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1997 DIGILAW 107 (HP)

STATE OF HIMACHAL PRADESH v. NIDHU

1997-04-08

SURINDER SARUP

body1997
JUDGMENT Surinder Sarup, J.: This second appeal is directed against the judgments and decrees of the two Courts below whereby the suit of the plaintiff has been decreed. It may be mentioned that the judgment and decree of the trial Court is that of Shri S. L. Sharma, Sub Judge 1st Class, Kangra dated 24.10.1989, whereas the judgment and decree of the lower appellate court is that of Shri M.R. Chaudhary, District Judge, Kangra Division at Dharamshala dated 07.08.1991. 2. Briefly the facts are that the plaintiff-respondent brought a suit for, declaration with consequential relief of permanent prohibitory injunction against the State of H.P. defendant- appellant on the pleadings that the land fully described in the plaint and the judgments and decrees of the Courts below, situated at Mohan Jhikli Ichhi, Mauja Ichhi.Roman, Tehsil and District Kangra is entered in the possession of the plaintiff as is clear from the jamabandi for the year 1980-81. It has further been pleaded that land bearing Khata No. 145 min, Khatauni No. 170 min. 274 min, Khasra Nos. 498, 507 and 627, Kita 3 area measuring 2 Kanals 13 Marias situated at Mohal Jhikli Ichhi, Mauza Ichhi, Tehsil and District Kangra is entered in the name of the plaintiff-respondent in the column of possession as "Khud Kast" Makbuza as co-sharer and in the column of ownership the land is recorded as Shamlat Tika Hasab Rasad Malguzari. During the current settlement which took place in the year 1972-73 though the entry of possession has been made in die name of the plaintiff not as a co-sharer but he had been shown in un- authorised possession with a view to eject him. This entry has been challenged by the plaintiff being illegal and not binding on the rights of the- .plaintiff. The plaintiff further averred that he being in possession as co-sharer before 26-1-1950 has obtained all die proprietary rights in respect of the suit land and that the Himachal Pradesh Village Common Lands (Vesting and Utilisation) Act is not applicable to the present case. 3. The plaintiff further averred that he being in possession as co-sharer before 26-1-1950 has obtained all die proprietary rights in respect of the suit land and that the Himachal Pradesh Village Common Lands (Vesting and Utilisation) Act is not applicable to the present case. 3. In the written statement, the State took up the preliminary objections that the suit is not maintainable in the present form; that the suit is bad or non-joinder of necessary parties; that this Court has got no jurisdiction to entertain and try the present suit; that the suit is time barred; mat no valid notice under section 80 C.P.C. was served upon the State and that the suit is not properly valued for the purpose of court fee and jurisdiction. 4. On merits, it was pleaded that the plaintiff is a trespasser in the suit land and is liable to be ejected. Earlier entry has also been challenged by the State that this entry has been incorporated in connivance with the settlement staff. This land has been recorded as "Banjar Qudim" and is not under cultivation. It is further averred that in view of the Himachal Pradesh Village Common Lands (Vesting and Utilisation) Act, the land has rightly vested in the State and that no valid notice was served. In a nut shell, the claim of the plaintiff has been denied. 5. On the basis of the pleadings of the parties, the trial Court framed the following issues: " 1. Whether the plaintiff is the whether in possession of the suit land? OPP 2. Whether die revenue entries in die name of the defendant are wrong and are liable to be corrected? OPP 3. Whether the suit is within time? OPP 4. Whether die valid notice under section 80 CPC has been served upon the defendant/State OPD 6. Whether die suit is bad for non-joinder of necessary parties? OPD 7. Whether die civil Court has jurisdiction? 8. Relief." 5. Issues No. 1 and 2 were taken up together being inter-connected and it was held therein that die plaintiff is in possession of the suit land as co-sharer and prior to him, his father was in possession of the suit land as co-sharer. The entry of trespasser in favour of the plaintiff during the settlement in the year 1971-72 is wrong and is liable to be corrected. The entry of trespasser in favour of the plaintiff during the settlement in the year 1971-72 is wrong and is liable to be corrected. Both these issues were decided in favour of the plaintiff. Under Issue No.3 it was held that the suit was within time Under Issues No.4, it has been stated that this issue was not pressed Moreover, the copy of notice Ex.P-2, postal receipt and acknowledgment Fx.P-3 and Ex.P-4 clearly prove on record that the notice was duly served upon the defendant This issue was decided in favour of the Plaintiff Under Issue No. 5. It has been held that the Plaintiff is in possession of the suit land as co-owners and not as tres-passer and that the suit for declaration and injunction against the defendant is maintainable in the present form. This issue was decided against the defendant. Under Issue No. 6, it is stated that this issue was not pressed during the course of arguments and that the suit is not bad for non -joinder of necessary parties. This issue was also decided against the defendant. Under Issue No.7, it has been held that this is a suit for declaration and injunction and the subject matter of the suit is within the jurisdiction. The decree for declaration can only be granted by a Civil Court in which the title is to be determined and the Court has therefore got the jurisdiction to try the suit. This issue was decided in favour of the plaintiff. 6. On the basis of these findings, the suit of the plaintiff has been decreed, as already indicated above and the appeal against that judgment ha* been dismissed by the learned lower appellate Court. 7. I have heard Shri V. K. Verma, learned Assistant Advocate General on behalf of the State and Shri Rupesh Kanwar on behalf of the plaintiff-respondent. I have also gone through the records. 8. It will be appropriate and beneficial here to briefly discuss the evidence of the parties. Nidhu Ram appeared as PW-1 and stated that initially the land was recorded in the name of Sarswati before 1950 and the property was inherited by Som Parkash. He sold this property to the father of the plaintiff in the year 1953 vide Ex.P-1. 8. It will be appropriate and beneficial here to briefly discuss the evidence of the parties. Nidhu Ram appeared as PW-1 and stated that initially the land was recorded in the name of Sarswati before 1950 and the property was inherited by Som Parkash. He sold this property to the father of the plaintiff in the year 1953 vide Ex.P-1. From that time the plaintiff is coming in possession of the suit land and that he has challenged the entries after settlement wherein the plaintiff has been recorded in the column of possession as co-sharer. He also proved notice U/S 80 G.P.C. (Ex.P-2) receipt and acknowledgment (Ex.P-3 and P- 4, respectively), PWs 2 and 3 Sureshat Singh and Krishan Singh also supported the case of the plaintiff on all fours. On the documentary side, the plaintiff tendered in evidence documents Exts.P-5 to P-13 i.e. Jamabandi for the year 1945-46, jamabandi for the year 1980-81, missal haquiat 1972-73, jamabandi 1966-67, jamabandi 1960-61, jamabandi 1959-60, jamabandi 1953-54, khasra gir-dawari 1982 to 1985 (Ex.P-12), another Khasra girdawari 1986 to 1989 (Ex.P.13), respectively. 9. On behalf of the State Ajit Kumar, who is a Vice President of the Panchayat has been examined. He deposed that the land is shaml at and nobody is recorded in the column of possession in the revenue record and the land is rightly vested in the name of the State. Jamabandis were placed on record by the State. Both the Courts below have relied upon the evidence of the plaintiff to hold that the plaintiff is cultivating the suit land and has become the owner of the same. As to who pays the land revenue is clear from the column of possession/cultivation in the revenue record. From the Jamabandi 1945-46 it1 is clear that Saraswati was recorded in the column of possession. It is also clear from the Jamabandi of 4917-18 that the land was recorded in the possesion of the co- owners. The learned Courts below have rightly appreciated the longstanding entries wherein the plaintiff/respondent has been recorded in the column of possession and the land has been assessed to land revenue in its right perspective. That being the position, the presumption of correctness attaches to the entries in the Jamabandis which have been brought on record in the present case. The learned Courts below have rightly appreciated the longstanding entries wherein the plaintiff/respondent has been recorded in the column of possession and the land has been assessed to land revenue in its right perspective. That being the position, the presumption of correctness attaches to the entries in the Jamabandis which have been brought on record in the present case. In the present case, it has been proved that the land was sold be one Saraswati to the father of the plaintiff and the plaintiff inherited the same Such sale was affected vide Ex.P-1. From that time onwards, the plaintiff is in possession of the same. Since it has been proved that the land is held by the predecessor-in-interest of the plaintiff before 26-1-1950, the trial Court is right in holding that section 2(g) (viii) of Punjab Village Common Lands (Regulation) Act, 1961 straightaway comes into play. That being the position, the land which has been recorded as "Shamlat Deh Hasab Rasad Mai Guzari" and is assessed to land revenue and has been in the individual cultivating possession of the co-sharers before 26th January, 19S0, the same will not vest in the State in view of the said Act. 10. The matter can be looked at from another angle. The State has not been able to adduce any evidence on record that the land is "Banjar Qadim", as reflected in the revenue papers. On the other hand, the plaintiff/respondent has been able to prove that the land is under his cultivation on payment of land revenue. 11. As regards the objection, forcibly argued by the learned Assistant Advocate General, that the Civil Courts jurisdiction is barred under the H.P. Village Common Lands (Vesting and Utilisation) Act, which is applicable in the present case, the same is of no avail in view of the law laid down by this Court in State of H.P. v. Hukam Chand (1990 (2) Sim.L.C.15. 12. In view of the above legal position, the entry as per the last settlement as "Kabaz Nazayaj" is wrong and illegal, as rightly held by both the Courts below. 13. The findings of both the Courts below are based on appreciation of evidence and in the considered view of this court the same has been rightly appreciated. No substantial question of law is involved so as to warrant/ interference in this second appeal. 14. 13. The findings of both the Courts below are based on appreciation of evidence and in the considered view of this court the same has been rightly appreciated. No substantial question of law is involved so as to warrant/ interference in this second appeal. 14. For the reasons recorded above, this appeal fails and is dismissed. The judgments and decrees of both the Courts below are affirmed. In die circumstances, there will be no order as to costs.