IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 184 of 1995 Reserved on: 27.7.2011 Date of decision : 1.8.2011 Rajinder Kumar and another …Appellants. Versus State of H.P. and others …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 No. For the Appellants: Mr. Rajinder Sharma, Advocate. For the respondents 1 & 2: Mr. Vivek Thakur, Addl. A.G. & Mr. Rajesh Mandhotra, Dy. A.G. For the respondents No. 6, 8 & 9: Mr. Bimal Gupta & Mr. Sanjeev Kuthiala, Advocate. For the respondent No. 10: Mr. N.S.Chandel, Advocate. Deepak Gupta, J. 1. This appeal has been filed by the plaintiffs whereby they have challenged the judgement and decree dated 20.12.1994 passed by the learned Additional District Judge, Una who partly allowed the appeal of the plaintiffs and modified the judgement and decree passed by the learned Sub Judge 1st Class, Court No.1, Amb, District Una dated 31.5.1991. 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes. 2 2. This appeal was admitted on the following substantial questions of law:- 1. Whether the plaintiffs/appellants have been induced as tenants and had become owners of the suit land by operation of law? 2. Whether the land in possession and ownership of the plaintiffs/appellants could vest in the State under the H.P.Village Common Lands (Vesting and Utilisation) Act, 1974? 3. Whether the inferences drawn from the documents i.e. Ext.PW-1/B, PW-4/A, PW-6/A to PW-6/D have been construed in their proper perspective? 4. Whether further allotments of the land already allotted by the respondents No. 1 and 2 was tenable in law? 5. Whether the Civil Court has jurisdiction to decree the suit of the plaintiffs for declaration in the facts and circumstances of the case? 3. The plaintiffs filed a suit on 5.6.1984. In the suit the plaintiffs claimed that 260 kanals of land comprised in Khewat No.247, Khatauni No.881, Khasra Nos. 1213, 1214 and 1233 situate in village Kuthera Khairla, Tehsil Amb, District Una (here-in- after referred to as the suit land), as reflected in the jamabandi for the year 1973-74, was earlier owned and possessed by the Gram Sabha and Gram Panchayat Kuthera Khairla (hereinafter referred to as the defendants No. 2 and 3). The plaintiffs 3 claimed that the suit land was Banjar and waste land and as such the said land was auctioned to different persons on 15.5.1973 for reclaiming the same on payment of rent. 4. The case of the plaintiffs was that plaintiff No.1 Barkat Ali was granted 48 kanals of land in Khasra No. 1214 min; plaintiff No.2 Vijay Kumar was allotted 60 kanals of land in khasra No. 1214 min and 50 kanals of land in Khasra No.1213 and his brother Rajinder Kumar was allotted 102 kanals of land in Khasra No.1233. The plaintiffs claimed that they entered into possession of the suit land on 15.5.1973 and reclaimed the same after putting a lot of labour and after spending huge amount of time, labour and money. The possession of the plaintiffs was reflected in the revenue record during crop inspection in the year 1974. 5. Further according to the plaintiffs thereafter the Forest Department initiated criminal proceedings against them but they were acquitted in those cases in the year 1977. The plaintiffs continued to cultivate the suit land and were never dispossessed from the same. On 17.5.1980 the 4 defendants issued notices to the plaintiffs directing them not to cultivate the suit land. The plaintiffs filed a suit for permanent injunction which was allegedly decided in their favour on 27.3.1984. After passing of the H.P.Village Common Lands Vesting and Utilisation Act, 1974 the suit land was mutated in favour of the State Government on 27.3.1984. The case of the plaintiffs is that they continued to remain in possession of the suit land and defendant No.1 never took actual possession of the suit land. The State i.e. defendant No.1, however, allotted portion of the suit land to defendants No.4 to 9 and mutations were registered in their favour. According to the plaintiffs, defendants 4 to 9 never entered into possession of the suit land and the plaintiffs continued to be in possession of the same. The State thereafter allotted some land to defendant No.10, who according to the plaintiffs, forcibly encroached upon some portion of the suit land in Khasra No. 1213/1214 and started raising construction thereon. Apprehending their dispossession by the defendants the plaintiffs filed the suit and challenged the 5 revenue entries in favour of the defendants. They sought decree for declaration that they are in possession of the suit land and in the alternative they prayed that decree for possession be passed in case they are dispossessed forcibly from the suit land. 6. The case of the State of H.P. i.e. defendant No.1 is that after the promulgation of the H.P.Village Common Lands Vesting and Utilisation Act, 1974 the State became full owner of the suit land and possession of the suit land was delivered to the Industrial Department, Una. According to the State all the allottees of the land including the plaintiffs were evicted vide orders passed by the Collector, Una on 23.1.1976. According to the State, the plaintiffs were not in possession of the suit land. Defendants No. 2 and 3 in their written statement stated that the land was cultivable even before it was allotted to the plaintiffs. The land had vested in the State of H.P., which was in possession of the same. According to the Gram Sabha, the plaintiffs had come into possession of the suit land by fraud and misrepresentation. It was alleged that 6 plaintiff No.1 Barkat Ali was member of the Gram Panchayat and Shri Vas Dev father of Vijay Kumar and Rajinder Kumar was Up-Pradhan of the Panchayat and these persons gave the Panchayat land to themselves or to their relatives illegally. The allotments were never approved by the competent authorities and finally the allotment was cancelled and possession was taken over. Defendants No. 4 to 9 took a similar stand. 7. As far as defendant No. 10 is concerned, the case set up by it was that plot Nos. 1 to 4 were leased out to it by the State of H.P. vide lease deed dated 28.7.1984 and it took over possession of the leased property and therefore had every right to raise construction over these plots. 8. On the pleadings of the parties the learned trial Court framed the following issues:- 1. Whether the suit land was allotted to the plaintiffs for the reclamation and cultivation as alleged in the para No.2, of the plaint, If so its effect? OPP. 2. Whether the plaintiffs are in possession of the suit land as tenants? OPP. 3. Whether the mutation NO. 1455 in favour of defendant No.1 is wrong and without possession and subsequent transfer in favour of defendants No. 4 to 10 is wrong and illegal, as alleged? OPP. 7 4. Whether the defendant No.10 has encroached upon the portion of Khasra NO. 1213 and 1214 by raising a construction? OPP. 5. Whether the suit is not maintainable as alleged in preliminary objection No.1? OPD. 6. Whether the plaintiffs are estopped by their acts conduct and deeds? OPD. 7. Whether the suit is barred by limitation? OPD. 8. Whether the plaintiffs have no legally enforceable cause of action? OPD. 9. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD. 10. Whether the plaint suffers from proper verification, if so its effect? OPD-1. 11. Whether no valid notice under Section 80 CPC has been served upon the State? OPD-1. 12. Whether the suit suffers from multifariousness of causes of action? OPD 2 to 9. 13. Whether the suit is bad for non-joinder and misjoinder of necessary parties? OPD 2 to 9. 14. Whether the suit is incompetent in view of the provisions of Order 2 Rule 2 CPC and Section 11 of the CPC? OPD 2 to 9. 15. Whether the Gram Panchayat was not competent to give the suit land on lease to the plaintiffs? OPD-2. 16. Relief. 9. The learned trial Court held that the suit land was allotted to the plaintiffs for five years and after lapse of that period it had to come back to the Government and the possession of the plaintiffs is that of a trespasser. The allotment made in favour of defendants No. 4 to 10 was held to be valid. He 8 accordingly dismissed the suit. However, it would be pertinent to mention that the learned trial Court held that the plaintiffs were in possession of the certain portion of the suit land but according to him their possession was that of a trespasser. The learned lower Appellate Court partly allowed the appeal of the plaintiffs and restrained the defendants from causing interference in any manner or dispossessing the plaintiffs from land found to be in possession of the plaintiffs by the Local Commissioner as per his report Ext.PW-6/A till the plaintiffs are dispossessed therefrom in accordance with law. However, it was held that the plaintiffs were not entitled to any declaration in their favour. The learned lower Appellate Court also clarified that the State of Himachal Pradesh could initiate proceedings against the plaintiffs under the provisions of law and the said proceedings must be decided in accordance with law and plaintiffs shall be entitled to contest the said proceedings on all grounds and in case those proceedings are decided against the plaintiffs the defendants No. 4 to 10 would have a right to apply 9 to the Collector to put them in possession of their respective shares. 10. It would be pertinent to mention that there is no material on record to show that the plaintiffs were allotted this land in perpetuity but a perusal of the judgement Ext.P-4 also Ext.D-8 clearly shows that the learned Sub Judge came to the conclusion that the plaintiffs are in possession of the suit land but without any title. It was held that even a owner cannot interfere in the possession of a trespasser without resorting to legal recourse. This clearly shows that the plaintiffs were in possession of the suit land. It would be pertinent to mention that pursuant to the orders of this Court passed in Civil Revision No. 111 of 1985 titled as M/s Him Cylinders Pvt. Ltd. vs. Shri Barkat Ali and others the then learned Senior Sub Judge, Una was appointed as Local Commissioner to furnish his report as to which portion of the suit land is in possession of the plaintiffs and which portion is in possession of the defendants. The Local Commissioner submitted his report Ext.6/A alongwith Tatimas Ext.PW-6/B, Ext.PW-6/C and Ext.PW-6/D. As per the report of 10 the Local Commissioner, the land measuring 102 kanals out of Khasra No. 1233 was in possession of the plaintiff Rajinder Kumar; land measuring 7 kanals 10 marlas of Khasra No.1213 was in possession of Vijay Kumar and land measuring 48 kanals comprised in Khasra No.1214 min was in possession of Barkat Ali. Vijay Kumar was also found to be in possession of the land measuring 39 kanals 11 marlas in Khasra No.1214 min. The Local Commissioner had himself visited the spot and with the help of the revenue officials physically demarcated the land in question. Therefore, the contention of the defendants that they had entered into possession over this portion of the land cannot be accepted to be correct. Therefore, the entry in the mutations or in the daily diary report Ext.D-1 showing the defendants to be in possession is prima facie wrong, as held by the learned lower Appellate Court. 11. Though the possession is that of the plaintiffs they do not have any title thereto and it is apparent that the litigation has been prolonged for no other reason but to delay the eviction proceedings and to 11 retain their possession. During the pendency of the appeal before the learned trial Court as well as this Court the appellants obtained stay orders that they may not be dispossessed till the pendency of the appeals. Their grievance is that they have been dispossessed from certain portion but it would be pertinent to mention that contempt petition filed by the plaintiffs was dismissed in default on 15.7.2010. Thereafter, opportunity was given to get the contempt petition restored but the appellants specifically stated that they do not want to apply for restoration of the contempt petition. Therefore, this Court cannot now embark upon another exercise to find out whether they have been dispossessed during the pendency of the proceedings. As far as application for appointment of Local Commissioner being CMP No. 493 of 2006 is concerned the same is rejected. As far as allotment made in respect of defendants No. 4 to 6, 8 and 9 is concerned, here also the plaintiffs have abandoned their claim in respect of these defendants and therefore, the suit qua defendants No. 4 to 6, 8 & 9 has to be dismissed. 12 12. In view of the above discussion, the judgement and decree of the learned lower Appellate Court is upheld except qua defendants No. 4 to 6, 8 and 9 against whom the plaintiffs themselves have abandoned their claim and the suit qua these defendants is dismissed. It is also made clear that the defendants may take out proceedings in accordance with law for getting possession of the land from the plaintiffs and these proceedings should be completed at the earliest. All pending CMPs are disposed of. No costs. 1st August, 2011 ( Deepak Gupta ) ™ Judge.