Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA.541 of 2001. Judgment reserved on: 12.5.2011. Date of Decision: May 17, 2011. Ashwani Kumar & another. ….. Appellants. Versus Anil Kumar & others. …. Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the Appellants : Pt. Om Parkash Sharma, Advocate. For the Respondents: Mr. Ajay Sharma, Advocate for respondents No.1 to 3. Mr. A.K.Bansal, Addl. Advocate General for respondent No.4. SURINDER SINGH, J. The defendants having failed in both the courts below, directed the present Regular Second Appeal under Section 100 of the Code of Civil Procedure, which was admitted, on the following substantial questions of law:- 1. Whether the courts below are right in holding that civil court has the jurisdiction in the present case? 2. Whether both the courts below have misread and mis-interpreted the oral as well as documentary evidence on record to come to the conclusion that the respondents/ plaintiffs are in exclusive - 2 - possession of the land in dispute and the vestment of the suit land in the State of Himachal Pradesh is wrong and the revenue entries are also wrong? 2. Precisely the facts giving rise to the present appeal are that the respondents hereinabove to be called as ‘the plaintiffs’ sought the relief of declaration against the appellants to be referred as ‘the defendants’, with respect to the suit land in civil Suit No.410/93, with consequential relief of prohibitory injunction. 3. The plaintiffs’ case is that earlier the suit land was a ‘Shamlat land’, which was wrongly vested in the Gram Panchayat under the provisions of the Punjab Village Common Lands (Regulation) Act, 1961, in short ‘1961 Punjab Act’. The plaintiffs claimed that the suit land was ‘Hassab Rasad Malgujari of Bartardari of Tikka’ and was in possession of their grand-father Maya Dass. This fact was recorded in the jamabandi for the year 1956- 57 and after the death of Maya Dass, his estate was inherited by his son Raghunath, father of the plaintiffs and they came in its exclusive possession. Suit land was assessed to the land revenue and they have been paying 0.29 paise. Since the land was recorded as - 3 - ‘Hassab Rasad Malgujari’, therefore, it could not have been vested in the Gram Panchayat even subsequently, in the Himachal Pradesh under the H.P. Village Common Land (Vesting & Utilization) Act, in short the ‘H.P. Act’. It is also pleaded that the entry of the predecessor-in-interest of defendants No.2 and 3 in joint possession of the suit land to the extent of half share was wrong and illegal. Since the plaintiffs also challenged its vestment in the State of H.P. defendant No.1, as such, notice under Section 80 of the Code of Civil Procedure was also served upon them. 4. Defendant-State resisted and contested the suit and filed the written statement disputing the jurisdiction of the Civil Court and also that earlier the vestment was rightly made in the Panchayat under the provisions of ‘1961 Punjab Act’ and thereafter in the State of H.P. under the ‘H.P.Act’ and contended that the plaintiffs as well as defendants No.2 and 3 were shown wrongly in possession thereof, thus liable to be evicted. 5. The private defendants in their written statements raised preliminary objections of estoppel, cause of action, limitation and jurisdiction. On merits, they pleaded that initially one Totu son of Kharku was in - 4 - possession of the suit land and the plaintiffs had no concern in any manner therewith nor they related to him. Plaintiffs and defendants No.2 and 3 remained in its joint possession and supported revenue entries in their favour. It was also pleaded that the suit land is abutted to their shops and one of the shop and suit land had been rented out to Amin Chand son of Medho @ `48/- per month while denying the claim of plaintiffs prayed for dismissal of the suit. 6. The replication to both the written statements was filed by the plaintiffs. They denied the stand taken by the defendants and on merits reaffirmed even paras of the plaint. 7. On the pleadings of the parties, learned trial Court framed the following issues:- 1. Whether the suit land has wrongly been vested on defendant No.1? …OPP. 2. Whether the revenue entries in the name of defendants No.2 and 3 are wrong and liable to be corrected? …OPP. 3. Whether the plaintiffs are owners in possession of the suit land, as alleged? …OPP. 4. Whether the Civil Court has no jurisdiction to try and entertain the suit, as alleged? …OPD. 5. Whether the suit is barred by limitation? ...OPD. - 5 - 6. Whether the act, conduct, acquiescence and silence of the plaintiffs is bar to the present suit? …OPD. 7. Whether the suit is bad for non-joinder of necessary parties? …OPD. 8. Whether the plaintiff has no cause of action to file the present suit? …OPD. 9. Whether the suit is bad for want of notice under Section 80 C.P.C.? …OPD-1. 10. Relief. 8. Both the parties led their evidence and after appreciating the rival contentions in the light of the evidence on record, learned trial Court held that the suit land was recorded from its very inception as ‘Shamlat Deh Hassab Rasad Malgujari’. The said land fell in the undivided State of Punjab, to which ‘1961 Punjab Act’ applied. It vested in Gram Panchayat as per the provisions of Section 2(g) of the said Act. The said Act provides that in case of any dispute arising there-from, the same has to be decided by the Collector of concerned district and under Section 6 of the Punjab Act the orders passed would be final. Section 13 of the H.P. Act read with Rule 9 framed there-under makes the same provision providing the procedure, which requires the notices to be sent to the interested parties inviting their objections and after - 6 - making the due inquiry, the vestment of the land would follow in the State of H.P. Thus, the learned trial Court held that merely the attesting of mutation and ordering for its vestment in the Panchayat or in the State is not enough to dislodge the plaintiffs from its possession, especially when the procedure as per law was not adopted by the concerned authorities, thus, the vestment was held to be without following procedure and jurisdiction. Therefore, the learned trial Court held the civil Court has the jurisdiction to try and determine the suit and the vestment of the suit land earlier in the Panchayat and later in the State of Himachal Pradesh is wrong and illegal. The learned trial Court also answered Issues No.2 and 3 partly in favour of the plaintiffs and other issues were decided against the defendants, as such the suit was partly decreed to the extent that the plaintiffs are in exclusive possession of the suit land and the vestment of the suit land in the State of Himachal Pradesh and further the revenue entries showing the defendants No.2 and 3 in joint possession are also wrong. Consequently, a decree for prohibitory injunction was passed against the defendants till they are evicted by the State in - 7 - accordance with law. It also held that this judgment passed by the learned trial Court shall not debar the defendants-State from conducting an inquiry under the ‘H.P. Act’ and Rules framed there-under for its vestment in favour of the State of Himachal Pradesh. 9. Defendant-State did not assail these findings against them in the appeal. Only defendants No.2 and 3 challenged the judgment and decree of the learned trial Court before the first appellate Court. 10. The contesting defendants, contended before the learned First Appellate Court that the learned trial Court held the plaintiffs exclusive owners in possession of the suit land, but they are also joint owners in possession alongwith them as their father had constructed the shop on the suit land which was rented out to one Amin Chand for `48/- alongwith adjoining land in dispute and after his death, they came into its possession. The revenue entries showing them as such are correct and the findings of the learned trial Court contrary to it are wrong and illegal. They also disputed jurisdiction of the Civil Court to try and determine the present suit and took up the point of limitation and also that the plaintiffs were estopped by their act and conduct to file the suit as they remained silent for more than 50 year. - 8 - 11. The learned first appellate Court after hearing the parties and re-examining the evidence in the light of the above contention raised, did not find any fault in the impugned judgment and decree passed by the learned trial Court, as such, their appeal was dismissed, hence the present Regular Second Appeal (RSA). 12. Pt. Om Parkash Sharma, learned counsel for the appellant reiterating the same stand as taken before the Courts below vehemently argued that the civil Court in the matter has no jurisdiction at all. He also took me through the evidence on record to show that the Courts below have misread and mis-interpreted the evidence on record. 13. Contra, Shri Ajay Sharma, learned counsel for the private respondents-plaintiffs countered the above arguments and supported the judgment and decree passed by the Courts below. 14. Shri A.K. Bansal, learned Additional Advocate General for the defendant-State submitted that the issue with respect to the vestment was decided against the State and no appeal has been preferred by the State, therefore, substantial questions of law No.2 as - 9 - framed with respect to the vestment does not arise at all. 15. I have given my thoughtful consideration to the rival contentions of the parties and have also gone through the evidence on record. 16. Insofar as Issue No.1 with respect to the vestment of the suit land in favour of State defendant No.1 is concerned, it stands decided against defendant-State and no appeal has been preferred by them, as such it has attained finality and they are at liberty to initiate the proceedings for its vestment in the State in accordance with law. 17. Now, the dispute inter-se the private parties, is with respect to the possession qua the suit land. The plaintiffs are claiming themselves to be in joint possession of the suit land, whereas the defendants have claimed themselves to be in its exclusive possession. There are concurrent findings of facts qua possession against the defendants. 18. In fact the suit land was earlier comprised of khasra No.412 min and thereafter it was allotted khasra No.420 min. During the settlement, it was assigned Khasra Nos. 783 and 784. - 10 - 19. In Ext.P5, jamabandi for the year 1956-57, the suit land was recorded as ‘Shamlat Hassab Rasad Malgujari’ in the possession of Maya Dass as co-sharer. In the subsequent jamabandi Ext.P4 for the year 1959- 60 the aforesaid entries were repeated. Thereafter in the jamabandi Ex.P3 for the year 1973-74, it has been shown to be in exclusive possession of plaintiffs and this entry was repeated in Ext.P2 i.e. jamabandi for the year 1981-82. It is for the first time that in the jamabandi Ext.P1for the year 1987-88 the private defendants were shown in joint possession of the land in the column of possession, whereas State of Himachal Pradesh has been shown to be its owners. Thus, it is evident that right from the very beginning either the plaintiffs or their predecessors-in-interest were shown to be in exclusive possession of the suit land, but for the first time in the Jamabandi for the year 1987-88 the private defendants were shown in joint possession of the suit land in the column of possession. The defendants did not explain at all in their evidence as to how and under whose order they were inducted in the record of rights aforesaid in joint possession of the suit land. There is also no evidence that the defendants were the members of the proprietary-body - 11 - of the village. Though, their case is that they had rented out one of the shops and the vacant land to one Amin Chand, as stated above, but even he was not examined to substantiate their plea. The oral evidence led by the plaintiffs is consistent with the revenue entries for the last more than 30 year. Therefore, in view of the above, I do not find that the Courts below have misread and mis-interpreted the evidence on record in any manner. Since there exists a stray entry in favour of the defendants, the learned Courts below have properly read and interpreted the evidence on record and the civil Court has jurisdiction to try and determine the present suit, as such, the substantial questions raised above are accordingly answered. 20. No other point urged before me. 21. The appeal filed by the defendants sans merits and is accordingly dismissed. Parties are left to before their own costs. (Surinder Singh) May 17, 2011. Judge. (Pds)