IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No.219 of 1996. Date of decision: 24.03.2009. State of H.P. …Appellant Versus Ram Lok & Others …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Appellant: Ms.Ruma Kaushik, Additional Advocate General. For the Respondents:Mr.Bimal Gupta, Advocate. Dev Darshan Sud,J. This appeal has been preferred by the State against the judgment and order of the learned District Judge accepting the appeal filed by the respondents against the orders passed by the Assistant Collector Ist Grade, Kasauli in proceedings under Section 163 of the Himachal Pradesh Land Revenue Act ordering the eviction of the respondents. The appeal was admitted by this Court on 15.11.1996 with the simple order “Admitted”. When this appeal was taken up for hearing, I find that no substantial question of law had been considered by this Court for admission of the appeal. 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 The learned Additional Advocate General urges three questions as filed with the appeal for consideration of this Court. “1. Whether the Civil Court has no jurisdiction as provided under Section 10 of the H.P. Village Common Land Vesting and Utilization Act and Rules? 2. Whether the appellant has proved the encroachment over the suit land and Assistant Collector Ist Grade has rightly issued order of ejectment against the respondents? 3. Whether misreading of oral as well as documentary evidence on record itself is a substantial question of law? Question No.1: This question need not detain this Court any further as any order passed by the Revenue Officer exercising powers under Section 163 of the Himachal Pradesh Land Revenue Act is appealable as a decree to the Court of learned District Judge. The relevant provisions of Section 163 may be noticed: “163. Prevention of encroachment on lands.- (1) … … … … … … … … (2) … … … … … … … … (3) When there is a question as to title or to the adverse possession, wherein the possession is claimed by an encroacher for a 3 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 exercisable by a Civil Court. (4) For the determination of the question under sub-section (3), 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 Code of Civil Procedure, 1908 to be specified therein. (5) An appeal from the decree of the Revenue Court made under sub- section (4) shall lie to the District Judge as if that decree were a decree of a Subordinate Judge in an original suit. (6) A further appeal from the appellate decree of a District Judge upon an appeal under sub- section (5), shall lie to the High Court only if the High Court is satisfied that a substantial question of law is involved.” This question is decided against the State. 4 Questions No.2 and 3: These questions also need not detain this Court. It is undisputed that the Collector had conducted the proceedings in a very summary manner contrary to the statutory mandate and the respondents had appealed to the learned District Judge, Solan, on 2.5.1990. By its judgment dated 3.8.1990, the learned District Judge directed:- “4. At the very outset, it may be pointed out that the impugned order cannot be sustained under the law. A perusal of the record shows that no reasonable opportunity was given to the appellants to cross-examine the witnesses examined on behalf of the State/respondent in the trial Court. There has been, thus, a breach of principles of natural justice. The appellants should have been afforded due opportunity of cross-examining the witnesses. Even though, the counsel of the appellants was not present on the date when the witnesses had been examined in the interest of justice, the witnesses could have been ordered to be cross-examined on the adjourned date, if the trial Court wanted to examine the witnesses present and was not keen to adjourn the case. Instead of allowing a reasonable opportunity to the appellants to cross-examine 5 the witnesses, the learned trial Court had proceeded to the impugned order against the appellants, even without further affording opportunity of being heard to appellants. 5. It may further be pointed out that order passed by the Assistant Collector is appealable to this Court as a decree of Civil Court. The words appearing in sub-section 5 of Section 163 of the Himachal Pradesh Land Revenue Act, 1954, are very material. It provide that “An appeal from the decree of the Revenue Officer shall lie to the District Judge as if that decree werea decree of a Subordinate Judge in an original suit”. Thus, the impugned order was required to be followed by a decree. The learned trial Court has failed to frame a decree in terms of the impugned order. 6. As a result, the present appeal is allowed. The impugned order dated March 31, 1990 is set aside and the case is remanded to the trial Court for disposal in accordance with law after giving due opportunity to the appellants to cross-examine the witnesses examined on behalf of the State/respondent. The parties shall be at a liberty to produce any such further evidence as they 6 may wish to do. Parties are left to bear their own costs.” After remand, the case was taken afresh by the Collector. PW-1 Prem Chand Patwari, who tried to prove the encroachment with reference to Ex.PW-1/A, report which he had prepared, Rojnamcha Ex.PW-1/B and Jamabandi Ex.PW-1/C, was cross-examined at length by the respondents. The cross-examination shows that he had not demarcated the land, referred to any musavi for determination of the points from where measurements are to be taken, prepared any spot map, associated the respondents with the demarcation etc. issued any notice to them or associated them. In-fact, if his cross- examination is seen, it does not in any manner establish the case as set out by the State. The report and subsequent record prepared is not worth the paper on which it is prepared. PW-2 Jagdish Rana, who was the Kanungo, also mentions in the report that he had visited the spot. He admits that the report had been prepared on 10.8.1989 in the Patwar Circle only. No measurements were taken, the spot was not identified etc. This is the gist of his cross-examination and the admissions made by him. While dealing with the order of ejectment passed by the Collector, the learned District Judge, after remand of the case, inter alia holds that the report of the Naib Tehsildar was never supplied to the 7 respondents, the Collector had ignored the statements of PW-1 Prem Chand, and PW-2 Jagdish Ram, which did not in any manner establish the factum of the encroachment. As I have held that a perusal of the evidence itself shows that the identity of the land has not been established, there has been no demarcation and no effort has been made to show or establish on the record that the respondents had encroached upon the suit land. The findings of fact as arrived at by the learned District Judge, are based on sound appreciation of evidence and do not require any interference. Learned Additional Advocate General submits that the Collector has noticed that the respondents have themselves admitted the encroachment. Nothing can be farther from the truth, what I find from the record is that the respondents have again stepped into the witness box after the remand and have stated that they continued to be in possession of the suit land and their possession has become absolute by way of adverse possession and as such the respondent-State has no title or interest in the suit land. Both these questions are, therefore, answered against the appellant. This appeal is dismissed. There shall be no order as to costs. March 24, 2009 (Dev Darshan Sud) (aks) Judge.