IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 51 of 1999 Reserved on: 07.05.2011 Date of decision: 20.06.2011 Smt. Ratna Devi Verma ... Appellant Versus State of H.P. and another … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the appellant: Mr. Bhupender Gupta, Senior Advocate with Ms. Charu Gupta, Advocate. For the respondents: Mr. R.M. Bisht, Deputy Advocate General. V.K. Ahuja, J. : This is a Regular Second Appeal under Section 100 C.P.C. filed by the appellant against the judgment and decree of the Court of learned District Judge, Solan, dated 28.10.1998, whereby the appeal filed by the appellant against the judgment and decree of the Court of learned Senior Sub Judge, Solan, dismissing the suit of the plaintiff, was also dismissed. 2. Briefly stated, the facts of the case are that the appellant hereinafter referred to as the plaintiff filed a suit for declaration as against the respondents hereinafter referred to as the defendants. It was alleged by the plaintiff that the land measuring 982 square yards 1Whether reporters of Local Papers may be allowed to see the judgment? 2 comprised in Khasra No. 76/2/1 is a part of the land comprised in Khasra No. 76, situated at Dhar-Ki-Ber was purchased by the plaintiff for a consideration of ` 4000/- from one Smt. Kanta Sharma and the plaintiff was put in actual physical possession of the same on the spot by the seller. It was alleged that the sale was oral. The plaintiff further alleged that previous owner Smt. Kanta Sharma had disclosed at the time of sale that she had purchased the land in question from one Surjan Singh for a valuable consideration and Surjan Singh had purchased the same from Pandit Devi Datt. It was further alleged that the sale in all cases were oral and was by delivery of possession by showing the boundaries on the spot. It was also alleged that the land is situated on the boundaries of village Dhar-Ki-Ber and village Bathol. The plaintiff alleged that in the month of January, 1983, she started developing the land by cutting and digging the same and levelled the same for the purposes of raising construction. The plaintiff constructed a double storeyed pucca house consisting of four rooms in the ground floor, two residential sets of two rooms each in the first floor by spending more than ` 70,000/-. The adjoining land was also said to be part of land comprised in Khasra No. 76 of village Dhar-Ki-Ber. It was further alleged that the construction work of the house of plaintiff was completed by end of July, 1983. In the month of August, 1983, the plaintiff received a notice from the Assistant Collector 1st Grade, Kasauli, wherein it was alleged that the plaintiff had constructed pucca two storeyed house, which is part of the land comprised in Khasra No. 228/89 of village Bathol, which is a government land and the plaintiff had encroached upon the government land. 3 3. It was further alleged that in pursuance of the notice, the plaintiff put appearance before the Assistant Collector 1st Grade, Kasauli and orally stated about the sale from one Smt. Kanta Sharma and that the land is situated at village Dhar-Ki-Ber and she has not encroached upon any government land at village Bathol. The plaintiff alleged that she was ill and could not ascertain the date from the Court of Assistant Collector 1st Grade, Kasauli and in the month of April, 1984, she learnt that she had been proceeded against ex parte on 27.2.1984 and an order of eviction has been passed against her. The plaintiff filed an appeal before the Sub Divisional Collector. The Collector got demarcated the land from a Revenue Officer, who recommended that the land be given to the plaintiff under the government policy for regularization of encroachments, but the Collector without considering the report and request of the plaintiff in this regard dismissed the appeal of the appellant. The plaintiff approached the Divisional Commissioner, Shimla and Financial Commissioner, Himachal Pradesh, but the revision petitions were dismissed by them. A review petition was filed before the Financial Commissioner, who appointed one Shri I.S. Chandel as Local Commissioner, to demarcate the land who submitted his report to the Financial Commissioner that the land shown as Khasra No. 228/89/6 measuring 9 Biswas and Khasra No. 228/89/ 5 measuring 4 Biswas is in possession of the plaintiff, who has constructed two storeyed pucca house and a septic tank. The plaintiff did not admit the said report and filed objections before the Financial Commissioner in regard to the report that the boundaries of two villages were not fixed according to the settlement record. The demarcation was carried out by the Local Commissioner with the help of Latha of village Bathol and 4 not with the help of settlement record of both the villages. The Financial Commissioner sent file to the Deputy Commissioner, Solan, for consideration of the matter for grant of land under the new policy of the Government for regularization of the encroachments. The Deputy Commissioner called a report from the Assistant Collector 1st Grade, Kasauli and without affording any opportunity to the plaintiff rejected the request of the plaintiff for regularization on market price. It was alleged that the plaintiff was an absolute owner of the said land, yet to avoid unnecessary litigation, she was ready to accept the State of Himachal Pradesh as owner of the land and get the same on market price. During the pendency of the case, a mutation was also attested in favour of one Raj Ballabh etc. showing them to be owners in equal shares along with State of Himachal Pradesh. Hence, the suit for declaration challenging the order of eviction passed by the Assistant Collector 1st Grade, Kasauli, and the order passed by the Financial Commissioner rejecting the case of the plaintiff. 4. Defendants took up various preliminary objections. On merits, it was alleged that the land comprised in Khasra No. 76 is a private land and the plaintiff had not purchased the land as per the revenue record. The allegations in regard to issuance of notice by the Assistant Collector 1st Grade and the subsequent orders were not denied. It was alleged that Khasra No. 76 is a private land and the plaintiff is non-agriculturist and without permission of the State Government, she could not purchase the land in Himachal Pradesh. The allegations in regard to the oral sale in favour of the plaintiffs were also denied. The proceedings initiated were pleaded to be legal and the orders were 5 passed accordingly and, therefore, there is no merit in the case put up by the plaintiff. 5. On the pleadings of the parties, the following issues were settled by the learned trial Court:- 1. Whether the plaintiff is owner in possession of the suit land? OPP 2. Whether defendants are threatening to dispossess the plaintiff? OPP 3. Whether no valid notice under section 80 CPC has been served upon defendants? OPD 4. Whether plaintiff has no cause of action and locus-standi to file the suit? OPD 5. Whether the suit is not maintainable in the present form? OPD 6. Whether this court has no jurisdiction? OPD 7. Relief. 6. The learned trial Court vide its impugned judgment decided Issues No. 1, 2, 4 to 6 as against the plaintiff and in favour of the defendants and consequently, dismissed the suit of the plaintiff. On appeal, those findings were affirmed by the learned Appellate Court and the appeal was dismissed. 7. I have heard the learned counsel for the parties and have gone through the record of the case. 8. The submissions made by the learned counsel for the appellant were that there was a boundary dispute in regard to the boundary of two villages and without getting the land demarcated with the help of Musabi of both the villages, it could not be ascertained whether the land falls in village Dhar-Ki-Ber. Thus, it was submitted that the learned lower Appellate Court has committed an error in rejecting the request of the appellant for appointment of Local Commissioner. 6 It was also submitted that the learned trial Court had failed to frame a specific issue on the plea of adverse possession and, therefore, the findings have been incorrectly recorded. It was further submitted that the appointment of the Local Commissioner in the facts and circumstances of the case was absolutely necessary and in the absence of the said report, no findings could be recorded by the Courts below and as such, the appeal is liable to accepted. 9. On the other hand, learned Deputy Advocate General had submitted that there is no proof on record in regard to the purchase of the land from the previous owner since neither date or month or year was specified nor any specific evidence was led to prove that the oral sale was competent at that time. It was also submitted that it was not specifically claimed by the plaintiff that the land is situated in village Dhar-Ki-Ber, while proceedings were initiated against her for the land in that village. The plaintiff did not establish if the land was situated on the boundary of two villages or there was overlapping and no issue in regard to overlapping was proved and according to the report of the Local Commissioner and other evidence on record it was proved that the plaintiff had encroached upon the suit land, for which a valid order was passed, which has been affirmed by the various authorities. It was further submitted that full opportunity was given to the plaintiff to prove her case by producing evidence and for appointment of the Local Commissioner, if any, which was not availed by the plaintiff and at this belated stage, no Local Commissioner can be appointed. 10. A perusal of the judgment passed by the learned trial Court shows that it had referred to the evidence led by the plaintiff, which is an affidavit Ext. PW1/B and agreement Ext. PW1/C entered into in 7 between the previous owner and one Surjan Singh, from whom previous owner has purchased the land. No Khasra Number has been mentioned in this agreement. The plaintiff did not specifically allege in the plaint as to when she purchased the land and there is also no mention of month, date or year or the specific period and no witnesses to the oral sale were also produced. There is nothing on record to show that oral sale at that time was permitted according to law. It is, only during the evidence stage that it has been asserted that the land was purchased by the plaintiff in the year 1983. No Khasra Number has been mentioned in these documents or any other document to prove that the plaintiff had purchased this land validly from the previous owner Kanta Sharma or that the previous owner Kanta Sharma was the owner of the land in question, for which there is no entry in the revenue record. On the other hand, the defendants had examined Patwari, who had made a report to the Assistant Collector 1st Grade that the plaintiff had encroached upon the land, which is not the land comprised in Khasra Number 76, which the plaintiff alleges to have purchased from the previous owner Kanta Devi. The proceedings were initiated by the State Government as against the appellant in regard to the land comprised in Khasra No. 228/89, situated in village Bathol, for which eviction proceedings were initiated as against the appellant. No infirmity was pointed out in the findings recorded under Issue No. 1 by the learned trial Court that the plaintiff had failed to prove the ownership of the land, for which proceedings for eviction were initiated against her. The learned District Judge in reference to the findings recorded under Issue No. 1 after referring to the jamabandis on record had concluded that no oral sale was permissible and no Khasra Numbers of the land were mentioned and, therefore, the plea of oral 8 sale of the plaintiff was not accepted by the learned Appellate Court. There have been findings of learned trial Court affirmed by the learned First Appellate Court in this regard and there can be no reappraisal of the evidence, for which no case was made out by the appellant during the course of arguments. 11. The only case set up by the appellant subsequently was that the land purchased by him was in Khasra Number 76 situated in village Dhar-Ki-Ber, while the proceedings were initiated against her in regard to Khasra Number 228/89 in village Bathol. This was very much of the knowledge of the plaintiff from the very first day that she is claiming the land in some other Khasra number in different village, while the proceedings had been initiated against her for the land situated in village Bathol, for which she has never set up any claim. She did not allege or prove at any time during the pendency of the case that there was overlapping and that the boundaries of two villages were different or that she has not made any encroachment of any land in village Bathol. It was for the plaintiff to have obtained demarcation report and proved the same in accordance with law, for which she had failed. It is only at appellate stage that an application under Order 41 Rule 27 C.P.C. was filed for producing jamabandis’ entries qua the suit land and for appointment of the Local commissioner to demarcate the land. The said application was filed on 19.5.1997 and it was rightly rejected by the learned Appellate Court since the application had been filed after a considerable lapse of time. The proceedings for ejectment were initiated in the year 1983 are against the plaintiff. When it was reported by the Patwari that the plaintiff had encroached upon the Government land and it was for the plaintiff to have obtained due demarcation from the 9 revenue entries, but she did not file any application before the learned trial Court, with whom the suit was pending for over six years from 11.10.1990 to 20.4.1996. Thereafter, the appeal remained pending before the learned District Judge from 18.6.1996 to 28.10.1998 and during this period, the application for Local Commissioner was filed, which was rejected by the learned Appellate Court observing that there is already report of the Local Commissioner appointed by the Financial Commissioner, in which it has been clearly reported that the land falls in the village Bathol only and accordingly, the application for demarcation was rejected by the learned District Judge. 12. A perusal of the judgment passed clearly shows that reference was made to the report of Local Commissioner appointed by the Financial Commissioner and the said report had become final and no objections appear to have been filed in regard to the said report and the demarcation was carried out in the presence of the parties. Therefore, it was rightly held that no commission can be appointed to create anomaly. A party who sets up a claim differently by setting up a claim that the land does not fall in the village, for which ejectment proceedings had been initiated against her, it is for the said party to file appropriate application for demarcation of the land and it is for her to prove that she is owner in possession of the land, for which eviction proceedings had been issued against her, in which the plaintiff has failed miserably. The plaintiff was being proceeded against in regard to the different land and she has set up a different land, for which no ejectment proceedings were initiated against her. Therefore, from which ever angle, the case of the petitioner is considered, she had taken her own time to apply for demarcation only before the Appellate Court, though the case 10 remained pending before the learned trial Court also for about six years or so as mentioned above. 13. The learned counsel for the appellant had relied upon a decision of this Court in Prithi Singh Vs. Bakshi Ram and another, Latest HLJ 2006 (HP) 5, wherein it was observed that the plaintiff had set up the case of boundary dispute alleging that the land possessed by him is different from the land claimed by the respondents and both the land are adjoining each other. Therefore, the only course left for the Court was to appoint a Local Commissioner. The above observations were made by the learned Single Judge of this Court keeping in view the facts of the case. It is true that in case there is a boundary dispute in between the two owners, it is necessary to appoint Local Commissioner. However, in the case, the plaintiff did take any steps for appointment of the Local Commissioner, though she challenged the order of the Assistant Collector 1st Grade, which was passed as against her in the year 1983. Thereafter, the appeals/ revisions were filed by her and no prayer was made for appointment of the Local Commissioner. The Local Commissioner was appointed by the Financial Commissioner in the revision petition. There are clear observations of the Local Commissioner that in which Khasra Number, the land in question falls and forms part of the suit land and the report of the Local Commissioner is Ext. PW1/A. There is observation of the Local Commissioner that in between the land of the villages there is some land as observed by the learned Appellate Court also. The proceedings of the Financial Commissioner as observed by the appellate authority had become final since no objections appear to have been filed against the said report. Therefore, at this stage it is to be considered whether opportunity to the plaintiff to apply for 11 appointment of the Local Commissioner should be given or not and facts of the case are to be considered before deciding the question as to whether the application at this belated stage after number of years should be allowed or not. The report of the Local Commissioner is there and there is no dispute in regard to the said report that encroachment has been made by the plaintiff on the Government land and, therefore, no case was made out for appointment of the Local Commissioner at this stage before this Court or to set aside the findings of learned District Judge dismissing the application for appointment of the Local Commissioner. There has to be an end to the litigation at some stage. The proceedings for ejectment were initiated in 1983 and the plaintiff availed all the remedies available to her by filing appeals/revisions and filing of application before the learned District Judge in the year 1997, cannot be said to be genuine once the report was already there against her. The prayer has now been made before this Court after 27 years, which cannot be entertained at this stage. 14. In regard to the plea of adverse possession or grounds taken in the grounds of appeal, no case was made out by the plaintiff that she was in adverse possession of the suit land since her claim was that she was owner of the land by way of purchase of land orally from the previous owner and it was never admitted by the plaintiff that she was in possession of the Government land comprised in some different village. In case she had made some admission that she was ready in the alternative to apply for regularization, it was for the Government to consider the same, on which appropriate orders were passed keeping in view the policy of the Government, but it cannot be said that the plaintiff had any claim that his case should be considered positively for 12 regularization. It is clear that she had never admitted or laid claim that she was owner in possession by way of adverse possession of the land comprised in Khasra Number 228/89/6, for which eviction proceedings were initiated against her. Therefore, there was no question of framing of any issue in regard to the adverse possession. Once the plaintiff had not claimed her adverse possession and had never admitted the ownership of the Government on the land possessed by her. 15. Therefore, from which ever angle, facts of the case are considered, I hold that there is no merit in the appeal filed by the appellant and the findings recorded in this regard by both the Courts below are based upon correct appreciation of facts and law and the appeal is accordingly dismissed. However, the parties are left to bear their own costs. Interim order, if any, also stands vacated. ( V.K. Ahuja ), June 20th , 2011 Judge (BSS)