IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 257 of 2010. Reserved on: 31.12.2010. Decided on 17.03.2011. _____________________________________________________ Bishan Dass and another. …Appellants. -Versus- State of H.P. through its Collector Una, District Una, H.P. …Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the appellants. : Mr. Anup Rattan, Advocate. For the respondents : Mr. Vinod Thakur, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree dated 24.05.2010, passed by the learned Additional District Judge, Una (H.P.) in Civil Miscellaneous Appeal No. 31 of 2009. 2. Material facts necessary for adjudication of this Regular Second Appeal, are that the respondent-State has initiated the proceedings against the appellants under Section 163 of the H.P. Land Revenue Act, 1954 (hereinafter referred to as “the Act” for brevity sake). Appellants were served with a notice on 3rd 1 Whether the reporters of the local papers may be allowed to see the judgment? No. - 2 - October, 2009. Thereafter, he filed the reply to the notice on 12th October, 2009. Rejoinder was filed by the State on 16.10.2009. Issues were framed by the AC-Ist Grade. The learned AC-Ist Grade held that the appellants have failed to prove their claim or interest over the disputed land, which was owned and possessed by the Government. He ordered the preparation of warrant of ejectment, with a further direction to send the same to the Field Kanungo Chururu for implementation in accordance with law vide order dated 09.11.2009. Appellants preferred an appeal before the learned Additional District Judge against the order dated 09.11.2009. Learned Additional District Judge, Una rejected the appeal on 24.05.2010. Hence, this Regular Second Appeal. 3. Mr. Anup Rattan, learned counsel for the appellants has strenuously argued that the appeal before the learned Additional District Judge was maintainable against the order dated 09.11.2009. 4. Mr. Vinod Thakur, learned Deputy Advocate General has supported the judgment of the learned Additional District Judge dated 24.05.2010. 5. I have heard the learned counsel for the parties and gone through the pleadings carefully. 6. What emerges from the pleadings, is that the respondent-State has initiated the proceedings against the appellants on 30.09.2009 vide encroachment case No. 06 of 2009. The proceedings were initiated against the appellants on the basis of complaint filed by the General Public of Village Dhandri, Tehsil Amb, District Una. The villagers had blocked the vehicular traffic on Amb-Una Highway on 28th September, 2009 against the - 3 - encroachment over Government land comprised in Khewat No. 448, Khatauni No. 933 min, Khasra No. 2692, as per Jamabandi for the year 2006-2007 by the appellants. This land was transferred to Education Department and was used as a playground by the children studying in Government Primary School Dhandri. The Gram Panchayat had started the work for raising a boundary wall to fence the play ground. The appellant encroached upon some portion of the land by digging plinth, which has been described as Khasra No. 2692/1 and had obstructed the construction work. Thereafter, the revenue field staff demarcated the land comprised in Khasra No. 2692 in the presence of all the residents of village Dhandri on 29th September, 2009 and found the encroachment over Government land comprised in Khasra No. 2692/1, measuring 0-00-70 Hects on the spot. The revenue papers were prepared and submitted in the Court of AC-Ist Grade on 30th September, 2009. A notice was issued to the appellants on 03.10.2009, to which they filed reply on 12.10.2009. Appellant No. 1 had instituted a Civil Suit No. 33 of 1991 in the Court of learned Sub-Judge Ist Class, Court No. (1), Amb, seeking the decree of declaration and perpetual injunction. The certified copy of the judgment was supplied by Mr. Anup Rattan, learned counsel for the appellants during the course of hearing. Learned Sub-Judge, Ist Class, Court No. (I), Amb, District Una has framed the following issues in Civil Suit No. 33 of 1991: “1. Whether the plaintiff was earlier in possession of the suit land to the extent of 1 Kanal denoted by letters ABCD in the site plan as tenant as - 4 - alleged and has now become owner of the same under the H.P. Tenancy & Land Reforms Act? OPP. 2. Whether the entry in favour of the defendant is wrong qua the suit land? OPP. 3. Whether the mutation No. 2396, dated 24.9.86, is wrong, illegal, void as alleged? OPP. 4. Whether the suit land has not vested in the state of H.P. as alleged? OPP. 5. Whether the plaintiff is entitled to the relief of injunction as prayed for? OPP. 6. Whether the suit is not maintainable in the present form? OPD. 7. Whether the suit is bad for non- compliance of provisions of section 80 CPC. If so, its effect? OPD. 8. Whether the suit is bad for non-joinder of necessary parties? OPD. 9. Whether the civil court has no jurisdiction to entertain the suit? OPD. 10. Relief. 7. The learned Sub-Judge (1), Amb has recorded the following findings: “11. In the light of my aforesaid findings and discussion it is clear that the plaintiff is neither tenant over the suit land nor he could have acquired ownership right under H.P. Tenancy and Land Reforms Act. Issue No. 1 is, therefore, decided against the plaintiff. 13. It is, thus, clear that the suit land vested in the State of H.P. U/S 3 and, therefore, the entry of ownership qua the suit land in favour of the defendants vide mutation No. 2396, dated 24.9.86, is valid and legal. Both these issues are, therefore, decided against the plaintiff.” - 5 - 8. The appellants have not taken the specific ground of adverse possession in the earlier suit bearing No. 33 of 1991. In the reply filed to the notice issued in the present case, the case of the appellants is that they had become owners by way of adverse possession. According to them, they were in continuous and un- interrupted possession for the last 35 years. The plea taken by the appellants in the reply to show-cause notice, in these circumstances, is not bonafide. In case the appellants were claiming the title to the land in question by way of adverse possession, the plea ought to have been taken by them in the earlier suit instituted in the year 1991. 9. The learned Sub-Judge (1), Amb, as per the judgment and decree dated 20.09.1993, declined the relief of declaration that he had become the owner of the suit land. However, the suit for injunction was decreed and it was held by the learned Sub- Judge(1), Amb that the appellant shall not be ejected from the suit land without adopting the procedure prescribed under the H.P. Village Common Land (Vesting & Utilization) Act, 1974. 10. According to the provisions of Sub-section 13.3(3) of Section 163 of the H.P. Land Revenue Act, 1954, when there is a question as to title or to the adverse possession, wherein the possession is claimed by an encroacher for a period beyond thirty years in relation to the land from which ejectment is made or is to be made under this section, the Revenue Officer, not below the rank of an Assistant Collector of the First Grade, shall proceed to determine the question as if he were a civil court and shall exercise all such powers as are exercisable by a civil court. As per Sub-section (4), the Revenue Officer is also required to follow the - 6 - same procedure as is applicable to the trial of an original suit by a civil court and he shall record a judgment and decree containing the particulars required by the Code of Civil Procedure, 1908 to be specified therein. A further appeal from the decree of the Revenue Court made under Sub-section (4) lies to the District Judge as if that decree were a decree of a subordinate judge in an original suit. Mere raising of a question of adverse possession does not make incumbent upon a Revenue Officer to accept it. As far as conferment of propriety rights on the appellants is concerned, once the rights of the parties have been determined in Civil Suit No. 33 of 1991, decided on 20.09.1993, the AC-Ist Grade was precluded to go into the matter afresh. Now, as far as the plea of adverse possession is concerned, the same is not bonafide and it has been taken only to thwart the process of eviction. He has to satisfy himself by holding a preliminary inquiry whether such a plea exists on the basis of material brought before him or not. If the Revenue Officer is satisfied that yes this question arises, only in those cases, he has to determine this question as if he were a civil Court and has to pass a judgment and decree. In these circumstances, the order dated 09.11.2009 is in accordance with law, whereby he has ordered the ejectment of the appellants. He was not required to pass a judgment and decree since he had not decided the question of title. The order passed by the Revenue Officer dated 09.11.2009, being not a judgment and decree, was not appealable before the learned Additional District Judge, Una, H.P. 11. Mr. Anup Rattan, learned counsel for the appellants has put a strong reliance on Pola Ram Versus State of H.P. and - 7 - another, Latest H.L.J. 2006 Vol.-1, page 676. The facts of this case are different from the instant case. In that case, the Assistant Collector, Ist Grade had already decided the case as Civil Suit in terms of Sub-section 3 of Section 163 of the H.P. Land Revenue Act, 1954. In view of this, the appeal, as per Sub-section (5) of Section 163 of the H.P. Land Revenue Act, 1954, was maintainable before the learned District Judge. It is reiterated that since in the case in hand, the Revenue Officer has not decided the case as a Civil Suit, the order was not appealable before the learned District Judge and the same was appealable before the Collector as per the provisions of H.P. Tenancy & Land Reforms Act, 1972. 12. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed. No costs. (Rajiv Sharma) Judge March 17, 2011. (bhupender) - 8 -