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1998 DIGILAW 226 (HP)

GARIBU v. STATE OF H. P.

1998-12-11

SURINDER SARUP

body1998
JUDGMENT Surinder Sarup, J.—The plaintiffs, namely, Garibu and Kapura, both brothers, have filed this second appeal, against the judgment and decree of the learned Additional District Judge, Bilaspur dated 28.3.1992 whereby, after accepting the appeal of the State of Himachal Pradesh defendant-respondent, he has reversed the judgment and decree of the trial Court i.e. the Sub-Judge, 1st Class, Ghumarwin, District Bilaspur dated 30.3.1988. By the said judgment, the learned Trial Court had decreed the suit of the plaintiff-appellants for declaration and permanent injunction. 2. The plaintiffs went to the Civil Court on the pleadings that the suit land, fully described in the plaint as also in the judgment of the learned Trial Court, measuring 11-9 bighas situated in village Paplah Pargna Sunhani, Tehsil Ghumarwin, District Bilaspur was sanctioned as Nautor to them by the order of the Revenue Assistant (SDO(C), Ghumarwin by his order dated 17.11.1972. Patta was also issued in respect of the said suit land and thereafter possession was delivered to them on 7.3.1973. Lachhman Singh, defendant No. 2 had filed an appeal against the said order dated 17.11.1972 before the Deputy Commissioner, Bilaspur, who, by his order dated 17.9.1974 reduced the grant of the said land by 6-9 bighas, meaning thereby that the original grant of 11-9 bighas was reduced to 5 bighas. Obviously, the plaintiff-appellant, being aggrieved by that order of the Deputy Commissioner dated 17.9.1974, filed a second appeal, as provided under the Himachal Pradesh Nautor Land Rules, 1968, hereinafter called the Nautor Rules, before the Divisional Commissioner, who by his order dated 19.8.1978, modified the order of the Deputy Commissioner and sanctioned land measuring 8-10 bighas out of the original grant of 11 -9 bighas. Thereafter, Kapura Ram plaintiff went in revision before the Financial Commissioner, who, by his order dated 5.11.1980 set aside the order of the Divisional Commissioner dated 19.8.1978 and maintained the order passed by the Deputy Commissioner, Bilaspur on 17.9.1974. Not resting content, Kapura Ram plaintiff then applied for review of the order of the Financial Commissioner dated 5.11.1980. This was dismissed by the successor Financial Commissioner by his order dated 24.5.1984. 3. Not resting content, Kapura Ram plaintiff then applied for review of the order of the Financial Commissioner dated 5.11.1980. This was dismissed by the successor Financial Commissioner by his order dated 24.5.1984. 3. The above order of the Revenue Court passed under the Nautor Rules then gave rise to the Civil Suit at the instance of the plaintiff-appellants whereby they challenged the said orders on the ground that the same being illegal, thus seeking a declaration to that effect and also sought relief of permanent injunction restraining the defendant from dispossessing uiem from the suit land. 4. In the written statement, the defendant took up various preliminary objections relating to the value of the suit, jurisdiction of the Civil Court in the matter, maintainability, limitation, estoppel, etc. On merits, the orders of the Revenue Courts referred to above, were defended as being legal and correct. It was pleaded that the plaintiff-appellant was only entitled to 5 bighas of Nautor land. 5. After replication was filed by the plaintiff, the learned Trial Court framed the following issues: "1. Whether the order of Deputy Commissioner dated 17.9.1974 reducing the grant of the suit land to the extent of 6-9 Bighas and Divisional Commissioner dated 19.8.1978 and Financial Commissioner dated 24.5.1984 are illegal and without jurisdiction? OPP 2. Whether the plaintiffs have constructed two pacca residential houses and cowshed by spending a huge amount of Rs. 60,000/-? OPP 3. Whether the plaintiffs have also raised a garden on the suit land by spending huge amount of Rs. 40,000/-? OPP 4. Whether the plaintiffs have spent a huge amount of Rs. 20,000/- to develop the suit land? OPP 5. Whether the legal and valid notice under Section 80, C.P.C. has been served upon the defendant/State? OPP 6. Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction? OPD 7. Whether this Court has no jurisdiction to try the suit? OPD , 8. Whether the suit is not maintainable? OPD 9. Whether the suit is barred by limitation? OPD 10. Whether the plaintiffs are estopped from filing the suit by his previous act and conducts, omissions and commissions? OPD 11. Whether the plaintiffs have no cause of action? OPD 12. Whether the suit is bad for non-joinder of estate right holders being necessary parties? OPD 13. Relief." 6. OPD 9. Whether the suit is barred by limitation? OPD 10. Whether the plaintiffs are estopped from filing the suit by his previous act and conducts, omissions and commissions? OPD 11. Whether the plaintiffs have no cause of action? OPD 12. Whether the suit is bad for non-joinder of estate right holders being necessary parties? OPD 13. Relief." 6. The finding under Issue No. 1 was to the effect that the orders of the Deputy Commissioner dated 17.9.1974 and the Divisional Commissioner dated 19.8.1978 as well as that of the Financial Commissioner dated 24.5.1984 are illegal and without jurisdiction. Issues No. 2,3 and 4 were decided against the plaintiffs holding that they have not proved any such construction or development to the extent of such money as pleaded by them in the plaint. Issue No. 5 was decided in favour of the plaintiffs holding that a legal and valid notice had been served under Section 80, C.P.C. on the defendants before filing the suit. Issue Nos. 6 to 11 were all decided against the defendants. In view of the findings under Issues No. 1 and 5, the learned Trial Court decreed the suit in the terms mentioned above. 7. Necessarily, feeling aggrieved by the judgment and decree of the trial Court, the State of H.P., i.e. defendant No. 1 filed an appeal which has been allowed by the impugned judgment of the learned lower appellate Court, thus giving rise to the second appeal at the instance of the plaintiffs-appellants. 8. The learned Counsel for the appellant and the learned Assistant Advocate-General on behalf of the State, have been heard at length and the records of the case examined. 9. At the outset, it must be stated that the learned Trial Court was in error in sitting in judgment over the orders of the Revenue Courts under the Nautor Rules. As rightly held by the learned lower appellate Court, the said Nautor Rules constitute a complete Code in themselves and they provide hierarchy of Revenue Courts which have the power to hear appeal, revision and review against the orders of the competent authorities under the said Rules whereby Nautor land is granted through Pattas to the eligible persons. As rightly held by the learned lower appellate Court, the said Nautor Rules constitute a complete Code in themselves and they provide hierarchy of Revenue Courts which have the power to hear appeal, revision and review against the orders of the competent authorities under the said Rules whereby Nautor land is granted through Pattas to the eligible persons. It was not open to the learned Trial Court to go into the merits of the orders passed by the Revenue Courts in the present case and then reverse their findings as has been done here. 10. The jurisdiction of the Civil Court could only be invoked by the plaintiff-appellants on two counts, namely, that the orders of the Deputy Commissioner/Divisional Commissioner and the Financial Commissioner were passed in violation of the rules of natural justice or they had acted without jurisdiction. Admittedly, as is clear from a reading of those orders, there was no violation of the rules of natural justice by any one of them inasmuch as the plaintiff-appellants were heard throughout. Even the second ground of jurisdiction was not available to the plaintiff-appellants in the facts and circumstances of the present case, because all these three Courts of Deputy Commissioner, Divisional Commissioner and the Financial Commissioner have passed reasoned orders within their jurisdiction. 11. Faced with the above situation, the learned Counsel for the appellants has vehemently submitted that once Nautor land had been granted by the order of the Revenue Assistant dated 17.11.1972 and Patta having been issued and possession also having been delivered of an area of 11.9 Bighas to them on 7.3.1973, it was not open to any one of the revenue authorities mentioned above to set aside or modify that grant. There is no merit in this argument. A perusal of the order of the Financial Commissioner dated 5.11.1980 (Ex. PW-1/E) on record, indicates that both the appellants, namely, Garibu and Kapura were in Government service and their economic condition could not be described as being poor so as to warrant grant of entire land applied for by them. He has further found that the order of the Deputy Commissioner, Bilaspur dated 17.9.1974 sanctioning 5 bighas to both brothers i.e. the appellants was reasonable. The concluding portion of the said order contained the direction that the Tatima should be amended including dwelling house alleged to have been constructed along with the surrounding area. He has further found that the order of the Deputy Commissioner, Bilaspur dated 17.9.1974 sanctioning 5 bighas to both brothers i.e. the appellants was reasonable. The concluding portion of the said order contained the direction that the Tatima should be amended including dwelling house alleged to have been constructed along with the surrounding area. In the considered view of this Court, if the said order of the Financial Commissioner cannot be called a just and reasoned order, as is sought to be argued on behalf of the appellants by their learned Counsel, then there cannot be any other order in this behalf. In other words, the said order is based on the golden rule and touchstone of equity, justice and good conscience. 12. It has also been pleaded by the learned Counsel for the appellants that the matter should have been referred to the Arbitrator in the given circumstances of the case. This submission appears to be an argument of despair. The reason for this is that apart from a bald plea in para 7 of the plaint to that effect, no issue was pressed or claimed regarding the plea of arbitration before the Trial Court, nor was it taken before the learned lower appellate Court in the appeal filed by the said defendant-respondent. Not only that, no such plea has been incorporated in the grounds of second appeal before this court or even forms part of the substantial questions of law formulated with the memorandum of appeal. Apart from all these reasons, in the facts and circumstances of the case discussed above, it cannot be now taken notice of at this belated stage. 13. No other point has been urged. 14. For the reasons recorded above, this appeal fails and is dismissed with costs. Appeal dismissed.