IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: RSA.No.409 of 2001 Date of Decision : January 3, 2008 Munish Kumar. …Appellant. Versus State of H.P. and another. …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for judgment?1 No. For the appellant: Mr.Ramakant Sharma, Advocate. . For Respondents. Mr.Ashok Chaudhary, Additional Advocate General. Sanjay Karol, J. (Oral). The present appeal arises out of common judgment and decree dated 28.5.2001 passed by District Judge, Solan, H.P. in Civil Appeals No. 22-NL/13 of 2001 and 27-NL/13 of 2001, dismissing the appeals and upholding the judgment and decree dated 12.1.2001 passed by Sub Judge, Nalagarh, H.P. in Civil suit No. 92/1 of 1996. The present appeal was admitted on the following substantial questions of law: 1. Whether the learned courts below are right in dismissing the suit on the ground of limitation especially when the limitation was not set up as defence by the State nor any issue was framed in that behalf? 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 2. Whether the learned courts below are right in dismissing the suit despite coming to the conclusion that the order of the A.D.M.Solan cancelling the allotment in favour of the appellant was without jurisdiction? 3. Whether the learned lower appellate court is right in drawing an adverse inference against the appellant by misinterpreting the provisions of Section 114(g) of the Indian Evidence Act? For the purpose of convenience, the appellant hereinafter is referred to as the ‘plaintiff’ and the respondents are referred to as defendants. The plaintiff was allotted land measuring 4 Bighas 2 biswas, situated in village Juddi Khurd, Tehsil Nalagarh, District Solan, H.P. under the provisions of H.P. Village Common Lands Vesting and Utilization Act, 1974 (hereinafter referred to as the Act). The possession of the same was delivered to the plaintiff in the year 1975. Vide order dated 3.4.1984 passed in Case No.149/83 (Ext.P-4), the allotment in question was cancelled by the Commissioner (ADM), Solan, H.P. It is the common case of the parties that the plaintiff continued to be in possession of the same. However, vide notice bearing No. 11/96 dated 18.1.1996 (Ext.P-1), ejectment proceedings were initiated by the defendants against the plaintiff under Section 163 of the H.P. Land Revenue Act. According to the plaintiff, in the year 1995 for the first time the Patwari started interfering into the plaintiff’s possession. It is also the common case of the parties that Ext.P-1 was issued as a consequence of Ext.P-4. The plaintiff assailed Ext.P-1 3 and Ext.P-4 by filing Civil Suit No. 92/1 of 1996 before the Sub Judge, Nalagarh, District Solan, H.P. on 4.4.1996. The Court below framed the following issues:- 1) Whether order dated 3.4.1984 passed by learned A.D.M., Solan, is illegal, null and void? OPP 2) Whether notice dated 18.1.1996 issued by A.C Grade II, Nalagarh, is illegal, null and void? OPP 3) Whether this Court has no jurisdiction to try the present suit? OPD 4) Whether this suit has not been properly valued for the purpose of Court fee and jurisdiction? OPD. While deciding Issue No.1, the Court held that in view of ratio of law laid down by this Court in State of Himachal Pradesh vs. Hakam (RSA No. 21 of 1990, decided on 17.11.1994), the Commissioner had no jurisdiction to cancel the allotment and consequently it was so held that impugned order dated 3.4.1984 (Ext.P-4) was without jurisdiction and the issue was answered in favour of the plaintiff. However, while deciding Issue No.2, against the plaintiff, the Court held that the suit filed by the plaintiff was beyond the period of limitation and was accordingly dismissed in terms of judgment and decree dated 12.1.2001. Aggrieved by the findings of the Court below, both the plaintiff and defendants filed separate appeals being Civil Appeal No. 22-NL/13 of 2000, titled as Munish Kumar vs. State of H.P. and Appeal No. 27-NL/13 of 2001 titled as State of H.P. vs. Munish Kumar. The first Appellate Court dismissed the defendants’ appeal holding as under:- 4 “The contention of the appellant that the findings of the ld. Trial court on Issue No.1 are wrong and the same are liable to be set aside and further contention of the Ld. Counsel for the appellant that findings on Issue No.1 are based on surmises and conjectures and the same are liable to be set aside and rejected being devoid of any force because our own Hon’ble High Court of H.P. in case titled as State vs. Halam, RSA No. 21 of 90, decided on 17.11.1994 specifically decided the question whether the allotment can be called in favour of the person who was having some joint share in some joint land and findings of the Hon’ble High Court is binding upon subordinate Court under the provisions of law. Hence the contention that findings of ld. Trial Court on Issue No.1 are wrong and liable to be set aside and are based upon surmises and conjectures are devoid of any force is rejected.” Thus first Appellate Court concurred with the finding of the trial Court to the effect that the Commissioner did not have the jurisdiction to cancel the allotment. It is an admitted case of the parties that this concurrent finding of fact has not been assailed by the defendants and has attained finality. However, while dismissing the plaintiff’s appeal, the Court held as under:- “I am of the view that in the present case Limitation start when the plaintiff-appellant was dispossessed from the suit land and it was obligatory upon plaintiff-appellant to file application under Section 5 of the Limitation Act when the suit of the plaintiff was prima facie barred on the face of it.” 5 The fact of the matter being that subsequent to the passing of the orders dated 3.4.1984 the plaintiff continued to be in possession of the allotted land, which is quite evident from Ext.P-1, notice dated 18.1.1996 issued by the defendants seeking ejectment of the plaintiff from the allotted land. Plaintiff’s possession on the allotted land is evident from the notice Ext.P-1 itself. It is not the case either of the parties that subsequent to the issuance of the said notice, the plaintiff has been dispossessed. In fact notice dated 18.1.1996 was subject matter of challenge in the Civil suit, which was instituted on 4.4.1996. The plaintiff has continued to be in possession during the pendency of the suit. The plaintiff has been able to prove that Ext.P-4 was without jurisdiction and no steps were taken by the defendants, whatsoever, in enforcing the said order. According to the plaintiff and rightly so, the order in question without jurisdiction was accepted by the defendants themselves and resultantly no consequential steps were taken by them. It was only in the year 1995 and January, 1996 that the possession was sought to be taken by the defendants without any success and the suit was immediately filed. Therefore, in my view, the suit filed by the plaintiff cannot be said to be beyond the period of limitation considering the ratio of law laid down by this Court in State of H.P. vs. Jeet Singh, Latest HLJ 2000 (HP) 252. Having arrived to the conclusion that the Commissioner did not have the jurisdiction, the plaintiff’s suit ought to have been decreed particularly when the parties were not on issue on the point of limitation and no issue was framed by the trial Court on the said point. 6 The finding of fact, only by the 1st Appellate Court, to the effect that the plaintiff stood dispossessed from the suit land is erroneous and not borne out from the record in any manner. In view of my decision on Questions No. 1 and 2, substantial questions of law No. 3 is not being decided. For the foregoing reasons, judgments and decrees of both the Courts below are accordingly set aside and the suit of the plaintiff, as prayed for, is decreed. Decree sheet be prepared accordingly. (Sanjay Karol), January 3, 2008 Judge. (C)