IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No.349 of 1998. with RSA No.358 of 1998. Date of decision: March 18, 2011. 1. RSA No.349 of 1998. State of Himachal Pradesh ….Appellant. Versus Mithan Singh (dead) through LRs. ….Respondents. 2. RSA No.358 of 1998. State of Himachal Pradesh ….Appellant. Versus Mithan Singh (dead) through LRs. ….Respondents. Coram: Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 Yes. For the appellant : Mr. A.K.Bansal, Addl. Advocate General. For respondents : Mr. Neeraj Gupta, Advocate, for respondents No.1 (a), 1(b) and 1(d) to 1(g). Name of respondent 1 (c ) struck off. Surinder Singh, J (oral) : Since both the above titled Regular Second Appeals are arising from the same civil suit filed by the 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - deceased plaintiff, hence taken up together, for its decision. 2. RSA No.349 of 1998 was admitted on 11.9.1998 on the following substantial questions of law:- “1. Whether the jurisdiction of civil court is ousted in view of the specific enactment under the H.P. Village Common Land Vesting Utilization Act and also under Section 171 of the Himachal Pradesh Land Revenue Act? 2. Whether the suit land has rightly been vested in the State of H.P. under H.P. Village Common Land Vesting and Utilization Act and the court below failed to appreciate the contention raised by the defendants? 3. Whether the findings of First Appellate Court about the acquisition of title by adverse possession is vitiated by misconception of law and misconstruction of the evidence on record? 4. Whether the first appellate Court was right in law in restraining the appellant from ejecting the defendants merely on the plea that they have put up the construction on the land over which they have not substantiated any right or title or interest in accordance with law?” 3. Whereas RSA No.358 of 1998 was admitted on 28.5.1999 on the following substantial questions of law:- “1. Whether the jurisdiction of civil court is ousted in view of the specific enactment under the H.P. Village Common Land Vesting Utilization Act and - 3 - also under Section 171 of the Himachal Pradesh Land Revenue Act? 2. Whether mere misreading of oral as well as documentary evidence on record itself amounts to substantial question of law? 3. Whether the suit land has rightly been vested in the State of H.P. under H.P. Village Common Land Vesting and Utilization Act and the court below failed to appreciate the contention raised by the defendants? 4. Whether the findings of First Appellate Court about the acquisition of title by adverse possession is vitiated by misconception of law?” 4. The brief facts giving rise to the present appeals are that the Khasra Nos. 376, 377, 378 and 379 measuring 2-17- 68 hectares was assigned new Khasra No.1215/1, measuring 5 bighas, during the settlement operation, was earlier ‘Shamlat’ land. Later it vested into the State of Himachal Pradesh, by virtue of the H.P. Village Common Land (Vesting & Utilization) Act, 1974, in short ‘the 1974 Act’. Plaintiff Mithan Singh was found in possession of the land aforesaid, as such proceedings under Section 163 of H.P. Land Revenue Act were initiated for his ejectment being an encroacher. Ultimately, order of his ejectment there-from was passed. The plaintiff failed to get the relief in further appeal/ revision from the Revenue Courts right upto the Financial Commissioner (Revenue), thus filed the suit against the State - 4 - appellant after serving a notice under Section 80 of the Code of Civil Procedure seeking declaration to the effect that Khasra No.1215 was owned by the proprietory body of village Karasa of which he was also one of the owner. The land aforesaid was partitioned amongst them and suit land fell in his possession and a residential house was constructed thereon. He made the suit land cultivable. Since it was recorded as ‘Shamlat Deh Hasab Mal Guzari’, it vested in the State of Himachal Pradesh under the Act aforesaid. He was in possession of the suit land for the last about 50/60 years and possession was not taken over from him despite vestment, thus the appellant had no right to eject him and alternatively pleaded adverse possession, and prayed that his ejectment order dated 23.9.1986 passed by the Assistant Collector Ist Grade/ Tehsildar, Rohru (defendant No.3) is illegal and not binding on his rights, consequently sought the relief of permanent injunction. 5. In written statement, the State-appellant herein, disputed that the jurisdiction of the Civil Court having barred under Section 171 of the H.P. Land Revenue Act and also under Section 11 of the Code of Civil Procedure. Also disputed the question of maintainability of this suit as the provisions of Section 80 of the Code of Civil Procedure were - 5 - not properly complied with and no cause of action etc. On merits, the defendant-State admitted that Khasra No.1215 was ‘Shamlat Deh Hasab Hissa Mal Guzari’, which was possessed by ‘Makbuja Bashindgan Chak’ as per Jamabandi for the years 1961-62. It is denied that the villagers of ‘Karasa’ had partitioned the suit land about 45 years ago and mutually agreed to make it cultivable for their individual benefits as alleged. It is specifically pleaded that the plaintiff encroached upon the suit land measuring 8 bigha 16 biswas in Chak ‘Karasa’ in the year 1966 and subsequently he was ordered to be ejected by the Assistant Collector Ist Grade Rohru, vide his detailed order passed on 2.5.1968. It was also averred that after coming into force the 1974 Act, as per Jamabandi for the year 1975 all the ‘Shamlat’ lands of village Karasa which also include the suit land vested in the State of Himachal Pradesh. Thus, denying all the allegations and averments as made in the plaint including adverse possession, prayed for the dismissal of the suit. 6. On the pleadings of the parties, learned trial Court framed the following issues:- - 6 - “1. Whether the Court has no jurisdiction to try this suit? …OPD. 2. Whether the suit is barred by principle of resjudicata? …OPD 3. Whether the suit in the present form is not maintainable? …OPD. 4. Whether the suit is bad for non-compliance of Section 80 C.P.C.? …OPD. 5. Whether the suit is bad for non-joinder and mis- joinder of necessary parties? …OPD. 6. Whether the suit is properly valued for the purpose of Court fee and jurisdiction? …OPP. 7. Whether the ejectment order passed by A.C. Ist Grade on 23.9.1986 is illegal and not binding as alleged? …OPP. 8. Whether the suit land was not liable to be vested in the State of H.P. by virtue of H.P. Village Common Lands Vesting and Utilization Act as alleged?..OPP. 9. Whether the plaintiff has become owner of the suit land by adverse possession? …OPP. 10. Whether the plaintiff has constructed a house on the land where from he was ejected as alleged? …OPP. 11. Relief. 7. After the complete trial, except issue No.6, the findings on all other issues were returned in negative and the suit was partly decreed restraining the appellant from dispossessing the plaintiff from the built up area i.e. the house situated in the suit land, but the claim of the plaintiff - 7 - qua remaining suit land did not find favour as such it was dismissed. 8. The State as well as plaintiff both felt aggrieved and dissatisfied by the impugned judgment of the learned trial Court, as such the plaintiff filed Civil Appeal No.96-S/13 of 1994/93 and the State-appellant herein filed Civil Appeal No.9-S/13 of 1993, against partial relief granted to the plaintiff by the learned trial Court. Both the appeals came to be decided by the learned Additional District Judge by the common judgment. The appeal filed by the State was dismissed and plaintiff’s appeal was allowed declaring him to be the owner by way of adverse possession, thus the suit filed by him was decreed in toto. The judgment and decree passed by the first appellate Court is impugned by the State by filing these two present Regular Second Appeals. During the present second appeals, the plaintiff died and his legal representatives were brought on record. 9. I have heard the learned counsel for the parties and have gone carefully through the evidence on record. 10. In the suit filed by the plaintiff, there was no plea that any partition was ever effected through process of the Court or statutory authority. The bare plea, which he took in the plaint was that the ‘Shamlat’ land comprising in Khasra - 8 - No.1215 was partitioned amongst the co-sharers, for the purpose of cultivation. Since the partition was not effected through the process of law, as envisaged under Section 3(2)(a) of the 1974 Act, therefore, the aforesaid exemption clause cannot be invoked. 11. The first appellate Court as stated above gave the finding to the effect that the plaintiff had perfected the title by way of adverse possession is also erroneous, but he never admitted the State as owner of the suit land. His statement as PW1 is required to be taken note of to this effect. Though in pleadings, he had asserted the plea of adverse possession, but he failed to prove that his possession was also nec vi, nec clam, nec precario. 12. Admittedly, before the vestment of the suit land in the State under the Act his possession could be as a co- owner, but it could not be said to be adverse. At the time of institution of the suit in the year 1986, the prescribed period of limitation was 30 years against the State which after its vestment was also not complete. Therefore, there was no question of perfecting the title by way of adverse possession against the defendant-State. 13. The suit land is vested in the State of Himachal Pradesh under the Act aforesaid in the year 1974 - 9 - and the plaintiff was in possession thereof as co-owner as per jamabandies Ext.P1 for the years 1961-62 to ExP7 for the years 1965-66. Thus, the Collector was required to have proceeded under the provisions of sub-Sections (5) and (6) of Section 3 of 1974 Act to take the possession of the suit land. The procedure for taking the possession has been prescribed under the aforesaid provisions. The non- compliance thereof would not clothe the Collector of any Grade to forcibly take the possession of the suit land. Thus, the proceedings under Section 163 of H.P. Land Revenue Act could not have been initiated and the Assistant Collector also could not have passed the order for the ejectment of the plaintiff from the suit land. Hence, the ejectment order dated 23.9.1986 (Ex.P6) is illegal and void. 14. The Coordinate Bench of this Court in State of Himachal Pradesh and others vs. Smt. Moortu (dead) through LRs [RSA No.171 of 1998] decided on May 10, 2010 has also taken the same view. 15. For the foregoing reasons, all the substantial questions of law as aforesaid stand accordingly answered. - 10 - 16. Both the appeals filed by the State are accepted. Impugned judgment and decree of First Appellate Court is hereby set-aside to the above extent and it is made clear that in view of the aforesaid findings, the ejectment order Ex.P6 passed by the Assistant Collector IInd Grade under Section 163 of H.P. Land Revenue Act being illegal and without jurisdiction, a decree for permanent prohibitory injunction restraining the appellant-State and its functionaries from dispossessing the respondent from the suit land except by due course of law, is passed in favour of the plaintiff-respondents and against the appellant-defendant. 17. Parties are left to bear their own costs. Both the appeals are accordingly disposed of. March 18, 2011. (Surinder Singh), (Pds) Judge.