State Of H.P. & Anr vs Siri Dutt(Dead) By Lrs. & Ors

2.1 The respondents filed Suit No.44/1 of 1987 for grant of a declaration that they are the owners of land measuring 381 bigha 8 biswas comprised in Khewat Khatuni No.20/56-66 (old) and Khewat Khatuni No.23/53-63 (new) situated in Mauza Nehra Kandhol, Pargana Boachali, Tehsil and District Solan. They pleaded that the land was in possession of their forefathers since time immemorial and after partition, the same was in their individual and exclusive possession. They also raised the plea of adverse possession by asserting that their possession over the suit land was continuous, open and uninterrupted and the same had never been used by the village community for common purposes. They further pleaded that the land has 3 been wrongly recorded as `Shamlat Deh' in the revenue record and by taking advantage of the wrong entry, it was mutated in the name of the State and illegally allotted to some persons. They prayed for correction of the revenue entries, cancellation of the illegal allotments and for restraining the appellants from interfering with their ownership and possession. 2.2 In the written statement filed on behalf of the appellants, it was pleaded that the suit land had vested in the Government and the same is being used by the villagers as `Shamlat land'. The claim of the respondents that they are the owners in possession of the suit land since the time of their ancestors was controverted by asserting that they do not have any right, title or interest over it except the right of grazing etc. The respondents' assertion that they are in individual possession of the suit land was also denied. It was then averred that the suit land is banzar and charad and the revenue entries are correct. The plea of adverse possession raised by the respondents was contested by asserting that the land was `shamlat' and the same was being used by the villagers. The allotment made in favour of landless persons was defended by asserting that the State Government was competent to do so. The appellants also questioned the maintainability of the suit on the ground of non compliance of Section 80 of the Code of Civil Procedure (CPC). 4 Another plea taken by them was that the civil court does not have jurisdiction to decide the issues raised in the suit. 2.3 On the pleadings of the parties, the trial Court framed the following issues:

2.4 After considering the rival pleadings and evidence, the trial Court partly decreed the suit and restrained the appellants from interfering with the respondents' possession over land measuring 35.7 bighas comprised in Khewat No.22, Khatauni Nos.54 to 62 till they were ordered to hand over possession in accordance with Section 3(3) of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 (for short, `the Act'). The trial Court referred to Jamabandis of the years 1943-44 (Ex.P1), 1955- 5 56 (Ex.P2), 1959-60 (Ex.PB), 1967-68 (Ex.P4), 1972-73 (Ex.PC) and 1982- 83 (Ex.PD) and made the following observations:

3. We may now briefly notice the facts of Civil Appeal No. 4109 of 2002.

3.5 The cross appeals filed by the parties herein were disposed of by the learned District Judge vide judgment dated 27.6.1991 and the decree passed by the trial Court was reversed.

(4) total area of charand lands;

(5) the land which is used for common purposes like cattle ponds, manure pits, sand bihag, kuhis, paths and the land recorded in the khataunis, of `Sharai-am' and `Rafai-am' shall continue to be so used and reserved for common purposes;

(6) the land on which the tree growth is thick and is required to be maintained as forest in the public interest, shall be excluded from the allotable pool;

(2) The Tehsil Revenue Officer after a thorough survey and inspection of the shamilat lands shall demarcate the land and shall get the separate lists of khasra numbers that are reserved for the common purposes and the land to be given to eligible persons attached to the file. He shall also place on the file an index map of the village delineating the shamilat land and showing the demarcation of the grazing land, the land reserved for common purposes and the land reserved for allotable pool. The Tehsil Revenue Officer shall then submit his proposal of demarcation to the Collector.

(3) The Collector after scrutinizing the proposal sent by the Tehsil Revenue Officer shall fix a date for announcing his order after giving the inhabitants of the estate concerned an opportunity of being heard and shall pass the order regarding the percentage of area of land reserved for grazing and common purposes and areas reserved for the allotable pool. (4) The Collector may amend or vary the percentage as referred to in sub-rule (3) with previous approval of the State Government.

7. Preparation of records of unmeasured shamilat land.

17. In the result, the appeals are allowed, the impugned judgments are set aside and those passed by the lower appellate Court are restored. The competent authority shall now be free to take possession of the suit land, which was subject matter of Suit Nos. 85/1 of 1985 and 44/1 of 1987 after complying with the provisions of Section 3(5) and (6) of the Act read with Rules 3 and 5 of the Rules. With a view to obviate further litigation in the matter, we direct the State Government to pay compensation to the respondents in accordance with Section 3(3) of the Act. This shall be done within a period of six months from today. The parties are left to bear their own costs.

.....J. [Asok Kumar Ganguly] New Delhi September 29, 2010.