IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Regular Second Appeal No.273 of 1996. Date of decision: 15.07.2008. State of H.P. …Appellant Versus Pano Devi and Another ….Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Appellant: Ms.Ruma Kaushik, Additional Advocate General. For the Respondents: Mr.M.A. Khan, Advocate. Dev Darshan Sud,J. This appeal has been preferred by the State against the judgment of the learned District Judge affirming the judgment and decree passed by the learned Sub Judge Ist Class, Hamirpur decreeing the suit of the plaintiffs-respondents for declaration that they are the owners in possession of the land measuring 18 Kanals 10 Marlas out of land comprised in Khata No.576, Khatauni No.757, Khasra No.1364, measuring 38 Kanals 17 Marlas as entered in Jamabandi for the year 1983-84 of Tika Dhamrol, Mauza Mewa, Tehsil Bhoranj, District Hamirpur and that mutation No.1091 attested in favour of the State is wrong and 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 not binding upon the plaintiffs. A decree for permanent prohibitory injunction restraining the State from interfering in the possession of the plaintiffs over the suit land was also granted. The trial Court on the allegations of the plaintiffs-respondents that they were tenants over the suit land held that the predecessor-in-interest of the plaintiffs Shri Sant Ram had been a tenant of the suit land and thereafter the plaintiffs. The learned trial Court determined as a fact that Amrit Lal was owner of the suit land who exchanged it with the land of his father Brij Lal who declared the land as surplus under the provisions of the Himachal Pradesh Ceiling on Land Holdings Act, 1972,(hereinafter referred to as the `Act’). The identity of the land was Khasra No.1364 corresponding to old Khasra No.1421. Narain Lal etc. were recorded as owners in possession of the suit land of Khasra No.1421 as evidenced by the Jamabandies for the year 1922-23 Ex.D-3. 1926-27 Ex.D-4, 1930-31 Ex.D-5, 1934- 35 Ex.D-6, 1938-39 Ex.D-7 and 1942-43 Ex.D-8, 1946-47 Ex.D-9 and 1950-51 Ex.D-10. Rai Sahib Narain Lal was father of Brij Lal and grandfather of Amrit Lal. Amrit Lal and his father Brij Lal and other co- sharers are recorded in possession vide Ex.D-11 Jamabandi for the year 1954-55. Amrit Lal is recorded as owner in possession in the Jamabandies for the year 1961-62 Ex.D-12, 1962-63 Ex.D-13 and 3 1967-68 Ex.D-14 in the remarks column of Ex.D-14. Amrit Lal has sold 207/77 shares of this land to Dile Ram vide mutation No.577 and 207/777 to Ghinku and Prabhu vide mutation No.596 and the remaining share of 370/377 was exchanged by him with the land of his father Brij Lal which fact was reflected in mutation No.692. Rai Sahib Brij Lal is recorded as co-sharer of 370/777 shares of this land in Jamabandies for the years 1972-73 Ex.D-15 and 1978-79 Ex.D-16. Ultimately, in Jamabandi for the year 1983-84 Ex.D-17 the State has been recorded as the owner of this land vide mutation No.1091. On appreciation of the evidence of the parties consisting of PW-1 Pano Devi who stated that her husband Sant Ram was tenant in possession under Amrit Lal and Brij Lal and after his death the plaintiffs namely Pano Devi and Babli were in cultivating possession of his land. Amrit Lal PW-2 stated in evidence that deceased Santu, husband of the plaintiff Smt.Pano Devi, was his tenant since the year 1960 on payment of “Galla Batai” (Rent). He also stated that in 1973 correction of the Khasra Girdawari was ordered in favour of Santu on his application. These entries have been found in Khasra Girdwari for the year 1073 Ex.P-6, wherein Santu is recorded as the tenant under Amrit Lal on payment of “Galla Batai”. There is no dispute about the exchange and the plaintiff’s husband continued to be 4 in possession whereafter he had acquired ownership of the land being cultivating tenant under the provisions of H.P. Tenancy and Land Reform Act, 1972. In appeal, the learned District Judge, has affirmed these findings and that the possession of the land was with Santu and thereafter with the plaintiffs. The possession of the land had never been taken by the State of Himachal Pradesh. The appeal was accordingly dismissed. The State is now in appeal challenging the question as to whether the Court has no jurisdiction to entertain and try the suit under Section 18 of the Act on three questions as framed: “1. Whether the civil court has no jurisdiction to entertain and try the suit in view of the bar created by Section 18 of the H.P. Ceiling on Land Holdings Act, 1972? 2. Whether the land in dispute being surplus has rightly been vested in the State of HP u/s 11 of the H.P. Ceiling on Land Holdings Act, 1972 free from all encumbrances? 3. Whether the mis-reading of documentary and oral evidence itself amounts substantial question of law? Question No.3. Question No.3 may be taken up first for decision. It is now well settled that this Court 5 cannot re-appreciate evidence which has already been considered by two Courts below. The frame of the question suggests that this Court under Section 100 of the Code of Civil procedure is required to re- appreciate the entire oral and documentary evidence on the record of the case. Despite the bar, I have considered the submissions made by the learned counsel appearing for the appellant who has urged that the findings regarding tenancy are wrong and cannot be sustainable in any manner. I cannot accept this contention as the two Courts below on the evidence led by the parties, has come to a definite conclusion that Santu, husband of plaintiff No.1, was the tenant of this land on payment of “Galla Batai” (Rent). It was also established by the evidence on the record that till date no possession of the land has been taken by the State Government and always remained with the plaintiffs. Question No.1 and 2: On questions No.1 and 2, question No.2 may be taken up for decision. Section-11 of the Act is clear. It provides:- “11. Vesting of surplus area in the State Government:- The surplus area of a person shall, on the date on which possession thereof is taken by or on behalf of the State Government be deemed to have been acquired by the State Government for a public purpose on payment of amount hereafter provided 6 and all rights, title interests (including the contingent interest, if any)recognized by any law, custom or usage for the time being in force, of all persons in such area shall stand extinguished and such rights, title and interests shall vest in the State Government free from any encumbrance: Provided that where any land within the permissible area of the mortgagor is mortgaged with possession and falls within the surplus area of the mortgagee, only the mortgagee rights shall be deemed to have been acquired by the State Government and the same shall vest in it.” The surplus area of a person shall vest/deemed to be acquired on the date on which possession thereof is taken on behalf of the State Government. A Constitution Bench of the Supreme Court in Ujjagar Singh (Dead) by LRs. Vs. Collector, Bhatinda and Another, (1996)5 SCC 14, interpreting the provisions of Section 32(E)(a) and 32(F) of the Pepsu Tenancy and Agricultural Lands Act, 1955 (13 of 1955)(which provisions are in perimateria with Sections 11 and 12 of the Himachal Act), held: “3. … … … … … … …On a plain reading of clause (a) of Section 32-E aforesaid it appears that in case any surplus area of the landowner which is not included within the permissible limit of such 7 landowner 'such area shall, on the date on which possession thereof is taken by or on behalf of the State Government, be deemed to have been acquired' by the State Government for public purpose and all rights, title and interest of all persons in such land shall be extinguished and such rights title and interest shall vest in the State Government free from encumbrances. In other words, in view of the aforesaid statutory provision, only when the possession of the land which has been declared as surplus area is taken over by the State Government, then only it shall be deemed that such surplus area has been acquired by the State Government and all rights, title and interest of person concerned in such land are extinguished and vest in the State Government. As such if the possession of any surplus area of landowner has not been taken by or on behalf of the State Government, it shall not be deemed that such surplus area has been acquired and title of the landowner has been extinguished”. (Emphasis added) There is no evidence on the record to show that such possession was actually taken by the State Government or the plaintiffs or their predecessor-in- interest. Having established the tenancy, the learned trial Court is correct in holding that since Santu was the tenant on the land and he had acquired 8 proprietary rights in accordance with the H.P. Tenancy and Land Reforms Act, 1972. On the other question regarding bar created by Section 18 of the H.P. Ceiling on Land Holdings Act, 1972, all that need be said is that a mere mutation attested in favour of the Government is not enough without ascertaining the factual position on the basis of which such mutation is effected. The bar is for adjudication of a suit for specific performance of contract for transfer of land which affects the rights of the State Government to the surplus area or the matter which the Financial Commissioner or the Commissioner is entitled to adjudicate. Possession not having been taken, the land would not vest in the State Government. There is no question of attracting the statutory bar as pleaded. Moreover, the tenant not having been divested of his possession or to put it otherwise possession has been taken by the State Government, the tenant would be deemed to have become the owner of the land under the provisions of Section 104 of the H.P. Tenancy and Land Reforms Act, 1972. In this view of the matter, these questions are decided against the Government. This appeal is accordingly dismissed. There shall be no order as to costs. July 15, 2008. (Dev Darshan Sud) (aks) Judge.