IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 251 of 2004 Judgment reserved on : 15.12.2009 Date of decision : 22. 2. 2010 Bhag Singh …Appellant. Versus Abdul Momin and others. ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Appellant : Mr. R.K.Gautam, Senior Advocate with Mr. Mehar Chand, Advocate. For the Respondents : Mr. Ashwani K. Sharma, Advocate for respondent No.1. Mr. A.K.Bansal, Addl. A.G. with Mr. R.P.Singh, Asstt. A.G. for respondent No. 2. Mr. K.S.Pathania, Advocate for respondent No.3. Kuldip Singh, Judge Bhag Singh has filed this appeal against common judgment, decree dated 2.6.2003 passed by the learned District Judge, Bilaspur in Civil Appeal No. 87 of 1996, Civil Appeal No. 96 of 1996 and Civil Appeal No. 99 of 1996. The Civil Appeal No. 99 of 1996 was filed by Bhag Singh against judgment, decree dated 27.9.1996 passed by the learned Sub Judge 1st Class, Ghumarwin in Civil Suit No. 11/1 of 1995/88 partly decreeing the suit of Abdul 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 Momin plaintiff but dismissing the counter claims of defendant No.2 Kartar Singh and defendant No.3 Bhag Singh. 2. The brief facts of the case are that respondent No.1 Abdul Momin had filed suit for declaration that he is owner in possession of land comprised in khasra No. 1881/1335 min measuring 9-4 bighas situated in village Jhandutta, Pargna Gehrwin, Tehsil Ghumarwin, the order dated 10.12.1982 passed by Sub Divisional Officer (Civil) Ghumarwin, order dated 14.12.1983 passed by Deputy Commissioner, Bilaspur, order dated 29.11.1986 passed by Divisional Commissioner, Mandi and order dated 4.6.1982 and order dated 12.4.1988 passed by Financial Commissioner, Himachal Pradesh are illegal and without jurisdiction. The prayer was also made to restrain the defendants of the suit from interfering or dis-possessing Abdul Momin from the suit land in any manner. In alternative, compensation amounting to Rs. 10,000/- on account of the improvement done by Abdul Momin over the suit land as well as possession of the suit land was prayed. 3. The further case of Abdul Momin was that suit land was allotted to him as Nautor land by Sub Divisional Officer (Civil), Ghumarwin vide order dated 10.1.1974. The possession of the suit land was delivered to him vide rapat No. 37 dated 4.10.1974. He thereupon improved the suit land by planting fruit trees and thus incurred expenses of about Rs. 10,000/-. 4. It is also the case of Abdul Momin that Bhag Singh appellant filed an appeal which was dismissed on 12.6.1974 by Deputy Commissioner, Bilaspur. Bhag Singh filed revision before Financial Commissioner, who set-aside the grant of Abdul Momin. 3 The plaintiff Abdul Momin filed writ petition in the High Court which was allowed on 28.12.1978 and the order dated 29.7.1978 of the Financial Commissioner was set-aside. The Financial Commissioner vide order dated 4.6.1982 remanded the case to Sub Divisional Officer (Civil), Ghumarwin even though Financial Commissioner himself was competent to decide the case on merits, therefore, order of the Financial Commissioner dated 4.6. 1982 is illegal and without jurisdiction. The Sub Divisional Officer (Civil), Ghumarwin without going through the merits of the case rejected the grant of respondent No.1 vide order dated 10.12. 1982. The respondent No.1 filed appeal before the Divisional Commissioner and Financial Commissioner which were rejected. The order of Deputy Commissioner, Bilaspur dated 14.12.1983, order of Divisional Commissioner dated 29.11.1986 and order of Financial Commissioner dated 12.4. 1988 are illegal and without jurisdiction. In these circumstances, the suit was filed. 5. In the written statement filed by defendant No.1 State of Himachal Pradesh, preliminary objections of locus-standi, cause of action, non-joinder of necessary parties, jurisdiction and want of notice under Section 80 C.P.C. were taken. On merits, the claim of plaintiff was denied and it was pleaded that the State is owner of the suit land, Abdul Momin is liable to be ejected from the suit land in accordance with law. The plaintiff was not eligible for grant of land and he was wrongly granted the land which was lateron cancelled. It was denied that any improvement was done by Abdul Momin on the suit land. The orders passed by the Sub Divisional Officer 4 (Civil), Deputy Commissioner, Bilaspur, Divisional Commissioner and Financial Commissioner were defended. 6. The defendant No.2 Kartar Singh filed separate written statement and took preliminary objections of maintainability, resjudicata, locus-standi, non-joinder and mis-joinder of necessary parties. On merits, he denied that Abdul Momin is owner in possession of the suit land. Kartar Singh pleaded that he is owner in possession of the suit land by virtue of adverse possession. The order granting nautor to Abdul Momin was illegal. Kartar Singh defendant No.2 set-up counter-claim that he has become owner of the suit land by way of adverse possession. 7. The appellant was defendant No.3 and he also contested the suit by filing written statement, he denied that Abdul Momin is owner in possession of the suit land. The appellant has submitted that he is owner in possession of the suit land as the same was granted to him by Sub Divisional Officer (Civil), Ghumarwin on 10.12. 1982. He has denied that the possession of the suit land was delivered to Abdul Momin. The appellant has also set up counter claim seeking declaration that he is owner in possession of the suit land and praying that the order dated 10.12. 1982 of Sub Divisional Officer (Civil), Ghumarwin and order dated 14.12.1983 of Deputy Commissioner, Bilaspur are legal but the order dated 29.11.1986 of Divisional Commissioner, Mandi and order dated 12.4.1988 of the Financial Commissioner are wrong, illegal and without jurisdiction. The appellant has also prayed injunction against State and Kartar Singh from interfering on the suit land permanently. In alternative, the appellant has prayed possession. 5 In replications Abdul Momin denied the case of the defendants and the counter claims of defendants No.2 and 3. The learned trial Court partly decreed the suit on 27.9.1996 and restrained defendants from interfering or dispossessing plaintiff from the suit land except in due process of law. The counter claims of defendants No.2, 3 were dismissed. Abdul Momin, Kartar Singh and Bhag Singh filed three separate appeals against judgment, decree dated 27.9.1996, the learned District Judge by common judgment dated 2.6.2003 dismissed all the three appeals. The present appeal has been admitted on following substantial question of law:- “Whether the findings of the Courts below to the effect that orders passed by the Divisional Commissioner, Mandi as confirmed by Financial Commissioner are illegal, not tenable and liable to be set-aside, are dehors the evidence on record?” 8. I have heard Mr. R.K.Gautam, learned counsel for the appellants, Mr. Ashwani K. Sharma, learned counsel for respondent No.1, Mr. A.K.Bansal, Additional Advocate General and Mr. K.S.Pathania, learned counsel for respondent No.3 and have also gone through the record. On behalf of the appellant, it has been submitted that the suit land was allotted to appellant. The courts below have mis-construed and mis-interpreted the evidence on record and have erred in rejecting the counter-claim of the appellant. The order dated 10.12.1982 of Sub Divisional Officer (Civil), order dated 14.12.1983 of Deputy Commissioner are legal whereas order dated 29.11.1986 of Divisional Commissioner and order dated 12.4.1988 of Financial Commissioner are illegal and liable to be set-aside. It has been submitted that appellant is entitled to decree 6 as per his counter-claim. The learned counsel for the respondents have opposed the appeal and supported the impugned judgment, decree. 9. The appellant has set up the counter claim on the ground that he was army personnel and has preferential right for grant of Nautor land. He had applied Nautor land prior to plaintiff, therefore, he has preference for grant of Nautor land as compared to plaintiff. The defendant No.2 appeared as objector long after, his objection was wrongly entertained by the Divisional Commissioner as the same was time barred and without any right, title and interest. The defendant No.2 had taken possession of a portion of the suit land and same deserves to be restored to appellant. The appellant has prayed that order dated 29.11.1986 of the Divisional Commissioner and order dated 12.4. 1988 of the Financial Commissioner are illegal and have no effect on the grant of Nautor land ordered by Sub Divisional Officer (Civil) on 10.12.1982 and by Deputy Commissioner on 14.12.1983. The counter claim of the appellant indicates that except for pleading the case that he has preferential right for grant of Nautor land and the objection of defendant No.2 was time barred, the appellant has not laid any other foundation in the counter claim for setting aside the order dated 29.11.1986 and order dated 12.4.1988 of the Financial Commissioner. 10. The Sub Divisional Officer (Civil) granted Nautor land to appellant vide order dated 10.12. 1982 Ex.Dy. According to appellant the order dated 10.12.1982 was upheld by the Deputy Commissioner vide order dated 14.12.1983 which has not been 7 placed on record. The Divisional Commissioner in the order dated 29.11.1986 Ex.PD has held that local people / estate right holders objected to the grant of land as the same used by them for various purposes. He ordered allotment of very small portions of land to Abdul Momin and Niku Ram and held that remaining land is reserved for common public use of the village and no portion of it will be sanctioned to any person. The Financial Commissioner in the order dated 12.4.1988 while considering the Revenue Appeal No. 33/87 of Bhag Singh and Revision No. 2/87 of Abdul Momin has affirmed the finding of the Divisional Commissioner dated 29.11.1986. It is thus clear that the Divisional Commissioner in order dated 29.11.1986 and Financial Commissioner in order dated 12.4.1988 have rejected the claim of appellant for allotment of land on the ground that same is used by the villagers for their various common purposes. 11. The appellant in the counter-claim has not whispered anything about the rights of villagers of user of land for their common purposes. The alleged preferential right of appellant being army personnel was not in issue in the order dated 29.11.1986 Ex.PD and order dated 12.4. 1988 Ex.PE. Therefore, it cannot be said that order dated 29.11.1986 and order dated 12.4.1988 are illegal. The appellant has not placed on record order dated 14.12.1983 of Deputy Commissioner and in absence of said order, no declaration can be given that order dated 29.11.1986 and order dated 12.4.1988 have no effect on the order dated 14.12.1983. The order dated 10.12.1982 Ex.Dy does not survive in presence of 8 order dated 29.11.1986 Ex.PD and order dated 12.4.1988 Ex.PE of superior authorities. 12. The learned counsel for the appellant has submitted that Financial Commissioner vide order dated 29.7.1978 Ex.D2 has upheld the allotment of 3-3 bighas of land in favour of appellant. The learned District Judge also in the impugned judgment has referred to order dated 29.7.1978 vide which 3-3 bighas of land was allotted to appellant. It has been submitted that appellant is entitled to atleast 3-3 bighas of land as per order dated 29.7.1978 Ex.D2 of Financial Commissioner. The learned District Judge has erred in dismissing the appeal of the appellant. It has been submitted that Abdul Momin had filed RSA No. 335 of 2003 against the impugned judgment, decree which has been dismissed on 1.9.2003 and, therefore, the appellant is entitled to relief atleast to the extent of 3-3 bighas of land. 13. The counter-claim of the appellant is based upon order dated 10.12.1982 Ex.Dy and order dated 14.12.1983 of Deputy Commissioner. The counter claim is not based upon Ex.D-2 order dated 29.7.1978 of Financial Commissioner. Abdul Momin filed CWP No. 199 of 1978 in which order dated 29.7.1978 was considered and on 28.12.1978 order dated 29.7.1978 was set-aside and the matter was referred to the Financial Commissioner for decision in accordance with law. It is the case of the plaintiff that thereafter Financial Commissioner has remanded the case to Sub Divisional Officer (Civil) on 4.6.1982. In these circumstances, the appellant cannot take benefit of order dated 29.7.1978 Ex.D2 which has already been set-aside by the High Court. 9 14. The learned counsel for the appellant has not pointed out that the Courts below have based their findings on some inadmissible evidence or some evidence which goes to the root of the case has been ignored. There is no perversity in the impugned judgment. The impugned judgment is in accordance with the evidence on record. The substantial question of law noticed above is decided against the appellant. 15. No other point was urged. 16. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. February 22, 2010 ( Kuldip Singh ), (GR) Judge.