IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 262 of 2002. Date of decision: 21.9.2011 _________________________________________________ Smt. Geeto ….Appellant. Versus State of H.P. ….Respondent. Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 Yes For the appellant : Mr. Ramakant Sharma, Advocate. For respondent : Mr. P.M. Negi, Dy. Advocate General. Surinder Singh, J. (Oral) The present Regular Second Appeal under Section 100 of the Code of Civil Procedure was admitted on the following substantial question of law: (i) Whether the suit of the plaintiff-appellant could have been dismissed even for the relief of injunction if she was in possession of the suit property except in due course of law? 2. Briefly stated, the facts giving rise to the present appeal are that appellant hereinafter referred to as 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - ‘the plaintiff’ filed suit seeking declaration with a consequential relief of injunction against the respondent-State with respect to the suit land comprised in khasra No. 22 measuring 2.11 bighas and 26 ( 0.2 biswas) situated in village Kusari Pargana and Tehsil Nalagarh district Solan, H.P. in short ‘the suit land’ on the ground that she is owner in possession of the suit land w.e.f. 1960. She re- claimed the aforesaid land and her entry showing her to be the tenant is contrary to the factual position and in fact, she become owner of the suit land comprised of Khasra No. 22 aforesaid by way of adverse possession as her possession has been peaceful, continuous, uninterrupted, open and hostile to the knowledge of the real owner. It is also contended that she was paying rent to the previous owner with respect to 0.2 biswas of land comprised in khasra No. 26 for running a ‘gharat’ (water mill) which she inherited on the death of her husband. Thus qua khasra No. 26, she became owner under the H.P. Tenancy and Land Reforms Act, 1974 as this was being held by her as the non-occupancy - 3 - tenant. Since she had been in possession of the suit land, thus she also claimed injunction. 3. The suit was resisted and contested by the defendant-State raising preliminary objections by filing written statement with respect to the maintainability of the suit, service of notice, lack of cause of action and also jurisdiction. Further the locus-standi of the plaintiff has also been challenged. 4. On merits, adverse possession is denied and it is contended that the plaintiff manipulated her entry as non-occupancy tenant with respect to khasra No. 26 measuring 2 biswas in connivance with the revenue staff. As a matter of fact, the suit land was vested in the Gram Panchayat under the provisions of Punjab Common Land (Regulation) Act and after coming in to force the H.P. Common Lands (Vesting and Utilization) Act, 1974, the State became its owner. The plaintiff has been trying to take benefit of wrong entry made in the revenue record, hence a prayer was made to dismiss the suit. - 4 - 5. In replication, plaintiff denied the preliminary objections, however, re-affirmed the even paras on merits. 6. On the pleadings of the parties, trial court framed following issues:- (i) Whether the plaintiff has become owner by way of adverse possession of khasra No. 22 measuring 2 bighas 11 biswas ? OPP. (ii) Whether the plaintiff become owner under the provisions of H.P. Tenancy and Land Reforms Act in respect of khasra No. 26?OPP (iii) Whether suit is not maintainable? OPD (iv) Whether the plaintiff has no locus standi to file the present suit? OPD. (v) Whether this suit is bad for want of notice? OPD. (vi) Whether this court has no jurisdiction to hear and entertain the present suit? OPD. (vii) Relief. 7. The plaintiff only examined herself as PW1 and stated that the water mill is on khasra No. 26 measuring 2 biswas for the last about 60 years regarding which she was paying rent of `50 paise and the other portion of the suit land is in her - 5 - possession for the last 40/45 years which was re- claimed by her and some portion is in the shape of ghasni (grassy land). She also stated that there was no interference in her possession by the State. She could not produce any receipt of the rent with respect to 2 biswas of land where the ‘gharat’ was running. She further stated in cross-examination that one and a half bighas of land is barren but this portion is used by her to graze the cattle. 8. As against it, defendant-respondent examined DW1 Sadhu Ram Patwari. According to him, the entries of the plaintiff in the revenue record are wrong. However, stated that the suit land has been in her illegal possession. 9. Taking note of the aforesaid evidence, the learned trial Court answered all the issues in negative, consequently the suit of the plaintiff was dismissed as she failed to prove her adverse possession over the suit land as also the tenancy, as alleged. 10. Feeling aggrieved by the impugned judgment and decree, plaintiff filed appeal before the first Appellate Court reiterating her above stand. - 6 - Learned first appellate Court on the re-appraisal of the evidence on record did not find any substance in the appeal thus it was dismissed hence the present second appeal by the plaintiff. 11. After having heard the learned counsel for the parties and going through the record, I find that the plaintiff has failed to prove that she perfected her title by way of adverse possession with respect to khasra No. 22 measuring 2 bighas and 11 biswas. She also failed to substantiate this fact by leading cogent evidence that her possession is nec vi, nec clam, nec precario to the knowledge of the respondent as held by the Supreme Court in Mandal Revenue Officer versus Goundla Venkaiah and another (2010) 2 SCC 461. 12. The suit land is owned by the State government. The suit for declaration of title against the Government, though similar to suits for declaration of title against private individuals differ significantly in some aspects. The first difference is in regard to the presumption available in favour of the government. All lands which are not the property of any person or which are not vested in a local - 7 - authority, belong to the Government. All unoccupied lands are the property of the Government unless any person can establish his right or title to any such land. This presumption available to the government is not available to any person or individual. This observation was made by the apex Court in R. Hanumaiah and another versus Secretary to Government of Karnataka, Revenue Department and others (2010) 5 SCC 203. 13. In the instant case, as already stated above, plaintiff has miserably failed to establish her right/title to it. The adverse possession is also not proved. In so far as non-occupancy tenancy with respect to 2 biswas of land in khasra No. 26 is concerned, plaintiff has also failed to prove the contract with respect to the tenancy with the then owner of the suit land. Even she failed to prove the necessary incidence of tenancy, i.e., rent. There is also nothing on record to show as to how this entry was made in the revenue record in the name of the plaintiff and this entry, prima facie appears to be a stray entry without any order and no presumption of truth attaches to it. Thus, failure to prove the tenancy in accordance - 8 - with law, no conferment of the proprietary rights could be there under the Tenancy and Land Reforms Act. However, it is clear from the evidence on record that the plaintiff is in possession of the suit land therefore; at least injunction should have been issued against the defendant by the courts below against the threatened disposition, to protect her possession till her eviction save and except by due process of law. Thus to this extent the judgment and decree passed by the learned trial Court as affirmed in appeal requires to be modified. Accordingly, it is modified to the extent that the defendant-State is hereby restrained to cause any interference in the land measuring 2 bighas 11 biswas comprised in khata khewat No. 8 min/10 bearing khasra No. 22 and also khasra No. 26 measuring 0.2 biswas situated in village Kusari Pargana and Tehsil Nalagarh District Solan, H.P. which is in possession of the plaintiff unless otherwise by due process of law, for which respondent-State is at liberty to take steps to evict the plaintiff in accordance with law. 14. The substantial question of law is accordingly answered. - 9 - 15. The appeal is partly allowed to the above extent. 16. Parties to bear their own costs. September 21 , 2011 (Surinder Singh), (cm) Judge.