HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No.: 315 of 1997. Decided on: 5.5.2008. Prem Sagar ………Appellant. Versus Jagdish Chand and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr. Romesh Verma, Advocate. For respondents No.1 to 4 & 6: Mr.B.N. Gupta, Advocate. V.K. Ahuja, J.(Oral): This is a regular second appeal filed by the appellant against the judgment and decree of the court of learned Additional District Judge (2), Kangra at Dharamshala, dated 11.9.1997, whereby he dismissed the appeal and affirmed the judgment and decree passed by the learned Sub Judge(II), Nurpur, dated 10.2.1995, dismissing the suit of the appellant/plaintiff for vacant possession. Briefly stated the facts of the case are that the appellant as plaintiff filed a suit for vacant possession of the land comprising Khasra No.841/1, measuring 0-00-94 HM, alleging that the land originally belonged to the State of ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - Himachal Pradesh but the plaintiff was in actual physical possession of the suit land as encroacher and the said encroachment was regularized by the State of Himachal Pradesh through Collector Kangra on the payment of compensation of Rs.1795, which was deposited by the plaintiff. It was also alleged that mutation No.61, dated 8.12.1989, was sanctioned in his favour. Thus, the plaintiff pleaded that he was owner in possession of the suit land and the defendants forcibly took the possession and the possession of the defendants is that of encroachers, hence the plaintiff is entitled for the vacant possession of the suit land. Defendants took up the plea that the plaintiff was never in possession of the suit land and, therefore, the question of regularization of the same in his favour did not arise. It was also pleaded that the order of regularizing the encroachment was set aside by the Divisional Commissioner, Kangra, in revision. It was further pleaded that earlier the land vested in the Gram Panchayat and then in the State of H.P. Therefore, the plaintiff has no right over the suit land which is in possession of the defendants for the last more than 30-32 years as tenant from the Panchayat. Therefore, the suit of the plaintiff was liable to be dismissed. The suit was tried by the learned trial Court which held that the plaintiff has failed to prove the ownership over the suit land and also failed to prove that the defendants encroached upon the suit land in February 1990, as alleged by the plaintiff, and accordingly it was held that the plaintiff was not entitled to possession of the vacant land. These findings were affirmed in appeal by the learned First Appellate Court. - 3 - I have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the appellant were mainly on this point that once the encroachment had been regularized by the State Government under the policy of the State Government and there is no provision for appeal or revision, therefore, the subsequent orders passed by the Divisional Commissioner setting aside the orders regularizing the ownership rights of the plaintiff, the said order is nonest in the eye of law and has to be ignored. Since the plaintiff was in possession of the suit as owner since his possession was regularized by the H.P. Government through Collector, Kangra, he was entitled to the relief claimed by him and findings to the contrary are liable to be reversed. On the other hand, the learned counsel for the respondents has submitted that the learned First Appellate Court had duly considered this question and had given its findings and since the order of the Collector regularizing the encroachment has been set aside and the plaintiff was not owner of the suit land and had also failed to prove his possessory title and, therefore, he was not entitled to the relief claimed by him. The appeal was admitted on the substantial questions of law as to whether the order passed by the Collector could be assailed by way of appeal and revision, and whether the courts below could legally place reliance on the orders of the Divisional Commissioner whereby he set aside the order of conferment of proprietary rights and as such the findings are not sustainable in the eye of law. - 4 - A perusal of the plaint filed by the plaintiff shows that he simply alleged in the plaint that the suit land was in possession of the plaintiff and his possession was regularized by the State Government through Collector, Kangra, on payment of compensation and mutation No.61, dated 8.12.1989, was attested. A perusal of the written statement filed by the defendants shows that they had specifically taken a plea that the order of regularizing the encroachment has since been set aside by the Divisional Commissioner, Kangra at Dharamshala. Thus, this fact was within the knowledge of the plaintiff that the order of regularization passed by the Collector, Kangra in his favour has already been set aside by the Divisional Commissioner. However, the plaintiff neither challenged the said order by filing a suit for declaration nor took up any such plea that the said order is nonest in the eye of law and has to be ignored since there was no provision for appeal or revision as was argued before me. Thus, once there was no specific plea taken by the plaintiff that the orders passed were nonest or are not binding upon him, therefore, there was no occasion for the learned trial Court to frame a specific issue in this regard or give its findings. However, this plea was taken by the learned counsel for the appellant during the course of arguments before the learned First Appellate Court and reliance was placed upon the decision of the Financial Commissioner in Hariman and others v. Salig Ram and another, 1992(2) S.L.J. 1688. A perusal of the same shows that some observations were made by the Financial Commissioner that there was no specific provision for appeal and revision, and this decision has been considered by the learned First Appellate Court and has been answered accordingly. The decision of the Financial Commissioner cannot be said to be - 5 - binding upon this Court. The policy under which the regularization of the plaintiff’s possession took place in pursuance of the orders passed by the Collector had not seen light of the day and had not been placed on record. Therefore, the First Appellate Court had answered this question in the right perspective that the plaintiff/appellant had failed to prove his ownership over the suit land and there was no possessory title of the plaintiff to have vacant possession of the suit land. Thus, the findings of both the courts below on all the points can be said to be based on correct appreciation of evidence and law and those findings do not call for reappraisal by this Court on any ground. In view of the above discussion, it follows that there is no merit in the appeal filed by the appeal. Therefore, the same is dismissed. The parties are left to bear their own costs May 5, 2008. (V.K. Ahuja), (TILAK) Judge.