IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 277 of 1997 Reserved on: March 23, 2010 Decided on : March 29, 2010 Prem Lal and others …Appellants Versus Anant Ram and others ...Respondents Coram: The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. Ramakant Sharma, Advocate. For the Respondents: Mr. Rakesh Jaswal, Advocate. Surjit Singh, Judge (oral) This Regular Second Appeal against the judgment and decree dated 2.9.1997 of learned District Judge, Bilaspur, whereby the appeal filed by the appellants against the judgment and decree dated 12.4.1989 of Sub Judge, 1st Class, Ghumarwin, decreeing the suit of plaintiff-respondent Anant Ram, has been dismissed, was admitted on the following substantial questions of law: “1. Whether the impugned judgment and decree is the result of complete misreading, mis-appreciation as well as mis- interpretation of the provisions of Section 57 of the H.P. Consolidation of Holdings and Prevention of Fragmentation Act? Whether reporters of the local papers may be allowed to see the judgment? …2… 2. Whether the suit of the respondent-plaintiff was maintainable especially when the plaintiff has failed to place on record any demarcation report showing the extent of possession of the land after acquisition of part of the land held by him by HPPWD? 3. Whether the impugned judgment and decree is the result of non-consideration of Ext. RX whereby the respondent had admitted and agreed to pay a sum of rupees 10,000/- to the predecessor-in- interest of the appellants for having constructed a shop on the land of the appellants? 4. Whether the courts below have rightly applied the provision of Chapter of the H.P. Land Records Manual (Consolidation of Holdings) Para 7.12 especially when the respondent despite his presence during the consolidation proceedings did not avail any remedy under the Act which is a complete code in itself? 5. Whether the impugned judgment and decree is the result of complete misreading as well as misinterpretation of document Ext.P1 Naksha Hakdar and Ext.P2 copy of register Karyabahi and Ext.P5 copy of jamabandi for the year 1980-81 as well as Report Ext.PW3/A dated 26.4.1985?” 2. Facts relevant for the disposal of appeal may be noticed. Respondent-plaintiff Anant Ram field a suit for …3… declaration that he was owner in possession of 10 biswas 8 biswansi land, comprised in old Khasra No.2, situate in village Sargal, and that the entries made in the revenue record, during consolidation proceedings, showing him in possession of only 8 biswas area, bearing Khasra No. 9, carved out of old Khasra No.2, were wrong and illegal and in fact the area of his land was 10 biswas, which included 2 biswas area of Khasra No.8, shown by min No.8/1, which had been recorded in possession of defendant No.3 Prabh Dayal and that he was entitled to remain in possession of 2 biswas area of Khasra No.8, shown by min No.8/1. 3. It was pleaded that as per Jamabandi for the year 1958-59, plaintiff was in possession of 10 biswas 8 biswansi area while defendant was in possession of 9 biswas 12 biswansi area and ignoring the biswansi units, both the parties were recorded in possession of 10 biswas area each out of old Khasra No.2. However, in the consolidation process, defendant No.3, in connivance with the consolidation staff, got himself entered in possession of 12 biswas area, while the plaintiff was shown to be in possession of 8 biswas area and old Khasra No.2 was broken into two numbers, i.e. Khasra No. 8 and Khasra No. 9. Khasra No.8, measuring 12 biswas, was shown to be in possession of defendant No.3 and Khasra No.9, measuring 8 biswas, was shown to be in possession of the plaintiff. On the strength of these revenue entries, defendant No.3 threatened to demolish the structure of the plaintiff on 2 …4… biswas area, shown by Khasra No.8/1 and to take its possession, forcibly. So, the plaintiff filed a suit for declaration with further relief of permanent prohibitory injunction restraining defendant No.3 from interfering in his possession. 4. Defendant No.3 contested the suit and claimed that he had rightly been recorded in possession of 12 biswas area, comprised in Khasra No.8. It was stated that in the month of July, 1984, when he was away to Kangra, plaintiff made encroachment on 2 biswas area, forming part of Khasra No.8, by constructing his house. 5. Defendant No.3 filed counter claim for decree of possession of 2 biswas area, shown by Khasra No.8/1. 6. Trial Court framed following issues, on the pleadings of parties: “1. Whether the plaintiff is owner in possession over the suit land as alleged? OPP. 2. Whether during the consolidation the plaintiff has been wrongly shown as tenant to the extent of 0-8 biswas as part of the suit land and the defendant No.3 has been wrongly shown as tenant to the extent of 12 biswas of suit land as alleged? OPP. 3. Whether the plaintiff has become owner in possession over the suit land by virtue of adverse possession in alternative, as alleged OPP …5… 4. Whether the defendant No.3 is entitled for possession over 2 biswas part of the suit land as alleged? OPD. 5. Whether the suit is not maintainable as alleged? OPD 6. Whether the suit is not properly valued as alleged? OPD. 7. Whether this Court has no jurisdiction as alleged? OPD. 8. Whether the plaintiff is estopped to file the present suit as alleged? OPD. 9. Whether the suit is time barred? OPD. 10. Relief. 7. Findings on all the issues, except issue No.3, were given in favour of the plaintiff and against defendant No.3. Consequently, suit was decreed and counter claim of defendant No.3 was dismissed. 8. Appellant-defendant No.3 approached the District Judge by filing an appeal, but without success. 9. I have heard the learned counsel for the parties and gone through the record. 10. As regards substantial question of law No.1, it has been submitted by the learned counsel for appellant- defendant No.3 that civil Court did not have the jurisdiction in view of bar contained in Section 57 of the Himachal Pradesh Holdings (Consolidation and Prevention of …6… Fragmentation) Act, 1971. Section 57 of the said Act reads as follows:- “Jurisdiction of civil court barred as regards matters arising under this Act.---No person shall institute any suit or other proceedings in any civil court with respect to any matter arising out of the consolidation proceedings or with respect to any other matter in regard to which a suit or application can be filed under the provisions of this Act” 11. From a bare reading of the provision of Section 57 aforesaid, it appears that the jurisdiction of Civil Court is barred, if a dispute arises out of the consolidation proceedings or with respect to any other matter in regard to which suit or application can be filed under the provisions of Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971. 12. In the present case, consolidation proceedings had come to an end, when the dispute between the parties arose. It appears from the evidence on record that dispute arose between the parties when defendant No.3 Prabh Dayal made an application for demarcation of his land, bearing Khasra No.8 to Assistant Collector, 2nd Grade, and the latter found that on 2 biswas area of land, comprised in Khasra No.8, there exited a house of the plaintiff and that the possession of the plaintiff was old. It has been admitted by defendant No.3, while appearing as DW-1, that when consolidation took place, the buildings of the parties were already in existence, meaning thereby that the claim of the …7… defendant that construction was carried out by the plaintiff in July, 1984, is not correct. 13. The fact that the buildings were already in existence, when consolidation commenced, some time prior to the year 1981, indicates that defendant had not been put in possession of the entire area of Khasra No.8, measuring 12 biswas, because had it been so, the possession of the portion of Khasra No.8, on which the plaintiff is in possession, should have been with the defendant and PW-3 Jagat, District Revenue Officer, would not have recorded in his report Ext. PW3/A that the possession of the plaintiff was old. 14. Now, when the consolidation authorities had not got delivered the possession of 2 biswas area, forming part of Khasra No.8, to defendant No.3, the plaintiff had every right to protect his possession, by seeking injunction from the Civil Court, unless he was dispossessed, lawfully, under the provisions of Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971. 15. Consequently, it is held that the suit of the plaintiff, so far as it related to the relief of injunction, was not barred under Section 57 of the Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971. Substantial question of law No.1 is answered accordingly. 16. In view of the evidence discussed while dealing with substantial question of law No.1, hereinabove, it is held …8… that the plaintiff being in possession of the disputed portion of Khasra No.8, even prior to consolidation proceedings, suit filed by him, with respect to the relief of injunction, was maintainable. Hence, substantial question of law No.2 is answered against the appellant. 17. So far as substantial question of law No.3 is concerned, the evidence on record does not prove that the plaintiff was entitled to 10 biswas area or that the area in his possession was 10 biswas. Plaintiff-respondent Anant Ram, while appearing as PW-1, admitted that he had executed compromise Ext. RX, per which he had agreed to pay Rs.10,000/- to defendant No.3, on account of his being in possession of 2 biswas area, out of Khasra No.8, entered in possession of defendant No.3 in the revenue papers. So, the finding of the trial Court to the effect that the plaintiff was owner of two biswas area, shown by Khasra No.8/1, and passing of declaratory decree to that effect are not sustainable. Substantial question is answered accordingly. 18. In view of answer to substantial question of law No.1 above, substantial question of law No.4 is answered against the appellant. 19. Coming to substantial question of law No.5, the evidence on record does not prove that the plaintiff was entitled to be recorded in 10 biswas area. He did not place on record, the jamabandi, which was prevalent, immediately before the start of consolidation process, to enable the Court to ascertain as to how much area of old Khasra No.2 was in …9… his possession. He having not placed on record such jamabandi is liable to adverse inference to the effect that he was not in possession of 10 biswas area out of old Khasra No.2, as claimed by him. In Register Karyabahi, copy Ext. P- 2, plaintiff was shown to be in possession of only 8 biswas area. In Ext. P3, Register Rukhvandi/Gathwar also, possession of plaintiff-respondent Anant Ram was shown to be over 8 biswas area only. No doubt in Ext. P-1, Naksha Haqdaar, plaintiff’s possession was shown to be over 10 biswas area, but it is not clear as to what was the basis of preparation of this document. In any case, on account of non-production of the jamabandi that was prevalent immediately before the start of the consolidation process, as noticed hereinabove, plaintiff’s plea that he was in possession of 10 biswas area, prior to consolidation, could not have been accepted. 20. Consequently, finding of the trial Court as affirmed by the first appellate Court that the plaintiff was entitled to 10 biswas area and the entries in Jamabandi for the year 1980-81, showing him in possession of only 8 biswas area are not correct, is wrong and cannot be upheld. 21. In view of the above discussion, appeal is partly accepted. Decree of the trial Court declaring the respondent-plaintiff Anant Ram as owner in possession of 10 biswas area, including 2 biswas area out of Khasra No.8, as depicted by Khasra No.8/1 in plan Ext. PW3/B, attached with demarcation report Ext. PW3/A, is set aside. However, …10… decree of permanent prohibitory injunction restraining defendant No.3 from interfering with the possession of plaintiff over Khasra No. 8/1, is upheld, since the plaintiff, as per demarcation report Ext. PW3/A, had been in possession of the said portion of Khasra No.8 since long. Appeal stands disposed of accordingly. Pending applications shall also stand disposed of. March 29, 2010 (ss) (Surjit Singh), J