IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 171 of 1998 Decided on : May 10, 2010 State of H.P. and others …Appellant Versus Smt. Moortu (dead) through LRs …Respondents Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes For the Appellant: Mr. Ramesh Thakur, Assistant Advocate General. For the Respondents: Mr. Bhupender Gupta, Senior Advocate with Ms. Charu Gupta, Advocate. Surjit Singh, Judge (oral) This Regular Second Appeal by the State against the judgment and decree dated 25.10.19997 of learned Additional District Judge was admitted on the following substantial questions of law:- “1. Whether the jurisdiction of the Civil Court is barred in view of specific bar under Section 10 of the H.P. Village Common Land Vesting and Utilization Act? 2. Whether the matter is exclusively triable by the Revenue Court. 3. Whether the misreading of documentary as well as oral evidence on record itself amounts to substantial question of law?” Whether reporters of the local papers may be allowed to see the judgment? …2… 2. Facts relevant for the disposal of appeal may be noticed. Deceased Sanya, now represented by his legal representatives, respondents herein, filed a suit for declaration that he was owner in possession of land measuring 0-77-33 hectares, bearing Khasra No.297, situate in village Karasa, Tehsil Rohru, District Shimla, and order Ext. P-1 of ejectment, passed by Revenue Officer, under Section 163 of the H.P. Land Revenue Act, is illegal and of no consequence upon his rights. It was pleaded that the suit land was initially part of Shamlat land of the village and the plaintiff being one of the co-owners had been in possession of it as a co-owner and he made the land cultivable. It was further pleaded that a large chunk of Shamlat land had been divided by the co-owners among themselves for cultivation purpose and the suit land fell to the share of plaintiff in that division, which took place sometime in the year 1961-62 and ever since he had been in cultivating possession of the same. It was also pleaded that the land did not vest in the State under the H.P. Village Common Lands Vesting and Utilization Act, 1974, because it had been brought under cultivation by the co- owners, prior to the enforcement of the said Act. 3. Suit was contested by the appellants- defendants, i.e. State of Himachal Pradesh and Revenue Officers. It was stated that Civil Court did not have the jurisdiction in the matter. It was denied that the plaintiff …3… had been in possession of the suit land. He was alleged to be an encroacher and the order of ejectment, Ext. P-1, was claimed to have rightly been passed. 4. Trial Court dismissed the suit, holding that the suit land had vested in the State, under the Himachal Pradesh Village Common Lands Vesting and Utilization Act and the order Ext. P1, passed by Assistant Collector, was lawful. Plaintiff’s plea of adverse possession also did not find favour with the trial Court. 5. Plaintiff filed an appeal before the District Judge, which came to be decided by the Additional District Judge, who held that the land, in question, did not vest in the State and was saved from vestment, by virtue of the provision of Section 3(2)(a) of the Act, as it had been partitioned before commencement of the Act and in the partition it had fallen to the share of plaintiff. Also, it was held that the plaintiff had been in adverse possession of the suit land for more than 30 years. Consequently, first Appellate Court accepted the appeal, set aside the decree of dismissal of the suit, passed by the trial Court, and decreed the suit. 6. I have heard the learned Assistant Advocate General as also the learned counsel for the respondents and gone through the record. 7. View taken by the first Appellate Court that the land, in question, was saved from vestment in the State …4… under exception clause contained in Section 3(2)(a) is not correct. Section 3(2)(a) reads as follows: (2) The provisions of sub-section (1) of this section shall not apply to lands described in clauses (b) and (c) of that sub-section if, before the date of commencement of this Act- (a) partition of such lands is made by the individual co-sharers through a process of law by a competent Court or authority (b) xxx xxxx xxxxx (c) xxx xxxx xxxxx 8. In the present case it was not plaintiff’s plea that any partition through a process of law by a competent Court or authority had taken place. His plea was that the co-sharers had partitioned the land among themselves for cultivation purpose. Since the alleged partition was not through a process of law by a competent Court or authority, the aforesaid provision was not attracted. 9. Finding by the first Appellate Court that plaintiff had acquired title by adverse possession can also not be upheld. Before vestment of the land in the State, under the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974, alleged possession of the plaintiff was in the capacity of co-owner and, therefore, it could not be said to be adverse. To prescribe for title against the State, adverse possession has to be for 30 years. Plaintiff was not in possession for 30 years, when he instituted the suit …5… in the year 1986. Therefore, he could not have been said to be in adverse possession. 10. As a matter of fact, when the land had vested in the State under the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974, and the possession was with the co-owners, as is clear from the reading of Jamabandis right from the year 1961-62, Collector was required to have proceeded under the provisions of sub- section (5) and (6) of Section 3 of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974, to take the possession of the suit land. Under sub-section (5) he was required to pass an order directing the land owner to deliver possession within 10 days or such other time as he could have specified in such order and in case of non- compliance of that order he could have taken possession by use of force. This procedure having not been followed, order for ejectment, under Section 163 of the Himachal Pradesh Land Revenue Act, could not have been passed nor could have been proceedings under that Act initiated. Thus, the order Ext. P-1 is illegal and without jurisdiction. 11. All the substantial questions of law on which the appeal was admitted are answered accordingly. 12. As a result of the above discussion and answer to substantial questions of law, appeal filed by the State is accepted. Impugned judgment and decree of the first appellate Court are set aside. However, in view of the finding that order Ext. P-1 passed by the Assistant …6… Collector, under Section 163 of the H.P. Land Revenue Act is illegal and without jurisdiction, a decree for permanent prohibitory injunction restraining the appellant-State and its functionaries from dispossessing the respondents from the suit land, except by due process of law, is passed in favour of the respondents and against the appellants- defendants. 13. Appeal stands disposed of accordingly. May 10, 2010(ss) (Surjit Singh), J