1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA. RSA. NO._206 of 1996. Judgment Reserved on: .8.5.2008 Date of Decision: 9.5.2008 State of H.P. …….…Appellant Versus Roshan Singh ………Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh,Judge Whether approved for reporting? No For the appellant: Mr. A.K. Bansal, Addl. Advocate General. For the respondent: None. Kuldip Singh, J This appeal has been directed against the judgment, decree dated 16.1.1996 passed by learned District Judge, Solan, Camp at Nalagarh in C.A No.7-NL/13 of 1995, reversing the judgment, decree dated 25.11.1994 passed by learned Sub Judge Ist Class, Arki, Camp at Nalagarh in Case No. 031/1 of 1999/466/1 of 1991 and observing that Assistant Collector Ist Grade may see the desirability of getting the land measuring 8 biswansis from appellant in lieu of the suit land or realize the market value of the same. _____________________________ whether reporters of Local Papers may be allowed to see the Judgment?Yes 2 2. The facts in brief are that Roshan Singh respondent had filed a suit for declaration that the order dated 29.11.1988 passed by Assistant Collector Ist Grade, Nalagarh be declared as inoperative and against his right with consequential relief that appellant/defendant be restrained from dispossessing the respondent/plaintiff from the suit land and not to demolish the house constructed by respondent/plaintiff on the suit land. 3. The appellant in the plaint has pleaded that Assistant Collector Ist Grade, Nalagarh has ordered dispossession of the appellant vide order dated 29.11.1988 from land comprised in Khewat/Khatauni No. 193 min, Khasra No.452/1 (0-1) or say 0-0-8 biswansi as per copy of Aks Latha and Tatima, situated in village Joghon, Pargana Gullarwala, Tehsil Nalagarh, Distt Solan. The appellant had raised construction on the suit land on 13.4.1972, the order dated 29.11.1988 is wrong and illegal. The construction was raised on 13.4.1972, therefore, order of ejectment of the appellant and demolition of structure raised by the appellant on the suit land does not arise in view of bar created by Section 3 of the H.P. Village Common Land ( Vesting and Utilization) Act 1974. 4. The suit was contested by the State by filing written statement, in which preliminary objections of jurisdiction, maintainability, lack of cause of action and notice under Section 80 CPC have been taken. On merits, it has been pleaded that respondent had encroached upon the suit land in the year 1988 as per report dated 4.10.1988 of the Patwari. The Assistant Collector Ist Grade has passed the order dated 29.11.1988 after giving opportunity to the parties. The order dated 29.11.1988 is legal. The 3 respondent is an encroacher, therefore, Section 3 of H.P. Village Common Land (Vesting and Utilization ) Act, 1974 is not applicable. The respondent filed replication to the written statement, in which he denied the case set up by the appellant and reiterated his case set up in the plaint. The learned Sub Judge dismissed the suit on 25.11.1994 but in appeal learned District Judge allowed the appeal as noticed above, hence second appeal by the State which has been admitted on the following substantial questions of law:- 1 Whether the jurisdiction of the Civil Court is barred under Section 171 of the H.P. Land Revenue Act, 1954 in proceeding initiating under Section 163 of the H.P. Land Revenue Act? 2. Whether the respondent has illegally encroached over the suit land? 3. Whether mere mis-reading and misinterpreting of oral as well as documentary evidence on record itself amount substantial question of law? The respondent was proceeded exparte on 8.5.2008 in the appeal. 5. I have heard Mr. A.K. Bansal, learned Addl. Advocate General for the appellant and gone through the record. It has been submitted by learned Addl. Advocate General that suit is not maintainable in view of Section 171 of the H.P. Land Revenue Act, 1954 ( for short Act). The Civil Court has no jurisdiction to set aside the order passed by the Assistant Collector Ist Grade under Section 163 of the Act. The order dated 29.11.1988 of the Assistant Collector 4 at the most could have been assailed by way of appeal etc. but not by way of suit. Substantial Questions of law 1 to 3:- 6. The substantial questions of law 1 to 3 are interconnected, therefore these are being disposed of collectively. The relevant part of Section 171 of the Act is as follows:- “171. Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers- Except as otherwise provided by this Act- (1) A Civil Court shall not have jurisdiction in any matter which the State Government or a Revenue Officer is empowered by this Act to dispose of or take cognizance of the manner in which the State Government or any Revenue Officer exercises any powers vested in it or him by or under this Act. – (2) A Civil Court shall not exercise jurisdiction over any of the following matters, namely – (i) xxx xxx (ii) xxx xxx Xxx xxx xxv) Any question, as to any land or any right to, or title or interest in, the land which is an encroached land or in relation to which any person claims that it has vested or is deemed to have vested in him and that he cannot be ejected therefrom under sub-section (1) of section 163; or 5 xxvi) The ejectment of any person under section 163 or the recovery of damages or fine payable under sub- section (1) of that section”. 7. It is the case of the respondent that Assistant Collector under Section 163 of the Act has passed order dated 29.11.1988 Ex.P-3 vide which the respondent was ordered to be ejected from land comprised in khasra No.452/1. There is no denial of the fact that under Section 163 of the Act the Revenue Officer has jurisdiction to deal with the encroachment on Government land. The jurisdiction of the Civil Court under Section 171 is barred in any matter which the State Government or the Revenue Officer is empowered under the Act to dispose of or take cognizance. The Assistant Collector after hearing the parties has passed the order of ejectment Ex.P-3. The stand of the respondent in the suit that order dated 29.11.1988 is illegal and he cannot be evicted from the suit land is enough to non-suit him under Section 171 (2) (xxv) (xxvi). The learned District Judge has also found the unauthorized possession of the respondent on 8 biswansis of land and therefore, in the operative part of the impugned judgment he has observed that the Assistant Collector may see the desirability of getting the land measuring 8 biswansis from the appellant in lieu of the suit land or realize the market value of the same. The learned District Judge has not considered Section 171 of the Act which excludes the jurisdiction of the Civil Court with regard to a question that a person cannot be ejected from encroached land under sub-section (1) of Section 163 or ejectment of such person is illegal under Section 163 . The learned District Judge has failed to appreciate the very maintainability of the suit in the Civil Court in view of Section 171 of the 6 Act. In these circumstances, the impugned judgment, decree are not sustainable. Accordingly, the questions of law 1 to 3 are decided in favour of the appellant-defendant. The appeal is allowed, judgment, decree dated 16.1.1996 passed by learned District Judge, Solan, Camp at Nalagarh passed in C.A No.7-NL/13 of 1995 are set aside. Suit of the respondent-plaintiff is dismissed. No order as to costs. ( Kuldip Singh) Judge May 9, 2008 (sks)