IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 142 of 1995 with RSA No. 382 of 1995. Reserved on:3.7.2009. Decided on: 13.8.2009. __________________________________________________ RSA No. 142 of 1995: Shri Mela Ram … Appellant. Versus The State of H.P. and others. … Respondents. ___________________________________________________________ RSA No. 382 of 1995: The State of H.P. and another. … Appellants. Versus Shri Mela Ram and others. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. RSA No. 142 of 1995: For the appellant : Mr. Bhupender Gupta, Sr.Adv. with Ms. Charu Gupta, Adv. For Respondents No. 1 & 2 : Mr. R.K. Sharma, Sr. Addl.A.G. With Mr. Rajinder Dogra, Addl. A.G. and Mr. Ramesh Thakur, Asstt. Advocate General. For Respondents No. 3 & 4 : Nemo. RSA No. 382 of 1995: For the appellants : Mr. R.K. Sharma, Sr. Addl.A.G. with Mr. Rajinder Dogra, Addl. A.G. and Mr. Ramesh Thakur, Asstt. Advocate General. For Respondents No. 1 to 3 : Mr. Bhupender Gupta, Sr.Adv. with Ms. Charu Gupta, Adv. _________________________________________________________ 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 Rajiv Sharma, Judge. Since common questions of law and facts are involved in these regular second appeals, they were taken up together for hearing and are being disposed of by a common judgment. RSA No. 142 of 1995: This regular second appeal is directed against the judgment and decree dated 25.2.1995 passed by the learned District Judge, Shimla in Civil Appeal No. 27-S/13 of 1993. Brief facts necessary for adjudication of this regular second appeal are that the appellant-plaintiff (hereinafter referred to as the plaintiff for convenience sake) filed a suit against the contesting defendants for declaration that he and proforma respondents- defendants; namely, Beli Ram and Banka Ram have become owners of land comprised in Khasra No. 563, 564 and 704 (new) measuring 2-92-60 hectares Chak Bahli, Tehsil Rohru, District Shimla by way of adverse possession and ultimately the order of Financial Commissioner (Appeals), Himachal Pradesh dated 22.7.1985 and the order of Assistant Collector II Grade, Rohru dated 23.9.1986 are illegal, without jurisdiction and not binding upon them. He has also prayed for permanent prohibitory injunction restraining the defendants from interfering in the suit land. The contesting defendants have filed their written statement. The possession of the plaintiff and proforma defendants for more than thirty years has been denied. It is denied that the plaintiff and proforma defendants have become owners of the suit land by way of adverse possession. The further case of the defendants is that 3 the plaintiff and proforma defendants have encroached upon the suit land and ejectment proceedings were initiated against them before the Assistant Collector II Grade, Rorhu. He passed order of ejectment of plaintiff and proforma defendants from the suit land on 2.5.1966. The case was contested by the plaintiff upto Financial Commissioner (Appeals). The Financial Commissioner (Appeals) passed order on 22.7.1985 for ejectment of the plaintiff and proforma defendants from the suit land. It is also averred that the plaintiff and proforma defendants are the encroachers of ‘Shamlat’ land which already stood vested with the State of Himachal Pradesh by the Act. The trial Court dismissed the suit on 27.2.1993. The plaintiff preferred an appeal before the learned District Judge, Shimla. The learned District Judge, Shimla held that the suit land wherein the house of plaintiff is situated, measuring 0-04-64 hectares cannot vest in the State and regarding rest of the land, the claim of the plaintiff was not found correct and genuine. The appeal was, thus, partly accepted. This regular second appeal has been preferred against the judgment and decree dated 25.2.1995. The regular second appeal was admitted on the following substantial questions of law: 1. Whether the land which is in exclusive possession of Village Proprietor on the assertion of the exclusive ownership would attract the iterance of the partition thereby exempting the same to be vesting under the provisions of the H.P. Village Common Land (Vesting and Utilization) Act? 2. Whether the claim of the plaintiff-appellant was accepted for the constructed portion, whether the learned lower Appellate Court has misconstrued the provisions of the said Act rejecting the claim qua the 4 land and orchard which was also exempted from being vested in the State of Himachal Pradesh? 3. Whether the learned Courts below have misconstrued and misapplied the provisions of the H.P. Village Common Land (Vesting and Utilization) Act when the possession of the plaintiff and their predecessor was proved to be more than of statutory period for assertion of the right of the ownership, whether the animus of hostility is apparent to declare them to be owner, were the Courts below justified in rejecting the claim of the plaintiff for hostile title on this score? RSA No. 382 of 1995: This regular second appeal has been preferred by the State of Himachal Pradesh against the judgment and decree dated 25.2.1995 passed by the learned District Judge, Shimla in Civil Appeal No. 27-S/13 of 1993. The regular second appeal was admitted on the following substantial questions of law: 1. Whether the learned Lower Appellate Court has misread/misconstrued the legal provisions of the Village Common Land (Vesting & Utilization) Act? 2. Whether the misappreciation of oral and documentary evidence has caused miscarriage of justice? Mr. Bhupender Gupta has strenuously argued that both the learned Courts below have misconstrued and misinterpreted oral as well as documentary evidence. According to him, the plaintiffs have proved ownership over the suit land by way of adverse possession. He finally contended that the land could not vest with the State of Himachal Pradesh under the provisions of H.P. Village Common Land (Vesting and Utilization) Act, 1974 (hereinafter referred to as the Act). 5 The learned Senior Additional Advocate General has supported the judgments and decrees passed by both the learned Courts below except the relief granted to the plaintiff whereby he has been permitted to retain the possession of house and cowshed by the learned District Judge. I have heard the learned counsel for the parties and have perused the record carefully. Since the substantial questions of law are inter-connected and inter-linked, they have been taken up together for adjudication to avoid repetition and for convenience. The case set up by the plaintiff is that he is in possession of the suit land since the time of his forefathers. He had appeared as PW-1. He has deposed that initially the suit land was ‘Shamlat’ but it is coming in his possession from the time of his ancestors. When he started cultivating the land, no one objected to his possession. He has placed on record copy of Jamabandi for the year 1961-1962 Ext. PA and Jamabandi for the year 1980-1984 Ext. PB. However, he has admitted that he was ejected pursuant to the orders passed by the revenue officers. He challenged the same before the competent authority. According to him, his possession is for more than 40 years on the suit land. PW-2, PW-3 and PW-4 have supported the version of the plaintiff. According to them, plaintiff and proforma defendants No. 3 & 4 have planted apple orchard and age of this orchard was about 32-35 years. To similar effect is the statement of PW-5. DW-1 has tendered the encroachment file and proved copy of report of Patwari Ext. DA and copy of order passed by the 6 Assistant Collector II Grade Ext. DB. DW-2 Gulat Ram Patwari proved on record copy of Jamabandi for the year 1961-1962 Ext. DC, copy of Jamabandi for the year 1965-1966 Ext. DD, Naqsha Bartan Ext. DE, copy of Jamabandi for the year 1965-1966 Ext. DJ, copy of Misal Hakiat Ext. DK. DW-3 Basu Dev Patwari has proved on record copy of Rapat Rojnamcha dated 20.6.1968 Ext. DL. It is evident from the record that the plaintiff and proforma defendants were ejected from the suit land on 3.5.1966 and 18.6.1968. The land has been shown as ‘Shamlat Deh Hasab Hissa Malgujari’ as per Ext. DF. Similar entries have been made in Exts. DG, DH, DJ and DK. In the copy of Rapat Rojnamcha Ext. DW-2/A, the fact of the ejectment of the plaintiff and proforma defendants have been categorically mentioned. In the copy of Misal Hakiat Ext. DW-3/A, the land is recorded in ownership and possession of the State. Similar entry has been made in Misal Hakiat Ext. DW-3B. However, in the copy of Khasra Girdawari Ext. DW-3/C, ‘Gair Mumkin’ house has been shown on the land measuring 0-01-58 hectares and ‘Gair Mumkin Khalian is mentioned in Khasra No. 0-00-33 hectares. A suit in the similar nature was filed by Jiu and others in the year 1965 claiming the same relief. The suit was dismissed vide order Ext. DO. It is only in the copy of Jamabandi for the year 1961-1962 Ext. PA, a stray entry has been made in the name of plaintiff Beli Ram, Mela Ram and Banka Ram in the column of possession. However, the land is recorded ‘Shamlat Deh Hasab Hissa Malgujari’. In the copy of Misal Hakiat 1980-1984 Ext. PB, the land is owned by the State and in the column of possession ‘Tabe Hakum Bartandaran 7 Mutabik Naksha Bartan’ has been recorded. The plaintiff and proforma defendants were ejected vide Ext. PC. The order passed by the Financial Commissioner is Ext. PE. In order to prove adverse possession, the plaintiff was required to specifically plead and establish by clear and cogent evidence. He has to plead specifically the date on which he came in possession of the land. He has only mentioned in the plaint that his ancestors came in possession of the suit land forty years ago and then started cultivating the suit land. The plaintiff has not specifically stated the date when his ancestors came in possession of the suit land and when their possession matured into ownership. A mere possession, as deposed by PWs, is not sufficient to prove adverse possession. They were required to prove that their possession was peaceful, continuous and hostile. The plaintiff himself has admitted that the ejectment proceedings were initiated against him in the year 1966. He has contested the proceedings up to Financial Commissioner (Appeals). PW-2 and PW-4 are encroachers of ‘Shamlat’ land. They have encroached 7 ½ bighas and 6 bighas of ‘Shamlat’ land in Chak Karaso. There are contradictions in the statements of PWs when the ancestors of the plaintiff and proforma defendants entered into possession of the suit land. The plaintiff had to prove that he was in continuous, peaceful and hostile possession for 30 years. The ejectment order was passed in the year 1966. In these circumstances, the possession of the plaintiff cannot be treated as peaceful or hostile. It was merely the case of encroachment upon the Government land. The H.P. Village Common Land (Vesting and Utilization) Act came into force in 8 August, 1974. Since the plaintiff and proforma defendants have not been found to be owners of land and the nature of the land remained ‘Shamlat’, it has vested with the State of Himachal Pradesh free from all encumbrances immediately after coming into force of the Act. The only exception provided under Section 3 (2) Clause (c) whereby residential house and cow shed have been saved. This aspect has been taken into consideration by the learned District Judge. It is not the case of the plaintiff that ‘Shamlat’ was ever partitioned amongst the co-sharers before commencement of the Act. There is no pleading to this effect even in the plaint. Accordingly, in view of the observations made hereinabove, there is no force in this regular second appeal and the same is dismissed. No costs. In view of the judgment rendered in Regular Second Appeal No. 142 of 1995, there is no merit in this regular second appeal. The learned District Judge has rightly construed Section 3 of the H.P. Village Common Land (Vesting & Utilization) Act by permitting the plaintiff to retain the possession of a house and cowshed. Accordingly, this regular second appeal No. 382 of 1995 is dismissed. No costs. (Rajiv Sharma), J. August 13, 2009. (cr)