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Himachal Pradesh High Court · body

2000 DIGILAW 87 (HP)

STATE OF HIMACHAL PRADESH v. CHET RAM

2000-04-19

K.C.SOOD

body2000
JUDGMENT Kuldip Chand Sood, J.—This Regular Second Appeal is directed against the judgment and decree of the learned District Judge, Shimla dated 3.9.1993 whereby decree of the trial court dated 11.12.1990 was upheld. 2. In order to appreciate the controversy, facts necessary for the disposal of this appeal may be noticed : 3. It appears that land comprised in Khasra No. 210 measuring 27-11 bighas situated in Chak Bandali, Tehsil Theog in District of Shimla is owned by the State of Himachal Pradesh. In the revenue record the possession of this land is shown that of the rightholders as charand. Out of this land plaintiff was found to be in possession of 2-15 bighas of land as denoted by Khasra No. 210/1 in Tatima Ext P-4. The unauthorised possession was noticed by the Halqa Patwari, who made a report, regarding this unauthorised possession of the plaintiff, to the Assistant Collector on 28th of May, 1987. The Assistant Collector, Theog initiated proceedings for the eviction of the plaintiff under Section 163 of the Himachal Pradesh Land Revenue Act, (here-in-after referred to as the Revenue Act). Plaintiff in his reply to the show cause notice denied the allegation of encroachment and maintained that he is in adverse possession of this portion of land for the last over 30-32 years and has also planted apple orchard. However, the Assistant Collector vide his orders dated 20th August, 1988 found plaintiff to be in unauthorised possession of this land and accordingly directed his eviction under Section 163 of the Revenue Act. He also imposed penalty of Rs. 500 oh the plaintiff. 4. Plaintiff challenged this order of the Assistant Collector by filing a suit before the learned Sub Judge 1st Class, Theog. The case of the plaintiff, as disclosed in the plaint, is that plaintiff is in exclusive possession of this land for more than 60 years including the possession of his predecessor. In other words he claims to have become owner of this land by adverse possession. It is the case of the plaintiff that he being owner proceedings against him under Section 163 of the Revenue Act are without jurisdiction. Plaintiff in this back ground prays for declaration that he is owner in possession of the disputed land and the revenue entries to the contrary are wrong and illegal. It is the case of the plaintiff that he being owner proceedings against him under Section 163 of the Revenue Act are without jurisdiction. Plaintiff in this back ground prays for declaration that he is owner in possession of the disputed land and the revenue entries to the contrary are wrong and illegal. In consequence restraint is sought on the defendant appellant from interfering with his possession over the suit land. 5. The defendant in the written statement resists the suit. Allegations are controverted. The jurisdiction of the court to hear and decide the suit is disputed. On merits, it is pleaded that ejectment proceedings were initiated against the plaintiff in accordance with law. It is maintained that State is the owner in possession of this land though it is used by the rightholders for the purpose of grazing. It is the case of the defendant State that plaintiff encroached on the suit land in the year 1987 and the ejectment proceedings initiated against the plaintiff are legal within jurisdiction and binding. Learned trial Judge settled the following Issues: 1. Whether the plaintiff has become owner of suit land by way of adverse possession as alleged? OPP. 2. Whether the order of A.C. 1st Grade, Theog dated 20.8.1988 is illegal/ null and void as alleged? OPP. 3. Whether the plaintiff has no locus standi to file the suit? OPP. 4. Whether the suit is not maintainable as alleged? OPP. 5. Whether the plaintiff is estopped to file the present suit? OPD. 6. Whether the plaintiff has got no enforceable cause of action to file the present suit? OPD. 7. Whether the suit is bad for non joinder of necessary party? OPD. 8. Whether no legal and valid notice under Section 80 CPC was served upon the defendant? If so, its effect? OPD. 9. Whether this court has no jurisdiction to try this suit? OPD. 10. Relief. Learned trial Judge, under Issue No.l, found that plaintiff has become owner of this land by adverse possession. The trial Judge while holding Issue No. 2 against the defendant did not go into the legality of the order of the Assistant Collector initiating proceedings of eviction against the defendant. The remaining issues were held against the defendant having not been pressed. 6. The trial Judge while holding Issue No. 2 against the defendant did not go into the legality of the order of the Assistant Collector initiating proceedings of eviction against the defendant. The remaining issues were held against the defendant having not been pressed. 6. Feeling dissatisfied with the judgment and decree of the trial court, defendant-State filed an appeal before the learned District Judge, Shimla who vide his impugned judgment affirmed the findings of the trial Judge that plaintiff is in adverse possession of the suit land. 7. I have heard Shri R.M Bisht, learned Assistant Advocate General for the appellant and Shri D.M Ronta, learned Counsel for the respondent. I have also been taken through the record by the learned Counsel for the parties. 8. At the outset Sh. Ronta, learned Counsel for the respondent submits that in view of the concurrent finding that respondent is in adverse possession of the suit land, this court has no jurisdiction to entertain this appeal under Section 100 of the Code of Civil Procedure. Sh. Ronta refers me to case O.T.M.O.M. Meyyappa Chettiar v. O.TM.SM. Kasi Viswanathan Chettiar and another, 1994(1) Civil Court Case 267 (SC), and contends that this court will refrain from reappraising the evidence on the concurrent finding of adverse possession of the respondent. True it is, this court in second appeal under Section 100 of the Code of Civil Procedure will not reappraise the evidence on a finding of fact of the trial Court and the first appellate court. In the present case, this appeal was admitted on 4.3.1994 on the basis of following substantial question of law : "That Civil Court has no jurisdiction to entertain and try a civil suit in respect of the land which is encroached by any person and against whom proceedings under Section 163 of the H.P. Land Revenue Act have been initiated or concluded." It is to be noticed that neither the trial court nor the learned first appellate court gave a finding on the question of the jurisdiction of the Civil Court to entertain such suit despite of the fact that Issue No. 9 was specifically settled by the trial Court, on the basis of the pleadings, on this question, Issue No. 9 reads as under : "Whether this court has no jurisdiction to try this suit? OPD 9. OPD 9. Learned Counsel for the respondent submits that no finding was given on this issue as the same was not pressed before the trial Court. I find that learned Trial Court in his finding under Issue No. 9 has recorded that this issue was not pressed before him by the learned Government Pleader at the time of arguments and therefore the issue was held against the defendant-State. The defendant-State specifically challenged the finding on Issue No. 9 before the learned District Judge as detailed in para 4 of the grounds of appeal, contending that the trial Court has wrongly held Issue No. 9 as having not been pressed and perhaps amendment of Section 171 of the Himachal Pradesh escaped the notice of the learned appellate court under which jurisdiction of Civil Court has specifically been barred to entertain and try the suit of the present nature. Inspite of specific plea having been raised, the learned District Judge in the impugned judgment has not said a word on this aspect of the case. The only point that has been formulated by the learned District Judge for his decision is: "Whether the plaintiff is in adverse possession of the suit land as alleged and is entitled to the relief as claimed in the plaint? If so, its effect?" and answered the question in affirmative without going into the other questions including the jurisdiction of the court to entertain the suit. 10. Learned Counsel for the plaintiff-respondent then contends that the defendant having no pressed this objection regarding the jurisdiction of the court to try the present suit cannot, in second appeal, raise this question. 11. I have already noticed that the second appeal was specifically admitted on the substantial questions of law that whether]1or not civil courts will have jurisdiction to entertain and try a suit of the present nature. This Court, in exercise of the jurisdiction under Section 100 of the Code of Civil Procedure is clothed with necessary jurisdiction to go into this question on the substantial questions of law framed at the time of admission of the appeal. I am fortified in my view in case Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor, AIR 1999 SC 864. 12. I am fortified in my view in case Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor, AIR 1999 SC 864. 12. So far the objection of the learned Counsel for the respondent that this court should not go into the question of jurisdiction as the same was not pressed before the learned trial Court and the State is barred by such concession is concerned, it is now well settled that wrong concession made by the Government counsel particularly on the question of law is not binding on the State. In support of this proposition, Sh. R.M. Bisht, learned Assistant Advocate General refers to Union of India and another v. Babu Singh and others, (1996) 1 SCC 477. In that case a question was raised whether reference under Section 28-A of the Land Acquisition Act, 1894 is maintainable to the land acquired under the Defence of India Act. The counsel appearing for the Union of India in the High Court contended that reference could be made under Section 28(A) of the Act ibid. This contention made by the learned Counsel for the Union of India was challenged before the Honble Supreme Court and it was contended that Section 28-A has no application to the acquisition of land under the requisitioning and acquisition of immovable Property Act. Learned Counsel for the respondent before the apex court contended that since the counsel appearing for the Union of India conceded this question before High Court, therefore the State is bound by the concession and the orders of the High Court made on the basis of concession cannot be faulted with. In this background their Lordships observed: "It is difficult to accept the contention. It is a case of total lack of jurisdiction since Section 28-A of the Land Acquisition Act has no application when the land is acquired under the requisition and acquisition of the Immovable Property Act. Therefore, wrong concession made by the counsel does not bind the Union of India in that behalf." In State of Uttar Pradesh and others v. Dr. Anupam Gupta etc., AIR 1992 SC 932, a contention was raised that a plea which was not raised before the High Court cannot be raised for the first time in appeal before the Supreme Court under Article 133 of the Constitution of India. Rejecting this contention the apex Court observed: "We find no force in the contention of the State. Anupam Gupta etc., AIR 1992 SC 932, a contention was raised that a plea which was not raised before the High Court cannot be raised for the first time in appeal before the Supreme Court under Article 133 of the Constitution of India. Rejecting this contention the apex Court observed: "We find no force in the contention of the State. Though it was never raised, nor argued, since it is a pure question of law arises from record, it can be gone into." 13. Thus, apart from the fact that this second appeal was admitted on the substantial questions of law whether the Civil Court has jurisdiction to maintain and .try the suit in respect of the matters arising out of the proceedings under Section 163 of the Revenue Act, this Court is within its jurisdiction to hear and decide this question of law, notwithstanding the fact that the question was not pressed before the trial court by the appellant-State. Section 163 of the Revenue Act reads as under : "163. Prevention of encroachment on lands.—(1) Where Government land or land which has been reserved for the site of a village or for the common purposes of the co-sharers therein has been encroached upon by any co-sharer or other person for any purpose including construction of a building or other structure thereon, then— (a) the Revenue Officer may of his own motion or on the application of any other co-sharer eject the encroaching person (hereinafter in this section referred to as the encroacher) from such land and by order, proclaimed in the manner mentioned in Section 23, prohibit repetition of the encroachment therein : Provided that no encroacher shall be ejected under this clause unless he has been given a reasonable opportunity of showing cause against the ejectment. (b) the Revenue Officer may, having regard to such principles of assessment of damages as may be prescribed, assess the damages on account of such encroachment and may by order, require the encroacher to pay the damages within such period and in such instalments as may be specified in the order; (c) if the encroacher has erected only building or other structure or has grown crops or planted trees on the encroached land it shall be competent for the Revenue Officer, while ordering his ejectment, to dismantle such building or other structure and confiscate any produce or other material on such land and put the same in public auction and deposit the sale proceeds thereof into the Government Treasury; and (d) the Revenue Officer may impose upon the encroacher a fine upto (one thousand rupees per bigha or part thereof in the case of first encroachment) and, where the encroachments repeated, a fine upto (two thousand rupees per bigha or part thereof for each such subsequent encroachment). (2) Any amount payable as damages under clause (b) of sub-section (1) or as fine under clause (d) of that sub-section may be recovered in the same manner or arrears of land revenue (3) When there is a question as to title or to the adverse possession, wherein the possession is claimed by an encroacher for a period beyond thirty years in relation to the land from which ejectment is made or is to be made under this section, the Revenue Officer, not below the rank of an Assistant Collector of the First Grade, shall proceed to determine the question, also if he were a civil court and shall exercise all such powers as are exercisable by a civil court. (4) For the determination of the question under sub-section (3) the Revenue Officer shall follow the same procedure as is applicable to the trial of an original suit by a civil court, and he shall record a judgment and decree containing the particulars required by the Code of Civil Procedure, 1908 to be specified the rein. (5) An appeal from the decree of the Revenue Officer made under sub-section (4) shall lie to the District Judge as if that decree were a decree of a Subordinate Judge in an original suit. (5) An appeal from the decree of the Revenue Officer made under sub-section (4) shall lie to the District Judge as if that decree were a decree of a Subordinate Judge in an original suit. (6) A further appeal from the appellate decree of a District Judge upon an appeal under sub-section (5), shall lie to the High Court only if the High Court is satisfied that a substantial question of law is involved and (7) No suit or other legal proceeding shall lie against the Revenue Officer or any person acting under this Section in respect of anything in good faith done or purported to have been done under the provisions thereof or the rules made thereunder." 14. A bare perusal of sub-section (4) shows that if encroacher claims adverse possession in the Government land then such question is to be decided by the Revenue Officer after following the same procedure as applicable to the trial of a suit by a Civil Court and he shall record the judgment and decree containing the particulars as required under the Code of Civil Procedure. Sub-section (5) provides for an appeal from the decree of the Revenue Officer made under* sub-section (4) to the District Judge. Second appeal is provided under sub-section (6) to the High Court though limited to substantial question(s) of law. Sub-section (7) bars any suit or legal proceedings against the Revenue Officer or any person acting under this section in respect of anything done in good faith under these provisions. It is to be further noticed that Section 171 expressly excludes the jurisdiction of the Civil Court in all matters which are within the jurisdiction of the Revenue Officers. Sub-Section (2) of section 171 clearly stipulates that a Civil Court shall not exercise jurisdiction over any matter as detailed under this sub-section. It is to be further noticed that Section 171 expressly excludes the jurisdiction of the Civil Court in all matters which are within the jurisdiction of the Revenue Officers. Sub-Section (2) of section 171 clearly stipulates that a Civil Court shall not exercise jurisdiction over any matter as detailed under this sub-section. Clause-xxv to Section 171(2) which is relevant for our purpose may be reproduced: "(xxv) any question, as to any land or any right to, or title or interest in, the land which is an encroached land or in relation to which any person claims that it has vested or is deemed to have vested in him and that he cannot be ejected therefrom under sub-section (I) of Section 163; and" Plain reading of Section 171(2) (xxv) shows that civil courts do not have jurisdiction in respect of the land to which Section 163 of the Revenue Act applies. 15. This Court in case State of Himachal Pradesh and another v. Duni Chand and another, 1994(2) SLJ 1665, held that Section 171 of the Revenue Act bars jurisdiction of the civil courts to take cognizance with respect to a matter regarding ejectment of a person from Government land including abadi deh land which a Revenue Officer is empowered to dispose of under Section 163 of the Act. In that case plaintiff filed a suit before the Sub Judge that the Revenue Officer had not complied with the provisions of the Act and the order was without jurisdiction. The evidence on record suggests that the proceedings where initiated, after a show cause notice, as in the present case, was served upon the plaintiff. He was afforded opportunity to contest the proceedings. The order of ejectment thereafter passed by the Assistant Collector holding the plaintiff to be a recent encroacher. The plaintiff was thereafter dispossessed pursuant to the ejectment order of the Assistant Collector. This order was challenged by the plaintiff in the civil suit. The court dismissed the suit holding that the plaintiff was a recent encroacher and order of ejectment had rightly been passed by the Assistant Collector. In second appeal, this court held that Section 171 of the Revenue Act bars jurisdiction of the Civil Courts. 16. This order was challenged by the plaintiff in the civil suit. The court dismissed the suit holding that the plaintiff was a recent encroacher and order of ejectment had rightly been passed by the Assistant Collector. In second appeal, this court held that Section 171 of the Revenue Act bars jurisdiction of the Civil Courts. 16. In civil revision No. 67 of 1992 titled State of H.R and others v. Dalip Singh, decided on 17.3.1997, plaintiff filed a suit for declaration to the effect that the plaintiff has become owner of the. land, subject matter of suit, by virtue of adverse possession. The perusal of the plaint disclosed that plaintiff rested his case only on adverse possession and nothing else. In the prayer clause plaintiff sought declaration that he is owner in possession of the suit land by virtue of adverse possession, in view of his long exclusive possession for more than 35 years coming from the time of his ancestors and for declaration that the revenue entry showing the State of Himachal Pradesh as owner in possession are wrong, incorrect and unwarranted. Interpreting the provisions of Sections 163 and 171 of the Revenue Act a Division Bench of this Court speaking through my Lord M. Srinivasan, CJ. (as he then was) observed : "We have no doubt what ever the plaint of the respondent falls squarely within the provisions of Sections 163 and 171 of the Himachal Pradesh Land Revenue Act. We have no hesitation whatever to hold that the suit of the respondent herein is not sustainable in the Civil Court and the provisions of Section 163 are applicable." 17. In the present case also the case of the plaintiff entirely rests on the plea of adverse possession. It is on the basis of this plea that a declaration is sought to the effect that plaintiff-respondent is owner in possession of the land subject matter of dispute and that existing revenue entries are wrong. 18. To be fair to the learned Counsel for the respondent, it may be observed that learned Counsel contended that in the present case, the Revenue Officer did not try the proceedings as civil suit and no decree was drawn by the Revenue Officer to enable the plaintiff-respondent to file an appeal before the District Judge as contemplated under sub-section (5) of Section 163 of the Revenue Act. True it may be but yet appeal could have been filed by the plaintiff on "he ground that the question has not been decided in accordance with the Code of Civil Procedure and formal decree has not been drawn. This was a matter to be agitated before the learned District Judge in a appeal under sub-section (5) of Section 163 of the Revenue Act. Non compliance with the procedure by the Assistant Collector in exercise of the jurisdiction under sub-section (3) to Section. 163 will not clothe the civil courts with the jurisdiction to try such suits inspite of the bar in terms of Section 171(2) (xxs) of the Revenue Act. I have no hesitation to hold that the civil court lacked jurisdiction to try this suit. 19. No other point is urged before me. 20. For the reasons recorded above, appeal is accepted. The impugned judgment and decree of the first appellate court and that of the trial court are set aside. The suit of the plaintiff stands dismissed. However, the parties are left to bear their own costs. Appeal allowed.