IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 151 of 2001. Date of decision: 11.08.2011. Gullu. ….. Appellant. Versus State of Himachal Pradesh. ….Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr.Ramakant Sharma, Advocate. For the Respondent : Mr. J.S.Rana, Asstt.A.G. Kuldip Singh, Judge (Oral) . This appeal is directed against the judgment dated 14.02.2001 passed by learned Additional District Judge, Solan, camp at Nalagarh in Civil Appeal No. 69-NL/13 of 2000, affirming judgment, decree dated 08.09.2000 passed by learned Sub Judge Ist Class, Nalagarh, in Civil Suit No. 322/1 of 1997. The appellant is the plaintiff. 2. The facts, in brief, are that appellant had filed a suit for declaration that he is owner in possession of land measuring 5 bighas 7 biswas, comprised in Khasra No. 494 corresponding to old Khasra No. 556/502/148, village Phalahi, Pargana Gullarwala, Tehsil Nalagarh. The order passed by Additional District Magistrate, Solan, dated 25.07.1985 is wrong, illegal, void. The consequential relief of permanent prohibitory injunction was also prayed against the respondent. Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 3. The further case of the appellant is that appellant being landless was allotted the suit land in the year 1975 under the Himachal Pradesh Common Lands (Vesting and Utilization Scheme), 1975. The appellant started cultivation of the land. The Additional District Magistrate, Solan, started proceedings for cancellation of allotment vide case No. 339/1984 and the allotment was cancelled on 25.07.1985. The order of cancellation dated 25.07.1985 is wrong, illegal. 4. The suit was contested by respondent by filing written statement, preliminary objections of maintainability, locus-standi and jurisdiction were taken. On merits, it was pleaded that land was allotted to the appellant on his misrepresentation. The allotment was reviewed and cancelled vide order dated 25.07.1985 of Additional District Magistrate, Solan. The replication was filed by the appellant. 5. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is owner in possession of the suit land, as alleged? OPP. 2. Whether Order dated 25.7.1985 passed by the A.D.M., Solan is wrong, illegal, null and void, as alleged? OPP. 3. Whether the plaintiff is entitled for relief of injunction as prayed for? OPP. 4. Whether this suit is not maintainable in the present form?OPD. 5. Whether the plaintiff has no cause of action to file the present suit? OPD. 6. Whether the plaintiff has no locus-standi to file the present suit? OPD. 7. Whether the Court has no jurisdiction to try present suit? OPD. 3 8. Whether this suit is not properly valued for the purpose of Court fee and jurisdiction? OPD. 9. Relief. The issues No. 1,3,4,7,8 were answered in negative and issues No. 2,5 and 6 in affirmative and the suit was dismissed on 08.09.2000. In appeal learned Additional District Judge, on 14.02.2001 affirmed judgment, decree dated 08.09.2000, hence second appeal which has been admitted on the following substantial questions of law:- 1. Whether the impugned judgment and decree is the result of complete misreading, misinterpretation as well as misappreciation of provisions of Section 3 of the Limitation Act? 2. Whether the learned Courts below are right in dismissing the suit on the ground of limitation especially when the limitation was not set up as defence by the State nor any issue was framed in that behalf? 6. I have heard Mr. Ramakant Sharma, learned counsel appearing on behalf of the appellant and Mr. J.S.Rana, Assistant Advocate General, appearing on behalf of the respondent and have also gone through the record. It has been submitted by Mr. Ramakant Sharma, Advocate that the two Courts below have mis-construed and mis-interpreted the evidence on record and Section 3 of Limitation Act in returning the finding that suit of the appellant is barred by limitation. He has submitted that suit was filed by the appellant when the respondent threatened to interfere in his possession and as such the suit is within limitation. The learned Assistant Advocate General has supported the impugned judgment, decree and has submitted that the 4 appellant is not in possession of the suit land. The two Courts below have rightly recorded finding of fact that suit is not within limitation. 7. The substantial questions of law No. 1 and 2 are inter- connected and, therefore, both of them can be conveniently taken up together for disposal. The appellant in the suit has prayed a decree for declaration that he is owner in possession of the suit land and the cancellation order dated 25.07.1985 passed by Additional District Magistrate, Solan, and subsequently revenue record of the suit land are illegal, null and void. The suit was filed on 19.11.1997. The suit land was allotted to the appellant vide ‘Patta’ Ex. P-2 dated 17.09.1975 which was set aside by Additional District Magistrate vide Ex. P-10 dated 25.07.1985. 8. The perusal of the jamabandies Ex. D-3 and Ex. D-4 for the years 1986-87 and 1996-97 respectively indicates that the appellant is not in possession of the suit land, rather State is in possession of the suit land. The presumption of truth attached to Jamabandies Ex. D-3 and Ex.D-4 has not been rebutted by appellant. In State of Punjab and others v. Gurdev Singh and Ashok Kumar AIR 1992 SC 111 the Supreme Court proceeded with the assumption that the order of the dismissal was void, inoperative and ultra vires and not voidable. The Supreme Court held that if an act is void or ultra vires, it is enough for the Court to declare it so and it collapses automatically. It need not be set aside. The aggrieved party can simply seek a declaration that it is void and not binding upon him. A declaration merely declared the existing state of affairs and does not ‘quash’ so as to produce a new state of affairs. But nonetheless the 5 impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or Court. The Supreme Court further held that the aggrieved party by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for. 9. The issue No. 2 in the present case is to the effect whether order dated 25.07.1985 is wrong, illegal, null and void. The appellant filed the suit for declaration that he is owner in possession of the suit land and the order dated 25.07.1985 is wrong, illegal and void. Article 58 provides limitation of three years to obtain any other declaration. The limitation starts when the right to sue first accrues. Article 113 provides limitation of three years for any suit for which no period of limitation is provided and the limitation starts when the right to sue accrues. Article 100 provides limitation of one year to set aside an act or order by an Officer of the government in his official capacity. The limitation starts from the date of order of the Officer. Thus, taken from any angle in view of State of Punjab and others v. Gurdev Singh and Ashok Kumar (supra) the suit of the appellant for declaring order dated 25.07.1985 null and void filed on 19.11.1997 after more than 12 years is not within limitation. In these circumstances, it cannot be said that the suit filed by the appellant was within limitation. 6 10. The two Courts below have rightly appreciated the material on record and thus no fault can be found with the findings recorded by two Courts below. The evidence cannot be reappreciated in second appeal. No case for ignoring admissible evidence by two Courts below has been established. There is no merit in the appeal. The substantial questions of law No. 1 and 2 are decided against the appellant. 11. In view of above discussion, the appeal fails and is accordingly dismissed with no order as to costs. Interim order dated 23.05.2001 is vacated. August 11, 2011. (Kuldip Singh), ( krt) Judge.