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2002 DIGILAW 113 (HP)

STATE OF HIMACHAL PRADESH v. SANDYA DEVI

2002-04-22

K.C.SOOD

body2002
JUDGMENT Kuldip Chand Sood, J.—This second appeal is directed against the judgment of learned District Judge, Una dated August 3, 2001 whereby the judgment and decree of the trial Court was set aside and the suit of the plaintiff was decreed. Plaintiff was declared to be the owner in possession of the suit land and orders passed by the Assistant Collector on July 18, 1990 were declared to be null and void. In order to appreciate the controversy, facts may be noticed thus: It appears, the Gram Panchayat was recorded as owner in possession of the land comprised in Kharsra number 542 measuring 20 Kanals 1 Maria as per jamabandi for the years 1968-69 (Ext. Dl), 1973-74 (Ext. D2). The land was Shamlat land and after coming into force of the Himachal Pradesh Village Common Lands (Vesting and Utilization) Act, 1974, the land vested in the State Government under the provisions of that Act. The Assistant Collector, Bangana while deciding the encroachment cases on November 18,1981, concluded that abadi land/land under cow shed etc., encroached upon by the respondent should not have vested in the State Government and he passed an order that the land in question be entered in the ownership of the respondent in the revenue record. Accordingly, mutation of part of Khasra Number 542, i.e. denoted by Khasra Number 542/1 measuring IK 12M was mutated in the name of Sandhya Devi on November 18, 1981. These orders were challenged before the Financial Commissioner (Appeals) who vide his order dated November 26, 1984 held that the orders passed by the Assistant Collector were without jurisdiction and it was the Collector who could have passed such orders and not Assistant Collector of the 1st Grade. In fact this matter was reported by the Collector to the Financial Commissioner under the Act. The Financial Commissioner accepted the revision petition directing the Collector to pass orders only in accordance with law. In the meanwhile, Khasra Number 542/1 was changed to Khasra Number 395 in the Settlement in the year 1984-85 (Ext. D4). By mutation of 7th December, 1988, Khasra Number 542/1, new khasra number 395, was re-mutated in the ownership of the State of Himachal Pradesh (Ext. DW1/B). 2. Assistant Collector 1st Grade Bangana started eviction proceedings against the plaintiff under Section 163 of the H.P. Land Revenue .Act. D4). By mutation of 7th December, 1988, Khasra Number 542/1, new khasra number 395, was re-mutated in the ownership of the State of Himachal Pradesh (Ext. DW1/B). 2. Assistant Collector 1st Grade Bangana started eviction proceedings against the plaintiff under Section 163 of the H.P. Land Revenue .Act. A notice was issued or Sandhya Devi and her statement was recorded, (sic) her, later on she abstained from the proceedings and the Assistant Collector proceeded to direct the eviction of Sandhya Devi from Khasra Number 542/ 1, new Khasra Number 395 under Section 163 of the Act vide his orders dated July 18, 1990. Sandhya Devi did not challenge this order. 3. Sandhya Devi filed a suit on October 8, 1990 alleging that the order passed by the Assistant Collector was against the facts and law, illegal, void and in operative against the right, title and interest of the plaintiff. She prayed for a decree for declaration that she be declared in possession of the suit property and the orders passed by the Assistant Collector directing her eviction from this property were null and void. He also prayed for a permanent prohibitory injunction against the defendant from interfering with the possession of the plaintiff over the suit property. 4. The suit was resisted by the State of Himachal Pradesh. Jurisdiction of the Civil Courts to try the suit was disputed. Learned trial Court held that though plaintiff was in possession of the suit land but was not its owner and, therefore, dismissed the suit of the plaintiff. Aggrieved, the plaintiff filed an appeal before the learned District Judge which was allowed and the order of the Assistant Collector dated July 18, 1990 (Ext. DW1/C) was declared to be null and void. It was held that such an order was passed by the Assistant Collector without appreciation of the evidence on record. Dis-satisfied, the State is in this second appeal. This appeal was admitted on December 4,2001 on the following substantial questions of law : 1. Whether the Civil Courts have jurisdiction to entertain the suit in view of statutory bar? 2. Whether the findings of the Courts below are based on misreading of evidence? 5. I have heard Shri J.S. Guleria, learned Law Officer for the appellant and Shri Bhupinder Gupta, learned Senior Counsel instructed by Mr. Praneet Gupta, Advocate. Whether the Civil Courts have jurisdiction to entertain the suit in view of statutory bar? 2. Whether the findings of the Courts below are based on misreading of evidence? 5. I have heard Shri J.S. Guleria, learned Law Officer for the appellant and Shri Bhupinder Gupta, learned Senior Counsel instructed by Mr. Praneet Gupta, Advocate. Having heard the learned Counsel for the only substantial question of law which arise for consideration is: "Whether the suit of the plaintiff was maintainable and Civil Courts have the jurisdiction to entertain suit in view of the statutory bar under Section 171 of the H.R Land Revenue Act". 6. It may be noticed at the outset that plaintiff had not challenged the order of the Financial Commissioner whereby the order of the Assistant Collector, Tehsil Bangana, excluding the land of the plaintiff from the purview of Section 3(2) (c) of the H.R Village Common Land (Vesting and Utilization) Act, 1974 was set-aside. The challenge in the present suit was confined only to the orders of the learned Assistant Collector Bangana directing the eviction of the plaintiff from the suit land under Section 163 of the Act. 7. The controversy in the suit was limited to the extent of the validity of the orders of the Assistant Collector, Bangana dated July 18, 1990. The case of the plaintiff before the trial Court as disclosed in the plaint was that the impugned orders of the Assistant Collector were illegal, void and in operative qua the right, title and interest of the plaintiff as the plaintiff was neither properly served in the proceedings nor such order was passed in his presence. 8. Mr. Guleria at the out set submitted that this matter is covered by the judgment of this Court in Shri Binni v. State of Himachal Pradesh, 2002 (1) Shimla Law Cases 124. Om Binni, the case of the plaintiff was: The disputed land adjoined the land of the plaintiff. The possession of the plaintiff over the disputed land was since the times of his forefathers and he had become the owner of the disputed land by adverse possession. Assistant Collector 1st Grade issued notice to the plaintiff, under Section 163 of the H.R Land Revenue Act, hereinafter referred to as "the Act", to show cause why he be not evicted from the encroached land. Assistant Collector 1st Grade issued notice to the plaintiff, under Section 163 of the H.R Land Revenue Act, hereinafter referred to as "the Act", to show cause why he be not evicted from the encroached land. Plaintiff in that case led evidence to show that he was in peaceful possession of the suit land for more than statutory period of 30 years. The Assistant Collector, in spite of the question of title having been raised by the plaintiff in that case, proceeded to decide the question and directed the eviction of the plaintiff. This order of the Assistant Collector was challenged by way of a suit by Binni. The defendant-State disputed the jurisdiction of the Civil Courts to entertain the suit. After noticing the provisions of Section 163 of the Act, this Court observed that Section 171 of the Act expressly exclude the jurisdiction of the Civil Courts in all matters which are within the jurisdiction of the Revenue Officers. Sub-section (2) of Section 171 of the Act stipulates that, a Civil Court shall have no jurisdiction over any matter as detailed under that sub-section. Clauses-XXV and XXVI 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 (1) of Section 163; and (xxvi) the ejectment of any person under Section 163 of the recovery of damages or fine payable under sub-section (1) of that section." It may be seen that clause xxv provides that Civil Courts will not have jurisdiction in respect of a dispute relating to any land or any right to or title or interest in the land which is encroached land or in relation to which any person claims that it has vested or is deemed to have vested in him and he cannot be evicted there from. Similarly, clause (xxvi) expressly bars jurisdiction of Civil Courts in relation to the ejectment of any person under Section 163 of the Act. Similarly, clause (xxvi) expressly bars jurisdiction of Civil Courts in relation to the ejectment of any person under Section 163 of the Act. The 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) Shimla Law Cases 344 and Piyare Lal v. State of Himachal Pradesh, RSA No. 371 of 2001 decided on October 1, 2001, has held that Civil Courts have no jurisdiction to take cognizance with regard to the matters of ejectment from the Government land. This Court in Binni, after noticing the Constitution Bench decision in Dhulabhai etc. v. State of Madhya Pradesh and another, AIR 1969 SC 78, held that sub-section (3), sub-section (4) and subsection (5) of Section 163 provide efficacious and complete remedy to any aggrieved person from the orders passed by a Revenue Officer under Section 163 of the Act by way of appeal to the District Judge as if it was a decree of the Subordinate Judge in the original suit. Not only this, the second appeal is also provided before the High Court if the High Court is satisfied that substantial question of law is involved in a particular case. This Court observed: "These are the salutary provisions which are adequate and efficacious and are similar to the one provided for 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." 9. In Binni, a contention was raised that the Revenue Officer failed to adopt the procedure contemplated in the Code of Civil Procedure for the adjudication of a suit and, therefore, the Civil Courts will have the jurisdiction to entertain a suit impugning the orders of the Revenue Officer. This Court observed that if the Revenue Officer does not follow the procedure prescribed under the Code of Civil Procedure, then final order can be adjudicated before the learned District Judge in appeal under sub-section (5) of the Act on that ground. 10. It was also pointed out in Binni that decree was not drawn by the Revenue Officer and therefore the plaintiff could not file an appeal against the judgment of the Revenue Officer. The contention was rejected. 10. It was also pointed out in Binni that decree was not drawn by the Revenue Officer and therefore the plaintiff could not file an appeal against the judgment of the Revenue Officer. The contention was rejected. It was held that even if decree is not drawn by the Revenue Officer which he is bound to draw under Section 33 read with Rule 6-A of Order 20 of the Code of Civil Procedure, the aggrieved person is not remediless in view of the provisions of sub-rule (2) of Rule 6-A of Order 20 of the Code which mandates that the decree shall be prepared within fifteen days of the pronouncement of the judgment. If such 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 the 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 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 the appeal. 11. In view of the settled position of law, the present suit filed by the plaintiff could not have been entertained by the Civil Courts for want of jurisdiction to try such suit. For the reasons recorded above, the appeal of the State is accepted, the impugned judgment and decree of the learned District Judge is set-aside. Suit of the plaintiff shall stand dismissed though for reasons other than recorded by the learned trial Court. Parties are left to bear their own costs. It is clarified that this judgment shall not be an impediment in the way of the plaintiff to seek appropriate remedy which may be available to him under the law. CMP No. 930 of 2001. No orders in view of the disposal of the main appeal. Appeal allowed.