IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. : 234/1999 Reserved on:28.9.2010 Decided on: 5.10.2010 ________________________________________________ Sali. …Appellant. Versus Babu Ram. … Respondent. __________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Ajay Sharma, Advocate. For the Respondent :Mr. Shrawan Dogra, Advocate. ________________________________________________________ Rajiv Sharma, Judge. This Regular Second Appeal has been directed against the judgment and decree dated 29.4.1999 passed by the learned Additional District Judge-II, Kangra at Dharamshala in Civil Appeal No.39-N/XIII/1998. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the respondent-plaintiff (hereinafter referred to as ‘plaintiff’ for convenience sake) instituted a suit against the appellant-defendant (hereinafter 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 referred to as ‘defendant’ for convenience sake) for possession of land comprised in Khata No. 132 min, Khatauni No. 326, Khasra No. 263 measuring 0-06-84 HM situated in Tikka Tankhiad, Mauza Bhali, Tehsil Nurpur, District Kangra. Plaintiff had averred that he being landless person was granted Patta of the suit land measuring 6 kanals 15 marlas by the State of Himachal Pradesh and the possession was also delivered to him. He further averred that he was in cultivable possession of the suit land, but in the year 1982-83 when the settlement operation was going on in the village, defendant in connivance with the settlement officials, got his name recorded in the revenue record as ‘Kabhiz’ without his consent and knowledge. It was further averred by the plaintiff that under the garb of wrong revenue entries, defendant took illegal and un-authorized possession of the suit land in the end of December, 1983. According to the plaintiff, possession of the defendant over the suit land was illegal, unauthorized and without any right, title or interest. He further averred that prior to settlement operation in the month of December, 1983, defendant was never in possession of the suit land and the entries showing the defendant in the column of possession in the revenue record, prior to settlement operation, are illegal, wrong and against the facts. Defendant filed written statement. He averred that actual possession of the suit land 3 remained with his father right from the previous settlement in the year 1917-18 till date as co-sharer and the land was recorded as ‘Hasab Rasab Malgujari’ comprising Khata No. 105, Khatauni No. 169 min, 171 min, Khasra No. 118 min, 118 min, measuring 6 kanals 6 marlas jointly with Sh. Khemdi and lateron with his widow Shanti, situated in Tikka Tankhiar, Mauza Bhali as per jamabandi for the year 1945-46 and this land was assessed to land revenue. According to the defendant, revenue entries effected were illegal, void and wrong. Defendant has also averred that he was in actual cultivable possession of the suit land. He has also averred that the suit land and other land being ‘Shamlat ‘Hasab Rasab Malgujari’ was never vested in Gram Panchayat or in the Government of Himachal Pradesh and the revenue record, i.e. Jamabandi for the year 1971-72 showing the Gram Panchayat as owner and thereafter the State Government as owner in Jamabandi for the 1976-77 was wrong and contrary to the facts. The plaintiff filed replication. Trial Court framed the issues on 25.9.1996. Trial Court decreed the suit on 31.3.1998. Defendant preferred an appeal before the Additional District Judge-II, Kangra at Dharamshalas. Learned Additional District Judge dismissed the same on 29.4.1999. Hence, the present Regular Second Appeal. The same was admitted on the following substantial questions of law: 4 “Whether in view of the Punjab Village Common Lands (Regulation) Act, 1961 section 4 and section 2 (g) (vii), the land in suit could not have vested in the Panchayat at that time and subsequently in the State of Himachal Pradesh but non consideration of the same has vitiated the findings returned by the Courts below.” 3. Mr. Ajay Sharma has strenuously argued that the judgments and decrees passed by both the courts below are contrary to principles of law. According to him, both the courts below have not correctly appreciated the oral as well as documentary evidence. According to him, the land was never vested in the Gram Panchayat and the same could not vest in the State Government. 4. Mr. Shrawan Dogra has supported the judgments and decrees passed by both the learned courts below. 5. I have heard the learned counsel for the parties and perused the record carefully. 6. Plaintiff has appeared as PW-1. He has testified that the suit land was about 6 kanals 11 marlas of which he was owner. The suit land was allotted to him by the Himachal Pradesh Government in the year 1980 and the mutation was also attested in his name. He started cultivating the suit land. However, in the month of December, 1983, defendant took forcible possession of the suit land. He has also produced on record copy of Patta (Ex.PW-1/A). He has requested the 5 defendant to vacate the possession of the suit land, but the defendant did not do so. He has denied that the suit land was in the ownership of the defendant. He has also denied that the ancestors of the defendant were in possession of the suit land since 1947. 7. PW-2 Dhannu Ram and PW-3 Gorkhu have supported the version of the plaintiff. According to them, the plaintiff was owner of the suit land, which was allotted to him by the Government of Himachal Pradesh under the landless scheme. They have also categorically deposed that the suit land was presently in possession of the defendant. 8. Defendant has examined himself as DW-1. He has testified that he had been cultivating the suit land since 1954 and earlier his father was in cultivable possession of the same. He has further deposed that the plaintiff never remained in possession of the suit land nor the State Government ejected him from the suit land. 9. DW-2 Rattan Singh has supported the version of DW-1. According to him, defendant was in possession of the suit land. 10. The copy of Patta Ex.PW-1/A was issued in favour of the plaintiff in the year 1980. Ex.P-1 is the copy of jamabandi for the year 1989-90. Plaintiff’s name has been mentioned in 6 the column of ownership with regard to the suit land. Ex.P-2 reveals that the earlier Khasra number of the land was 118 min, which has now been given new khasra number 263. Case set up by the defendant before both the courts below was that since the suit land was recorded as ‘Hasab Rasab Malgujari’ prior to 1980, it could not vest in the Gram Panchayat and lateron in the State of Himachal Pradesh. Ex.D-1 is the copy of jamabandi for the year 1945-46. It does not disclose that the land was recorded as ‘Hasab Rasab Malgujari’. In the column of ownership, it is Shamlat Deh and in the possessory column, it is Taru and Shanti whose names are recorded. In the jamabandi Ex. D-2 for the year 1952-53, Ex.D-3 for the year 1956-57 and Ex. D-4 for the year 1961-62, the land is not recorded as ‘Hasab Rasab Malgujari’. It is nowhere recorded in these entries that the defendant was in possession according to his share in the Shamlat Deh at that time. In Ex.D-5 jamabandi for the year 1970-71, the land is vested in the Gram Panchayat and subsequently in the State of Himachal Pradesh vide Ex. D-6 jamabandi for the year 1976-77. In Ex.D-7 Missal Haquiat Bandobanst Jadid for the year 1982-83, plaintiff was recorded as owner on the basis of allotment order on the basis of which mutation No. 769 was attested by the revenue authorities. Since there is no entry, as noticed above, as ‘Hasab Rasab 7 Malgujari’, the land was rightly vested in the Gram Panchayat and thereafter in the State of Himachal Pradesh. 11. Mr. Ajay Sharma has relied upon Dalip Singh and others versus State of H.P. and others, 1992 (1) Sim. L.C. 320 and State of Himachal Pradesh versus Kishan Dass and others, 1998 (1) Shim. L.C. 302. The ratio of these cases is not applicable to the facts and circumstances of the present case. In the case in hand, the land has vested in the Gram Panchayat as per Ex.D-5 and thereafter in the State of Himachal Pradesh as per Ex.D-6. It has vested in the State Government as per section 3 of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1973 “free from all encumbrances”. The expression “free from all encumbrances” occurring in section 3 of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1973 has been succinctly explained by their Lordships of the Hon’ble Supreme Court in State of Himachal Pradesh versus Tarsem Singh and others, (2001) 8 SCC 104 as under: “9. In the present case, Section 3 of the Act starts with an non obstante clause. Notwithstanding contained in any law, agreement, instrument, custom or usage or any decree of the court, all rights, title and interests in the land shall stand extinguished and all such rights, title and interests shall vest in the State free from all encumbrances. If we accept the argument of learned counsel for the respondents that easementary right being over the land and the same has not 8 vested in the State under Section 3 of the Act, the result would be that the land would carry burden or charge affecting possession, interests and rights in the land. Such a meaning cannot be given to the expression 'free from encumbrances'. When the legislature has used the expression 'free from encumbrances', it means the vesting of land in the State is without any burden or charge on the land, including that of easementary right. We are, therefore, of the view that the consequence of vesting of right in the land free from all encumbrances is that the interest, right and title to the land including the easementary right stood extinguished and such rights vested in the State free from all encumbrances. For the aforesaid reasons, we hold that under Section 3 of the Act, all rights, title and interests including the easementary rights stood extinguished and all such rights, title and interests vested in the State free from all encumbrances.” 12. Since the land has vested in the State of Himachal Pradesh, the same has rightly been allotted to the respodnent as per Ex. PW-1/A. 13. Accordingly, in view of the discussion made hereinabove, there is no merit in the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs. (Rajiv Sharma), J. 5.10. 2010. *awasthi*