IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA Nos. 69 of 1994 & 103 of 1995. Date of decision December 8, 2008. RSA 69 of 1994. Kushal Chand v. State of H.P. & another RSA 103 of 1995. Keshav Ram v. State of H.P. & others Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the appellants Mr. Bhupinder Gupta, Sr. Advocate, with Mr. Neeraj Gupta, Advocate. For respondent No. 1 Ms. Ruma Kaushik, Addl. AG. For respondent No. 2 Mr. Rakesh Jaswal, Advocate. Dev Darshan Sud, J. (Oral) Both these appeals are being disposed of by a common judgment as common questions of law and fact are involved. The appellant in both the appeals are the plaintiffs who instituted the suit out of which these proceedings arise, praying for a decree of declaration and permanent prohibitory injunction on the ground that he was the owner of the suit land by purchase and that proceedings initiated under Section 163 of the Himachal 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - Pradesh Land Revenue Act (hereafter referred to as the Act) by respondent No. 1 State, were illegal. On the settled issues, the learned trial Court on the crucial issue as to whether the plaintiff(s) were/ was the owner having validly purchased the land from respondent No. 2 Raja Rana Yogendera Chandra, vide Ex. PW-1/A and Ex.PE, PA and PB in the second appeal RSA 103/1995 decided against the plaintiff. In appeal, the findings of the trial Court were affirmed. The appeals were admitted on the following substantial questions of law: RSA 69 of 1994. 1. Whether the sale which has been affected prior to application of the Transfer of Property Act to the State of Himachal Pradesh requires compulsory registration, whether oral sale was permissible within the State of Himachal Pradesh prior to applicability of the Transfer of Property Act? 2. Whether the document Exhibit PW-1/A can be held to be compulsorily registrable when the provisions of Transfer of Property Act were not applicable when the same was executed? 3. Whether the Exhibit PW-1/A could be held to be an agreement of sale or the Deed of Sale so as to direct the provisions of Section 17 and 49 of Indian Registration Act? 4. Whether the land to which the title of the previous owner seized to subsist could vest in the State of Himachal Pradesh under the - 3 - provisions of H.P. Ceiling of Land Holdings Act? 5. Whether the ejectment proceedings initiated by the State of Himachal Pradesh against the plaintiff-appellant are without jurisdiction when the sale as defined under section 54 of the Transfer of Property Act be deemed to be complete, as part payment of sale consideration complete the sale or not? 6. Whether the status of the appellant as tenant was not defined by the owner under whom the tenancy was claimed, is it permissible for the Court to give findings that such relationship not been established. Do the judgments and decrees of both the learned Courts below stand vitiated on account of misreading the pleadings and material available on the record. RSA 103 of 1995. 1. Whether the land to which the title of the previous owner seized to subsist could vest in the State of Himachal Pradesh under the provisions of H.P. Ceiling of Land Holdings Act? 2. Whether the ejectment proceedings initiated by the State of Himachal Pradesh against the plaintiff-appellant are without jurisdiction when the sale as defined under section 54 of the Transfer of Property Act be deemed to be complete, as part payment of sale consideration complete the sale or not? 3. Whether the status of the appellant as tenant was not defined by the owner under whom the - 4 - tenancy was claimed, is it permissible for the Court to give findings that such relationship not been established. Do the judgments and decrees of both the learned Courts below stand vitiated on account of misreading the pleadings and material available on the record. 4. Whether the learned lower courts below have misread the documents Exhibit PE and Exhibit PA and PB? Before considering the rival contentions of the parties, one crucial fact needs to be considered and that is that CWP No. 272 of 1986, titled Kushal Chand versus State of Himachal Pradesh and others (Ex.PJ) was filed in this Court which was disposed of on 5.9.1986. The petitioner therein, who is the appellant in this appeal, had challenged the proceedings under Section 163 of the Himachal Pradesh Land Revenue Act which were initiated against the petitioner – appellant herein. A number of contentions were raised. This Court while disposing of the writ petition held: “ As is obvious from the above narration of facts, the main controversy between the parties pertains to the factum and validity of the sale alleged to have been made by the erstwhile owner of the land in dispute in favour of the petitioner in 1969 before the enforcement of the H.P. Ceiling on Land Holdings Act. This inquiry certainly - 5 - involves complicated questions of fact and law. Shri Chandel, the learned Asstt. Advocate General appearing for the State, on instructions received from Shri P.B. Sharma, Deputy Secretary (Revenue) who is present in Court makes a statement that the petitioner shall not be ejected from the land in dispute pursuant to the impugned order for a period of six months from today during which period he may file a civil suit to establish his title to the land in dispute and obtain interim order to protect his possession. He further states that in case the petitioner files such a suit to establish his title and succeeds in showing therein that he had validly acquired the land in dispute under an oral sale before the commencement of the Himachal Pradesh Ceiling on Land Holdings Act, the order of the Collector vesting this land in the State shall be of no effect as against the petitioner. In view of this statement made on behalf of the respondents, Shri Devinder Gupta, learned counsel for the petitioner, does not press this writ petition and seeks leave to withdraw the same. The leave is allowed and the writ petition is dismissed as withdrawn.” Similarly, in the other appeal RSA 103 of 1995 also CWP 271 of 1986 (Ex. PL), titled Keshav Ram and another versus State of Himachal Pradesh and others was filed - 6 - by the appellant therein wherein an identical order was passed. I must note at this juncture that the learned Additional Advocate General submits that there is ample evidence on record to show that the land had in fact vested in the State because it was surplus land beyond the permissible limit under the Ceiling Act. A reference was made to the documentary evidence of the plaintiff. It was urged that the matter was finally concluded in favour of the State and even if the State had led no evidence it was of no consequence. It is true that irrespective of the fact as to who has produced the evidence, once the identity of the land is established, the only point to be determined is as to whether the land has properly vested in the State or not. In particular, reference was made in RSA 69 of 1994 to Ex.PC, order of the Collector, Mark Y, order of the Divisional Commissioner which, when read in conjunction with the order of the Financial Commissioner Ex.PM and Mark 3, which was copy of the extract Form C-2, that is the Return required to be furnished by the land owner in Form C-2, declaring surplus land etc., clearly established that the surplus land vested in the State. Considering Mark 3, I find that the extract of the form C-2 clearly mentioned that this land has been sold to Kushal Chand, appellant herein for consideration of Rs.5000/- vide an agreement dated 26.4.1969. This is signed by one Rama Nand - 7 - Gosta, General Secretary of Rana Yogendera Chandra. The other documents, namely, revenue record does not establish the identity of the land and the orders passed by the revenue authorities are not clear. Similarly, considering the evidence in RSA 103 of 1994 titled Keshav Ram versus State of Himachal Pradesh and others, reliance was placed on Ex.PC which is the order of the Collector. It was urged that in Barthata, land measuring 32 bighas had vested in the State and therefore, the identity of the land which vested in the State was proved. This submission cannot be accepted. I may notice that Ex.PC, order of the Collector, when read in conjunction with the orders passed by the revenue authorities, does not establish the identity of the land. Ex.PB is an extract of Form C-2, return required to be furnished under the Ceiling Act. Names of the parties to whom the land has been sold have been mentioned. I do not find that this is a satisfactory way of establishing the identity of the suit land. RSA 69 of 1994. The primary point for consideration is as to whether the land of Raja Rana Yogendera Chandra has vested in the State of Himachal Pradesh under the Ceiling Act. For this purpose, what was required to be proved was the proceedings and orders passed under the Ceiling Act clearly identifying the suit land. Two defence witnesses namely, DW-1 Jeet Singh, Ahlmad in the office of the Tehsildar, Jubbal was produced who - 8 - stated that he had brought Ex.DW-1/A which is the file of encroachment and the decisions of the Financial Commissioner; and DW-2 patwari who has proved on record only the jamabandis. The original proceedings of the Collector determining as to whether the vestment of the land was in accordance with law or not were not proved, but revenue record has been tendered to prove this factum. It is trite that mutation does not establish the factum as to whether title in the property has changed. (See Sawarni v. Inder Kaur, AIR 1996 SC 2823, Durga Dass v. Collector, AIR 1996 SC 2786, Balwant Singh v. Daulat Singh, AIR 1997 SC 2719, Vishal Singh v. State of M.P., AIR 1998 SC 308, Pakhar Singh Atwal v. State of Punjab, AIR 1995 SC 2185, Baleshwar Tiwari v. Sheo Jatan Tiwary, AIR 1997 SC 2089 and Vishnu Sharan v. Ajuddhibai, AIR 2004 MP 252). Precedent on the point need not be multiplied. Moreover, merely tendering documents does not itself constitute proof of the facts alleged. Although the document may be from the public record, but the proceedings should be established to have been conducted in accordance with law, as held by the Supreme Court in Bhinka and others v. Charan Singh, AIR 1959 SC 960. The Supreme Court, while interpreting the provisions of Section 79 of the Indian Evidence Act, held that the document to be proved must be established to be substantially in the form and purported to be executed in the manner directed by law in that behalf. - 9 - Presumption is permissible only if it is substantially in the form provided and executed in the manner provided by law. It was necessary for the respondents to have at least proved the identity of the land and the proceedings in accordance with law. I find from the record that on 14.6.1988, learned counsel appearing for the State has merely tendered documents in the nature of revenue records in evidence, but the orders of vestment as passed by the Collector and affirmed thereafter have not been proved in accordance with law. Even if the submission of the learned Additional Advocate General is accepted that the record produced by the plaintiff be accepted, I find that the identity of the land has not been established. The forms submitted by the land owner showing the sale of the land to the plaintiff required deeper probe by the Courts. This would not mean that the State is precluded from taking proceedings against the appellants herein under Section 163 of the Act. In Kaka Ram alias Ram Lal v. Financial Commissioner, H.P. and others ILR 1984 HP 8, this Court has held that a question of title requires determination by civil Court and summary proceedings cannot be resorted to. Pursuant to this decision, an amendment in Section 163 of the Himachal Pradesh Land Revenue Act was made granting authority and power to the revenue authorities to determine such questions of - 10 - title in accordance with law. Sub section (3) clearly provides that when there is a question of title or adverse possession, it is the revenue officer, not below the rank of Assistant Collector, Ist Grade who is to determine this question as if he were a civil Court and the orders passed by him are treated as a decree appealable to the District Judge and thereafter to the High Court. I find from the questions raised in this appeal that not only were the Courts below required to interpret the documents put forth by the appellants allegedly constituting valid title of the plaintiff to the suit land, but also as to whether registration was compulsory, whether the provisions of the Transfer of Property Act were applicable to the area where the land is situated. The Courts below have given a short shrift to all these questions. The important and crucial aspect was as to whether the sales/ transfers were genuine transactions excluding the suit land from the purview of the Ceiling Act. CWP 272 of 1986 titled Kushal Chand v. State of Himachal Pradesh , Ex. PJ was filed in this Court by the appellant herein and was disposed of on 5.9.1986 reserving liberty to the appellant to establish his rights in a Court of competent jurisdiction. Similarly Ex.PL being CWP 271 /1986 (in RSA 103/1995) determining the same question was disposed of on similar grounds. The basic question raised in the writ petition(s) was as to whether transfer of land had been made in favour - 11 - of the appellant before 1969, that is the enforcement of the Himachal Pradesh Ceiling on Land Holdings Act or thereafter and as such whether the transactions were genuine. This Court holds that this is a complicated question of fact and law. The judgment has been proved on record as Ex.PJ and Ex. PC respectively. Surely, if that was the conclusion arrived at by this Court, the Courts below should have applied their mind: (a) to the commencement of the Ceiling Act, (b) the validity of the transaction as having been disclosed as a sale (c) title / possessory right which vested in the appellant, but I do not find that the record discloses these aspects. Without entering into the respective contentions or giving my findings as to whether the appellant is an encroacher or bonafide purchaser, whether the proceedings under Section 163 of the Act could stand judicial scrutiny, this appeal is disposed of with the following directions: (1) The judgment of both the Courts below is quashed and set aside as the identity of the land has not been proved with certainty. (2) This will not deprive the State of establishing its right to the land if it stands vested in the State in accordance with law. In the circumstances, it will be open to the State to institute proceedings - 12 - against the appellant under Section 163 of the Himachal Pradesh Land Revenue Act. It will also be open to the appellant herein to establish his title if any to the land. (3) Such proceedings will be independent and shall not be influenced in any manner by the judgments of the Courts below. (4) The appellants shall not be entitled to urge laches in initiation of proceedings and the time spent in Court on the suit and the appeal will not be treated as period of adverse possession. The judgment has been passed keeping intact rights of both the parties and granting liberty to the State to initiate action in accordance with Section 163 of the Himachal Pradesh Land Revenue Act if the appellants herein are encroachers on the land. Needless to say that such proceedings initiated shall be decided independently totally uninfluenced by the judgment of the Civil Courts which I find have not dealt with the rights of the parties in a satisfactory manner. This appeal is accordingly disposed of. There shall be no order as to costs. RSA 103 of 1995. In this appeal also, the land is that of Raja Rana Yogendera Chandra and again on 211.10.1988, all that the counsel for the State has done is to tender in - 13 - evidence copy of mutation No. 163 Ex.DA and jamabandi for 1985-86 Ex.DB and khasra girdawari Ex.DC. This is not a satisfactory manner of proving the proceedings under the Ceiling Act. This appeal shall also abide by the order as passed in RSA 69 of 1994 hereinabove. The appeal is disposed of accordingly. Pending applications shall stand disposed of. There shall be no order as to costs. December 8, 2008 (PC). (Dev Darshan Sud), J.