IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 222 of 1999 Judgment Reserved on: 19.3.2009 Date of decision: 31. 3.2009. State of H.P. ….. Appellant Vs. Satish Kumar and another … Respondents Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellants : Mr. Anshul Bansal, Addl. Advocate General. For the Respondents : Ms. Sunita Sharma, Advocate. Kuldip Singh, Judge. The appellant having lost in both the Courts below has filed this appeal against judgment, decree dated 27.5.1997 passed by learned District Judge, Kangra at Dharamshala in Civil Appeal No.68 of 1989 2. The facts, in brief, are that Prem Lal father of respondents had filed a suit for declaration that he was in lawful possession of land comprised in khasra Nos. 2898, 2901 and 2905, kitas 3, measuring 0-02-50 hects. Muhal Lidbar, mauza Nagrota Bagwan, with consequential relief of permanent injunction restraining the appellant from interfering in his lawful possession. Whether the reporters of the local papers may be allowed to see the Judgment?Yes 2 3. The pleaded case of the predecessor-in-interest of the respondents was that he was inducted as tenant on the land in dispute on 15.6.1968 by the then Gram Panchayat on payment of Rs.50/- yearly rent. He had constructed a house, charcoal store on the aforesaid land in the year 1969 and a cow-shed was also constructed thereon. In or around the year 1974, Nagrota Bagwan was notified as a Notified Area Committee. Prem Lal had pleaded that on coming into force of the H.P. Tenancy and Land Reforms Act, 1972, he became owner of the aforesaid land. It was also pleaded that even if, he had not become owner of the aforesaid land under the H.P. Tenancy and Land Reforms Act in that case also he remained in lawful possession of the suit land as suit land had not vested in the State in as much as he (Prem Lal) had raised construction on the suit land. The appellant had extended threats to dispossess Prem Lal, therefore, the suit was filed. 4. The suit was contested by appellant by filing written statement and took objections of non-joinder of necessary parties, jurisdiction of the Court to try the suit, maintainability, it was pleaded that Prem Lal was not in possession of the suit land from the year 1968, his illegal possession was recorded from 1978, he was not inducted as tenant. 5. The learned trial Court had framed the following issues 1. Whether the plaintiff is in lawful possession of the land in dispute? . .OPP 2. Whether plaintiff was inducted as tenant on 15.6.68 of the land in dispute by the then Gram Panchayat Nagrota Bagwan on payment of rent 3 of Rs.50/- ? If so, its effect? …OPP 3. Whether the plaintiff constructed pucca store for storing charcoal for doing charcoal business and house to live in the year 1969 along with cow-shed, as alleged? If so, its effect? ….OPP 4. Whether the suit is bad for non- joinder of necessary parties? If so, who are the necessary parties? . ……OPD 5. Whether the civil court has no jurisdiction to try the present suit? ….OPD 6. Whether the suit is not maintainable in the present form? …OPD 7. Relief. 6. The issues No.1 to 3 were decided in affirmative, issues No.4 to 6 in negative and suit was decreed by learned Senior Sub Judge on 25.10.1989 and Prem Lal was declared to be in lawful possession of land in dispute as tenant on payment of Rs.50/- per annum. The appellant filed appeal against the judgment, decree dated 25.10.1989. In the meantime Prem Lal died and respondents (legal representatives) of Prem Lal were brought on record. The learned District Judge dismissed the appeal on 27.5.1997. Hence this appeal, which has been admitted on the following substantial questions of law:- 1. Whether the jurisdiction of civil is barred. In view of Himachal Pradesh village common lands (Vesting and Utilization Act) 1974. 4 2. Whether mis-reading of Ex.PW-5/A and considering the plaintiff as parties on its basis amounts to substantial question of Law. 3. Whether the finding of the first appellate Court in the absence of necessary party amounts to substantial question of Law? 7. I have heard Mr. Anshul Bansal learned Addl. Advocate General for the State and Ms. Sunita Sharma, learned counsel for the respondents and have also gone through the record. On behalf of the State, it has been submitted that the jurisdiction of the Civil Court to decide the dispute is barred under the H.P. Village Common Lands ( Vesting and Utilization ) Act, 1974 ( for short Act). The two Courts below have misread Ex.PW-5/A dated 15.6.1968. According to respondents their predecessor Prem Lal was inducted as tenant vide Ex.PW-5/A. It has been provided in Ex.PW-5/A that Prem Lal could not raise construction on the land which was allotted to him. Prem Lal violated the terms of allotment and therefore, the two Courts below have wrongly given benefit of Ex.PW-5/A to the respondents. The point of necessary parties was also raised on behalf of the appellant. The learned counsel for the respondents has supported the impugned judgment and has submitted that the two Courts below on the basis of Ex.PW-5/A have recorded a finding of fact that Prem Lal was inducted as a tenant on the suit land. The re-appreciation of the evidence is not permissible in second appeal and therefore, learned counsel for the respondents has prayed for dismissal of the appeal. 5 Substantial question of law No.1 8. Prem Lal had filed the suit for declaration on account of threats of dispossession from the suit land by appellant. Prem Lal had taken the plea that land in dispute had not vested in the State as after his induction as tenant on the land he had constructed a residential house, charcoal store and cow-shed on the land in the year 1969 before coming into force of the Act. Sub clause ( c ) of sub-section 2 of section 3 of the Act provides that provision of sub section (1) of section 3 shall not apply to lands described in clauses (b), (c) of sub-section if, before the date of commencement of the Act on such land a residential house or cow-shed has been constructed. The appellant in the written statement has pleaded that Prem Lal was encroacher on the suit land. It is not the case of the appellant that Collector had initiated proceedings against appellant under sub- sections (5),(6) of section 3 or section 5 of the Act. Section 10 of the Act bars jurisdiction of any court to question an order made by the Collector or the State Government or any officer authorized by it under the Act. The appellant has not come forward with the plea that Collector or any officer authorized under the Act has passed an order evicting Prem Lal from the land in dispute. In absence of such plea, Civil Court has jurisdiction to look into the grievance of respondents and their predecessor. The two Courts below have found that Prem Lal was inducted as tenant on the suit land on Rs.50/- per annum, the substantial question of law No.1 is decided against the appellant. Substantial question of law No.2 9. The learned Addl. Advocate General has submitted that learned Senior Sub Judge in para-12 of the judgment dated 6 25.10.1989 has erroneously held that land in dispute was given to Prem Lal for raising construction. He has submitted that perusal of Ex.PW-5/A would show that the Panchayat had specifically laid the condition that on the allotted land Prem Lal would not raise construction. He has contended that even if, it is found that Prem Lal had constructed on the allotted land then such construction is in violation of the terms of the allotment and respondents and their predecessor cannot take benefit of construction having been raised on the allotted land. 10. In case, respondents or their predecessor have violated the terms of the allotment then it is a separate matter and respondents can be proceeded, if permissible, in accordance with law for alleged violation of allotment. The question is whether house, cow- shed etc. was constructed by predecessor of the respondents prior to the commencement of the Act. The two Courts below have recorded a finding of fact to this effect in favour of the respondents. In para- 18 of the impugned judgment, the learned District Judge has recorded a finding that DW-1 and DW-2 have admitted that on the disputed land, the plaintiff had constructed his house, cow-shed and charcoal store. Ex.PW-5/A proves the allotment of land by Panchayat in favour of predecessor of respondents. The learned counsel for the appellant has failed to make out a case of misreading of the evidence in the impugned judgment, decree, therefore, the substantial question of law No.2 is decided against the appellant. Substantial question of law No.3 11. The appellant in the written statement has taken the plea of necessary parties. The leaned trial Court in issue No.4 has 7 decided the issue of necessary parties against the appellant. In written statement it has not been stated that suit is bad for want of which necessary party. In the grounds of appeal in the lower Appellate Court, the decision on issue No.4 has not been specifically questioned nor it has been stated that the suit is bad for want of which necessary party. In the second appeal also it has not been pointed out that the suit is bad for want of which necessary party. The substantial question of law No.3, therefore, is also decided against the appellant. 12. The two Courts below have appreciated the material on record properly. There is no perversity in the impugned judgment, decree. It has not been pointed out that some material evidence has been ignored or decision has been given by considering some evidence which is not admissible. No case for interference has been made out. 13. No other point was urged. 14. The result of above discussion, the appeal fails and is accordingly dismissed. ( Kuldip Singh) Judge March 31, 2009 (sks)