Research › Search › Judgment

Himachal Pradesh High Court · body

2000 DIGILAW 296 (HP)

STATE OF H. P. v. PADAM DASS

2000-11-15

LOKESHWAR SINGH PANTA

body2000
JUDGMENT Lokeshwar Singh Panta, J.—This second appeal is directed against the judgment and decree dated 12.10.1997 of Additional District Judge (I), Shimla passed in Civil Appeal No. 104/S/13 of 1992 dismissing the appeal of the appellant-State filed against the judgment and decree dated 4.9.1992 passed by the Sub Judge 1st Class (2), Shimla in case No. 121-1 of 1988 decreeing the suit of the respondent-plaintiff for declaration and injunction. The parties in this judgment hereinafter are referred to as the plaintiff and defendant-State. 2. Plaintiff Padam Dass filed suit against the defendant-State alleging, inter alia, that the land comprising Khasra No. 423/1 and 1423/2 admeasuring 11.2 bighas and land having khasra No. 1/5 admeasuring 0-3 biswas (hereinafter the suit land) situate in Chak Sharan, Sub Tehsil Nankhari, District Shimla recorded in the record of rights in favour of the defendant-State was coming in his possession for the last more than 60 years openly, adversely and his possession being continuous and hostile to the knowledge of the defendant-State, has ripened into ownership. 3. The plaintiff stated that he and his forefathers were in possession of the suit land for the last more than 60 years and they have planted apple, almond and apricot plants on the suit land. His forefathers had been sowing crops on this land before it was covered under plantation. The plaintiff and his forefathers have also constructed double storeyed house with Khalyan (threshing floor), Kharori (store room) and another single storeyed house on the suit land which has been constructed long-long back. The plaintiff also submitted that his predecessors-in-interest have other land in their ownership and possession adjacent to the suit land and about 35 years back from the date of filing of the suit a private partition took place between plaintiffs father and his uncles and in the said family partition, the suit land fell to the share of his father. The plaintiff further stated that the suit land has wrongly vested in the State under the provisions of Himachal Pradesh Ceiling and Land Holdings Act, 1973, in view of the long standing hostile possession of the plaintiff. It was alleged that the ejectment proceedings were initiated against the plaintiff in the year 1986 and the Assistant Collector 2nd Grade passed ejectment order dated 15.6.1987. It was alleged that the ejectment proceedings were initiated against the plaintiff in the year 1986 and the Assistant Collector 2nd Grade passed ejectment order dated 15.6.1987. Feeling aggrieved against the said order an appeal was preferred before the Collector, Rampur Bushehr which was also dismissed on 26.7.1987 and further revision was also dismissed by the Divisional Commissioner on 15.6.1988. On these premises, suit for declaration and perpetual permanent prohibitory injunction came to be filed by the plaintiff. 4. In the written statement, the defendant-State resisted the suit on the grounds that it was barred by principles of res judicata and that the suit was not in proper form. It was also alleged that the plaintiff has no cause of action to file the suit. On merits, the defendant-State asserted that the plaintiff came into possession of the suit land only in Rabi 1986 and before the said date, it was in the possession of the defendant-State. The jurisdiction of the Civil Court to try the suit was also challenged. 5. On the pleadings of the parties, following issues were framed:— 1. Whether the plaintiff is the owner in possession of the land in dispute? OPP 2. If issue No. 1 is not proved in affirmative, whether the plaintiff has been coming in possession of suit land for the last more than 30 years continuously and has perfected title by way of adverse possession as alleged? OPP 3. Whether the plaintiff is entitled to the relief of permanent injunction as prayed? OPP 4. Whether the suit is barred by principles of res judicata as alleged? OPD 5. Whether the suit is not maintainable in the present form? OPD 6. Whether the plaintiff has got no cause of action to file this suit? OPD 7. Whether this Court has no jurisdiction to try this suit? OPD 8. Relief. 6. It appears from the judgment of the learned first Appellate Court that initially the decree was passed by the leaned Sub Judge 1st Class, Shimla on 11.4.1991 in favour of the plaintiff. However, on appeal, the following additional issue was framed by the learned District Judge:— 1-A. Whether the suit land was wrongly vested in the defendant/State under the provisions of H.P. Ceiling and Land Holdings Act, 1973 as alleged, if so its effect? OPP 7. However, on appeal, the following additional issue was framed by the learned District Judge:— 1-A. Whether the suit land was wrongly vested in the defendant/State under the provisions of H.P. Ceiling and Land Holdings Act, 1973 as alleged, if so its effect? OPP 7. The learned District Judge remanded the case back to the trial court for fresh decision on Issues No. 1, 2 and 3 while the findings on Issues No. 4 to 7 were confirmed. On remand, the trial court afforded the opportunity to the parties to lead their evidence on the additional issue and on appreciation of entire evidence on record, the trial court decreed the suit of the plaintiff by deciding Issues No. 1, 1-A, 2 and 3 in his favour holding that the possession of the plaintiff over the suit land was open, continuous and hostile to the true owner for the last more then 30 years and therefore, he has become owner thereof by adverse possession. On appeal, the first Appellate Court has upheld the judgment and decree of the trial court and consequently, dismissed the appeal. Now, defendant-State has filed the present second appeal, challenging the judgments and decree of the courts below. 8. The appeal came to be admitted on 29.6.1994 on the following substantial questions of law:— 1. Whether the first appellate court has misread and misinterpreted the oral and documentary evidence on record to arrive at the conclusion that the respondent-plaintiff had acquired possessory title over the land in dispute, as he had been in adverse possession thereof for more than 30 years? 9. I have heard Mr. Sanjay Karol, learned Advocate General for the defendant-State and Mr. D.N. Ronta, learned Counsel for the plaintiff-respondent. 10. 9. I have heard Mr. Sanjay Karol, learned Advocate General for the defendant-State and Mr. D.N. Ronta, learned Counsel for the plaintiff-respondent. 10. The learned Advocate General firstly contended that the suit land had vested in the State of H.P. when it was declared as surplus area by the previous owner Smt. Shanti Devi under the Himachal Pradesh Ceiling and Land Holdings Act, 1973 (hereinafter referred to as the Ceiling Act) and the civil court has no jurisdiction to entertain or proceed with a suit for specific performance of a contract for transfer of land which affects the rights of the State Government to the surplus area under Section 18 of the Ceiling Act and once the suit land had been settled having vested with the State Government by an order of the Collector, no suit was maintainable and therefore, the judgments and decree of the courts below deserve to be set aside on this legal ground. He next contended that once the plaintiff was found as encroacher of the suit land and proceedings under Section 163 of the Himachal Pradesh Land Revenue Act, 1953 (hereinafter referred to as the Revenue Act) were initiated against him and the order of the Assistant Collector 2nd Grade was upheld upto the level of Divisional Commissioner, the jurisdiction of the Civil Court is ousted by Section 163(3) read with Section 171 of the Revenue Act. The learned Advocate General further contended that mere permissive possession of the plaintiff will not give him right to perfect his title by way of adverse possession and the plaintiff has miserably failed to prove the essential ingredients of adverse possession and as such both the courts below have failed to consider the plea of the State and misdirected themselves to hold the plaintiff to be the owner of the suit land by way of adverse possession. 11. Per contra, Mr. D.N. Ronta, learned Counsel for the plaintiff contended that the plaintiff filed a suit for declaratory decree being aggrieved by the entry in the record of rights in favour of defendant-State and the said suit was maintainable under Section 46 of the Revenue Act and for seeking relief under Section 46, it was not necessary for the plaintiff to challenge the order of ejectment passed by the revenue authorities under Section 163 of the Revenue Act. He further contended that the plaintiff has proved on record by leading satisfactory and convincing evidence which has remained unrebutted on behalf of the State-defendant that the suit land was in cultivatory possession of the plaintiffs forefathers since the time it was owned by Smt. Shanti Devi that it fell to the share of plaintiffs father, in a family settlement and after the death of plaintiffs father it came to the share of the plaintiff, that the possession of the plaintiff and his forefathers over the suit land on which they have constructed their houses, "Khalyan" "Kharori" and planted almond, apple and apricot plants had been coming for the last more than 35 years from the date of institution of the suit. He lastly contended that the courts below have concurrently found the possession of the plaintiff open, continuous, uninterrupted and hostile to the defendant-State and the finding of the courts below are concurrent findings of fact and cannot be assailed in the second appeal by the defendant-State. The learned Counsel on both the side cited certain decisions in respect of their claims which shall be referred to and dealt with at later stage. 12. I have given my anxious and thoughtful consideration to the respective contentions of the learned Counsel on either side. 13. The contention of the learned Adyocate General that the civil court has no jurisdiction to entertain the suit under Section 18 of the Ceiling Act cannot be accepted for the simple reason that the plaintiff has not challenged the order of revenue officer passed under the said Act in the suit. The surplus area has to vest with the State Government under Section 11 free from any encumbrance. The Collector may by order in writing at any time after an area becomes surplus, direct the person of such area to deliver possession thereof within 10 days of the service of the order on him to such person as may be specified under Section 12 of the Ceiling Act. In the present case, admittedly, Smt. Shanti Devi was the owner of the suit land before she declared it surplus and if the plaintiff and before him his forefathers were in possession of the suit land at the time of its vestment, the possession has to be taken from him or them by the Collector in accordance of stipulation contained in Section 12 of the Ceiling Act. The possession of the forefathers of the plaintiff was not taken by the Collector at the time of vestment of the suit land, and therefore, it cannot be said in the absence of any evidence that the plaintiff has encroached upon the suit land when ejectment proceedings were initiated against him under Section 163 of the Revenue Act and the order of ejectment was passed by the Assistant Collector 2nd Grade Rampur Bushehr on 15.6.1987. Under Section 163 of the Revenue Act, the Assistant Collector or any Revenue Officer will hold summary proceedings and record the order of ejectment and jurisdiction of the civil court cannot be ousted in such summary proceedings. Reliance has been placed by the learned Counsel for the plaintiff on the decision reported in Abdul Waheed Khan v. Bhawani, AIR 1966 SC 1718 and Firm of Rluri Subbayya Chetty and Sons v. State of A.P., AIR 1964 SC 322, to substantiate that the bar of jurisdiction of Civil Court will not be attracted to the case of this nature. In my view, the principles laid down in Abdul Waheed Khans case (supra) while considering the provisions like the one before me that the bar is with reference to any matter which a Revenue Officer is empowered by the Act to determine and the question of title is foreign to the scope of proceedings under the Act, would apply to this case also with all force, that is, on the provisions of Section 18 of the Ceiling Act, and Section 163(3) read with Section 171 of the Revenue Act as they stand. Even that apart, in State of T.N. v. Ramalinga Samigal Madam, AIR 1986 SC 794, the Supreme Court after adverting to Dhulabhai v. State of M.P., AIR 1969 SC 78, held that the questions relating to the disputed claims of parties for title to an immovable property could be decided only by the competent civil court and that in the absence of a machinery in the special enactment to determine disputes relating to title between two rival claimants, the jurisdiction of the civil court cannot be said to have been ousted. In the case on hand, a plaintiff is asserting a claim of acquisition of title by adverse possession in derogation of the rights and interests of the State in the property in question. In the case on hand, a plaintiff is asserting a claim of acquisition of title by adverse possession in derogation of the rights and interests of the State in the property in question. In my view, determination of such claims are not only outside the purview of Section 18 of the Ceiling Act and Section 163(3) read with Section 171 of the Revenue Act which only provide for a summary mode of eviction but in respect of such disputes relating to title to immovable property, the jurisdiction of ordinary civil courts to adjudicate them cannot be said to have been ousted, the powers and procedure under the above said provisions of Acts, in my view, are no substitute for the civil courts jurisdiction and powers to try and adjudicate the disputes of title relating to immovable property. The Supreme Court in State of Rajasthan v. Harphool Singh (Dead) through his LRs., (2000) 5 Supreme Court Cases 652, has also dealt with the similar question while interpreting the provisions of Sections 22 and 25 of the Rajasthan Colonization Act, 1954. 14. Section 163(3) of the Revenue Act as is in force at present was introduced and incorporated in the Act by virtue of Amendment Act of 1989 on and with effect from 27.6.1989. The present suit was filed on 13.9.1988 i.e. before coming into force of the Amendment Act of 1989, therefore, the bar under Section 163(3) read with clause (xxv) of Section 171 (2) of the Act would not be attracted to the present case. The present suit as such would not be barred. The question is answered in the negative and in favour of the plaintiff. 15. So far the question of perfection of title by adverse possession is concerned, the parties have led their oral and documentary evidence. The plaintiff in his deposition has specifically stated that he and his father were in possession of the suit land for the last more than 40 years which was owned by Smt. Shanti Devi. They have constructed their house, Khalian, Kharoli and planted fruit bearing trees on the suit land. His testimony has been corroborated by Dula Ram (PW-2), Sangat Ram (PW-3) and Surat Ram (PW-4). They have constructed their house, Khalian, Kharoli and planted fruit bearing trees on the suit land. His testimony has been corroborated by Dula Ram (PW-2), Sangat Ram (PW-3) and Surat Ram (PW-4). The defence of the defendant-State that the plaintiff had encroached upon the suit land in the year of 1986 and wild trees had already grown thereon has been found not sustainable by the courts below. Nothing has been shown by the defendant-State about the existence of the houses and the fruit bearing trees on the suit land. Shri Prem Dass Patwari examined by defendant-State has only stated that till 1985 the land was vacant and it was only in 1986 he noticed the plaintiff in possession of the suit land. His statement cannot be relied upon as it has come in his cross-examination that he could not say as to how old were the houses constructed over the portion of the suit land and what were the ages of the plaints standing thereon. The oral testimony of the plaintiff and his witnesses remained un-challenged and un-rebutted by the defendant-State. 16. The plaintiff has placed on record the compromise deed (Ext. PW-3/A) to prove that under the family settlement, the suit land and other land in the ownership of his predecessors-in-interest surrounding the suit land were partitioned between his father and uncles and the suit land fell to the share of his father. The suit land has been prescribed in the said compromise deed as Dhalaan’ which had fallen to the share of his father after his death to the share of the plaintiff and the said compromise was effected about forty years prior to the filing of the suit land. Surprisingly, no cross-examination has been done regarding this aspect by the defendant-State to rebut that the ‘Dhalaan land was not the same land which is the subject matter of the suit. The oral evidence of the plaintiff and document EXT. PW-3/A, would establish that the plaintiff and his father has been in continuous, open, hostile and uninterrupted possession of the suit land before its vestment under the Ceiling Act and the plaintiff and his forefathers cultivated the suit land, constructed houses and planted fruit bearing trees thereon. The oral evidence of the plaintiff and document EXT. PW-3/A, would establish that the plaintiff and his father has been in continuous, open, hostile and uninterrupted possession of the suit land before its vestment under the Ceiling Act and the plaintiff and his forefathers cultivated the suit land, constructed houses and planted fruit bearing trees thereon. The plaintiff has proved that he has perfected title to the suit land by adverse possession and has substantiated his claim of adverse possession by proving the ingredients of open, hostile and required animus for a continuous period of 30 years. 17. Sh Muni Lal Patwari (PW-5) prepared Tatimas (Exts. PW 5/A and PW 5/B) in which two houses were shown to have been constructed by the plaintiff. If there exist houses and fruit bearing trees on the suit land, it cannot be said that the suit land was vacant prior to 1984 when the ejectment proceedings were started against the plaintiff by the State Government. It is settled law that when a person openly and continuously possesses land under a claim of right adverse to the title of the true owner for the statutory period, his possession becomes adverse to the rightful owner. His belief that the land did not belong to the true owner is immaterial. His belief that it belonged to himself is necessary as that will be a claim of right, adverse to the title of the true owner. In Kshitish Chandra Bose v. Commissioner of Ranchi, AIR 1981 Supreme Court 707, it has been held that for establishing the title by way of adverse possession the law requires that possession must be open and without any attempt at concealment and it is not necessary that the possession must be so effective as to bring it to the specific knowledge of the owner. 18. The decision in Moti v. Ajudh Raj and another, 1991 (1) Sim. L.C. 114, cited by the learned Advocate General will not apply in the facts and circumstances of the present case. In that case the learned Single Judge had dealt with the period of limitation for setting aside the order passed by a Government officer under the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1954. L.C. 114, cited by the learned Advocate General will not apply in the facts and circumstances of the present case. In that case the learned Single Judge had dealt with the period of limitation for setting aside the order passed by a Government officer under the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1954. The proposition of law settled by the Supreme Court in State of Rajasthan v. Harphool Singh (Dead) through His LRs., (2000) 5 Supreme Court Cases 652, on which reliance has been placed by the learned Advocate General that perfection of adverse possession in respect of a public property, the question requires more effective and serious consideration because it involves the possible destruction of the rights and title of the State, is not applicable to the facts and circumstances of the present case. Both the courts below have found on appreciation of the evidence that the plaintiff has proved the essential ingredients of adverse possession and passed the decree in his favour. 19. In Ramkumar Agarwal and another v. Thawar Das (Dead) Through LRs., (1999) 7 Supreme Court Cases 303, it has been held that the High Court while deciding the second appeal shall not re-appreciate the evidence and the well reasoned finding of fact recorded by the first appellate court holding the plaintiff entitled for the reliefs sought for in the suit based upon perfect title of adverse possession and the said finding is not warranted to be interfered with. In Hari Singhv. Kanhayiya Lal, (1999) 7 Supreme Court Cases 288, the Supreme Court has held that the purpose of amending Section 100 by the 1976 Amending Act was to further limit the jurisdiction of the High Court and prior to the amendment mere lack of details in the pleading cannot be a reason to set aside concurrent finding of facts under Section 100 CPC by the High Court. 20. In Kodiba Dagadu Kadam v. Savitribai Sopan Gujar and others, JT 1999 (3) SC 163, it has been held:— "In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. 20. In Kodiba Dagadu Kadam v. Savitribai Sopan Gujar and others, JT 1999 (3) SC 163, it has been held:— "In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the apex Court, or was based upon inadmissible evidence or arrived at without evidence” (Para 5) 21. In the present case as noticed above, both the courts below have considered the entire evidence of the plaintiff which has remained unrebutted on behalf of defendant-State. I find no infirmity or perversity in the judgments and decree of the courts below which otherwise are concurrent to interfere in this appeal. Thus, the above said substantial question of law framed by this court shall stand answered against the defendant-State. 22. No other point has been urged by the learned Counsel on either side. 23. Consequently, for the abovesaid reasons, the appeal deserves to be dismissed and is accordingly dismissed. However, the parties are left to bear their own costs. Appeal dismissed.