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2001 DIGILAW 291 (HP)

BINNI v. STATE OF H. P.

2001-10-17

K.C.SOOD

body2001
JUDGMENT Kuldip Chand Sood, J.—The judgment and decree of the learned Additional District Judge-(I), Shimla, dated 13th May, 1994 is impugned in this second appeal. 2. The facts necessary for the disposal of this appeal may be noticed: 3. Plaintiff-appellant Binni filed a suit against the defendant State of Himachal Pradesh for declaration that they have become owners of the land subject matter of dispute, situate in Chak Bag, Pargana Chehta, Sub Tehsil Kupvi in District of Shimla, by adverse possession. 4. The case of the plaintiff was: The disputed land adjoins the land of the plaintiff. Possession of the plaintiff over the disputed land was since the times of his forefathers and therefore he had became owner of this land by adverse possession. Assistant Collector 1st Grade, Kupvi, issued notice to the plaintiff under Section 163 of the Himachal Pradesh Land Revenue Act, hereinafter referred to as the Act, to show cause why he be not evicted from the encroached land. According to the plaintiff, eviction proceedings were initiated against him. He led evidence to show that he was in peaceful possession of the land for the last more than statutory period of 30 years but Assistant Collector 1st Grade, Sub Tehsil Kupvi, inspite of the question of title having been raised by the plaintiff, proceeded to decide the question, though he did not have the jurisdiction to decide the question of title, and directed the eviction of the plaintiff from the Government land. Plaintiff pleaded that this action of the Assistant Collector 1st Grade was illegal, void and without jurisdiction. The plaintiff prayed that the orders of the Assistant Collector 1st Grade, Kupvi, directing the eviction of the plaintiff be declared void, inoperative and without jurisdiction and plaintiff in turn be declared to be the owner in possession of the disputed land with the consequent relief of injunction restraining the defendant from interfering with the peaceful possession of the plaintiff. 4. The suit was resisted by the defendant-State. Jurisdiction of the Civil Courts to entertain the suit was disputed. It was pleaded that, infact, defendant encroached on the disputed land in the year 1987 and the possession of the plaintiff was not since 1940 as claimed by the plaintiff. 4. The suit was resisted by the defendant-State. Jurisdiction of the Civil Courts to entertain the suit was disputed. It was pleaded that, infact, defendant encroached on the disputed land in the year 1987 and the possession of the plaintiff was not since 1940 as claimed by the plaintiff. It was further pleaded that the plaintiff had since been evicted on 25th May, 1989 and entry to this effect was made in the Vakyati Report Roznamcha at serial number 268. 5. Learned trial Court under issue number 7 held that the Court had jurisdiction to try the suit as defendant could not show as to how the Court was not clothed with the necessary jurisdiction. However, the suit was dismissed on the grounds that plaintiff failed to prove his adverse possession over the suit land. 6. Dis-satisfied, plaintiff carried an appeal, impugned herein, before the learned District Judge. Learned Additional District Judge affirmed the findings of the learned trial Court and found that plaintiff was not in adverse possession of the suit land. 7. Aggrieved, the plaintiff is in second appeal. 8. This appeal was admitted on 8th November, 1995 on the following substantial questions of law: 1. Whether the appellant has acquired ownership over the suit land by virtue of adverse possession? 2. Whether the courts below took wrong view of the matter that the presumption of truth to the revenue record has not been rebutted. 3. Whether Assistant Collector Second Grade below (Kupvi), was not competent to start proceedings under Section 163 of the HP Land Revenue Act and the proceedings of ejectment as carried out by him are without jurisdiction? 4. Whether the appellant is entitled to relief of injunction, even if, he is found to have been unable to prove the plea of adverse possession? 9. I have heard learned Mr. G.D. Verma, learned Senior Counsel for the appellant and Mr. J.S. Guleria, learned Law Officer for the respondent and have perused the record. 10. After having heard the learned Counsel for the parties, the only question which arises for consideration in this appeal, as substantial question of law, is whether Civil Court has jurisdiction to entertain the present suit. 11. Section 163 of the Act reads: "163. J.S. Guleria, learned Law Officer for the respondent and have perused the record. 10. After having heard the learned Counsel for the parties, the only question which arises for consideration in this appeal, as substantial question of law, is whether Civil Court has jurisdiction to entertain the present suit. 11. Section 163 of the Act reads: "163. Prevention of encroachment on hinds.— (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 installments 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. (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 th 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 therein. (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 there under." 12. A perusal of sub-sections (3) and (4) of Section 163 shows that if encroacher claims adverse possession in the Government land then such question can only be decided by a Revenue Officer after following the same procedure as applicable to the trial of a suit by a Civil Court The concerned Revenue Officer has to 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, passed under sub-section (4), to the District Judge. Sub-section (5) provides for an appeal from the decree of the Revenue Officer, passed 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. 13. Now 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 stipulates that, a Civil Court shall not exercise jurisdiction over any matter as detailed under that sub-section. Clause-xxv to Section 171(2), 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 there from under sub-section (I) of Section 163; and" (Emphasis supplied) 14. A reading of Section 171(2) with Clause (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 State of Himachal Pradesh and another v. Duni Chand and another, 1994 (2) S.L.J. 1665; State of Himachal Pradesh v. Chet Ram, 2000 (3) Shim. L.C. 344 and Piyare Lal v. State of Himachal Pradesh, RSA No. 371 of 2001, decided on 1st October, 2001, has held that Section 171 of the Act bars jurisdiction of the Civil Courts to take cognizance with regard to the matters of ejectment of a person from Government land. 16. In Duni Chand plaintiff filed a suit before a Sub Judge that the Revenue Officer had not complied with the provisions of the Act and the order of his eviction under Section 163 of the Act was without jurisdiction. The evidence on record suggested that the proceedings were initiated after show cause notice was served upon the plaintiff. The Assistant Collector, thereafter, passed order of the ejectment holding the plaintiff to be a "recent encroacher". The plaintiff was dispossessed pursuant to the ejectment order passed by 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". In second appeal, this Court held that Section 171 of the Act bars jurisdiction of the Civil Courts. 17. The plaintiff was dispossessed pursuant to the ejectment order passed by 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". In second appeal, this Court held that Section 171 of the Act bars jurisdiction of the Civil Courts. 17. Similarly, in Chet Ram Assistant Collector initiated the proceedings under Section 163 of the Act and directed the eviction of the plaintiff after the receipt of the reply to show cause notice. The plaintiff maintained before the Assistant Collector that he was in adverse possession of the suit land. The order of eviction passed by the Assistant Collector was challenged before the Sub Judge 1st Class (Civil Court) on the grounds that the plaintiff was in exclusive possession of the land for more than 60 years. He maintained that proceedings initiated by the Assistant Collector against him, under Section 163 of the Act, were without jurisdiction and prayed for declaration that he was owner in possession of the suit land and entries to the contrary were wrong and illegal. He also sought a restraint on the defendant from interfering with this possession. The Court held that in the circumstances, Civil Court will have no jurisdiction. 18. In Civil Revision No. 67 of 1992 titled State of H.P. and others v. Dalip Singh, decided on 17th March, 1997, plaintiff filed a suit for declaration to the effect that the plaintiff had become owner of the disputed land by virtue of his adverse possession. Perusal of the plaintiff disclosed that the plaintiff rested his case only on adverse possession and nothing else. Interpreting the provisions of Sections 163 and 171 of the Revenue Act a Division Bench of this Court held that the case of the plaintiff fell squarely within the provisions of Sections 163 and 171 of the Himachal Pradesh Land Revenue Act and the Civil Court, in the circumstances, will not have jurisdiction to try the suit. 19. Mr. G.D. Verma, learned Senior Counsel for the appellant, contends that Revenue Officer did not try the proceedings as Civil Suit inasmuch as the issues were not settled, reasoned judgment was not recorded and no decree was drawn. The prescribed procedure having not followed by the concerned Revenue Officer, will clothe the Civil Court with jurisdiction to decide the said suit. 20. Mr. The prescribed procedure having not followed by the concerned Revenue Officer, will clothe the Civil Court with jurisdiction to decide the said suit. 20. Mr. Verma refers to State of A.P. v. Manjeti Laxmi Kantha Rao (Dead) by LRs and others, 2000 (3) SCC 689; M.P. Electricity Board, Jabalpur v. Vijaya Timber Co., (1997) 1 SCC 68 and State of Rajasthan v. Harphool Singh (Dead) through his LRs., (2000) 5 SCC 652, in support of his contention. 21. A Constitution Bench of the Supreme Court in Dhulabhai etc. v. State of Madhya Pradesh and another, AIR 1969 SC 78, after considering several decisions of the Supreme Court and Privy Counsel concluded: (1) Where the statute given a finality to the orders of the special tribunals the Civil Courts, jurisdiction must be held to be excluded if there is adequate remedy to do what the civil court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court. 22. As seen earlier Section 171(2) of the Act specifically create bars for the civil courts to exercise jurisdiction in the matters covered under sub-section (1) of Section 163 of the Act. 23. Sub-section (3) of Section 163 envisages that if a question as to title or adverse possession is raised by a person who has encroached on the Government land from which ejectment of such person is sought to be made then the Revenue Officer, not below the rank of the Assistant Collector of the 1st Grade, will determine the question as if he was a Civil Court and he will exercise all such powers as are exercisable by the Civil Court. 24. Sub-section (4) provides that such Revenue Officer will have to follow the procedure as applicable to the trial of a civil suit by a civil court. The Revenue Officer has to record a judgment and decree containing the particulars required by the Code of Civil Procedure, 1908. 25. 24. Sub-section (4) provides that such Revenue Officer will have to follow the procedure as applicable to the trial of a civil suit by a civil court. The Revenue Officer has to record a judgment and decree containing the particulars required by the Code of Civil Procedure, 1908. 25. Sub-section (5) provides for an appeal from the decree of the Revenue Officer made under sub-section (4) to the District Judge as if it was a decree of a Subordinate Judge in the original suit. A second appeal is provided before the High Court if High Court is satisfied that a substantial question of law is involved in a particular case. 26. These are the salutary provisions which are adequate and efficacious and are similar to the one provided for the adjudication of such disputes before a Civil Court. In view of these provisions, it cannot be said that remedies provided under the Act are not adequate or efficacious to clothe the Civil Court with the jurisdiction in these matters. 27. In M.P. Electricity Board, the Apex Court relying upon Dhulabhai held that exclusion of the jurisdiction of the Civil Court cannot be readily inferred and the normal rule is that the civil courts have jurisdiction to try all suits of civil nature except those of which cognizance by them is either expressly or impliedly excluded. Learned Judges referred to the first proposition in Dhulabhai which reads: "Where the statute gives a finality to the orders of the special tribunals the civil courts jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure". 28. In the present case, proposition (2) as noticed earlier is applicable for the reason that Section 163 of the Act specifically bars the jurisdiction of the Civil Courts. 29. 28. In the present case, proposition (2) as noticed earlier is applicable for the reason that Section 163 of the Act specifically bars the jurisdiction of the Civil Courts. 29. In Manjeti Laxmi Kantha Rao the learned Judges relying upon Dhulabhai held that test to find the exclusion of the jurisdiction of the Civil Court is : (i) whether the legislative intent to exclude arises explicitly or by necessary implication, and (ii) whether the statute in question provides for adequate and satisfactory alternative remedy to a party aggrieved by an order made under it. The ratio of this case is of no assistance to the appellant. 30. In the present case, as already noticed, there is explicit provision in terms of Section 171 of the Act which excludes the jurisdiction of the civil Courts and Section 163 of the Act provides for adequate, efficacious and satisfactory alternative remedy to a party aggrieved by judgment and decree made by a Revenue Officer. The aggrieved party has a statutory right to file an appeal before the District Judge. 31. Similarly the ratio of Harphool Singh has no bearing on the facts of the present case. In Harphool Singh the respondent-plaintiff claimed adverse possession to a plot of land at Nohar, Rajasthan. The State of Rajas than took a plea that the encroachment took place in 1981 for the first time and before that respondent was never in possession of this plot. The trial Court found that the respondent-plaintiff was in adverse possession for more than 30 years. The First and Second Appeals of the State were dismissed. A contention was raised before the Supreme Court that order passed by the ADM under Section 22 of the Rajasthan Colonisation Act, 1954, has become final and the Civil Courts had no jurisdiction and the jurisdiction of the Civil Court is ousted in such matters in view of the provisions of Section 25 of that Act. Section 25 of that Act stipulated that civil court shall not have jurisdiction in any matter which the Collector was empowered by that Act to dispose. Section 22 provides for a summary eviction of any person who occupies or continues to occupy any land in a colony to which he has no right or title or without lawful authority by treating such person as a trespasser. Section 22 provides for a summary eviction of any person who occupies or continues to occupy any land in a colony to which he has no right or title or without lawful authority by treating such person as a trespasser. Learned Judges, referring to State of T.N. v. Ramalinga Samigal Madam, (1985) 4 SCC 10 and Dhulabhai held that the questions relating to 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 view of the limited scope of Section 22 which only provides for a summary mode of eviction. 32. As already noticed, under the Act sub-sections (3), (4) and (5) of Section 163 provides for efficacious and adequate remedy similar to the adjudication of the Civil Suit. 33. In my view if the concerned Revenue Officer does not follow the procedure, under the Code of Civil Procedure, for adjudication then the final order passed by the Revenue Officer can be agitated before the learned District Judge in appeal under sub-section (5) of Section 163 of the Act. 34. Lastly, Mr. Verma strenuously urged that the decree was not drawn by the Revenue Officer concerned in this case and therefore, plaintiff could not have filed an appeal against judgment of the Revenue Officer. I am afraid the contention is mis-placed. 35. Section 33 of the Code of Civil Procedure stipulates that court shall pronounce judgment and on the pronouncement of the such judgment a decree shall follow. 36. Rule 6 of Order 20 provides that the decree shall agree with the judgment which shall contain the number of the suit, the names and description of the parties alongwith their registered addresses and particulars of the claim. The decree is to specify clearly the relief granted or other determination of the suit. 37. Sub-rule (2) of Rule 6-A to Order 20 of the Code mandates the decree shall be prepared within fifteen days from the date of the pronouncement of the judgment. The decree is to specify clearly the relief granted or other determination of the suit. 37. Sub-rule (2) of Rule 6-A to Order 20 of the Code mandates the decree shall be prepared within fifteen days from the date of the pronouncement of the judgment. If the decree is not drawn up within the period stipulated, the Court, on an application made by an aggrieved person who intends to file an appeal against decree, certify that the decree has not been drawn up and indicate the reasons for such delay in the certificate. Thereafter an aggrieved person is entitled to file an appeal without filing a copy of the decree and in such case the last paragraph of the judgment is to be treated as decree for the purpose of filing of the appeal. 38. Thus, it was open to the appellant to move appropriate application before the trial Court i.e. the Revenue Officer for certificate under sub-rule (2) of Rule 6-A of Order 20 and file an appeal before the District Judge. 39. The inevitable conclusion is that the Civil Court lacked jurisdiction to try the suit. 40. For the reasons recorded above, the suit and appeal oi the plaintiff, stand dismissed though for different reasons. 41. The parties shall bear their own costs. Appeal dismissed.