IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Regular Second Appeal No.340 of 1995. Judgment Reserved on: 29.02.2008. Date of decision: 12.03.2008 Smt.Prem Dei & Others ….Appellants Versus Smt.Dharam Dei & Another ….Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Appellants: Mr.G.D. Verma, Senior Advocate with Mr.B.C. Verma, Advocate. For Respondent-1: Mr.Ashwani K.Sharma, Advocate. For Respondent-2: Ms.Ruma Kaushik, Additional Advocate General. Dev Darshan Sud,J. This is the defendants’ appeal against the judgment and decree of the learned District Judge, Shimla, reversing the judgment and decree passed by the learned trial Court dismissing the suit of the plaintiff-respondent Dharam Dei for declaration and injunction on the allegation that defendant No.1 Tek Singh (since deceased) had applied for Nautor land which grant was made in his favour by an order dated 27.7.1974. It was ordered that he would be granted 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 land measuring 11 Bighas 13 Biswas, comprised in Khasra No.862/832/230, situated in village Karog, Chak Nadukhar, Pargana Barbal, Tehsil Suni. The plaintiff had pleaded that Tek Singh was never put in possession of the land as the right holders had objected to it and the case remained pending for sanction of mutation of the land in his favour for a considerable long period of time. It was only on 30.7.1984 that mutation No.278 was sanctioned in his favour. The plaintiff claims that grant of 5 Bighas of land was made to her in Khasra No.861/832/230 in village Nadukhar, Pargana Barabal, Tehsil Suni on 20.1.1981. It was alleged that she developed the land and constructed a double storeyed house over it and also planted an orchard of about 40 trees of apple, plum, apricot, peach, pear etc. The plaintiff pleaded that she is deaf and dumb and the possession of the land delivered to her was developed by her sister Smt.Kanwar Dei. It was submitted that the defendant threatened to dispossess her from the suit land which was in her possession. The plaintiff admits that land comprised under Khasra No.861/832/230, measuring 5 Bighas was sanctioned to her, but she was erroneously put in possession of land measuring 6 Bighas 11 Biswas comprising in Khasra No.862/832/230 by the revenue staff which in- fact had been allotted to the deceased defendant Shri Tek Singh. She pleads promissory estoppel as barring 3 the defendants from recovering the suit land as according to her she was given possession of this land in the presence of defendant by the official of the State and developed it openly to their knowledge. Needless to say that the defendant contested the suit on a number of grounds. On the crucial issue as to whether the plaintiff is in possession of land measuring 6-11 Bighas comprised in Khasra No.862/832/230 and whether she is entitled to an injunction, the learned trial Court, tried these two issues alongwith third issue which was, whether the defendant-appellant was entitled to possession of the land claimed in the counter claim. These three issues were tried together by the learned trial Court holding that since she is not an allottee of this land and that such allotment had been made to the appellant-defendant prior in point of time, as such, she was not entitled to its possession. The learned trial Court relied upon a decision of this Court in Civil Writ Petition No.277 of 1985, titled: Vijay Sood vs. State of H.P. and Others, decided on 31.8.1989, to hold that the principle of estoppel could not be invoked in case of a mistaken belief that allotment of a particular portion of land had been made in favour of a party. The plaintiff appealed to the learned District Judge who, invoked the principles of promissory estoppel holding : 4 “26. Admittedly, the plaintiff is deaf, dumb and illiterate lady. She is simpleton villager whatever land she was put in possession by the revenue officials, she developed the same. She constructed a house consisting of four rooms. She made fields and planted orchard by planting apple and other kinds of plants which are of fruit bearing age. When the plants became of fruit bearing age then the defendants tried to put forth that this land was granted to them finally on 13.7.1984, when their case was decided by the Divisional commissioner in their favour. If the defendants were aware of the land which was measured by the Patwari at the time when the Tatima after preparing Nautor file was prepared in their presence, they would have not allowed the plaintiff to make fields, to plant orchard and to construct a double storeyed house. It seems that the defendant Tek Singh himself was not aware about which of the land was sanctioned in his favour. The tatima must have been prepared by the Patwari in the Patwarkhana without ascertaining factual position at the spot otherwise this mistake would have not occurred.” The defendant is now in appeal. This case was admitted on 23.5.1997 on questions No.1, 2, 3, 5 and 6. 5 I have heard learned counsel for the parties and have gone through the record of the case. Learned counsel appearing for the appellant has cited a number of decisions of the Hon’ble Supreme Court holding that no estoppel can be invoked against the provisions of statute and even otherwise, the conditions precedent for invoking the principle as contemplated by Section 115 of the Evidence Act had not been proved on the record of the case. These judgments are not being considered in detail as on similar facts in CWP No.277 of 1985, decided on 31.8.1989, this Court has held that possession of land granted by the Government on the basis of a mistaken belief either by the grantee or officer of the State, would not grant any right to such grantee and that he would be entitled only to his original grant and not to the piece of land of which he claims possession under a bonafide belief as being the land granted under a lawful act of the State. The facts in the present case for invoking the principle of law as they note down in Vijay Kumar’s case supra are similar but the plaintiff cannot claim any right to the land which she mistakenly thought the subject matter of a grant. This appeal is, therefore, partly accepted. The judgment of the learned District Judge is quashed and set aside. However, it would be inequitable to dispossess the plaintiff from the land which is 6 already in her possession on which she has raised construction of a double storeyed house. Also considering that she is deaf and dumb, it would not be in the fitness of things to evict her from such land. The following directions are, therefore, issued:- (1) The plaintiff-respondent will not be dispossessed from that portion of the land on which she has constructed her house. She will be allowed to retain that land and land in and around the house which will give her ingress and egress from the house. (2) Respondent No.2 is directed to prepare Tatima (spot map) showing the land in possession of the plaintiff- respondent. The possession of the house will be clearly denoted in the Tatima and she will be allowed to retain this portion in addition to land required for her passage to the house and its peaceful user. A further direction is issued that she will be granted such additional land to make up her original grant which was given to her by the State. The 7 respondent No.2 will ensure this land adjoins the house of the plaintiff- respondent and that she is not put to inconvenience. (3) The appellant-defendant would be entitled for the suit land excluding the area on which the plaintiff- respondent had constructed her house and additional land required for the peaceful user of the house. (4) A further direction is issued that grant of the defendant-respondent, late Shri Tek Singh, will be kept intact in so far as the total area granted to him is concerned and the deficit would be made good by respondent No.2. This appeal is, accordingly, disposed of with these directions. There shall be no order as to costs. March 12, 2008. (Dev Darshan Sud) (aks) Judge.