IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 599 of 2001 Date of Decision 28th June ,2011 ________________________________________________________ State of H.P. & others ….Appellants Versus Manmohan Singh ….Respondent. ________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No ________________________________________________________ For the Appellants: Mr. P.K. Sharma, Addl. Advocate General with Ms. Shubh Mahajan, Deputy Advocate General. For the Respondent: Mr. Ajay Sharma, Advocate. _____________________________________________________________ Dev Darshan Sud, J(oral) This second appeal has been preferrred by the State against the findings of two Courts below affirming the judgment and decree passed in favour of the plaintiff-respondent. 2. The plaintiff filed a suit for a decree of declaration that land measuring 0-15 marlas, which is a part of land measuring 3 Kanals-07 marlas bearing Khewat No. 1676 min, Khatauni No. 4347 min, khasra No. 5821/2 as entered in the jamabandi for the year 1987-88, situate in village Dulehar, Had 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 Bast No. 526, Sub Tehsil Haroli, Tehsil and District Una is exclusively owned and possessed by him and the revenue entries showing the land as ‘Charand’ in the ownership of the State of H.P. are null and void. The plaintiff pleaded that the State has no right, title or interest in the suit land and that orders dated 8.11.1989 Ext.P6 and 13.3.1991 Ext.P10 passed by the Naib Tehsildar Haroli and the Tehsildar, Una are wrong, null and void and do not affect his rights. A decree for permanent prohibitory injunction was also prayed for restraining the defendant-appellant from interferring in the suit land. 3. The plaintiff pleaded that the suit land was previously recorded as Shamlat Deh and was in his possession since the time of his ancestors as ‘tasabbar malkiat khud’ without payment of rent to the body of the village proprietors for the last more than 60 years and they had built their residential house on this land and he has been residing there for a long period of time at least for the last 12 years as its exclusive owner. He claimed possession of the land since the time of his ancestors. 4. The case pleaded is that since there was a residential house built on this land much prior to the enforcement of the Punjab Village Common Lands (Regulation) Act, 1961, it could not legally vest in the Village Panchayat under the said Act and subsequently under the Himachal Pradesh Village Common Lands Vesting and Utilisation Act, 1974. 5. The case of the State is that plaintiff is an illegal occupant of this land and proceedings under Section 163 of the Himachal Pradesh Land Revenue Act were initiated against him 3 consequent to which order for ejectment was passed on 8th November, 1989 directing his dispossession. Another order dated 13th March, 1991 regarding the issuance of a warrant of ejectment was also passed. On the pleadings, as many as nine issues were settled, but only first two issues related to the possession of the plaintiff on the suit land and legality of the orders passed by the Naib Tehsildar, Haroli and the Tehsildar, Una. 6. On the evidence recorded the learned trial Court held that adverse possession claimed was not established for the reason that the land being Abadi deh was in possession of the plaintiff since the time of his ancestors. One of the other points raised was that in absence of the representation of the entire body of the village proprietors that is to say in absence of the necessary parties, no effective decree could be passed. On the other issues, the learned trial Court has discussed in detail the provision of the Punjab Act and exclusion of the land from vestment in the State. 7. The State appealed. The same points, which were raised before the learned trial Court, were reteriated before the learned Appellate Court. The learned District Judge noticed that the plaintiff has been able to establish his possession on the land for the last more than 70 years on the evidence on record. The important point urged before the learned District Judge was that the State can dispossess the plaintiff from the suit land only if it has vested in the Gram Panchayat under the Punjab Village Common Lands (Regulation) Act, 1961 and subsequently under 4 the H.P. Village Common Lands Vesting and Utilisation Act, 1974. The Court notices: ”15. …..It is admitted position of the parties that the suit land is out side the abadi deh of village Dulehar and is being used for the purpose of a house or residence. Under Section 2 (g) (5) (vi) of the Punjab Act. Such lands did not vest in the Gram Panchayat and they also did not vest in the State of H.P. under Section 3(2) (c) of the H.P. Village Common Lands Vesting and Utilisation Act, 1974. As such, the entries in the revenue record showing the suit land as Charand are incorrect and such land has not vested in the State of H.P. either under the Punjab Village Common Lands (Regulation) Act, 1961 or under the H.P. Village Common Lands Vesting and Utilisation Act, 1974. The learned trial court has rightly come to the conclusion on this legal aspect also that the suit land has not vested in the state of H.P.” In these circumstances, the appeal filed by the State was dismissed. 8. This appeal has been preferred by the State on two substantial questions of law which are:- 1. Whether the Civil Courts had jurisdiction to entertain the suit in view of the bar created under Section 171 of the H.P. Land Revenue Act and under Section 10 of the H.P. Village Common Lands (Vesting and Utilization) Act, 1974? 2. Whether misreading of documents Ext.P-6 and P-10 have vitiated the findings of the learned Courts below? 9. Adverting to question No.2 first, I do not find any misreading of the two documents Ext.P6 and P10 which are orders passed by the Naib Tehsildar and the Tehsildar. This infact 5 is a question of fact. For proceedings under Section 163, the State had to lay a foundation for title, which in this case was one of vestment of the land. This in fact has not been done. I therefore hold that there is no misreading of these two documents. 10. Adverting to question No.1, it seems to be mere academic in nature. The very foundation of the eviction proceedings was the vestment of land in State of H.P. which has not been proved/established on record. In fact, the findings of two Courts below are otherwise. The land having not been vested under the provisions of the Punjab Act, was also excluded under the provision of Himachal Act. In these circumstances, I find no merit in this appeal, which is dismissed. Parties to bear their own costs. June 28th, 2011 (Dev Darshan Sud), ms Judge 6