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Himachal Pradesh High Court · body

2000 DIGILAW 169 (HP)

STATE OF H. P. v. GURNAM SINGH

2000-07-10

K.C.SOOD

body2000
JUDGMENT Kuldip Chand Sood, J.:- This second appeal arises out of the Judgment and decree of learned Additional District Judge, Solan, Camp at Nalagarh, dated 18th December, 1992 passed in Civil Appeal No.6- NL/13 of 1992. 2. In order to appreciate the controversy the facts in brief may be noticed thus: Gurnam Singh, respondent herein and defendant before the Assistant Collector 1 st Grade, Nalagarh was found in illegal possession of the Government land comprised in Khasra No. 1085 to the extent of 0-2 biswas (denoted by khasra No. 1085/1) situate in village Dhang Nihili, Tehsil Nalagarh Distt. Solan (suit land for short). A notice under Section 163 of the Himachal Pradesh Land Revenue Act, was issued by the Assistant Collector, Nalagarh, to respondent Gurnam singh to show cause against his eviction from the suit land and imposition of fine. . 3. Defendant Gumam singh in his reply raised plea that the Assistant Collector has no jurisdiction to entertain and try the case under Section 163 of the H.P. Land Revenue Act. The case of the defendant is that his uncle Mast Ram constructed a residential house-cum-shop over the land measuring 0-10 biswas of khasra No. 958 in the year 1950 as a member of Joint Hindu Family. Defendant also took a plea that the land, subject matter of the dispute, is Shamlat Deh and it never vested in Gram Panchayat under the law nor it could validly vest in the State of Himachal Pradesh as there was a residential house-cum-shop of the defendant on this land since the year 1950. The defendant claimed that he has become owner of the suit land by adverse possession. 4. In the replication, plaintiff-State of Himachal Pradesh denied that Mast Ram, uncle of the defendant, came into possession of the suit land in the year 1950 or raised any construction over it as alleged by the defendant. It is reiterated that the defendant enroached upon the land in the year 1988 and is liable to be evicted under the provisions of H.P. Land Revenue Act. Assertion that the defendant has become owner of the suit land by way of adverse possession is denied. Jurisdiction of the Civil Court to try the suit is disputed. 5. On the pleadings of the parties, learned Assistant Collector 1st Grade (exercising the powers of Civil Court) Nalagarh, Distt. Solan, settled the following issues: 1. Assertion that the defendant has become owner of the suit land by way of adverse possession is denied. Jurisdiction of the Civil Court to try the suit is disputed. 5. On the pleadings of the parties, learned Assistant Collector 1st Grade (exercising the powers of Civil Court) Nalagarh, Distt. Solan, settled the following issues: 1. Whether the defendant is an encroacher upon the land and is liable to be ejected? OPP 2. Whether the defendant is entitled to protection under Section 3 of the H.P. Village common Land Vesting and Utilisation Act? OPD 3. Whether the defendant had become the owner of the suit land by way of adverse possession? OPD 4. Relief. 6. Learned Assistant Collector found that Gurnam Singh, defendant, is an encroacher and, therefore, liable to be evicted. Plea of the defendant that he had become owner of the suit land by way of adverse possession has been rejected. Assertion of the defendant that the land could not validly vest in the State did not find favour with the Collector. 7. Dis-satisfied, defendant filed an appeal before the learned Additional District Judge, who vide his impugned judgment and decree accepted the appeal and set aside the eviction order passed by the Assistant collector 1st Grade, Nalagarh and declared the defendant to have acquired title of the suit land by way of adverse possession. 8. Aggrieved, State of Himachal Pradesh has filed the present appeal. 9. The Second appeal under sub-section (6) of Section 163 of the H.P. Land Revenue Act, was admitted on the following substantial questions of law: i) Whether the respondent has acquired ownership rights by way of adverse possession over the suit land? ii) Whether the learned Additional District Judge committed error in law by holding that vestment of this land in the State could not be determined by the Assistant Collector 1st Grade, Nalagarh? 10. I have heard Mr. Ram Murti Bisht, learned Assistant Advocate General and Mr. Ramakant Sharma, learned counsel for the parties and gone through the records: Question No. I 11. Mr. Ram Murti Bisht, learned Assistant Advocate General, submits that the findings of learned Additional District Judge are based on misreading of the evidence. On the other hand, Mr. Ramakant Sharma, learned counsel for respondent-defendant refers to Ram Kumar Agarwal & Anr. Ramakant Sharma, learned counsel for the parties and gone through the records: Question No. I 11. Mr. Ram Murti Bisht, learned Assistant Advocate General, submits that the findings of learned Additional District Judge are based on misreading of the evidence. On the other hand, Mr. Ramakant Sharma, learned counsel for respondent-defendant refers to Ram Kumar Agarwal & Anr. v. Thawar Das {Dead) through LRs 1999(7) Supreme Court Cases 303 and contends that this court in second appeal will not re-appreciate the evidence and jurisdiction of this court to interfere with the judgment of the lower court is confined to hearing on substantial question of law. This court would, argues Sh. Sharma, refrain from interfering with the findings of fact on re-appreciation of the evidence. 12. It is true that jurisdiction of this Court under Section 163(6) of the H.P. Land Revenue Act is confined to substantial questions of law alone. It is also true that the court would refrain from re- appreciating the evidence on questions of fact but it is equally true that if it is shown that the findings of the first Appellate Court are based on mis-reading of evidence which has led to mis-carriage of justice or findings are based on no evidence, the court would be within its powers to interfere in the second appeal. See: Rohini Prasad & Ors. v. Kasturchand & Anr. 2000(3) Supreme Court cases, 668. 13. In the present case, learned Additional District Judge has misread the evidence on record to arrive at a conclusion he did. 14. It is to be noticed that the proceedings against the defendant- respondent were initiated on the report of the Patwari to the effect that on 16th March, 1988 when he had gone to demarcate the land of one Gurbax Singh, he found encroachment of defendant-respondent on Khasra No. 1085/1 to the extent of 0-2 biswas. Defendant-respondent in his reply very clearly states that his uncle Mast Ram raised a residential house-cum-shop over the land measuring 0-10 biswas bearing khasra No. 958 min in the year 1950. Defendant-respondent in his reply very clearly states that his uncle Mast Ram raised a residential house-cum-shop over the land measuring 0-10 biswas bearing khasra No. 958 min in the year 1950. The relevant portion of the reply reads: "Previously, the family of the answering respondent consisting of his uncle Mast Ram etc., was and is a Joint Hindu Family in all its affairs and management of the entire immoveable properties and said Mast Ram the uncle of the respondent raised a residential house-cum- shop on and over the land measuring 0-10 biswas bearing khasra No. 958 min in the year 1950 being a member of Joint Hindu Family consisting of his brothers and their sons etc. The land in dispute being a Shamlaat-Deh never vested in the then Gram Panchayat under the then law." (emphasis supplied) 15. The defendant-respondent it is clear, claims adverse possession on Khasra No. 958 to the extent of 0-10 biswas and not on khasra No. 1085, subject matter of the dispute. 16. Now in the Jamabandi for the year 1957-58 Khasra No. 758, to the extent of 0-10 biswas, comprised of shop is indeed shown to be in the possession of Mast Ram through right holders. In the coloumn of ownership it is recorded as Shamlat-Deh under Nagar Panchayat. To similar effect is the entry in the Jamabandi for the year 1961-62. However, during the settlement khasra No. 758 was changed to khasra No. 905 min. Thus, the possession of the defendant is proved to be on khasra No. 758 (now khasra No. 905) and not on khasra No. 1085 min. A perusal of the revenue record further shows that khasra No. 1085 measuring 8-10 bighas is shown in the ownership of State Government, in the Jamabandi for the year 1986-87, a common path. Nature of the land is recorded as Railway Line. A perusal of Misal Haquiat (Settlement) for the year 1961-62 (Ex.PC) shows that previous khasra No. 1085 was 909 (measuring 8-10 bighas). In the MisaJ Haquiat, it is shown as Shamlaat-Deh in the coloumn of ownership and in possession of rightholders. Nature of the land is described as Railway Line. This entry is repeated in the Jamabandi for the year 1966-67 (Ex.PD). In the MisaJ Haquiat, it is shown as Shamlaat-Deh in the coloumn of ownership and in possession of rightholders. Nature of the land is described as Railway Line. This entry is repeated in the Jamabandi for the year 1966-67 (Ex.PD). However, in the Jamabandi for the year 1971 -72 this Khasra Number is shown to be in possession of various encroachers, namely, Pritam, Hazura Singh, Mahinder s/o Ram Rakha s/o Biru to the extent of 0-10 bighas, Gurbax Singh s/o Lachhman Singh s/o Bishan Singh to the extent of 1-5 bighas and Shobha s/o Tulsi to the extent of 0-15 bighas. Name of defendant-respondent is no where to be found in the aforesaid Jamabandi. In the Jamabandi for the year 1976-77 this land comprised under khasra No. 1085 is again shown to be in the ownership of the State Government and nature of the land is recorded as Railway Line. Rightly so, as at that time H.P. Village Common Lands Vesting and Utilisation Act, 1974 had come into force. The entries are repeated in the Jamabandi for the year 1981-82 (Ex.PG) and for the year 1986-87 (Ex.PH), as noticed earlier. Evident as it is, previous khasra Number of the suit land comprised in khasra No. 1085 was 909 and not 758 or 905. 17. Learned Additional District Judge has referred extensively to various Jamabandies including that of 1953-54, 1957-58 to show that this land was in possession of Mast Ram, uncle of defendant. In para 10 of the judgment learned Additional District Judge records: "......It appears that in the year 1961-62 settlement took place and in the said settlement khasra No. 758 min was re-numbered as khasra No. 905. This fact is borne out from the copy of Misal Hakiyat available at page 65-66 of the file of the Assistant Collector. Sh. Mast Ram was recorded in possession of Khasra No. 905 min. in the said Misal Hakiyat. Khasra No. 909 was further renumbered as khasra No. 1085 during the Settlement in the year 1961-62 as is clear from the copy of Misal hakiyat Ex.PC." Having himself found that khasra No. 758 was changed to khasra No. 905, on which defendant-respondent claims possession, the learned Additional District Judge, confused khasra No. 905 with khasra No. 909 to hold that khasra No. 905 was renumbered as Khasra No 1085. As noticed, khasra No. 905 and 909 are not the same. As noticed, khasra No. 905 and 909 are not the same. It was Khasra No. 909 which was renumbered as 1085 during the settlement in the year 1961-62. It is clear that Mast Ram, uncle of defendant-respondent, was in possession of khasra No. 758 on which he had raised some construction which was re-numbered into khasra No. 905 during the settlement in the year 1961-62. The learned Additional District Judge, misread the evidence to hold that khasra No. 1085 was carved out from khasra No. 905 and 758. Infact his findings are based on no evidence. 18. The oral evidence led by the defendant-respondent is of no assistance, as none of the witnesses identified the land on which Mast Ram had raised construction to be the land comprised under khasra No. 1085 (previous khasra No. 909). At the cost of repetition it may be recalled that defendant himself in the written reply claims his possession on khasra No. 758 and not 909. 19. Findings of the learned Additional District Judge that the respondent- defendant has acquired ownership rights by way of adverse possession are apparently based on evidence which does not exist and, therefore, cannot be sustained. Question No.2: 20. So far the validity of vestment of the land in dispute is concerned, it is to be noticed that the defendant has not raised the question of validity of vestment of the land in dispute in the State. His objection is regarding the vestment of the land comprised under khasra No. 758 now khasra No. 905 which is not the subject matter of dispute. Therefore, this question does not call for any answer in this case. It is not material for deciding this appeal. 21. No other point is urged before me. 22. In result, the appeal is accepted. The impugned judgment and decree of the learned Additional District Judge, Solan, Camp at Nalagarh in Civil Appeal No. 6-NL/13 of 1992 are set aside and the judgment and decree of the learned Assistant Collector, 1st Grade, Nalagarh dated 20.02.1992 in Suit No. 10/SDM/1990 are restored. There will be no order as to costs.