IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 580 of 2000 Reserved on: 23.07.2010 Date of decision: 24.08.2010 Pritam Chand ... Appellant Versus State of H.P. and others … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the appellant: Mr. K.D. Sood, Advocate. For the respondents: Mr. J.S. Guleria, Assistant Advocate General. V.K. Ahuja, J. : This is a Regular Second Appeal under Section 100 C.P.C. filed by the appellant/plaintiff against the judgment and decree of the Court of learned District Judge, Kinnaur Civil Division at Rampur Bushahr, dated 4.10.2000, vide which he reversed the judgment and decree passed by the Court of learned Sub Judge Ist Class, Rampur Bushahr, dated 26.9.1998 decreeing the suit of the plaintiff for declaration and permanent injunction. 2. Briefly stated, the facts of the case are that the appellant hereinafter referred to as the plaintiff filed a suit as against the respondents, hereinafter referred to as the defendants, for declaration. It was alleged by the plaintiff that he is owner in possession 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 of the land comprised in Khasra No. 34, measuring 182 Square Meters as detailed in the plaint and the order passed by the Assistant Collector 2nd Grade, Rampur Bushahr, dated 21.11.1994 reviewing mutation order was challenged as illegal, void and inoperative. The plaintiff had also challenged that the eviction proceedings initiated by defendant No. 3 on the basis of changed revenue entries are also illegal and void and not binding upon the plaintiff. The plaintiff had further alleged that he had purchased the suit land from Kalyan Chand and Smt. Kanta vide registered sale deed dated 29.4.1992 for a consideration of Rs.1,25,000/- and was put in possession of the suit land by the vendor. It was alleged that the suit land was previously part of Shamlat Deh and it was partitioned between the co-sharers who were in separate possession of it on the spot. The revenue entries made in favour of the State on coming into force of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974, were also challenged being illegal and void. The plaintiff also claimed the relief of permanent injunction restraining the defendants from interfering in possession of the plaintiff over the suit land. 3. The defendants contested the suit by pleading that the suit land was Shamlat land and was in possession of Bashindgan Deh Makbooja Malkan and after the enforcement of the Himachal Pradesh Village Common Lands Vesting and Utilization Act , 1974, this land has vested in the State of H.P. free from all encumbrances. The revenue entries showing Deen Dayal as Gair Maurusi over the suit land were challenged to be incorrect and the proprietary rights were wrongly conferred on 31.7.1980 upon Deen Dayal. The subsequent sale by legal heirs of Deen Dayal was also challenged 3 and it was denied that the suit land was partitioned between the co-sharers. The defendants pleaded that the Assistant Collector, 2nd Grade, Rampur Bushahr, had rightly cancelled the mutation and ordered for the correction of the revenue entries. 4. On the pleadings of the parties, the following issues were settled by the learned trial Court:- 1. Whether the plaintiff is owner in possession of the suit land, as alleged? OPP 2. Whether the plaintiff is entitled to injunction, as prayed for? OPP 3. Whether this suit has been rightly valued for the purposes of Court fee and jurisdiction? OPP 4. If issue No. 3 is not proved, what is the correct value? OPP 5. Whether this Court has no jurisdiction to try the suit? OPD 6. Whether the suit is not maintainable in the present form? OPD 7. Relief. 5. Parties led their evidence and the learned trial Court vide its impugned judgment held that the plaintiff was in possession of the suit land and was entitled to the relief of declaration and injunction claimed by him. 6. On appeal by the State, the appeal was accepted by the learned First Appellate Court and the suit of the plaintiff stood dismissed. 7. I have heard the learned counsel for the parties and have gone through the record of the case. 4 8. The submissions made by the learned counsel for the appellant were that though it had been proved on record that the suit land was common land which had been partitioned by the co- sharers before coming into force of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 and Deen Dayal, the previous owner, was in exclusive possession thereof. The suit land was inherited by his L.Rs and the plaintiff has purchased the suit land from the L.Rs by way of sale deed and as such, mutation was attested in favour of the plaintiff. The Assistant Collector, 2nd Grade had wrongly reviewed the mutation order. It was also submitted that the eviction proceedings had been started without complying with the provisions of the Himachal Pradesh Village Common Lands Vesting and Utilization Act. It was further submitted that sub-section (3) of Section 5 prescribes that the Collector had to issue notice before taking any action and he has to hold an enquiry in regard to the possession and as such, the findings of the learned First Appellate Court are liable to be reversed. 9. It was further submitted that it was proved that the plaintiff was in settled possession and until and unless, the enquiry was held by the Collector under the provisions of the Act, the plaintiff was entitled to remain in possession and as such, the plaintiff was entitled at least to the relief of injunction as against the respondents. 10. Reliance was placed upon the decision in Chandermani Sharma Vs. State of H.P. and another, 2007(3) Shim. LC 523, wherein learned Judge of this Court held that the plaintiff questioned vesting of suit land and no specific prayer was made for setting aside vestment order. It was held that the Civil Court cannot go into 5 the question whether the land is Shamlat or not. The Collector has the jurisdiction for the same and there is a bar to the jurisdiction of Civil Court. 11. Reliance was also placed upon the decision in State of Himachal Pradesh Vs. Chet Ram, 2000 (3) Shim. L.C. 344, wherein the issue in regard to jurisdiction was not pressed before the trial Court by the appellant/State. It was held that provisions of Section 171(2) of Revenue Act bars jurisdiction of Civil Court and non- compliance with the procedure by the Assistant Collector in exercise of the jurisdiction under sub-section (3) of Section 163 will not clothe the Civil Courts with the jurisdiction to try such suit inspite of the bar in terms of Section 171(2) (xxs) of the Revenue Act. 12. Reliance was also placed upon the decision in Rame Gowda (Dead) By LRs Vs. M. Varadappa Naidu (Dead) By LRs. and another, (2004) 1 Supreme Court Cases 769, wherein it was held that the occupant was in settled possession and, therefore, he cannot be dispossessed without recourse to law and the rightful owner can only recover the possession by taking recourse to law. The plaintiff in the case had failed to prove his title, but had been able to prove his possession and, therefore, it was held that he was entitled to the relief of injunction. 13. Reliance was also placed upon the decision in Dalip Singh and others Vs. State of H.P. and others, 1992(1) Sim. L.C. 320. The observations made in Para-13 are relevant and are being reproduced below:- “Section 9 of the Code of Civil Procedure gives jurisdiction to a Civil Court to try all suits of a civil nature excepting those which are expressly or impliedly barred by any 6 other law. It is a settled proposition of law that an exclusion of jurisdiction of Civil Court is not to be readily inferred and every presumption should be made in favour of existence of jurisdiction rather than its exclusion. A statute which ousts the jurisdiction of Civil Court is required to be strictly construed and the burden is always on the party, who so contends, to prove the exclusion of jurisdiction of Civil Court and once such a contention is raised, it has to be determined in the light of the words used in the statute and scheme of its relevant provisions with their object and purpose.” 14. This fact has not been disputed by the appellant that the land was Shamlat land and it had vested in the State of H.P. on coming into force of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974. According to the provisions of Section 6 of the Act, the land vested in State of H.P. free from all encumbrances. The Collector has to issue a show cause notice to the land owners, whose rights have been extinguished under sub-section (1) of section 3 and has to entertain the objections and after giving an opportunity of being heard to the land owners and such enquiry as may be necessary, he has to make an award determining the amount payable by the State Government to the land owners in accordance with the provisions of sub-section (3) of section 3. Accordingly, on coming into force of the provisions of the Act, the only remedy available to the State is that the Collector has to issue a show cause notice and follow the procedure prescribed under the Act, as detailed above and has to determine the question in accordance with law. 7 15. Section 11 of the Act specifically bars jurisdiction of the Civil Court in regard to any proceeding conducted under the provisions of the Act. Section 10 of the Act, creates a complete bar for Civil Court to entertain and decide the suit wherein declaration is sought about the validity and the vestment of the land in the State Government under the provisions of the Act. The Appropriate form for questioning the legality and validity of the vestment of the land in the State Government would be the Collector under the Act who is conferred the exclusive jurisdiction to decide such disputes. 16. Once the plaintiff had been proved to be in possession of the suit land as per the findings recorded by the learned Sub Judge as well as not set aside by the learned First Appellate Court, which had held that the plaintiff had failed to prove his ownership and lawful possession of the suit land. Thus, it is clear that the learned First Appellate Court had also come to the conclusion that the plaintiff was in possession of the suit land as held by the learned trial Court and once he was held to be in possession of the suit land, he was entitled to remain in possession till he was evicted by due process of law. The learned trial Court had referred to Rule 9 framed under the Act, vide which the Collector was required to conduct an enquiry and, therefore, once the plaintiff had been found to be in settled possession and no enquiry had been conducted under the provisions of the Act and Rules, the plaintiff was entitled to remain in possession of the suit land except evicted by due process of law. Therefore, the plaintiff was though not entitled to the relief of declaration that he had become owner of the suit land, but he was entitled to the relief of an injunction in his favour and as against the respondents restraining them from evicting him except 8 with due process of law. The Collector was required to follow the procedure and proceed in accordance with law and until and unless that is done, the plaintiff was entitled to the grant of an injunction in his favour. The findings of learned First Appellate Court holding that the plaintiff was not entitled to the relief of declaration are upheld, but the judgment of the learned First Appellate Court is modified to this extent and the plaintiff is held entitled to relief of an injunction as detailed above. 17. In view of the above discussion, the appeal filled by the appellant is partly accepted to this extent that the plaintiff is entitled only to the relief of injunction in his favour restraining the respondents from interfering in his possession and evicting him except by due process of law. Accordingly, the appeal is partly accepted. However, the parties are left to bear their own costs. ( V.K. Ahuja ), August 24, 2010 Judge (BSS)