellate Court are not sustainable on the reasoning assigned hereinabove and further it does not deems it appropriate to answer other substantial questions of law as this Court is of the view that it will be in the interest of justice to now remand the matter back to the learned Appellate Court with a direction to decide the appeal filed by the State afresh on merit.
Result : Appeals partly allowed
JUDGMENT :
AJAY MOHAN GOEL, J.
1. Both these appeals are being disposed of by a common judgment as they arise out of the same judgment and decree dated 09.01.2009, passed by the Court of learned District Judge Solan, District Solan, H.P. in Civil Appeal No 35/S/13 of 1984/102-S/13 of 1986-84, titled as State of Himachal Pradesh through Collector Solan, District Solan, H.P. Versus Shri Brij Mohan and others.
2. Brief facts necessary for the adjudication of the present appeals are that a suit for declaration was filed by one Shri Brij Ballab Singh against Gram Panchayat, Dharampur and others, to the effect that he and defendants No. 2 and 3 were owners in possession of the land measuring 337 bighas 14 biswas to the extent of 1/3rd share, situated in village Dharampur (Badholi) and relief of permanent injunction for restraining defendants No. 4 to 6 from interfering with their possession upon the suit land was sought. According to the plaintiff, the grandfather of the plaintiff purchased about 37 bighas of land in Village Dharampur from one Mst. Jakhu alongwith her share in the Shamlat land in the month of June, 1911, vide registered sale deed for a consideration of Rs.700/-. A mutation to this effect was attested in favour of the grandfather of the plaintiff, namely, Shri Chuhar Singh. Smt. Jakku was in physical possession of the land to the extent of 1/6th share, which was prior to the sale. Chuhar Singh remained in possession thereafter and after his death, the landed property including the share in the Shamlat Deh was inherited by plaintiff’s father, namely, Shri Harsaran Dass, who remained in possession thereof as owner till the year 1942. After the death of Harsaran Dass, plaintiff and defendant No. 3 succeeded to the property and were now the owners in possession. On 12.08.1956, vide mutation No. 80, Shamlat land was mutated in the name of Gram Panchayat, Dharampur, under the provisions of Pepsu Village Common Land Act. According to the plaintiff, the mutation was attested at the back of the plaintiff as also his brother (defendant No. 3) and besides the interest of the plaintiff, even the interest of defendant No. 2 in the Shamlat Deh was extinguished by way of the said mutation attested on 12.05.1956. According to the plaintiff, he and defendants No. 2 and 3 were in actual physical possession of the suit land and according to him the vesting of the ownership rights thereof in the Gram Panchayat and subsequently in the State of Himachal Pradesh was bad.
3. The suit was contested by the State on the grounds that the plaintiff and defendants were out of possession of the suit land and the same was Shamlat land which rightly vested in the Gram Panchayat and later in the State of Himachal Pradesh.
4. At this stage, it is pertinent to mention that the Civil Suit was originally filed on 19.09.1973. Thereafter, Himachal Pradesh Village Common Land Vesting and Utilization Act, 1974 came into force. In terms thereof, the ownership of the suit land was vested in the State of Himachal Pradesh, which was subsequently impleaded as a party in the Civil Suit and the plaint was also amended.
5. On the basis of the pleadings of the parties, learned Trial Court framed the following issues:
Whether the land in dispute falls into the definition of ‘Shamlat Deh’? OPD.
Whether the plaintiff was owner in possession as alleged? OPP.
If issue No. 3 is not proved whether the plaintiff is entitled to remain in possession as alleged in para No. 6A of the amended plaint? OPP.
Whether the suit is time-barred? OPD.
Whether this court has no jurisdiction to try the suit ? OPD.
Whether the suit is bad for want of notice under section 190 of the H.P. Panchayat Raj Act? OPD.
Whether the suit is bad for misjoinder of parties? OPD.
Whether the plaint is not properly valued for purpose of court fee and jurisdiction? OPD
Relief.”
6. On the strength of the evidence which was led by the parties in support of th
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