IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.232 of 1999 alongwith RSA No.294 of 1999 Judgment reserved on : 21.4.2010 Date of decision : 24.5.2010 ____________________________________________________ 1. Krishan …Appellant. Versus Garji and another …Respondents. 2. Krishan Lal …Appellant Versus Garji and others ..Respondents _____________________________________________________________ Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? For the appellant : Mr. Rajnish K. Lall, Advocate vice Mr. K.D. Sood, Advocate. ( in both the appeals) For the Respondents : Mr. Subhash Sharma, Advocate, for respondent No.1 in RSA No.232 of 1999 and for all the respondents in RSA No.294 of 1999. Mr. P.K. Sharma, Addl. Advocate General with Mrs. Shubh Mahajan, Dy. Advocate General, for respondent No.2 in RSA No.232 of 1999. Kuldip Singh, Judge This judgment shall dispose of RSA No.232 of 1999 and RSA No.294 of 1999 both having arisen from common judgment, decree dated 21.6.1999 passed by learned Addl. District Judge, Mandi _____________________________ whether reporters of Local Papers may be allowed to see the Judgment? 2 in Civil Appeal No. 24 of 1992/52 of 1993(92) and Civil Appeal No.30 of 1992 respectively. 2. In fact Civil Suit No.18/86/115/91 and Civil Suit No.150/1986/159/91 were dismissed by common judgment, decree dated 24.1.1992 by learned sub Judge Ist Class, Karsog camp at Sundernagar. Garji had filed Civil Appeal No. 24 of 1992/52 of 1993(92) against judgment, decree dated 24.1.1992 passed in Civil Suit No.18/86/115/91. Krishan Lal had filed Cross-Objection No.1/99(92) in Civil Appeal No. 24 of 1992/52 of 1993(92). Krishan Lal had filed Civil Appeal No. 30 of 1992 against judgment, decree dated 24.1.1992 in Civil Suit No. 150/1986/159/91. The learned Addl. District Judge has decided the aforesaid appeals and cross-objection by common judgment, decree 21.6.1999. 3. The further facts in brief are that Garji had filed Civil Suit No. 18/86/115/91 against Krishan and State of Himachal Pradesh for declaration that allotment of land comprised in khewat No.208, khatauni No.266, khasra No.495 measuring 3-2-8 bighas situate in Mohal Slapper/78, Tehsil Sundernagar by State of Himachal Pradesh as nautor in favour of Krishan is null and void. She had prayed injunction against Krishan from interfering in her ownership and possession over land comprised in khasra No.495/1, measuring 0-19- 14 bigha which is part of khasra No.495. The claim of Garji is that the land comprised in khasra No.495/1 is owned and possessed by her, though in the revenue record khasra No.495 has been recorded in the ownership of State of Himachal Pradesh and in possession of Bartandaran. She has claimed possession over khasra No.495/1 3 through her forefathers. She has alleged that about nine years prior to the institution of the suit she had planted 40 fruit plants on this land. Krishan some how managed to get land comprised in khasra No.495/1 allotted to him as nautor land by deceiving the State. He in connivance with forest and revenue staff had obtained false reports favourable to facilitate the grant. He was not eligible to such grant under the rules. She has alleged that Krishan threatened her that he would dispossess her from the suit land. 4. Krishan and State of Himachal Pradesh had contested the suit by filing separate written statements. Krishan resisted the suit on the grounds of maintainability, jurisdiction, lack of cause of action and locus standi. He has supported the grant and alleged that he is in possession of entire khasra No.495 since grant, hence there is no question of interference in the alleged possession of Garji on land measuring 0-19-14 bighas out of khasra No.495. 5. The State of Himachal Pradesh also raised the question of jurisdiction, cause of action, valuation of suit, mis-joinder of parties, maintainability, want of notice. It was asserted that land comprised in khasra No.495 was allotted to Krishan after due enquiry and after considering his entitlement. The ownership and possession of Garji on land comprised in khasra No.495 was denied. 6. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is the owner in possession of the land in suit as alleged? …OPP 2. Whether the plaintiff is entitled to relief of permanent injunction as prayed for? …OPP 4 3. Whether the grant of land in suit as ‘nautor’ land to the defendant is illegal as alleged? …OPP 4. Whether the defendant No.1 is not a landless person under the Scheme? If so to what effect? ….OPP 5. Whether the suit is not maintainable in the present form? …OPP 6. Whether this Court has no jurisdiction to entertain the suit? …OPD 7. Whether the plaintiff has no enforceable cause of action? …OPD 8. Whether the plaintiff has no locus standi to file the suit? …OPD 9. Whether the suit is bad for want of valid & legal notice under Section 80 C.P.C. to the defendant No.2 before filing the suit? ..OPD-2 10. Whether the suit is bad for misjoinder of party? ..OPD2 11. Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction? OPD2 12. Relief. Issues No.1,2,5,6,7,8,10,11 were answered in negative, issue No.9 was answered in affirmative, under issue No.3, it was held that part of grant is illegal, under issue No.4, it was held that the issue does not arise for decision. The suit was dismissed on 24.1.1992 by learned sub Judge. 7. Garji had filed Civil Appeal No. 24 of 1992/52 of 1993(92) against judgment, decree dated 24.1.1992 passed in Civil Suit No.18/86/115/91. Krishan had filed Cross-Objection No.1/99(92) in Civil Appeal No. 24 of 1992/52 of 1993(92). The learned Addl. District Judge has allowed Civil Appeal No. 24 of 1992/52 of 1993(92) against Krishan and Garji was declared owner in possession of khasra No.495 as per field map Ex.PW-11/A, suit of Garji was decreed against Krishan and cross-objection No.1/99(92) were dismissed. Krishan 5 Lal has filed RSA No.232 of 1999 against judgment, decree dated 21.6.1999 passed in Civil Appeal No. 24 of 1992/52 of 1993(92) which has been admitted on following substantial questions of law:- 1. Whether in view of valid grant of Nautor in favour of the defendant/appellant vide order dated 4.9.1985, Ex.PK on the basis of which possession was delivered to the appellant which grant had been upheld in appeal and not found to be defective in its entirety by the courts below, the suit of the plaintiff in the civil court was maintainable? 2. Whether the civil court had jurisdiction to challenge the valid grant made in favour of the appellant and the plaintiff was entitled to the relief of injunction when the plaintiff was not in possession of the property? 3. Whether the inference that the plaintiff was in possession of the property is vitiated because of misreading and misconstruction of oral and documentary evidence particularly Ex.PK, Ex.DB, Ex.DC, Ex.BD, Ex.BE, Ex.PW-11/A, Ex.PB and Ex.PF? 8. Krishan Lal has filed Civil Suit No. 150/1986/159/91 against Garji and eight others for injunction restraining them from interfering in his ownership and possession over khasra No.495, measuring 3-2-3 bighas. Garji and others contested the suit and took the plea that khasra No.495/1 is in possession of Garji and therefore, there is no question of causing interference in the alleged possession of Krishan Lal on khasra No.495/1. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is owner in possession of the land in suit? …OPD 2. Whether the plaintiff is entitled to relief of permanent injunction as prayed for? …OPP 6 3. Whether the suit is liable to be stayed under Section 10 CPC as alleged ? …OPD 4. Relief. The issue No.1 was answered by holding that Krishan Lal is in possession, but ownership of only part of suit land is proved, issues No.2 and 3 were answered in negative and suit was dismissed on 24.1.1992. Krishan Lal filed Civil Appeal No. 30 of 1992 against judgment, decree dated 24.1.1992 in Civil Suit No. 150/1986/159/91. The learned Addl. District Judge has dismissed Civil Appeal No. 30 of 1992 vide judgment dated 21.6.1999. Krishan Lal has filed RSA No.294 of 1999 against judgment, decree dated 21.6.1999 in Civil Appeal No. 30 of 1992 which has been admitted on following substantial questions of law:- 1. Whether in view of the valid grant in favour of the plaintiff/appellant, vide order dated 4.9.1985 Ex.PK on the basis of which the possession was delivered to the plaintiff which grant had been up-held in appeal and not found to be defective in its entirety by the court below, the plaintiff was entitled to decree for possession? 2. Whether the court below has misconstrued the oral as well as documentary evidence particularly Exhibits PK, DC, DD, DE and Ext.PW1/A and PB and PF which has vitiated the findings? 3. Whether in view of the settled possession of the plaintiff, the plaintiff was entitled to a decree unless dispossessed by due process of law? 9. I have heard learned counsel for the parties in both the appeals and have also gone through the record. In both appeals, it has been submitted on behalf of the appellant that appellant has proved valid grant of nautor dated 4.9.1985 Ex.PK in his favour and in 7 pursuance thereof possession of the land in question was delivered to him. The suit of Garji was not maintainable in Civil Court. Garji is not in possession of the suit land and therefore, she is not entitled to injunction. The learned Courts below have misread, misconstrued the oral and documentary evidence on record, particularly Ex.PK, Ex.DB,Ex.DC, Ex.DE, Ex.BD, Ex.BE, Ex.PW11/A, Ex.PB, Ex.PW-11/A and Ex.PF. The learned counsel for the respondent Garji has supported the impugned judgment, decree. 10. The substantial questions of law No.1 to 3 in RSA No.232 of 1999 and substantial questions of law No. 1 to 3 in RSA No.294 of 1999 are interconnected; therefore, all aforesaid substantial questions of law are taken up collectively for consideration. Ex.PK is the order dated 4.9.1985 of Tehsildar, Sundernagar granting land measuring 3- 2-8 bighas, comprised in khasra No.495 in favour of Krishan Lal. Ex.PW-11/A is the copy of Aks Tatima showing khasra No.495/1, measuring 0-19-14 bighas having 21 plum trees standing thereon. Ex.PF is the copy of Aks Musabi showing khasra No.495. Ex.DB is the copy of mutation No.419 dated 20.1.1986 of land measuring 3-2-8 bighas comprised in khasra No.495 in favour of Krishan lal. Ex.DC is the copy of Roznamcha Vakayati Rapat No.78 for the year 1985-86, Patwar Circle Kangu dated 5.11.1985 indicating delivery of possession of land measuring 3-2-8 bighas comprised in khasra No.495 to Krishan Lal, Ex.DD is the copy of order dated 20.10.1986 passed by Deputy Commissioner, Mandi rejecting nautor revision; Smt. Garji vs. Krishan Lal, Ex.DE is the copy of Khasra Girdwari for the year 1985-86 showing land measuring 3-2-8 bighas comprised in khasra No.495 in 8 possession of Krishan Lal. Ex.PB is the copy of Missal Haquiat Bandobast Jadid. The learned counsel for appellant could not point out documents Ex.BD, Ex.BE and Ex.PW-1/A from the record. 11. The learned Addl. District Judge has concurred with the findings of learned Sub Judge on issue No.1 in both the suits regarding the ownership of Garji of land comprised in khasra No.495/1, measuring 0-19-14 bigha. It is the case of respondent Garji that in the last settlement her land described in khasra No.3738/1123/1, measuring one bigha had been erroneously included in pre- consolidation khasra No.2063 which was later on given new khasra No.495 measuring 3-2-8 bighas owned by State. It is further case of Garji that during last settlement her holding was reduced by one bigha illegally. There is substance in her case to this extent which emerges from the evidence on record. Ex.PX order dated 1.2.1991 of Settlement Collector indicates that mutation No.43 dated 19.8.1934 was attested in favour of Karmu father of Garji regarding land comprised in pre-settlement khasra No.3718/1117/1, measuring 6-3-0 bighas and khasra No.3738/1123/1, measuring 1 bigha kitas 2 total measuring 7-3 bighas. The Settlement Collector has observed that on the basis of mutation No.418 in file No.630/81 decided on 4.9.1985 khasra No.495 measuring 3-2-8 bighas was allotted to Krishan. The Settlement Collector found that Garji was deprived of 1 bigha land now comprised in khasra No.495/1 measuring 1 bigha. The Settlement Collector ordered deletion of 1 bigha from khata No.137 from the ownership of Krishan Lal and inclusion of same land in khata No.126 of Garji. Thus order dated 1.2.1991 Ex.PX has explained how Garji is owner of land 9 comprised in khasra No.495/1, measuring 1 bigha. Krishan Lal is claiming ownership and possession of entire khasra No.495 on the basis of Ex.PK order dated 4.9.1985 allotting him land measuring 3-2-8 bighas comprised in khasra No.495. It has been established from the record that State was owner of land comprised in khasra No.495 minus 1 bigha which was owned by appellant Garji. Therefore, Krishan Lal cannot take benefit of order Ex.PK to claim that he is owner in possession of entire khasra No.495 measuring 3-2-8 bighas. 12. It has been submitted that order dated 1.2.1991 of the Settlement Collector has been stayed by the Commissioner vide order dated 9.1.1992. The stay order dated 1.2.1991 does not mean that order dated 1.2.1991 has been all together set aside. At the most, it can be said that the order dated 1.2.1991 was suspended. There is nothing on record to show that State had challenged the order dated 1.2.1991. In other words State has accepted the order dated 1.2.1991. The Deputy Commissioner vide order dated 20.10.1986 Ex.DD has rejected the revision of Garji against the allotment of land to Krishan, but it is again of no help to Krishan. In the suit it has been independently established that land of Garji measuring 1 bigha was wrongly included in khasra No.495. The Deputy Commissioner had no jurisdiction to decide the title with respect to khasra No.495 or part thereof. Garji had proved that her land measuring 1 bigha has been wrongly included in khasra No.495. 13. The suit of Garji is based upon Ex.PW-11/A Aks Tatima showing khasra No.495/1 measruing 0-19-14 bigha. In Ex.PX the Settlement Collector has found that land measuring 1 bigha of Garji 10 has been wrongly included in khasra No.495. Ex.PW-11/A was prepared by PW-11 Balak Ram on 30.11.1985. The other relevant documents are copy of musabi settlement Ex.PG and copy of musabi consolidation Ex.PH. Garji is claiming land measuring 0-19-14 bighas comprised in khasra No.495/1 whereas Settlement Collector has recorded finding in Ex.PX that land measuring 1 bigha of Garji was included in khasra No.495 shown by khasra No.495/1, thus there is difference at 6 biswansis in between the claim of Garji and finding recorded by Settlement Collector. The learned Addl. District Judge has recorded a finding that location of land is identical in view of Ex.PW-11/A, Ex.PE and Ex.PF, which also gets support from oral evidence also. Garji is claiming 6 biswansis less then finding recorded by Settlement Collector. In any case difference of 6 biswansis is insignificant and on this ground claim of Garji cannot be ignored. 14. The learned Addl. District Judge has recorded a finding of fact that Garji through predecessor-in-interest had been in possession of the suit land w.e.f. 1934 on wards and Krishan Lal has miserably failed to prove his possession over land comprised in khasra No.495/1. It has not been proved by Krishan that Garji was ever dispossessed from the suit land by State before allotment of khasra No.495 to him. The possession of Krishan land on entire khasra No.495 is based upon order dated 4.9.1985 Ex.PK and subsequent revenue record but Krishan Lal cannot take benefit of order dated 4.9.1985 vide which whole of the land measuring 3-2-8 bighas comprised in khasra No.495 was allotted to him. Therefore, much importance cannot be given to the revenue record showing possession of Krishan on entire 11 khasra No.495. Garji has proved her title and possession on khasra No.495/1, mere forcible uprooting of some trees by Krishan from land comprised in khasra No.495/1 does not mean that he is in possession of that part of the land. The learned Addl. District Judge has rightly appreciated the oral and documentary evidence on record. There is no perversity in the impugned judgment, decree. The misconstruction and misinterpretation of oral and documentary evidence has not been established. There is no merit in both the appeals. The aforesaid substantial questions of law in both the appeal are decided against the appellant. 15. No other point was urged. 16. The result of the above discussion, both the appeals are without merit and are accordingly dismissed. May 24, 2009 (Kuldip Singh), (sks) Judge. 12 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.294 of 1999 Judgment reserved on : 21.4.2010. Date of decision: 24.5.2010. Krishan Lal …Appellant Versus Garji and others ..Respondents ________________________________________________________ Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the appellant : Mr. Rajnish K. Lall, vice Mr. K.D. Sood, Advocate. For the Respondents : Mr. Subhash Sharma,Advocate. Kuldip Singh, Judge. For judgment, see judgment rendered in RSA No.232 of 1999, titled Krishan vs. Garji and another. May 24, 2010 (Kuldip Singh), (sks) Judge. Whether the reporters of the local papers may be allowed to see the Judgment?