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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA ON THE 26th DAY OF MAY, 2022 BEFORE HON’BLE MR. JUSTICE AJAY MOHAN GOEL REGULAR SECOND APPEAL No.200 & 177 of 2009 Between:
REGULAR SECOND APPEAL NO.200 OF 2009
1. SHRI PADAM DEV SON OF SHRI PARAS RAM (DECEASED THROUGH FOLLOWING LEGAL REPRESENTATIVES:-
1 (a) MANOHAR LAL
1 (b) SH. JAGDISH KUMAR BOTH SONS OF LATE SHRI PADAM DEV.
1 (C) SMT. PREM DEVI WD/O LATE SH. PADAM DEV.
1(D) MR. SHAKUNTLA D/O LATE SH. PADAM DEV ALL RESIDENTS OF VILLAGE BATHOE, P.O. DHARAMPUR, TEHSIL KASAULI, DISTT.
SOLAN, H.P.
2.SHRI PREM SINGH SON OF SHRI PARAS RAM.
3. SHRI SUNDER SINGH SON OF SHRI PARAS RAM ALL RESIDENTS OF VILLAGE TOP KI BER, P.O. DEOTHI, TEHSIL AND DISTRICT SOLAN, H.P.
4. SHRI AMAR SINGH SON OF SHRI NANDA, RESIDENT OF VILLAGE TOP KI BER, P.O. DEOTHI, TEHSIL AND DISTRICT
5. VED PRAKASH SON OF SHRI NANDA, RESIDENT OF VILLAGE TOP KI BER, P.O. DEOTHI, TEHSIL AND DISTRICT
6. MADAN SON OF SHRI NANDA, RESIDENT OF VILLAGE TOP KI BER, P.O. DEOTHI, TEHSIL AND DISTRICT
7. NIRMALA DEVI WIFE OF SHRI G. RAM, DAUGHTER OF NANDA, VILLAGE BAJNAL, P.O. DAMKARI, TEHSIL AND DISTRICT SOLAN, H.P.
8. BIMLA DEVI, WIFE OF SHRI CHAIN SINGH, RESIDENT OF NANDA, VILLAGE ANHECH, P.O. ANHECH, TEHSIL KASAULI, DISTRICT SOLAN.
9. SMT. SUBHADRA DEVI WIFE OF SHRI HIRA SINGH, DAUGHTER OF SHRI NANDA, R/O VILLAGE DAWALA, P.O. DHARAMPUR, TEHSIL KASAULI, DISTRICT SOLAN, H.P.
10. DEVKI DEVI DAUGHTER OF SHRI PARAS RAM, RESIDENT OF VILLAGE TOP KI BER, P.O. DEOTHI, TEHSIL AND DISTRICT SOLAN, H.P.
(SINCE DECEASED THROUGH FOLLOWING LEGAL REPRESENTATIVES:-
10 (A) INDER DUTT, S/O 10(B) KHEM DUTT, S/O
10 (C) NEEMA DEVI, D/O LATE SMT. DEVKI DEVI ALL R/O VILLAGE TOP KI BER, P.O. DEOTHI, TEHSIL AND DISTRICT SOLAN, H.P. (APPELLANTS/PLAINTIFFS NO.1 TO 10 ARE LRS OF SHRI PARAS RAM (DEFENDANT NO.2)
….APPELLANTS/PLAINTIFFS.
(BY MR. BHUVNESH SHARMA, ADVOCATE, FOR APPELLANTS NO.1 TO 9 AND 10 (a) TO 10 (c) )
AND
1. STATE OF HIMACHAL PRADESH THROUGH COLLECTOR, DISTRICT SOLAN, H.P.
…. RESPONDENT/DEFENDANT.
2. SHRI BRIJ MOHAN, SON OF LATE SHRI BRIJ BALLABH SINGH(DELETED VIDE ORDER OF HON’BLE COURT ORDER PASSED IN CMP NO.483/11), 3. SHRI PARAMJIT SINGH S/O LATE SHRI BRIJ BALLABH SINGH
4. SMT. KHUSHVINDER KAUR, D/O LATE SHRI BRIJ BALLABH SINGH
5. SMT. NIRANJAN KAUR, WIFE OF SHRI BRIJ BALLABH SINGH (DELETED VIDE HON’BLE COURT ORDER DATED 23-5-2013, PASSED IN CMP NO.483/11)
ALL RESIDENTS OF HOUSE NO. 249/2, SARDARA STREET LOBORI GATE, PATIALA PUNJAB.
6. SHRI RAVI AHULWALIA SON OF LATE SHRI RAJ BALLABH SINGH.
7. SHRI KARAN AHULWALIA SON OF LATE SHRI RAJ BALLABH.
8. SHRI VARUN AHULWALIA SON OF LATE SHRI RAJ BALLABH.
9. SHRI RANJAN AHULWALIA SON OF LATE SHRI RAJ BALLABH.
ALL RESIDENTS OF K-5-A, KALKAJI, NEW DELHI.
10. MRS. KIRAN WALIA WIFE OF SHRI RAJ KUMAR WALIA, DAUGHTER OF LATE SHRI RAJ BALLABH SINGH, RESIDENT OF MOHALLA KANUNGO, MURADABAD, DISTRICT MURADABAD, U.P.
11. SHRI RATTAN LAL SON OF SHRI RAGHU.
12. SHRI TILAK RAJ SON OF SHRI RAGHU.
13. SMT. MOHNI DEVI DAUGHTER OF SHRI RAGHU.
14. SMT. MEENA DEVI DAUGHTER OF SHRI RAGHU.
15. SMT. KAMLA DEVI DAUGHTER OF SHRI RAGHU.
16. SMT. SHEELA DEVI DAUGHTER OF SHRI RAGHU.
ALL RESIDENTS OF DHARAMPUR BATHOL, TEHSIL AND DISTRICT SOLAN.
17. GRAM PANCHAYAT DHARAMPUR THROUGH ITS PRESIDENT, THESIL &
DISTRICT SOLAN, H.P.
…..PROFORMA RESPONDENTS.
(BY MR. DINESH THAKUR, MR. SUMESH RAJ, MR. SANJEEV SOOD, ADDITIONAL ADVOCATES GENERAL, WITH MR. MANOJ BAGGA, ASSISTANT ADVOCATE GENERAL, FOR RESPONDENT NO.1-STATE)
(MR. BHUPENDER GUPTA, SENIOR ADVOCATE, WITH M/S JANESH GUPTA AND PRANJAL MUNJAL, ADVOCATES, FOR RESPONDENTS NO.6 TO 10)
( MR. JAGAN NATH, ADVOCATE, FOR RESPONDENT NO.11)
(NONE FOR REMAINING RESPONDENTS)
.
REGULAR SECOND APPEAL NO.177 OF 2009
1. SHRI RAVI AHLUWALIA, SON ] 2. SHRI KARAN AHLUWALIA, SON ] 3. SHRI VARUN AHLUWALIA, SON]
4. SHRI RAJAN AHLUWALIA, SON] OF LATE SHRI RAJ BALLABH SINGH ALL RESIDENTS OF K-5/A, KALKAJI, NEW DELHI-110019.
5. MRS. KRISHNA WALIA (SINCE DECEASED) THROUGH HER LEGAL REPRESENTATIVES:
(a) MS. SONIA WALIA, DAUGHTER ]
(b) MR. GURMEET SINGH WALIA, SON ] OF LATE MRS.
KRISHNA WALIA WIFE OF SHRI RAJ KUMAR WALIA BOTH RESIDENTS OF HOUSE NO.676, SECTOR 28, FARIDABAD (HARYANA).
…. PLAINTIFFS- APPELLANTS.
(BY MR. BHUPENDER GUPTA, SENIOR ADVOCATE, WITH M/S JANESH GUPTA AND PRANJAL MUNJAL, ADVOCATES)
VERSUS
1. STATE OF HIMACHAL PRADESH THROUGH COLLECTOR SOLAN, TEHSIL AND DISTRICT SOLAN (HP)-
173212.
2. GRAM PANCHAYAT DHARAMPUR, VILLAGE AND P.O. DHARAMPUR, TEHSIL KASAULI, DISTRICT SOLAN (HP)
THROUGH ITS PRESIDENT.
3. SHRI BRIJ MOHAN (SINCE DECEASED) NAME ORDERED TO BE DELETED VIDE ORDER DATED 08.09.2010 PASSED BY THE HON’BLE COURT.
4. SHRI PARAMJIT SINGH SON OF LATE SHRI BRIJ BALLABH SINGH, RESIDENT OF 249/2 SARDARA STREET, LAHORI GATE PATIALA, DISTRICT PATIALA (PUNJAB).
5. SMT. NIRANJAN KAUR (SINCE DECEASED), NAME ORDERED TO BE DELETED VIDE ORDER 19.07.2013 PASSED BY THE HON’BLE COURT.
6. SMT. KHUSHVINDER KAUR WIFE OF S. KULWANT SINGH, RESIDENT OF C-2/32 JANAKPURI, NEW DELHI.
7. SHRI PADAM DEV, SON ] 8. SHRI PREM SINGH, SON ]
9. SHRI SUNDER SINGH, SON ] OF SHRI PARAS RAM ALL RESIDENTS OF VILLAGE DHARAMPUR BATHOL, TEHSIL KASAULI, DISTRICT SOLAN (HP).
10. SMT. DEVKI DEVI (SINCE DECEASED) THROUGH HER LEGAL REPRESENTATIVES:- (A) SHRI INDER DUTT, SON ] (B) SHRI KHEM DUTT, SON ]
(C) SMT. NEEMA DEVI, DAUGHTER ] OF LATE SHRI BIBHIA &
SMT. DEVKI DEVI ALL RESIDENTS OF TOP-KI- BER, POST OFFICE DEOTHI, TEHSIL AND DISTRICT SOLAN (H.P.)
11. SHRI AMAR SINGH, SON ]
12. SHRI VED PRAKASH, SON ]
13. SHRI MADAN, SON ] OF SHRI NANDA ALL RESIDENTS OF VILLAGE TOP-KI-BER, POST OFFICE DEOTHI, TEHSIL AND DISTRICT SOLAN (HP)
14. SMT. NIRMALA DEVI WIFE OF SHRI G. RAM (DAUGHTER SHRI NANDA), RESIDENT OF VILLAGE BAJNAL, P.O. DAMKARI, TEHSIL AND DISTRICT SOLAN (HP).
15. SMT. BIMLA DEVI WIFE OF SHRI CHAIN SINGH (DAUGHTER OF SHRI NANDA) RESIDENT OF VILLAGE AND P.O. ANEHCH, TEHSIL KASAULI, DISTRICT SOLAN (HP).
16. SMT. SUBHADRA DEVI WIFE OF SHRI HIRA SINGH (DAUGHTER OF SHRI NANDA), RESIDENT OF VILLAGE DAWALA P.O. DHARAMPUR, TEHSIL KASAULI, DISTRICT SOLAN (HP).
17. SHRI RATTAN LAL, SON ] 18. SHRI TILAK RAJ, SON ]
19. SMT. MOHINI DEVI, DAUGHTER ] 20. SMT. KAMLA DEVI, DAUGHTER ] 21. SMT. MEERA DEVI, DAUGHTER ]
22. SMT. SHEELA DEVI, DAUGHTER ] OF SHRI RAGHU RAJ ALL RESIDENT OF VILLAGE DHARAMPUR BATHOL, TEHSIL KASAULI, DISTRICT SOLAN (HP).
…. DEFENDANTS-RESPONDENTS.
(BY MR. DINESH THAKUR, MR. SUMESH RAJ, MR. SANJEEV SOOD, ADDITIONAL ADVOCATES GENERAL, WITH MR. MANOJ BAGGA, ASSISTANT ADVOCATE GENERAL, FOR RESPONDENTS-STATE)
(NAME OF RESPONDENT NO.3 STANDS DELETED VIDE ORDER DATED 08.09.2010)
(MR. RAJESH KUMAR, ADVOCATE, FOR RESPONDENT NO.4)
(MR. BHUVNESH SHARMA, ADVOCATE, FOR RESPONDENTS NO.7 TO 16)
(NONE FOR REMAINING RESPONDENTS)
Whether approved for reporting?1 Yes This appeal coming on for hearing stage this day, the Court passed the following:
J U D G M E N T
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 & 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 grand-father 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 grand-father 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 plaintiff is owner in possession of the suit land ? OPP.
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.6-
A 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 mis-joinder 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 their respective conte
