IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1176 of 2007 along with RSA No. 138 of 1999 Date of Decision : 12.5.2010 CWP 1176 of 2007 Hardwari Lal …Petitioner. Versus State of H.P. & others …Respondents. RSA No. 138 of 1999 Hardwari Lal ..Appellant. Versus Sheel Devi and others …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the petitioner/appellant: Mr. R.K.Gautam, Sr. Advocate with Mr. Mehar Chand, Adv. For the respondents : Mr. P.K.Sharma, Addl. A.G. with Mrs. Shubh Mahajan, DAG for respondents No.1 to 4 in (CWP No. 1176 of 2007) Mr. N.K.Thakur, Advocate for respondents No. 5 to 7 in CWP No. 1176 of 2007 and for respondents in RSA No. 138 of 1999. Kuldip Singh , Judge (Oral) This judgment shall dispose of CWP No. 1176 of 2007 and RSA No. 138 of 1999. 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 CWP No. 1176 of 2007 2. The petitioner has filed the petition for quashing order dated 27.3.2000 Annexure P-2, order dated 17.11.2001 Annexure P- 3, orders dated 5.6.2007 Annexures P-7 and P-8. It has also been prayed that order dated 27.3.2006 Annexure P-4 may be modified to the extent that whole of the land comprised in Khasra No. 399 may be allotted to petitioner. 3. The facts in brief are that the consolidation proceedings were conducted in the area. It has been alleged that during the course of consolidation proceedings objections were filed by the petitioner. The Consolidation Officer rejected the objections vide order dated 27.3.2000. The order dated 27.3.2000 was assailed before the Settlement Officer who rejected the appeal on 17.11.2001. The petitioner approached the Additional Director of Consolidation of Holdings under Section 30(4) of the Himachal Pradesh Consolidation (Prevention of Fragmentation) Act, 1971 (for short ‘Act’). The Additional Director allowed the appeal in part on 27.3.2006. The respondents No. 5 to 7 approached the Director, Consolidation of Holdings by filing petition under Section 54 of the Act. The petitioner had also filed petition under Section 54 of the Act. The Director, decided the petitions under Section 54 by separate orders of even date 5.6.2007. In these circumstances, the petitioner has filed the petition challenging the orders, noticed above. The case of the petitioner is that consolidation authorities have erred in not allotting entire old Khasra No. 399 to the petitioner. 4. The respondents No. 1 to 4 have filed the reply. In the reply, it has been alleged that from the record it transpired that khasra 3 No. 399 measuring 00-00-88 Hect. was in the ownership of both the parties to the extent of ½ share. The petitioner during consolidation was allotted 00-00-36 Hect. in khasra No. 399 and remaining 00-00- 08 Hect. land of 8,6 annas value alongwith his demand in 8,6 anna block has been allotted in Khasra Nos. 398, 160, 161, 162 and 182 pertaining to the same value. It has been alleged that order of the Settlement Officer shows that the maximum area of this khasra number is adjacent to the abadi of the respondent and keeping this in view, the respondent has been allotted excess land in this khasra number. The total over all demand of the petitioner was 00-12-33 Hect. standard and against which he has been allotted 00-12-42 Hect. standard meaning thereby the petitioner has been allotted 00- 00-09 Hect. more than his demand/entitlement, therefore, his claim is not based on facts. 5. It has been submitted that in view of circumstances noticed above appeal filed by the petitioner before the Consolidation Officer, Settlement Officer were also rejected by the authorities. The Additional Director vide order dated 27.3.2006 in Appeal No. 24 of 2002 gave 00-00-16 Hect. more land to the petitioner in Khasra No. 399. The Settlement Officer after verifying the position from the spot has clearly stated in his order that the maximum area of Khasra No. 399 is adjacent to the abadi of the respondents. There is a provision in the scheme that the land adjoining abadi will be allotted to the right-holders who is in possession of the same. The Additional Director had not followed the basic principle of the consolidation scheme while passing the order. In these 4 circumstances, the revision of the petitioner was rightly rejected. The respondents No. 5 to 7 have not filed any reply. 6. There is no dispute between the parties upto the stage of consolidation scheme provided under the Act. The dispute is with respect to allotment of khasra No. 399 (old). The perusal of objections Annexure P-1 filed by petitioner indicates that the objections were filed on the ground that repartition has not been done in accordance with Section 30(1) of the Act. The petitioner has claimed whole of Khasra No. 399 on the basis of his possession. 7. The Consolidation Officer vide order dated 27.3.2000 has observed that dispute with respect to Khasra No. 399 is pending in the High Court in RSA No. 138 of 1999 and Khasra No. 399 will be allotted in accordance with the decision of the Court. The perusal of order dated 27.3.2000 further indicates that ultimately khasra No. 399 was not allotted by the Consolidation Officer either to petitioner or respondents No. 5 and 7. It is admitted case of the parties that respondent No.6 Vinod Kumar has no connection with Khasra No.399. 8. The petitioner had assailed the order dated 27.3.2000 before the Settlement Officer and claimed entire Khasra No. 399 in re-partition. The Settlement Officer vide order dated 17.11.2001 rejected the contention of the petitioner with respect to allotment of entire Khasra No. 399 to him on the ground that as per spot verification Khasra No. 399 is in front of the abadi of petitioner as well as respondents No.5 and 7 and on most of Khasra No. 399 the respondents have their ‘Bartan’ rights and in these circumstances, the 5 Settlement Officer has observed that Khasra No. 399 has been rightly allotted and rejected the contention of the petitioner. 9. The decision dated 17.11.2001 was further assailed by the petitioner before Additional Director, who allowed the petition vide order dated 27.3.2006 and allotted Khasra No. 399 to the petitioner in the manner provided in the order dated 27.3.2006. The order dated 27.3.2006 was assailed by the petitioner as well as by respondents No.5 to 7 under Section 54 of the Act. The petition filed by the petitioner was registered as Case No. 104 of 2006 and the petition filed by respondents No. 5 to 7 was registered as case No. 66 of 2006. The Director vide order dated 5.6.2007 in case No. 66 of 2006 set-aside the order dated 27.3.2006 of Additional Director and for the same reasons dismissed the case No. 104 of 2006 filed by the petitioner. 10. The learned counsel for the petitioner has submitted that the Director has erred in dismissing the petition of the petitioner under Section 54 of the Act. He has also submitted that the authorities have committed procedural irregularity in not accepting the claim of the petitioner for allotting whole of khasra No. 399 to the petitioner. It is admitted case of the parties that some part of old Khasra No. 399 has been allotted to the petitioner and some part of old Khasra No. 399 to respondents No.5 and 7. The petitioner is claiming the allotment of khasra No. 399 on the basis of his possession. On the contrary, the Settlement Officer and the Director have recorded a finding that after spot verification it was found that Khasra No. 399 is in front of the abadi of petitioner as well as respondents No.5 and 7 and as per the Scheme, the adjoining owner has a right to get the allotment. The 6 respondents No.5 and 7 have also their ‘Bartandari’ rights over this land. 11. The learned counsel for the petitioner has contended that at one point of time, the Consolidation Officer had come to the conclusion that allotment of Khasra No. 399 shall be made in accordance with the decision of the civil court, therefore, the authorities have erred in allotting part of Khasra No. 399 to respondents No.5 to 7 without specifically setting aside the order of the Consolidation Officer to the effect that allotment shall be made after the decision of the Court. The suit filed by the petitioner is only for permanent prohibitory injunction. It has not been pointed out that any proceeding with respect to partition of the land in question was pending in any Civil Court. There is no question of allotment of land in accordance with the decision of the Civil Court when no suit for partition is pending regarding the disputed land. In any case at one point of time, at the time of re-partition a part of Khasra No. 399 was allotted to petitioner and some part of Khasra No. 399 was also allotted to respondents No. 5 and 7. The higher authorities under the Act have come to the conclusion that in view of the scheme under the Act, the respondents No.5 and 7 have made out a case for allotment of part of Khasra No. 399 (old). In the writ petition only the procedural irregularity can be looked into and not the ultimate decision. The petitioner has failed to make out any case that any procedural irregularity was committed by the authorities under the Act for allotting a part of Khasra No. 399 to respondents No. 5 and 7. 12. The learned counsel for the petitioner has contended that petitioner had half share in Khasra No. 399 and therefore, petitioner 7 is entitled to atleast half share out of Khasra No. 399. This contention cannot be accepted for the reason that in consolidation the land is to be allotted taking into consideration over all facts and circumstances of the case and not that a party should always get a particular piece of land and specific share from particular khasra number without establishing specific right for such allotment. No such right has been established by the petitioner. There is no merit in the petition, which is accordingly dismissed. CMP Nos. 1963 and 1965 of 2007 infructuous in view of disposal of main petition. RSA No. 138 of 1999 13. The appellant/plaintiff has come in appeal against judgment, decree dated 1.4.1999 passed by the learned District Judge, Una in Civil Appeal No. 81 of 1995 reversing the judgment, decree dated 1.4.1995 passed by the learned Sub Judge 1st Class, Amb, in Civil Suit No. 111 of 1991. 14. The facts, in brief, are that appellant had filed a suit for permanent prohibitory injunction against the respondents restraining them from taking forcible possession and from raising construction over the land measuring 0-09-61 Hect. bearing Khewat No. 4, Khatauni No. 12, Khasra Nos. 221, 398 and 399 as per jamabandi for the year 1986-87 situate in village Chhaproh, Tehsil Amb, District Una. The case of the appellant is that he is in exclusive hissadari possession of the suit land which is jointly owned by him alongwith respondents No.1, 2. The appellant has his abadi situated over Khasra No. 398 whereas he is cultivating the remaining suit land. The respondents are threatening to interfere in the possession of the appellant on the suit land. 8 15. The suit was contested by the respondents by filing written statement in which they have taken preliminary objections of maintainability, cause of action, mis-joinder of the parties. On merits it was submitted that suit land is joint of the parties but the appellant in connivance with the settlement staff got an entry in his favour which is paper entry having no effect on the rights of the respondents. The suit land is situated in front of the door of respondents and is being used as ‘Bartan’ since the time of their predecessors. 16. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is in exclusive hissadari possession of the suit land? If so, its effect ?OPP 2. Whether the plaintiff is entitled to the relief of injunction? OPP 3. Whether the suit is not maintainable, as alleged? OPD 4. Whether the suit is bad for mis-joinder of defendant No.3? If so, its effect? OPD. 5. Relief. The issues No.1 and 2 were answered in affirmative and issues No.3 and 4 in negative and the suit was decreed by the learned Sub Judge on 1.4.1995. The respondents filed an appeal and the learned District Judge on 1.4.1999 allowed the appeal and set-aside the judgment, decree dated 1.4.1995. In these circumstances, the plaintiff has filed the present appeal which has been admitted on the following substantial questions of law:- 1. Whether the learned first Appellate Judge mis- construed Ex.P-1, P-2 and P-3 in disturbing findings of the learned trial Judge and allowing the appeal? 9 2 Whether the latest entries in the revenue record should be rebutted by old entries in the revenue record. 17. I have heard the learned counsel for the parties and have also gone through the record. Mr. R.K.Gautam, Senior Advocate, learned counsel appearing on behalf of the appellant has submitted that the learned District Judge has mis-construed, mis- interpreted Ex.P-1, Ex. P-2 and Ex. P-3 and has erred in reversing the well reasoned judgment of the learned trial Court. He has submitted that the appellant is entitled to decree as prayed in the suit. Mr. N.K.Thakur, Advocate, learned counsel appearing on behalf of the respondents has supported the impugned judgment, decree and has submitted that even the trial Court had passed the decree till partition. He has submitted that now in the consolidation proceeding partition has taken place and khasra No. 399 has been allotted partly to the appellant and partly to respondents No. 1 and 2. He has thus, submitted that appellant is not entitled to decree as prayed by him in the suit. 18. The substantial questions of law No.1 and 2 are inter- connected, therefore both of them are taken up together for disposal. Ex.P-1 is the copy of Missal Haquiat Bandobast Jadid for the year 1986-87 in which Khasra No. 221, 398 and 399 have been shown in possession of appellant and in the column of ownership respondents No.1, 2 and others including appellant have been recorded. Ex.P-2 is the copy of jamabandi for the year 1980-81 wherein the appellant has been shown in possession of Khasra No. 55 min, 56 min and 181. Ex.P-3 is copy of Khasra Girdwari from Rabi 1987 to Rabi 1991 in 10 which possession of appellant has been shown in land comprised in khasra Nos. 221, 398 and 399. The Khasra No. 399 has been partly allotted in the consolidation proceedings to the appellant and partly to respondents No.1 and 2. Mr. Thakur, has not disputed the ownership of appellant of khasra No. 398 and 221. In these circumstances, the dispute is now confined to only Khasra No. 398, 321 and part of that Khasra No. 399 which has been allotted to appellant in the consolidation proceeding. 19. PW-1 has stated that respondent No.1 in July 1991 attempted to construct bathroom in his orchard, he objected but she started abusing him. Thereafter, he filed the suit. He denied the suggestion that the land in dispute is in front of the house of the respondent over which she had her ‘Bartan’ rights. He has also denied that respondent had planted mango tree on the land in dispute. He has denied that he is not in possession of the land in dispute. Sheela Devi appeared as DW-1 and has stated that she has constructed a temporary bathroom on the land in dispute and planted lemon plants thereon. The plaintiff had been seeing her possession on the land in dispute. In cross-examination, she has denied that the plants on the suit land were planted by plaintiff. She has denied the possession of plaintiff on the land in dispute. She asserted her possession on the land in dispute. 20. The possession of the plaintiff on the aforesaid land is corroborated by Ex.P-1, Ex.P-2 and Ex.P-3. The threats of interference of respondents on Khasra Nos. 398, 321 and part of Khasra No. 399 allotted to appellant have been established from the statement of appellant and respondent No.1. The respondent No.1 11 is asserting her right over aforesaid land. The learned District Judge has misconstrued Ex.P-1, Ex.P-2 and Ex.P-3 and oral evidence led by the parties. The substantial questions of law No.1 and 2 are decided in favour of the appellants and against the respondents. 21. The question now is that in view of consolidation proceedings the appellant is entitled to what relief and to what extent? The ownership and possession of appellant on Khasra No. 398 and 221 has been established. However, a part of Khasra No. 399 has been allotted to plaintiff in the consolidation proceedings and other part of Khasra No. 399 has been allotted to respondents No.1 and 2. Therefore, appellant is entitled to decree of permanent prohibitory injunction only with respect to Khasra No. 221, 398 and only that part of Khasra No. 399 which has been allotted to appellant in the consolidation proceedings. The claim of the appellant with respect to that part of Khasra No. 399 which has been allotted to respondents No.1 and 2 stands dismissed. 22. No other point was urged. 23. The result of the above discussion, the appeal is allowed, judgment, decree dated 1.4.1999 passed by the learned District Judge, Una is set-aside. The respondents are restrained from causing interference in any manner in the ownership and possession of appellant/plaintiff over khasra No. 398, 221 and that part of Khasra No. 399 which has been allotted to appellant/plaintiff in consolidation proceeding and claim of appellant/plaintiff with respect to that part of Khasra No. 399 which has been allotted to respondents No.1 and 2 in consolidation proceedings stands dismissed with no order as to costs. The original judgment be placed on the file of RSA No. 138 of 12 1999 and a copy of judgment be also placed on the file of CWP No. 1176 of 2007. ( Kuldip Singh ) Judge. May 12, 2010. (GR)