IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 237 of 2001 Date of decision: 16.12.2011. 1. Sheela Devi W/o late Sh. Roop Lal 2. Balak Ram S/o Sh. Shivia (deleted vide order dated 11.8.2011) Both residents of Village Ghat Kumahala, Tehsil Kandaghat, District Solan, H.P. …Appellant. Versus State of Himachal Pradesh through District Collector, Solan, Himachal Pradesh. ..Respondent. Regular Second Appeal under Section 100 of Code of Civil Procedure against the judgment and decree passed on 21.08.2000 by Ld. District Judge, Solan in Civil Appeal No. 49 of 1999 affirming the judgment and decree dated 24.07.1999 passed in Civil Suit No. 121/1 of 1994 by Ld. Sub Judge (1) Kandaghat, Distt. Solan, Himachal Pradesh. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the appellant : Mr. Narender Sharma, Advocate, vice Ms. Minakshi Sharma, Advocate. For the respondent : Mr. J.S.Rana, Assistant Advocate General. Kuldip Singh , Judge ( Oral ) This appeal has been directed against judgment, decree dated 21.8.2000 passed by learned District Judge, Solan in Civil Appeal No. 49 of 1999 affirming judgment, decree dated 24.7.1999 passed by Sub Judge 1st Class, Kandaghat in Civil Case No. 121/1 of 1994. The 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 appellant No.2 Balak Ram died during the pendency of the appeal and his name was deleted on 11.8.2011. 2. The facts, in brief, are that Sheela Devi and Balak Ram set up the case by filing suit that Gram Panchayat Satrol allotted 10 bighas of land comprised in Khasra No. 336/334/313/1 mauza Ghat-Kumhala, Pargana Satrol, Tehsil Kandaghat to Roop Lal out of land comprised in Khasra No. 313 for the purpose of cultivation on lease for five years w.e.f. 21.10.1970 to 25.10.1975 on payment of chakota ` 5/-. Sheela Devi widow of Roop Lal and Balak Ram father of Roop Lal became lessees on said land after the death of Roop Lal. The lease money was paid and the suit land was broken by the lessees, who remained in possession of the said land. 3. In the year 1978 the lease was revived only for 2 bighas out of 10 bighas though remaining 8 bighas of land also remained in possession of Sheela Devi and Balak Ram. The lease was never determined. 4. In the year 1988-89 on the report of Patwari, the Assistant Collector 2nd Grade issued notice under Section 163 of the H.P.Land Revenue Act, 1954 regarding the suit land and the Assistant Collector 1st Grade passed the eviction order on 30.6.1990. The appeal filed before the Sub Divisional Collector was accepted to the extent of 2 bighas but eviction order to the extent of remaining 8 bighas of the suit land was maintained by the Sub Divisional Collector. The Divisional Commissioner, Shimla upheld the order of the Sub Divisional Collector. 3 5. It has been alleged that the ejectment order passed by the authorities was without jurisdiction and liable to be set-aside. It has been stated that in view of coming into force of H.P.Tenancy and Land Reforms Act, 1972 (for short ‘Tenancy Act’) Sheela Devi and Balak Ram had become owners of the suit land. The respondent on the basis of wrong and illegal orders of revenue Courts are threatening to dispossess Sheela Devi and Balak Ram from the suit land. 6. The suit was contested by the respondent by filing written statement in which preliminary objections of want of notice under Section 80 CPC, locus standi, no cause of action, jurisdiction, valuation, court fee and maintainability have been taken. On merits, it has been pleaded that on coming into force of H.P.Village Common Lands (Vesting and Utilisation) Act, 1974 the suit land had vested in the State. The lease case of Roop Lal deceased was examined by the Collector, Sub Division, Kandaghat and his widow Smt. Sheela Devi was given on lease 2 bighas out of 10 bighas of suit land. The lease of the remaining land was cancelled. Sheela Devi and Balak Ram encroached land comprised in Khasra No. 336/334/313/1 measuring 8 bighas. The Assistant Collector 1st Grade passed ejectment order regarding this land on 30.6.1990. The higher revenue authorities upheld the ejectment order. It has been stated that Sheela Devi is merely a lessee on land measuring 2 bighas and has no right, title or interest on the suit land. 7. The replication was filed. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiffs are in possession of the suit land, as lessee, as alleged? OPP 4 2. Whether the entries in the revenue record, in favour of defendants, qua the suit land, are wrong and illegal, as alleged? OPP 3. Whether notice issued by the Collector under Section 163 of the H.P.Land Revenue Act is wrong and illegal, as alleged? OPP 4. Whether the plaintiffs are entitled to the relief of permanent prohibitory injunction? OPP 5. Whether the suit is bad for want of notice under Section 80 CPC? OPD 6. Whether the plaintiffs have no locus-standi to file the suit? OPD 7. Whether the plaintiffs have no cause of action? OPD 8. Whether the civil court has no jurisdiction to entertain and try the suit? OPD 9. Whether the suit is not properly valued for the purposes of court fees and jurisdiction? If so, what is the proper valuation? OPD 10. Whether the suit is not maintainable in the present form? OPD. 11. Relief. The issues No. 1 to 5, 8 and 9 were answered in negative, issues No. 6, 7 and 10 in affirmative and the suit was dismissed by the trial Court on 24.7.1999. In appeal, the District Judge on 21.8.2000 dismissed the appeal. Sheela Devi and Balak Ram filed second appeal which has been admitted on the following substantial questions of law:- 5 1. Whether the State Government in exercise of power under the Himachal Pradesh, Village Common Lands Vesting and Utilisation Act, 1974 could have reduced the area of land under lease without affording an opportunity of being heard to the affected party. 2. Whether violation of principles of natural justice vitiates the judgments and decrees of both the Courts. 8. I have heard the learned counsel for the appellant and learned Assistant Advocate General for the respondent and have also gone through the record. It has been stated by the learned counsel for the appellant that respondent has erred in reducing the lease of the appellant from 10 bighas to 2 bighas without affording an opportunity of hearing. This aspect of the case has not been considered by the two Courts below properly. The impugned judgment and decree are not sustainable. It has been submitted that the appellant continued to be lessee of 10 bighas of land and after coming into force of the Tenancy Act, she has become owner of the suit land. 9. The learned Assistant Advocate General has submitted that the land measuring 10 bighas was given to the husband of the appellant before coming into force of the H.P.Village Common Lands (Vesting and Utilisation) Act, 1974. After expiry of the initial term of five years of lease granted to the husband of the appellant, the Collector, Sub Division, Kandaghat renewed the lease of the husband of the appellant for 2 bighas only. In doing so, no illegality has been committed. The appellant has no right, title or interest over the suit land. She has also been ejected from the suit land under Section 163 of the H.P.Land Revenue Act. The 6 suit is not maintainable. It has also been submitted that there is no question of conferring proprietary rights over the suit land which admittedly is owned by the State and proprietary rights of the land owned by the State cannot be acquired by the tenant under the Tenancy Act. 10. The respondent has raised the issue of maintainability of the suit under Section 171 of the H.P. Land Revenue Act, 1954 (for short ‘Revenue Act’). In these circumstances substantial questions of law No.1 and 2 do not actually emerge from the pleaded case of the appellant. The appellant herself has pleaded in para 10 of the plaint that cause of action has accrued in favour of the appellant in April, 1988 when notice was issued under Section 163 of the Revenue Act and finally on 12.5.1994 when the eviction order has been maintained by the Commissioner, Shimla. The learned District Judge in the judgment dated 21.8.2000 in paragraph 20 has recorded a finding that the plaintiffs after having lost upto Financial Commissioner challenged the eviction before the lower Court by filing the civil suit. The Assistant Collector 1st Grade issued the warrant of eviction Ex.DX-1. It was put into execution and finally on 20.7.1994 the plaintiffs were actually dispossessed from the suit land measuring 8 bighas. As per report at the back of Ex.DX-1, the plaintiff No.2 had purportedly acquiesced to such an ejectment or eviction. This ejectment was preceded by the orders Exts. DW-1/A, DW- 1/B, DW-1/C and DW-1/D right from the Assistant Collector 1st Grade to the Divisional Commissioner (Revenue). 11. The Section 171 of the H.P.Land Revenue Act, 1954 provides as follows:- 7 “171. Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers.- Except as otherwise provided by this Act- (1) A Civil Court shall not have jurisdiction in any matter which the State Government or a Revenue Officer is empowered by this Act, to dispose of or take cognizance of the manner in which the State Government or any Revenue Officer exercises any powers vested in it or him by or under this Act; and in particular - (2) A Civil Court shall not exercise jurisdiction over any of the following matters, namely – (i) to (xxiv) xx xx xx (xxv) any question, as to any land or any right to, or title or interest in, the land which is an encroached land or in relation to which any person claims that it has vested or is deemed to have vested in him and that he can not be ejected therefrom under sub- section (1) of section 163; and (xxvi) the ejectment of any person under Section 163 or the recovery of damages or fine payable under sub-section (1) of that section.” 12. It is admitted case of the appellant that ejectment proceedings were initiated against her under Section 163 of the H.P.Land Revenue Act. It has come on record that ejectment orders were passed by the authorities which are Exts. DW-1/A, DW-1/B, DW-1/C and DW-1/D. The appellant was dispossessed from the suit land vide warrant of ejectment Ex.DX-1. In light of this material on record and in view of Section 171 of the H.P.Land Revenue Act, 1954, the Civil Court has no jurisdiction to try the suit. No fault can be found with the impugned judgment and decree. There is no merit in the appeal. The substantial questions of law No. 1 and 2 are accordingly disposed of. 13. No other point was urged. 14. The result of above discussion the appeal fails and is accordingly dismissed with no order as to costs. December 16, 2011. ( Kuldip Singh ), (GR) Judge.