HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. : 2299 of 2007 Decided on: 10.1.2008. Shambu Dutt ……… Petitioner. Versus State of H.P and others. ………Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No For the petitioner: Mr.Naresh Kaul, Advocate. For the respondents: Mr.R.K. Bawa, Advocate General, with Mr.R.M.Bisht, Deputy Advocate General. Per V.K. Ahuja, J.: This judgment shall dispose of the writ petition filed by the petitioner under Articles 226 and 227 of the Constitution of India challenging the order passed by the Financial Commissioner(Appeals), dated 30.10.2007. Briefly stated the facts of the case are that proceedings under Section 163 of H.P. Land Revenue Act were initiated against the petitioner by A.C. Ist Grade, Jaswan at Kotla on the grounds that the petitioner was encroacher over the government land. The said proceedings culminated into the order of eviction ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - passed by the A.C. Ist Grade, vide his order dated 23.11.1998. An appeal was preferred by the petitioner and the Collector, vide his order, dated 22.9.1999, dismissed the appeal. A revision was preferred before the Divisional Commissioner, Kangra and a further revision was preferred before the Financial Commissioner (Appeals), who vide their orders, dated 15.1.2007 and 30.10.2007, respectively, dismissed the revision petitions filed by the petitioner. The petitioner has challenged the final order passed by the Financial Commissioner by way of the present writ petition. We have heard the learned counsel for the parties and have gone through the record of the case. The contentions put forth by the learned counsel for the petitioner were that the petitioner had taken the plea of adverse possession and the A.C. Ist Grade was required to decide this question and since this was not done and his plea has not been considered, therefore, the impugned order is liable to be set aside. This fact was not disputed by the learned counsel for the petitioner that before initiating the proceedings under section 163 of H.P. Land Revenue Act against him by the A.C. Ist Grade, a notice was issued to him. According to the order passed by the A.C. Ist Grade, the plea was taken by the petitioner that they are in possession of the land since the time of their ancestors and have grown mango and bamboo trees over the land in question. The impugned order does not show that a specific plea was taken by the petitioner about his adverse possession over the suit land for a period of over 30 years. The copy of the reply filed by the petitioner before the A.C. Ist Grade was also not filed in this writ petition. The Collector, in his impugned order, had also observed that the deposition of the appellant is that he is in possession of the suit land for about - 3 - 20 years, but it is not sufficient to presume that he has become owner by way of adverse possession. The Divisional Commissioner, in his order, also observed that none of the witnesses deposed that the petitioner was in adverse possession of the suit land. He also observed that a possession howsoever long cannot be termed as adverse possession unless and until it is proved that the possession was adverse to the knowledge of the true owner. The plea taken by the petitioner was also considered by the Financial Commissioner in its impugned order. A perusal of the writ petition filed by the petitioner shows that he had taken the plea that the trees were planted near about 19-20 years back and there are no allegations made by the petitioner in the writ petition that he had taken the plea of adverse possession for a period of over 30 years, which was not considered by the A.C. Ist Grade or that no findings were given on that plea. Section 163, Clause 3 of H.P. Land Revenue Act, which is relevant, reads as under: “(3) When there is a question as to title or to the adverse possession, wherein the possession is claimed by an encroacher for a period beyond thirty years in relation to the land from which ejectment is made or is to be made under this Section, the Revenue Officer, not below the rank of an Assistant Collector of the First Grade, shall proceed to determine the question, as if he, were a civil court and shall exercise all such powers as are exerciseable by a civil court.” According to sub-section (4), the Revenue Officer shall follow the same procedure as is applicable to the trial of an original suit by a civil court and he shall record a judgment and decree containing the particulars required by the CPC. In case such a plea was taken by the petitioner only then the A.C. Ist Grade was required to determine the question as a civil court and an appeal from the decree would have lied to the District Judge. However, no such specific plea - 4 - has been taken by the petitioner and the question was, therefore, not determined by the Revenue Officer as a civil court but as a Revenue Court and the petitioner has availed of all the remedies available to him by filing appeals and the Revenue Officer and all the courts have come to the conclusion that the order passed by the A.C. Ist Grade is right and the petitioner had failed to prove his adverse possession over the suit land. These findings of fact do not suffer from any illegality and calls for no interference from this Court and as such are liable to be affirmed. The writ petition filed by the petitioner is dismissed accordingly. There is no order as to costs. CMP No.3492 of 2007: Infructuous. (Deepak Gupta), J. (V.K. Ahuja), J. January 10 , 2008. (TILAK)