IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 118 of 1998. Judgment reserved on : 3.12.2010 Date of decision : 7.12.2010. State of Himachal Pradesh …Appellant. Versus Chinta Rani and & others. ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Appellant : Ms. Ruma Kaushik, Addl. A.G. For the Respondents : Mr. Onkar Jairath, Advocate for respondents No.2 to 7 and also for LRs No.1(a), 1(b) and 1(d) Kuldip Singh, Judge This appeal has been directed against common judgment, decree dated 18.12.1997 passed by the learned District Judge, Kangra at Dharamshala in Civil Appeal No. 87-N/XIII-1997 and cross-objection No.107-N/XIII-1997 affirming judgment, decree dated 23.8.1997 passed by learned Sub Judge (1), Nurpur in Civil Suit No. 391 of 1992 decreeing the suit of the respondents partly holding that respondents are in possession of the suit land as Hissedar and revenue entry showing them to be in possession as Kabaz is wrong. The appellant has also been restrained from interfering in the possession of the respondents on land measuring 1 Whether reporters of Local Papers may be allowed to see the Judgment ?yes 2 0-32-63 HM more specifically described in the operative part of the judgment of the trial Court. 2. The facts, in brief, are that Wakil Singh, predecessor- in-interest of respondents 1(a) to 1(e) and respondents No.2 to 7 had filed a suit that they are owners in possession of land measuring 0-32-63 HM described in the plaint. The entry showing them as Kabazan is wrong, illegal. The suit land originally comprised in Khasra Nos.252/187 min, 253/187 min, measuring 8 Kanals and 7 Marlas was recorded as ‘SHAMLAT TIKA HASAB RASAD MALGUZARI’ and in possession of the respondents as HISSEDAR prior to the year 1935-36. The predecessor-in-interest of the respondents applied for regular sanction for breaking up this land and Deputy Commissioner granted Nautor in the year 1920 in favour of the predecessor-in-interest of the respondents. The family was joint as such family jointly cultivated the land. The suit land was lateron recorded in the ownership of Village Panchayat in the year 1962-63. The Panchayat having come to know the change had written to Deputy Commissioner for correcting the said entry. Tehsildar Nurpur informed that the entry would be changed by way of necessary mutation but nothing was done. Lateron, State of H.P. was substituted in the column of ownership and the respondents were shown as Kabaz Hissedaran which entry is against law and factually incorrect. In these circumstances, the respondents had filed suit for declaration etc. 3. The suit was contested by the appellant in which objections of maintainability, cause of action, limitation were taken. On merits, it was pleaded that the suit land had vested in the Gram 3 Panchayat and thereafter in the State of Himachal Pradesh in accordance with law. The respondents had not challenged the vestment now they cannot challenge the said entry. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiffs are owners in possession of the suit land? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the plaintiffs have got no cause of action to file the present suit? OPD 4. Whether this Court has got no jurisdiction to try the present suit? OPD 5. Whether the suit is time barred? OPD 6. Whether the suit is bad for want of notice, as alleged? OPD 7. Relief. The issue No. 1 was returned with the finding that the plaintiffs are in possession of the suit land. The issues No. 2 to 6 were answered in negative and the suit was partly decreed as noticed above. 4. The appellant filed Civil Appeal No. 87-N/XIII-1997 and predecessor-in-interest of respondents 1(a) to 1(e) as well as respondents No.2 to 7 filed cross-objections No.107-N/XIII-1997. The learned District Judge on 18.12.1997 by common judgment, decree dismissed the appeal as well as cross-objections, hence second appeal which was admitted on 8.7.1998 without any specific question of law. But since following substantial questions of law were filed with the memorandum of appeal, therefore, the appeal has been heard on these following substantial questions of law: 1. Whether the Civil Court has no jurisdiction to entertain the present suit in view of the bar created 4 under the Punjab Village Common Land Act as well as under the H.P. Village Common Land Vesting and Utilisation Act. 2. Whether the suit land has rightly vested in Gram Panchayat and subsequently in State of H.P. free from all encumbrances. 3. Whether misreading of oral as well as documentary evidence on record itself amounts to a substantial question of law. 5. I have heard the learned counsel for the parties and have also gone through the record. The learned Additional Advocate General has submitted that the Civil Court has no jurisdiction to entertain the suit in view of provisions of H.P.Village Common Lands Vested and Utilisation Act, 1974 (for short ’Act’). It has been submitted that the suit land had rightly vested in the Gram Panchayat under the Punjab Act and lateron in the State under the Act. The two courts below have misread oral and documentary evidence in partly decreeing the suit of the respondents. The appellant is the owner of the suit land by virtue of the Act and, therefore, the respondents do not have status of Hissedar with the appellant in the suit land. The trial court has erred in giving a decree in favour of the respondents of Hissedar possession of the suit land alongwith other reliefs. The learned counsel for the respondents has supported the impugned judgment, decree and has submitted that the findings returned by the two courts below emerge from the evidence on record. There is no merit in the appeal. 6. The substantial questions of law No.1 to 3 are inter- connected, therefore, all of them are taken up together for disposal. The case of the respondents in brief is that originally the suit land 5 was recorded as SHAMLAT TIKA HASAB RASAD MALGUZARI and in possession of predecessor-in-interest of the respondents as Hissedar prior to the year 1935-36. The suit land was allotted to predecessor-in-interest of respondents by Deputy Commissioner in the year 1920. In the year 1962-63 the suit land was recorded in the ownership of Village Panchayat. This entry was wrong. Lateron in the column of ownership in revenue record, the State of H.P. was shown owner of the suit land, respondents were shown as ‘Hissadar’. This entry has been questioned by the respondents. 7. The suit has been filed for declaration of possession, injunction etc. The respondents in the suit have not challenged the vestment of the suit land in the State of Himachal Pradesh. The Section 10 of the Act provides that save as otherwise expressly provided in the Act, no order made by the Collector, or the State Government or any officer authorized by it, as the case may be, shall be called in question by any court or before any officer or authority. It was for the appellant to have placed the material on record to show that the suit is barred under Section 10 in view of order passed by the Collector, State Government or any other officer. In Dalip Singh and others vs. State of H.P. and others 1992(1) Sim.L.C. 320 it has been held that primarily the relief claimed by the plaintiffs in that case with regard to declaration of their rights as owners cannot be gone into in view of jurisdictional bar created under Section 10 of the Act for which the appropriate forum would be the Collector. The Civil Court jurisdiction to entertain and decide a suit for grant of decree for permanent prohibitory injunction is not ousted by any of the provisions of the 6 Act. The respondents in the suit have prayed permanent prohibitory injunction and, therefore, to this extent the Civil Court has jurisdiction to try the suit irrespective of the fact that the land in dispute as per stand of the appellant had vested in the State. 8. The perusal of the plaint indicates that respondents have challenged the change of revenue entries and they have not challenged the vesting of the suit land in the State of H.P. In Dalip Singh (Supra) after noticing the Act, it has been held that all rights, title and interest of the land owners in the land in any estate, which vested in the Panchayat, under Section 4 of the Punjab Act, except the land used or reserved for the benefit of village community and also the land described in the revenue records as shamlat taraf, patties, pannas and thola and not used for the benefit of village community shall vest in the State free from all encumbrances. This vestment of land is automatic and once the land is vested in the State, the Collector by virtue of sub-section (5) of section 3 is empowered to call upon the land-owners to deliver possession thereof after a notice is duly served. 9. The learned trial Court has recorded a finding in para 7 of the judgment that the vestment of the suit land in favour of Gram Panchayat as well State of H.P. has not been challenged. Once the vesting of suit land in favour of State has not been challenged in accordance with law then by virtue of Section 3 of the Act vesting is automatic, therefore, the consequence of vesting would flow from the Act itself and the State has become the owner of the suit land by virtue of vestment under Section 3 of the Act. Once the State is the owner of the suit land then how the respondents are in ‘Hissedar’ 7 possession of the suit land that has not been shown by the respondents. The Hissedar possession of a title holder on joint holding means nothing but joint possession of such title holder in view of equal status on the land jointly owned with others. Once the land has vested in the State, the possession of respondents on the suit land cannot be in the capacity of Hissedar title holders of the land owned by the appellant, hence substantial question of law No.3 to this extent is decided in favour of appellant. 10. The two courts below have concurrently recorded a finding of fact that respondents are in possession. Therefore, the respondents are entitled to decree of permanent prohibitory injunction against the appellant for not causing any interference except through process of law. The Substantial question of law No.1 is answered to the effect that civil court has jurisdiction to grant relief of permanent prohibitory injunction on the basis of possession of the respondents on the suit land which has nothing to do with the vestment of the suit land in the State. The question of vestment of the suit land under the Act in the State cannot be gone into in the Civil Suit nor the respondents have questioned the vestment of the suit land in the State under the Act. Therefore, substantial question of law No.2 is decided accordingly. 11. No other point was urged. 12. The result of the above discussion, the appeal is partly allowed. The impugned judgments and decrees of both the courts below are modified. The suit of the respondents is partly decreed, respondents 1(a) to 1(e) are held to be in possession of the suit land. The appellant is restrained from interfering in possession of 8 respondents 1(a) to 1(e) on the suit land except following due process of law. No costs. ( Kuldip Singh ), December 7, 2010. Judge. (GR)