IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Regular Second Appeal No.249 of 1997. Date of decision: 25.07.2008. State of H.P. ….Appellant Versus Kuldeep Singh & Others ….Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Appellant: Ms.Ruma Kaushik, Additional Advocate General. For the Respondents: Mr.Ramakant Sharma, Advocate. Dev Darshan Sud,J. This is the State’s second appeal against the judgment and decree dated 10.4.1996 passed by the learned Sub Judge Ist Class, Kandaghat, District Solan, in a suit preferred by the plaintiffs, respondents herein, praying for a decree of declaration that they are owners in possession of the land in question. On the crucial issue, as to whether the plaintiffs are owners in possession of the land, the learned trial Court, on a consideration of the evidence of plaintiff No.1, Kuldeep Singh (PW-2), who stated that Bhagat Ram and Bardu were owners in 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 possession of the suit land, who had inducted his father Dhani Ram as tenant over the suit land on payment of Chakauta, found the plaintiffs to be the owners in possession of the suit land. On the death of Bhagat Ram and Bardu, the suit property was inherited by Durga Ram and Het Ram. The possession of the predecessor-in-interest of the plaintiffs therein was never disturbed and it was mere revenue entries which were changed. PW-1, Geeta Ram has supported PW-2 on all material particulars. PW-3 Durga Ram son of Shri Bardu Ram has affirmed that the predecessors-in-interest of the plaintiff were the tenants and thereafter they continued to be the owners in possession. DW-1, Tek Ram, Patwari, only states that the owners have declared the land as surplus under the provisions of the H.P. Land Ceiling Act. In cross-examination he admits that the plaintiffs are in cultivating possession of the suit land. He states that some sort of ejectment orders were passed, but the plaintiffs were never ejected from the land. On the revenue record Ex.P-4, Jamabandi for the year 1976-77, Ex.P-3, Jamabandi for the year 1981-82, Ex.P-2, Jamabandi for the year 1985-86 and Ex.P-1 Jamabandi for the year 1985-86 Dhani Ram is recorded as in possession of the land as a tenant. The learned Court, after a discussion of the entire evidence holds that the plaintiffs are in possession. 3 In appeal, the learned District Judge has confirmed these findings. Besides oral evidence, relying on the revenue record, the learned Court came to the conclusion that the plaintiffs are in possession of the land. Three questions have been raised for consideration of the Court. “1. Whether the Civil Court has no jurisdiction in view of the bar created in the H.P. Land Ceiling & Holding Act? 2. Whether the plaintiff cannot become owner of the Govt.land in view of the bar created under Section 104 of the H.P. Tenancy & Land Reforms Act? 3. That the mere mis-reading of documentary as well as oral evidence itself amounts to substantial question of la? Question No.3: Question No.3 may be taken up first for decision. It is now well settled that this Court cannot re-appreciate the evidence which has already been considered by two Courts below. The frame of the question suggests that this Court under Section 100 of the Code of Civil procedure is required to re-appreciate the entire oral and documentary evidence on the record of the case. 4 Despite the bar, I have considered the submissions made by the learned Additional Advocate General appearing for the appellant who has urged that the findings regarding tenancy are wrong and cannot be sustained. I cannot accept this contention as the two Courts below on the evidence led by the parties, has come to a definite conclusion that Lachhman, father of the plaintiff, was the tenant of this land on payment of rent. It was also established by the evidence on the record that till date no possession of the land was taken by the respondent. Re- appreciating the entire evidence also does not lead to any other conclusion. Questions No.1 and 2: Questions No.1 and 2 can be taken up together conveniently for discussion. The provisions of Section 11 of the H.P. Ceiling and Land Holdings Act have not been complied with. Section-11 of the Act is clear. It provides:- “11. Vesting of surplus area in the State Government:- The surplus area of a person shall, on the date on which possession thereof is taken by or on behalf of the State Government be deemed to have been acquired by the State Government for a public purpose on payment of amount hereafter provided and all rights, title interests (including the contingent interest, if any)recognized by any law, custom or usage for the time being in force, of 5 all persons in such area shall stand extinguished and such rights, title and interests shall vest in the State Government free from any encumbrance: Provided that where any land within the permissible area of the mortgagor is mortgaged with possession and falls within the surplus area of the mortgagee, only the mortgagee rights shall be deemed to have been acquired by the State Government and the same shall vest in it.” The land would vest in the State only after possession has been taken. This provision is in parimateria with the Pepsu Tenancy and Agricultural Lands Act, 1955. Section 32(E)(a) of this Act also provides that the land shall vest in the State free from all encumbrances on the day when such possession is taken. A Constitution Bench of the Supreme Court in Ujjagar Singh (Dead) by LRs. Vs. Collector, Bhatinda and Another, (1996)5 SCC 14, interpreting the provisions of Section 32(E)(a) and 32(F) (which are in perimateria with Sections 11 and 12 of the Act), held: “3. … … … … … … …On a plain reading of clause (a) of Section 32-E aforesaid it appears that in case any surplus area of the landowner which is not included within the permissible limit of such landowner 'such area 6 shall, on the date on which possession thereof is taken by or on behalf of the State Government, be deemed to have been acquired' by the State Government for public purpose and all rights, title and interest of all persons in such land shall be extinguished and such rights title and interest shall vest in the State Government free from encumbrances. In other words, in view of the aforesaid statutory provision, only when the possession of the land which has been declared as surplus area is taken over by the State Government, then only it shall be deemed that such surplus area has been acquired by the State Government and all rights, title and interest of person concerned in such land are extinguished and vest in the State Government. As such if the possession of any surplus area of landowner has not been taken by or on behalf of the State Government, it shall not be deemed that such surplus area has been acquired and title of the landowner has been extinguished”. This is a complete answer to the question raised by the State. As held, there is no material on the record to show that the possession has been taken. Both these questions are answered against the appellant. In this view of the matter, it cannot be said that the land had vested in the State Government 7 free from all encumbrances. The provisions of the Ceiling Law have been used by the owners whose land has been declared surplus to circumvent the law and the tenants are now sought to be deprived of their rights. Surely this course of action cannot be permitted. The land of the tiller cannot be taken away under the guise of enforcing ceiling laws. While concluding I may add that this is a classical case where interminable disputes have arisen because of revenue entries being recorded at the whims of the revenue officer as held by the Supreme Court in Baleshwar Tewari (Dead) by LRs. And Others vs. Sheo Jatan Tiwary and Others,(1997)5 SCC 112: “15. … … … … Entries in Revenue records is the paradise of the patwari and the tiller of the soil is rarely concerned with the same. So long as his possession and enjoyment is not interdicted by due process and course of law, he is least concerned with entries.” No question of law, therefore, requires consideration and this appeal is accordingly dismissed. There shall be no order as to costs. July 25, 2008. (Dev Darshan Sud) (aks) Judge.