IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 491 of 2001. Date of decision: 6.9.2011 _________________________________________________ Smt. Binta Devi and others ….Appellants. Versus The State of H.P. & another ….Respondents. Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 For the appellant : Mr. V.D. Khidtta, Advocate. For respondents : Mr. A.K. Bansal, Addl. Advocate General and Mr. P.M. Negi, Dy. Advocate General, for respondent No. 1. Mr. Shrawan Dogra, Advocate, for respondent No. 2. Surinder Singh, Judge (oral) CMP No. 464/2011 & RSA No. 491 of 2001. The instant application has been moved by the appellant under Order 23 Rule 3 of the Code of Civil Procedure, seeking permission to withdraw the suit with liberty to file fresh on the same cause of action. 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - Respondents have taken notice of this application but no reply is intended to be filed. 2. According to Shri Shrawan Dogra, learned counsel for the private respondent, the application does not fulfill the requirement of law under which it is moved therefore, the appellants cannot be granted any liberty to file the suit afresh, though they may withdraw the suit. 3. Heard. 4. In short, facts giving rise to the present Regular Second Appeal can be stated thus. In the year 1980 Shri Ratti Ram the predecessor-in-interest of the appellants had applied for the exchange of his land comprised of khasra No. 129/60/1 measuring 3 bigha 8 biswas with the land of the State Government being khasra No. 128/60/1, to Deputy Commissioner, Bilaspur. The Deputy Commissioner vide his order dated 24.10.1980 rejected the case of the plaintiff for its exchange except 10 biswas of land on which the plaintiff had constructed a house. (ii) The said order was appealed against by said Shri Ratti Ram before the Divisional Commissioner. On 23.8.1983, his appeal was also dismissed as also the - 3 - revision petition by the Financial Commissioner on 25.11.1983. (iii) In the year 1987 again, said Shri Ratti Ram started another round of litigation on the same facts and applied for exchange of the aforesaid land to the Deputy Commissioner. His request was allowed vide order dated 27.1.1987 which was challenged in appeal by private respondent Shri Kanshi Ram, before the Divisional Commissioner. It was allowed vide his order dated 7.12.1989 by setting aside the order dated 27.1.1987 of the Deputy Commissioner being illegal and void as the matter regarding exchange in question had been adjudicated upon earlier up to the level of Financial Commissioner. Therefore, the Deputy Commissioner, Bilaspur was not competent to re- consider the case of Shri Ratti Ram aforesaid. 5. Thereafter Ratti Ram filed civil suit No. 11/1 of 1990/89 in the Court of learned Sub Judge seeking declaration to the effect that he is owner in possession of the exchanged land comprised in khasra No. 129/60/1 (old) and new 143/129 measuring 3 bigha 8 biswas with consequential relief of permanent prohibitory injunction. His case before the learned trial - 4 - Court was that the Deputy Commissioner had sanctioned the exchange vide his order dated 27.5.1987 mentioning all the above details. He further averred that on 22.1.1988, the possession of khasra No. 129/60/1 measuring 3 bigha 8 biswas was handed over on the spot and he took back khasra No. 128/60/1 and it got merged with the exchanged land. Thereafter he re-claimed the aforesaid land but on account of objection raised by respondent Kanshi Ram, such orders of exchange were wrongly set aside. 7. Respondents resisted the suit questioning the locus-standi of the plaintiff to file the suit, inter alia, also took up various other preliminary objections and denied the case of the plaintiff by reiterating the above facts that the plaintiff had lost twice up to the level of the Financial Commissioner. The Deputy Commissioner was not competent to allow exchange when it was earlier rejected. Thus the orders could not be faulted with. 8. After complete trial, the suit of the plaintiff Ratti Ram was dismissed. Feeling aggrieved by the judgment of the learned trial Court, he filed appeal before the first appellate Court which was also - 5 - dismissed. Hence the present Regular Second Appeal which was admitted on the following substantial questions of law:- (i) Whether the Deputy Commissioner who is competent to grant land in ‘nautor’ and also in exchange, is precluded from sanctioning the Govt. land in exchange afresh with the land of the plaintiff specially after verifying the real/actual position of the suit land from the Field Agencies including the Sub Divisional Officer (C)? (ii) Whether the land in question could not be granted to the appellant/plaintiff in exchange with the Govt. land by the Deputy Commissioner specially when the land given by the plaintiff to the Govt. is more valuable so far as the forest produce is concerned? 9. During the proceedings in appeal, appellant Ratti Ram died as such his LRs were brought on record. 10. When the matter was taken up for hearing, the present application has been moved. Having gone through the entire facts narrated above, in my opinion, I do not find any formal defect in the suit nor the learned counsel for the appellants could point out any. Even I find no sufficient ground for allowing the appellant/plaintiff to grant liberty to institute a fresh suit - 6 - on the same subject matter of the suit, as prayed. However, the appellants are given liberty to withdraw the suit. The learned counsel reiterates the request to withdraw the suit. Accordingly, the suit No. 11/1 of 1990/89 Ratti Ram versus State of H.P. and another is ordered to be withdrawn. Consequently, it is dismissed as withdrawn, the appeals arising therefrom are also dismissed leaving the plaintiff to avail any other remedy, if available to him under the law. The appeal as well as the application stands disposed of. September 6, 2011 (Surinder Singh), (cm) Judge.