IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 78 of 1998. Judgment reserved on : 7.4.2009 Date of decision : 18.4.2009. State of Himachal Pradesh …Appellant. Versus Bhagwan Dass ....Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No. For the Appellant : Mr. Anshul Bansal, Additional Advocate General. For the Respondent : Mr. Gurudev Singh Thakur, Advocate. Kuldip Singh , Judge The appellant was defendant and has come in appeal against the judgment, decree dated 27.8.1997 passed by the learned District Judge, Kangra at Dharamshala in Civil Appeal No.29-P/XIII/97, decreeing the suit of respondent with liberty to appellant to proceed against respondent in accordance with sub-section (5) of Section 3 of the Himachal Pradesh Village Common Lands (Vesting and Utilization) Act, 1974 (for short ‘Act’). 2. The brief facts of the case are that respondent had filed civil suit No. 311/1993 for declaration that he has become owner of the land comprised in Khata No.28 min, Khatauni No.45, Khasra No. 396 measuring 0-03-99 hectares, situate in Mohal Gharoon – Batahral, Mouza 1 Whether reporters of Local Papers may be allowed to see the Judgment ?.Yes 2 Sullah, Tehsil Palampur, District Kangra. The proceedings started by the appellant against the respondent under Section 163 of the H.P.Land Revenue Act regarding suit land are illegal, void and against law. The appellant contested the claim of the respondent by filing written statement in which preliminary objections of maintainability, locus standi, lack of cause of action, want of notice under Section 80 C.P.C. and jurisdiction of the Court to try the suit were taken. On merits, it was pleaded that the Gram Panchayat was owner of the suit land prior to the year 1972. Lateron the appellant became the owner of the suit land. The claim of adverse possession of the respondent on the suit land was denied. It was pleaded that respondent encroached the suit land in January, 1993 and, therefore, Patwari Halqua prepared encroachment case on 5.1.1993 under Section 163 of the H.P.Land Revenue Act and such proceedings are pending before the Assistant Collector, 1st Grade, Palampur. The respondent filed replication wherein he denied the defence of the appellant and reiterated his case. On the pleadings of the parties, the following issues were framed: 1. Whether the suit land has been coming in possession of the plaintiff for the last more than 60 years and has become owner in possession of the same by way of adverse possession as alleged? ..OPP. 2. Whether the proceedings under Section 163 of H.P.Land Revenue Act, qua the suit land against the plaintiff initiated by the defendant before A.C.1st Grade, are illegal, as alleged? ..OPP. 3. Whether the entry of ownership in favour of the defendant qua the suit land is illegal and against facts as alleged? ..OPP. 4. Whether the suit is not maintainable in the present form?...OPD. 5. Whether the plaintiff has no cause of action and locus- standi to file the suit, as alleged?...OPD. 3 6. Whether the plaintiff has not served notice under Section 80 CPC, before filing the suit as alleged, if so its effect?...OPD. 7. Whether this Court has no jurisdiction to entertain this suit as alleged ?... OPD. 8. Relief. The issues No. 1, 2, 3, 6 and 7 were answered in negative whereas issues No. 4 and 5 were answered in affirmative and the suit was dismissed by the learned Sub Judge 1st Class (I), Palampur on 26.3.1997. The respondent assailed the decision dated 26.3.1997 by way of appeal which was allowed by the learned District Judge, Kangra at Dharamshala on 27.8.1997 as noticed above, hence the State has come in second appeal which has been admitted on the following substantial questions of law: 1. Whether the jurisdiction of Civil Court is barred in view of the specific bar under Section 10 of the H.P.Village Common Land Vesting and Utilization Act, 1974. 2. Whether in the facts and circumstances of the case before taking any ejectment proceedings, the Collector is required to initiate proceedings under sub section 5 of Section 3 as held by the Ld. Lower appellate court. 3. I have heard Mr. Anshul Bansal, learned Additional Advocate General on behalf of the appellant and Mr. Gurudev Singh Thakur, Advocate, learned counsel for the respondent and have also gone through the record. Mr. Bansal has submitted that suit itself is barred under Section 171 of the Himachal Pradesh Land Revenue Act in view of the case of the respondent in the plaint wherein the respondent has pleaded that suit has been filed as the respondent had received summons from Assistant Collector 1st Grade, regarding initiation of encroachment proceedings against him. The Civil Court has no jurisdiction under Section 10 of the Act. The learned counsel for the respondent has 4 supported the impugned judgment and has submitted that the learned District Judge has given liberty to the appellant to proceed in accordance with law for ejecting the respondent and, therefore, no fault can be found with the impugned judgment. 4. The substantial questions of law No. 1 and 2 are inter- connected, therefore, both of them are being taken up together for disposal. In Ex.P-4 Misal Haquiat for the year 1972-73 khasra No. 396 is shown to be owned by Gram Panchayat and in possession of right holders. No doubt, in Ex.P-5 copy of Khatauni for the year 1970-71, khasra No. 396 is shown in possession of respondent. The respondent cannot take any benefit of stray entry in Ex.P-5. In Misal Haquiat for the year 1972-73 Ex.P-4 khasra No. 396 has not been shown in possession of the respondent. As per note in Misal Haquiat Ex.D-1, the ownership of khasra No. 396 was transferred in favour of State and in jamabandi 1982 - 83 Ex.D-2 State has been shown owner of Khasra No. 396 which has been shown in possession of right holders. This entry was followed in Ex.D-3 jamabandi 1987-88 and in Ex.D-4 jamabandi 1992-93.The respondent has not been shown in possession of Khasra No.396 in Ex.D1 to Ex.D4. 5. The respondent in the suit has not assailed the vestment of the suit land in the State Government. In the plaint, the respondent has basically projected his case of adverse possession on the suit land and for that reason he has pleaded that entries in the revenue record showing the Gram Panchayat and lateron State as owner are incorrect because according to him, he has become owner of the suit land by way of adverse possession. In these circumstances, Section 10 of the Act strictly speaking is not applicable in the peculiar facts of the case. The sub section 5 of Section 3 of the Act is also not applicable inasmuch as, it is the case of the appellant that the suit land was encroached by respondent 5 in the year 1993 and encroachment case under Section 163 of the Himachal Pradesh Land Revenue Act was prepared against the respondent on 5.1.1993. In these circumstances, Section 5 of the Act is applicable where encroachment of any person on the land vested in the Government can be dealt with under Section 163 of the H.P.Land Revenue Act. The respondent himself has come forward with the plea that proceedings under Section 163 of the H.P.Land Revenue Act were initiated against him regarding the suit land and, therefore, he filed the suit. Clause xxv of sub section (2) of Section 171 of the Himachal Pradesh Land Revenue Act bars the jurisdiction of the Civil Court for trial of such suits, therefore, the suit filed by the respondent is barred under Clause xxv of sub section (2) of Section 171 of the H.P.Land Revenue Act. The learned Sub Judge under issue No.7 has specifically held that the suit is barred under Section 171 of the H.P. Land Revenue Act. The learned District Judge has not properly appreciated the legal position and maintainability of the suit. The impugned judgment and decree are not sustainable. The substantial questions of law No. 1 and 2 are answered accordingly. 6. No other point was urged. 7. The result of the above discussion, the appeal is allowed and the judgment, decree dated 27.8.1997 passed by the learned District Judge, Kangra in Civil Appeal No. 29-P/XIII/97 are set-aside, the suit of the respondent/plaintiff is dismissed with no order as to costs. ( Kuldip Singh ), April 18, 2009, Judge. (GR)