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2000 DIGILAW 200 (HP)

STATE OF HIMACHAL PRADESH v. KALYAN CHAND

2000-08-02

KAMLESH SHARMA

body2000
JUDGMENT Kamlesh Sharma, J.:- This appeal at the instance of the State of Himachal Pradesh is directed against the judgment dated 11.12.1992 passed by the District Judge, Una, District Una, whereby the appeal of the respondents -plaintiffs was allowed and the decree and judgment dated 20.9.1989 of Sub Judge (2) Una was set aside and the suit of the respondents -plaintiffs was decreed for declaration that they are owners in possession of the suit land and the revenue entries showing the State as owner and the mutation in question are wrong, illegal and void ab initio and not binding on the rights of the respondents plaintiffs and the appellant defendant is permanently restrained from interfering in any manner in the ownership and possession of the respondents plaintiffs over the suit land. The suit land is comprised of khasra No.977 measuring 2 kanals 1 Maria situated in village Raipur Sahora, Tehsil and District Una. 2. The case set up by the respondents plaintiffs in their plaint was that they are owners in exclusive possession as co-sharers of the suit land for more than 50 years evenprior to 1950 and have built their Abadi (Houses and cattle shed) for agricultural purposes over some portion of the suit land and rest of it has been under their cultivation since the times of their forefathers. It is also alleged that the suit land is not in excess of their share in the Shamilat Deh and is assessed to land revenue, therefore, it was exempt from vesting as provided in the Village Common Land law. It is also alleged that in violation of Village Common Land Law, mutation vesting the suit land in the name of the State of H.P. was sanctioned and thereafter revenue entries showing it as owner have been made and on the basis of wrong revenue entries, the officials of the appellant defendant started interfering in their possession over the suit land. 3. The appellant defendant resisted the suit on the preliminary objections, inter alia, that the suit was barred by limitation and the Civil Court has no jurisdiction to entertain the suit in view of Section 10 of the H.P. Village Common Lands Vesting and Utilization Act, 1974 (hereinafter called "the Act"). On merits, the case of the plaintiffs is denied. 3. The appellant defendant resisted the suit on the preliminary objections, inter alia, that the suit was barred by limitation and the Civil Court has no jurisdiction to entertain the suit in view of Section 10 of the H.P. Village Common Lands Vesting and Utilization Act, 1974 (hereinafter called "the Act"). On merits, the case of the plaintiffs is denied. It is alleged that after the vestment of the suit land in the appellant defendant free from all encumbrances, the possession of the respondent’s plaintiffs is that of encroachers and proceedings under Sec. 163 of the H.P. Land Revenue Act are liable to be initiated against them. 4. On the pleadings of the parties, the following issues were framed: 1. Whether the plaintiffs are in possession of the suit land prior to 1950? OPP 2. Whether the suit land has not vested in the State of H.P. as alleged? OPP 3. Whether the plaintiffs are entitled for the relief of permanent injunction? OPP 4. Whether the suit is properly valued for the purposes of court fee and jurisdiction? OPP 5. Whether the Civil court has jurisdiction to try the suit? OPP 6. Whether the suit is within time? OPP 7. Relief. 5. The trial court decided issues No. 1, 4 and 5 in favour of the respondent’s plaintiffs and the remaining issues against them and dismissed the suit. The trial court has rejected the case of the respondents plaintiffs that the suit land falls under Section 2(g) (viii) of the Punjab Village Common Lands (Regulation) Act, 1961 as it has not been proved by the respondents plaintiffs that the suit land did not exceed their share in the village Shamilat Deh which is one of the important requisites for the application of the said provision. The appellate Court has reversed the findings of the trial court and has held that the suit is within limitation and the suit land is not liable to be vested in the appellant defendant being Shamilat Deh assessed to land revenue and in the individual cultivating possession of the respondents plaintiffs as co-sharers not being in excess of their respective share on or before 26.1.1950. Hence the present Regular Second Appeal. 6. This Court has heard the learned counsel for the parties and gone through the record. Hence the present Regular Second Appeal. 6. This Court has heard the learned counsel for the parties and gone through the record. At the time of admission of the appeal, the following substantial question of law was framed: Whether the civil court has no jurisdiction in view of Section 10 of the Himachal Pradesh Village Common Lands (Vesting and Utilization) Act, 1974. 7. Section 10 of the Act reads as follows: Bar of Jurisdiction: Save as otherwise expressly provided in this Act, no order made by the collector or the State Government or any other officer authorized by it, as the case may, shall be called in question by any court or before any officer or authority. 8. It is correct that as per this Section, the mutation order vesting the suit land in the appellant defendant cannot be called in question in any court but if the said mutation order is void ab initio being against the provisions of the Act, it can be assailed in the civil court. In other words, if the land in dispute is not liable to be vested in the appellant defendant or is exempt from vestment, and ignoring this mutation of vestment has been attested without notice to the effected party, the only remedy available to them is to challenge the same in the civil court. Subsection (1) of Sec.3 of the Act provides as under: 3. Vesting of rights in the State Government. Subsection (1) of Sec.3 of the Act provides as under: 3. Vesting of rights in the State Government. (1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any agreement, instrument, custom or usage or any decree or order of any court or other authority all rights, title and interests including the contingent interest, if any, of the landowner in the lands in any estate- (a) vested in a Panchayat under Sec. 4 of the Punjab village Common Lands (Regulation) Act, 1961 (18 of 1961) as in force in the areas added to Himachal Pradesh under Sec. 5 of the Punjab Reorganization Act, 1966 (31 of 1966) except lands used or reserved for the benefit of village community including streets, lanes, playground, schools, drinking wells or ponds within abadi deh or garah deh; (b) Described in the revenue records as shamilat tarat, pattis, pannas and thola and not used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village in the areas added to Himachal Pradesh under Section 5 of the Punjab re-organiszation Act, 1966 (31 of 1966) and (c) described in revenue records as shamilat deh, shamilat taraf, shamilat chak and patti in the areas comprised in Himachal Pradesh immediately before First November, 1966;" 9. Since the suit land is of the area added to Himachal Pradesh under Section 5 of the Punjab Reorganization Act, 1966, it is to be seen whether it had vested in the Panchayat under Sec. 4 of the Punjab Village Common Lands (Regulation) Act, 1961. The answer is in the negative as no material has been placed on record for evidencing vestment of the land in dispute in Panchayats under Section 4 of the Punjab Act, perhaps for the reason that it is exempted under section 2 (g)(viii) of the Punjab Act. Section 2(g) (viii) reads as follows: "2. Definitions. - In this Act, unless the context otherwise requires,- (a) XXX XXX XXX (b) XXX XXX XXX (c) XXX XXX XXX (d) XXX XXX XXX (e) XXX XXX XXX (f) XXX XXX XXX (g) "shamilat deh" includes- (1) Lands described in the revenue records as shamilat excluding abadi deh. Section 2(g) (viii) reads as follows: "2. Definitions. - In this Act, unless the context otherwise requires,- (a) XXX XXX XXX (b) XXX XXX XXX (c) XXX XXX XXX (d) XXX XXX XXX (e) XXX XXX XXX (f) XXX XXX XXX (g) "shamilat deh" includes- (1) Lands described in the revenue records as shamilat excluding abadi deh. (2) shamilat tikkas, (3) lands described in the revenue records as shamilat, tarafs, pattis, pannas and tholas and used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village; (4) lands used or reserved for the benefit of village community including streets, lanes, playgrounds, schools, drinking wells, or ponds within abadi deh or gorah deh; and (5) lands in any village described as banjar qadim and used for common purposes of the village according to revenue records; Provided that shamilat deh at least to the extent of twenty five per centum of the total area of the village does not exist in the village; but does not include land which (i) xxx xxx xxx (ii) xxx (iii) xxx (iv) xxx (v) xxx (vi) xxx (vii) xxx xxx xxx (viii) was shamilat deh, was assessed to land revenue and has been in the individual cultivating possession of co-sharers not being in excess of their respective shares in such shamilat deh on or before the 26th January, 1950; or...." 10. On the basis of the revenue record, Jamabandis for the years 1912-13 Ex.P-6, 1964-65 Ex.P-7 and 1983-84 Ex.P-5, the appellate court has come to the conclusion that the suit land was Shamilat assessed to land revenue and was in the cultivating possesson of the respondents plaintiffs and their predecessors as cosharers, not being in excess of their respective share in the Shamilat Deh on or before 26th January, 1950, as such it was exempt from vestment in Panchayat. The learned Assistant Advocate General appearing for the appellant defendant has not been able to point out any infirmity in these findings of fact which have been arrived at by the District Judge on correct reading and appreciation of the pleadings and evidence comprising Jamabandis and other material on record. The ingredients of Section 2(g) (viii) of the Punjab Act have been specifically pleaded in the plaints which have been denied but vaguely. The ingredients of Section 2(g) (viii) of the Punjab Act have been specifically pleaded in the plaints which have been denied but vaguely. The appellant defendant being in custody of the revenue record and responsible for its maintenance, could very well state in their written statement that the possession of the respondents plaintiffs over the suit land was in excess of their share in the Shamilat Deh. Having failed to do so and to produce any evidence in rebuttal to the statement of Pawan KumarP.W-1 that the suit land was not in excess of their share in the Shamilat Deh, the appellant defendant cannot urge otherwise, therefore, in the facts and circumstances proved on record, the appellate court has rightly decreed the suit of the respondents plaintiffs which does not call for any interference in this Regular Second Appeal. 11. In the result, the appeal is dismissed having no merit. The parties are left to bear their own costs. Appeal dismissed