IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 343 of 1998 Reserved on: 19.11.2008 Date of decision: 20.11.2008 Gurmeet ... Appellant Versus State of H.P. … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. R.K. Gautam, Senior Advocate with Mr. Naveen K. Bhardwaj, Advocate. For the respondent: Ms. Shubh Mahajan, Deputy Advocate General. V.K. Ahuja, J.: This is an appeal filed by the appellant against the judgment and decree of the Court of learned District Judge, Solan, dated 18.12.1997, vide which he dismissed the appeal filed by the appellant against the order passed by the Assistant Collector Ist Grade, exercising the powers of Civil Court. Briefly stated, the facts of the case are that a report was made by the Patwari to Assistant Collector, 2nd Grade, about the encroachment of the Government land by the plaintiff comprised in Khasra No. 207/1 measuring 0-7 Biswas, situated in village Behli, Tehsil Nalagarh. It was alleged therein that the plaintiff has constructed a house and Chhan over it. On receipt of the said report, the Assistant 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Collector, 2nd Grade, issued show cause notice to the plaintiff, who took the plea that he is in possession for the last 40 years peacefully and continuously without any obstruction and has become owner by way of adverse possession. The plaintiff raised a question of title. The Assistant Collector, 2nd Grade, after summary enquiry observed that a question of title was involved and Assistant Collector Ist Grade, was competent to try the question and he proceeded to dispose of the case converting himself into a Civil Court and asked the plaintiff to file the proper suit. Thereafter, the plaintiff filed the suit claiming that the suit land had not vested in Punjab Village Common Lands (Vesting and Utilization) Act, 1961 and that he has become owner by way of adverse possession. He also challenged the revenue entries showing the State Government as owner. On the pleadings of the parties, issues were settled by the Assistant Collector Ist Grade, mainly in regard to the question as to whether the plaintiff has become owner of the suit land by way of adverse possession and whether the suit land never vested with the State of H.P. The Assistant Collector Ist Grade, exercising the powers of Civil Court held that the suit land had not vested in the State of H.P. and the plaintiff has not become owner of the suit land by way of adverse possession. On appeal, those findings were affirmed by the learned first Appellate Court. I have heard the learned counsel for the parties and have gone through the record of the case. The appeal was admitted by this Court on the substantial questions of law framed and attached with the memorandum of appeal. A perusal of the substantial questions of law framed shows that the 3 substantial questions raised were as to whether the wrong appreciation of evidence has caused injustice to the appellant, whether the Courts below have rightly decided the question of adverse possession and lastly whether the Assistant Collector Ist Grade was competent to decide the matter when there was a dispute regarding the vesting of the suit land in the State Government under the H.P. Village Common Lands (Vesting & Utilization) Act, 1974. I have gone through the pleadings in the plaint and the findings recorded by both the Courts below and they have held that there was no dispute regarding vesting of the suit land since no case was made out in the plaint by the plaintiff to show that the land had not vested in the State in accordance with law and the learned District Judge had given specific reasons for holding so by observing that there was no material to hold to the contrary. Thus that question did not arise since the land vested in the State Government free from all encumbrances and if the procedure had not been followed in regard to the vestment, it is for the plaintiff to allege and prove, in which he had failed. Coming to the question of wrong appreciation of evidence or the Courts below have decided the question of adverse possession rightly or not, this question in general has been framed but it does not arise from the arguments advanced at the time of hearing. There cannot be reappraisal of evidence by this Court sitting in second appeal unless and until it was brought to the notice of this Court that some material evidence oral or documentary has been ignored or not considered by the Courts below. While appreciating the evidence, both the Courts below had referred to the oral evidence led by the plaintiff and after appraisal of the evidence, the learned trial Court had concluded that the plaintiff had failed to 4 prove his adverse possession, which findings were affirmed by the learned first Appellate Court after referring to the evidence led by the plaintiff. It was also rightly observed that there is no documentary evidence to substantiate the claim of the plaintiff as the oral evidence was not sufficient to prove adverse possession and, therefore, in these circumstances, until and unless, some infirmity was pointed out in the judgments passed by the Courts below, there cannot be reappraisal of the evidence afresh by this Court sitting in second appeal. During the course of arguments, the learned counsel for the appellant had come with the question that the jurisdiction of the Civil Court was not barred and the suit had been dismissed by the learned trial Court on the question of jurisdiction. I am constrained to remark that there are findings of the Assistant Collector Ist Grade, exercising the powers of Civil Court. No such pleadings were raised in the plaint or in the grounds of appeal that the jurisdiction of the Civil Court was not barred. To substantiate his point, the learned counsel for the appellant had also placed reliance upon the decision of this Court in Kaka Ram alias Ram Lal Vs. Financial Commissioner, H.P. and others, 1984 Sim. L.C. 154, wherein it was observed as under:- “If a revenue authority acting under Section 163 determines the question of title when it is seriously in dispute between the parties and consequently passes order in the purported exercise of the power under the said section, such a determination would not oust the jurisdiction of the civil courts. It is well settled that even if the statute gives finality to the orders of special tribunals, such a provision does not exclude those cases where the provisions of the particular Act have not been complied 5 with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.” This decision was made in the year 1984 or so. However, a perusal of Section 163 of the H.P. Land Revenue Act shows that the provisions of this Section were substituted by Section 3 of the H.P. Land Revenue Act, 1971. The relevant provisions of sub-sections (3) and (5) of Section 163 read as under:- (3) When there is a question as to title or to the adverse possession, wherein the possession is claimed by an encroacher for a period beyond thirty years in relation to the land from which ejectment is made or is to be made under this section, the Revenue Officer, not below the rank of an Assistant Collector of the First Grade, shall proceed to determine the question, as if he, were a civil court and shall exercise all such powers as are exerciseable by a civil court. (5) An appeal from the decree of the Revenue Officer made under sub-section(4) shall lie to the District Judge as if that decree were a decree of a Subordinate Judge in an original suit.” It is, therefore, clear that when this question was tried by the Revenue Officer in the year 1996, this new provision of Section 163 had come into force, which question was to be decided by the Assistant Collector Ist Grade, exercising the powers of Civil Judge. The facts of the case clearly show that the Assistant Collector Ist Grade, exercised the powers of Civil Judge, according to the new provisions and tried the suit as Civil Suit and since the appeal lies to the District Judge, that remedy was also availed by the appellant. At no point of time, any plea was raised that the Assistant Collector Ist Grade was not 6 competent to try the suit or the suit should have been filed before the Civil Court and rather the plaintiff filed the suit before the Revenue Officer when he gave the view that a civil suit should be filed taking such plea of adverse possession. Therefore, no such question arises for determination and the suit was tried according to law in view of the amended provisions of Section 163 of the H.P. Land Revenue Act. The decision in the above case was prior to the amendment of Section 163 and it does not apply to the present facts. It only lays down that this provision does not exclude those cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. These observations were made by the Division Bench of this Court considering the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1954 and reference was also made to Section 163 of the H.P. Land Revenue Act. However, in view of the amended provisions of Section 163, the suit was rightly tried by the Assistant Collector Ist Grade as Civil Court, which findings were affirmed by the learned first Appellate Court. Therefore, no substantial question of law arose during the course of arguments. In view of the above discussion, there is no merit in the appeal filed by the appellant, which is dismissed accordingly. Decree sheet be prepared accordingly. ( V.K. Ahuja ), November 20, 2008 Judge (BSS) 7 s