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1997 DIGILAW 372 (HP)

DUGLU RAM v. STATE OF H. P.

1997-10-13

SURINDER SARUP

body1997
JUDGMENT SURINDER SARUP, J.—This second appeal has been filed against the concurrent judgments and decrees of the two Courts below dismissing the suit of the plaintiff-appellants. The judgment and decree of the lower appellate Court is that of Shri Surjit Singh, District Judge, Mandi, Kullu and Lauhal Spiti Districts, Camp at Kullu dated 22.10.1990 and that of the trial Court is of Shri V.K. Ahuja, Senior Sub-Judge, Kullu dated 22.6.1987. 2. The plaintiffs-appellants went to the Civil Court on the pleadings that the suit land measuring 3 Bighas 5 Biswas 0 Biswansis bearing Khasra No. 6117 situated in Phati Jana Kothi Naggar, Tehsil and District Kullu was in their ownership and possession regarding which they sought a declaration from the Civil Court. They had become owners by virtue of a Will dated 16.3.1982, which was executed in their favour by late Smt. Duadshi. By way of consequential relief, they prayed for permanent prohibitory injunction restraining the State of H.P. and the defendants-respondents Hira Lal and Ram and other residents of the area from interfering with their possession over the suit land. According to the plaintiffs, the same had been granted to their predecessor-in-interest Smt. Duadshi under the Nautor Scheme by the Revenue Assistant as she was a landless lady. She made a Will in respect of the same in their favour and, therefore, on her death, they came into possession thereof. However, the Collector, Kullu, vide his order dated 16.8.1982 cancelled the grant in her favour. This order was challenged being illegal, void and without jurisdiction. After the said order had been passed, the State of H.P., the residents of the area i.e. defendants Hira Lai and Bed Ram and nine other persons, who were represented by Hira Lai and Bed Ram defendants in the suit in a representative capacity started interfering with the possession of the plaintiffs over the suit land, hence the suit for declaration and protection of their rights. 3. 3. In the written statement, it was objected that the suit was incompetent for want of notice under Section 80, C.P.C. and it was alleged that the grant made to the deceased lady was later on resumed as it was found that there stood a large number of trees on the suit land and also because she had failed to break the land within two years, though there was a specific condition in the Patta that if the land is not broken for cultivation within 2 years, the grant shall be resumed, It was also averred that the suit was not properly valued for the purposes of Court fee and jurisdiction. It was also denied that Duadshi made any Will in favour of the plaintiffs.. 4. On the pleadings of the parties, the trial Court framed the following issues: 1. Whether the plaintiffs are in possession of the suit land and the suit for injunction is competent? Opp 2. Whether the Patta Nautor in favour of plaintiffs in respect of the suit land has been illegally cancelled as alleged. Opp. 3. Whether the suit is bad for non-joinder of necessary parties? Opp. 4. Whether the suit is competent without notice under Section 80, C.P.C? Opp. 5. Whether the suit is correctly valued for the purpose of Court fee and jurisdiction? Opp. 6. Whether Smt. Daudshi has executed a Will in favour of the plaintiffs in respect of the suit land? If so, its effect on the present suit? Opp. 7. In case Issue No. 6 is decided in favour of the plaintiffs, whether the plaintiffs are entitled to succeed to suit land by way of succession, as alleged? Opp. 8. Relief." 5. The finding under Issue No. 1 was that the plaintiffs are in possession of the suit land, and therefore, the suit for injunction is competent. Under Issue No. 2, it was found that the order passed by the Deputy Commissioner cannot be said to be illegal or without jurisdiction and as such it cannot be said that the nautor was illegally cancelled. Under Issue No. 2, it was found that the order passed by the Deputy Commissioner cannot be said to be illegal or without jurisdiction and as such it cannot be said that the nautor was illegally cancelled. Issue No. 3 was struck off at the trial and under Issue No. 4, the finding was that the application under Section 80(2), C.P.C. was filed along with the plaint and the Court proceeded with the trial of the case, therefore the plaintiff cannot be made to suffer and the application is formally allowed at the stage of rendering the final judgment. It was consequently held that the suit is not bad for non-issuance of notice under Section 80, C.P.C. Issue No. 5 was decided in favour of the plaintiffs while under Issue No. 6, it was held that the plaintiffs have been able to prove the Will Ex. P-1 and thus, this issue was decided in favour of the plaintiffs. However, in view of the findings under Issue No. 2, the suit was dismissed. The first appeal having met the same fate, the plaintiffs have come up in the present second appeal. 6. I have heard the learned Counsel for the parties and have gone through the record. Shri B.N. Gupta, appearing with Shri K.D. Sood, learned Counsel for the plaintiffs-appellants has taken me through the entire record. On the basis of the same, he has argued that the finding under Issue No. 2 is incorrect. He has referred to the entries in document Ex. P-2, which is a copy of Khasra Girdawari, which shows the possession of Smt. Duadshi at the relevant time and also the sowing and harvesting of crops on the suit land. At the outset, it must be stated that khasra Girdawaries are not documents of title nor any presumption of correctness attaches to them as per the settled law, as they are not part of the record of rights. At the cost of the repetition, it must be reiterated that they are only the record maintained by the Revenue authorities in order to ensure that the land revenue is being realised from the occupier of agricultural land in whatever capacity he may be in possession. 7. As per the certificate of grant Ex. At the cost of the repetition, it must be reiterated that they are only the record maintained by the Revenue authorities in order to ensure that the land revenue is being realised from the occupier of agricultural land in whatever capacity he may be in possession. 7. As per the certificate of grant Ex. D-3, whereby the suit land was granted to Duadshi, which is under the Scheme Himachal Pradesh Grant of Nautor Land to Landless Persons Scheme, 1975, in case the land is not broken within two years from the date of taking over the possession of the land, the grant shall be resumed. Para 11 of the said scheme provides that if the land not broken within two years, the grant shall be resumed. Also para 5(1) of the Scheme provides that if there are trees of valuable species on the land and their number is more than 40 trees per acre, it shall not be granted under the scheme. In the present case, the report of the Tehsildar, who appeared in the witness box as DW-2 i.e. P.A. Thakur, shows that there were 46 trees standing on the land measuring 3 bighas, 5 biswas and 0 Biswansis, which works out to less than one acre. Therefore, the learned lower appellate Court has been right in holding that this land could not have been granted under the said scheme. 8. As was its case before the learned lower appellate Court, the learned Counsel for the plaintiffs-appellants has cited a reported decision of this Court Magheru v. State of H.R (S.L.J. 1981 page 455). That case has been rightly held to be distinguishable on facts inasmuch as in that case the question for consideration was as to what should be the time-limit for review or revision of the orders passed by the Revenue authorities under the Nautor Rules, 1968. In the absence of any specific time-limit having been prescribed, this Court held that such powers could be exercised within a reasonable time and the reasonable time was held to be three years from the date of the grant. However, in the present case, the impugned order of the Collector, whereby the suit land was resumed was not passed in exercise of powers under Review or revision. However, in the present case, the impugned order of the Collector, whereby the suit land was resumed was not passed in exercise of powers under Review or revision. It was passed under para 11 of the said scheme of 1975, referred to above, on account of grantees failure to break the land within two years of the grant. Therefore, the learned lower appellate Court rightly held that the failure to break the land is a continuing violation of the terms of the grant and so long as the violation continues, the question of application of any time-limit cannot arise. 9. The matter can be examined from another angle. Although there is no such plea in the pleadings of the parties and no issue has been framed, but the fact remains that admittedly the impugned order of the Collector could be challenged by way of revision under relevant rules. The same not having been done and the present suit having been filed, it was liable to be dismissed on that score alone. It is settled law that where a specific statute or rules provide for a remedy by way of appeal or revision, etc. then unless that remedy is exhausted, the party cannot approach the Civil Court except in cases where the impugned action is without jurisdiction or sufficient cause being shown that the remedy thus provided could not be availed of. Neither of the two situations exist in the present case. 10. For the reasons recorded above, there is no merit in this appeal, the same fails and is dismissed but without any order as to costs. Appeal dismissed. -