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1997 DIGILAW 129 (HP)

PREM DUTT v. STATE OF H. P.

1997-04-21

SURINDER SARUP

body1997
JUDGMENT Surinder Sarup, J. (Oral):- The suit of the plaintiffs-appellants was partly decreed by the trial Court of Shri T.N. Vaidya. Senior Sub Judge, Solan on 17-8-1997 whereby a decree to the effect that they are owners in possession of the built up land of Khasra No. 408/186, Khasra No.428/186 measuring 10 was Khewat No.42 min Khatauni No.91 in consequence, a decree was also restraining the defendants from interfering in their ownership and Session over the suit land. Further a decree was passed prohibiting the Irfendants from interfering in the possession of the plaintiffs over the land comprised in Khewat No. 42 Min Khatauni No. 84 to 92 till they are in session or till they are dispossessed therefrom after demanding possession of the land and are paid compensation, as assessed in accordance with the revisions of Section 3(3) of the Common Lands Act. It was further held that possession of the plaintiffs over the land is. not of owners. Rest of the claim of the plaintiffs-appellants that they are owners in possession of the suit land was dismissed because they are not its owners nor in exclusive individual possessions. 2. Against that judgment, the plaintiff-appellants went up in appeal because the suit was not decreed in toto and the State because the suit was partly decreed against it. The Court of Shri R. L. Khurana District Judge, Solan vide judgment and decree dated 27-6-1991 allowed the appeal of the State but dismissed the appeal of the plaintiff-appellant. Consequently, the judgment and decree of the trial Court passed partly in favour of the plaintiffs-appellants was reversed and their suit has been dismissed, hence the present second appeal. 3. The plaintiffs-appellants filed the suit on the pleadings that the suit and, fully described in the plaint and as per the details given in the judgments and decrees of the Courts below, was recorded as Shamilat Deh Hasab Rassad Jare Khewat and Makbuja Malkan came to be vested in the State of H.P. under the provisions of H. P. Village Common Lands (Vesting and Utilisation) Act, 1974 (hereinafter to be called as the Act). According to the plaintiffs, they are the owners and in individual cultivating possession of the land in dispute as Hissedars since the time of their forefathers and have never relinquished the possession of the same. According to the plaintiffs, they are the owners and in individual cultivating possession of the land in dispute as Hissedars since the time of their forefathers and have never relinquished the possession of the same. The entries in the record of rights showing the land in dispute as Shamilat Deh are wrong and as such the land in dispute could net have vested in the State under the Act. It has further been pleaded that the mutations sanctioned in favour of the State are wrong and not binding on the rights of the plaintiffs. The defendant was served with a notice under Section 80 C.P.C. but without any result. Consequently they filed the suit giving rise to this appeal. 4. In the written statement, the defendant took up the plea that the Civil Court has no jurisdiction and that the suit was barred under the provisions of the Act. It was further pleaded that the plaintiffs are not the owners in possession of the suit land. It was asserted that the land in dispute, being Shamilat Deh had rightly vested in the State under the Act. 5. On the pleadings of the parties, the trial Court framed the following issues : "1. Whether the suit land is not a Shamilat land as alleged 0 OPP 2. Whether the plaintiffs are owners and in possession of the suit land, as alleged ? OPP 3. Whether the revenue entry in favour of the Nagar Panchayat and State of H.P is wrong? OPP 4. Whether the suit is barred under the provisions of H.P. Village Common Land Act? OPD 5. Whether this Court has jurisdiction to try the suit ? 6. Whether the plaintiff is entitled to the relief of declaration at injunction ? 7. Relief. 6. Issues No. 1 and 2 were answers against the plaintiffs while. Issues No. 3 and 6 were partly found in favour of the plaintiffs. Issues No. 4 and 5 were decided against the defendant. According to the learned trial Court, the land was Shamilat Deh and as such it had rightly vested in the State by virtue of the provisions of the Act. The Court further found that the plaintiffs a possession of the land and that possession was liable, to be protected till payment of the amount of compensation by the State under Section 3(3) of the Act. 7. The Court further found that the plaintiffs a possession of the land and that possession was liable, to be protected till payment of the amount of compensation by the State under Section 3(3) of the Act. 7. In appeal, the learned lower appetite Court has come to the conclusion that a bare reading of the provisions of sub-section(3) of Section 3 shows that all types of Shamilat lands came to ire vested in the State free from all encumberances with effect from the coming into force of the Act and all rights title and interests of the land owners in such lands stood extinguished. Under1 sub-section(2), only three categories of lards have been excepted from such vesting. The learned appellate Court found- that there is no evidence to show that any part of the land in dispute fell within the ambit of clauses (a) to (c) of sub-section(2), therefore, the whole of the land in dispute, which was Shamilat Deh, rightly came to be vested in the State. As regards the point chat payment of compensation should be made under sub-section(3) of Section 3 of the Act, the learned appellate Court disagreed with the conclusion of the trial Court and has held that the taking over of the possession b3the State consequent upon the vesting of the land does not depend upon the payment of compensation. Sub-section (3) of Section 3 only makes the State liable to pay compensation for the rights of the landowners which have been extinguished. There is no provision m the Act providing that the possession of the land vested in i.e State would not be taken till payment of lie amount of compensation under sub- section(3) of Section 3 ibid. In this connection, the learned lower appellants Court has relied on sub-section(5) of Section 3 which says that the Collector may, by order in writing, any time after the land became vested the State direct the landowners to deliver the possession thereof within ten days from the service of the order. Under sub-section (6) the Collector may us such force as may be necessary, for taking possession of the land. 8. I have heard learned counsel for the parties at length and have also examined the record. The whole case hinges on die interpretation of provisions of Section 3 of the Act. Under sub-section (6) the Collector may us such force as may be necessary, for taking possession of the land. 8. I have heard learned counsel for the parties at length and have also examined the record. The whole case hinges on die interpretation of provisions of Section 3 of the Act. Whereas the trial Court has come to the conclusion that sub-section 3 of Section 3 ibid is sine quorum the payment of compenssion is a condition precedent to taking over the possession of the land from the persons, who are in possession of the Shamilat Deh in any manner, but the learned lower appellate Court has held on the contrary while relying on the sub-section(5) of Section 3 of the Act. 9. After careful deliberations and bestowing –considerable thought on the purely legal question involved, in the considered view of this Court, the conclusion arrived at by the learned trial Court is correct. In am supported in this reasoning by a report case of this Court in Dalip Singh & Ors. v State of V. & Ors. 1992(1) Sim. L.C.320. It has been held therein that it is a settled k that where a person is in settled possession of the property, he cannot be dispossessed by the owner of the property, except by recourse to law. In the present case, the payment of compensation is a condition precedent to taking over the possession. Under the Constitution, a person, in possession, even though as tres-passer can only be dispossessed in due course in accordance with law and not otherwise. The rights of a person over some property, even though it may be illegal is sought to be taken away, and the law permits for compensation to be given, the compensation has to be paid to hid either before taking the possession or simultaneously at the time of taking the possession. Under circumstances, as per the settled law, which has flowed right from the inception of the constitution, where there is piece of legislation and the same •provides for compensation, it must be interpreted strictly in favour of the person, who is sought to be deprived of his property, as in the present case. 10. For the reasons recorded above, this appeal is allowed. The judgment and decree of the learned lower appellate Courts set aside and that of the trial Court is restored. 10. For the reasons recorded above, this appeal is allowed. The judgment and decree of the learned lower appellate Courts set aside and that of the trial Court is restored. In the circumstances, there will be no order as to costs. It is made clear that it will be open to the State to take possession of the land, on payment of compensation as assessed under the law.