The automatic vestment of land in the State under the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974, and the bar on the jurisdiction of the Civil Court for such matters.

JUDGMENT :

Vivek Singh Thakur, J.

This appeal, with consent of the parties, has been heard finally and is being decided at admission stage.

2. For convenience, the parties in present appeal shall be referred according to their status in the Civil Suit. As such, appellants (herein) shall be referred to as ‘plaintiffs’ and respondents (herein) shall be referred to as ‘defendants’.

3. This appeal has been preferred against judgment and decree dated 20.4.2019, passed by District Judge Hamirpur in Civil Appeal No.163 of 2018, titled as Om Parkash & others v. State of H.P. & others, whereby the District Judge, affirming the findings returned by the Senior Civil Judge Hamirpur that suit was not maintainable, has modified the judgment and decree dated 3.10.2018, passed in Civil Suit No.219 of 2012, titled as Om Parkash & others v. State of H.P. & others, to the extent that after arriving at conclusion that suit was not maintainable, instead of dismissing the same, plaint was to be returned to the plaintiffs for presenting the same before appropriate forum/ Court.

4. In present case, plaintiffs-appellants had preferred a Suit for declaration, permanent prohibitory injunction and mandatory injunction against defendants-respondents, with averments that suit land, earlier was recorded as ‘Shamlat Tika Hasab Hissa Mundarza Shajra Nasab’ in the Revenue Record, which was being used as common usage by Gautam community, but it has been wrongly mutated in the name of Municipal Council Hamirpur in the year 1970, without any notice to the plaintiffs. It is stand of the plaintiffs that suit land had been rightly mutated in favour of Provincial Government, vide Mutation No.928. However, in the column of ‘possession’, possession of Government was recorded as ‘Bakhana Kast Kabja Swayam’, which was transferred in favour of Nagar Parishad Hamirpur and Urban Development, Shimla, without any notice to the plaintiffs, who came to know about the wrong revenue entries in the year 2012, whereupon he served a notice upon the defendants and thereafter preferred the suit.

5. As per stand of the defendants, suit land was never used by the plaintiffs and it was rightly shown in the ownership and possession of Notified Area Committee Hamirpur in the Jamabandi for the year 1970-71, and as it had vested in the State free from all encumbrances, for application of Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 (for short ‘the Act’) and, therefore, its further transfer to Urban Development Department for public purpose has been claimed to be legal and justified. It has been contended that suit land was uncultivated Banjar Kadim and was not assessed for land revenue and it had taken shape of ‘Charagah with passage of time and, therefore, there is no illegality in attesting mutation in favour of Municipal Council Hamirpur and Urban Development Department.

6. The Trial Court, referring provisions of the Act, has dismissed the suit by holding that suit was not maintainable in the Civil Court and the remedy provided under the Act was required to be invoked by the plaintiffs.

7. In the appeal preferred by the plaintiffs, as recorded supra, the District Judge, instead of dismissing the suit, ordered the return of plaint to the plaintiffs, with affirmation of conclusion arrived at by the Senior Civil Judge that in view of provisions of the Act, Civil Suit was not maintainable.

8. Learned counsel for the plaintiffs, referring evidence on record, has argued in length with submission that on the basis of said evidence right of the plaintiffs on the suit land stands established and has contended that where there is violation of procedure, terms of judgment of this High Court in Chuhniya Devi v. Jindu Ram, 1991(1) Shim. L.C. 223, a suit is maintainable. He has contended that rights of Bartandaran cannot be extinguished by attesting mutation with respect to possession in favour of Nagar Parishad Hamirpur and, thereafter, in favour of Urban Development Department with