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2004 DIGILAW 317 (HP)

VISHWA DEV v. STATE OF H. P.

2004-12-01

M.R.VERMA

body2004
JUDGMENT M.R. Verma, J.:- This suit has been instituted by the plaintiff for grant of mandatory injunction that without complying with the requirement of Section 51 of the Transfer of Property Act, 1882, the plaintiff cannot be evicted from the land in dispute, therefore, the J defendant and its officials be restrained from evicting the plaintiff from the land in suit and causing any interference therein in any manner whatsoever. 2. Case of the plaintiff as made out in the plaint is that in conformity with the eligibility criteria and the procedure under the Himachal Pradesh Nautor Land Rules, 1968, on application of the plaintiff in the prescribed proforma, the Revenue Assistant, Rampur granted land comprising Khasra No. 1251/16, measuring 10 Bighaas 5 Biswas as Nautor to the plaintiff on payment of Nazrana vide order dated 12.3.1974. One Mast Ram, who was an aspirant for grant of the land granted to the plaintiff, preferred an appeal against the order of the Revenue Assistant, Rampur granting Nautor to the plaintiff which was rejected on 3.1.1975. Said Mast Ram then preferred Revision Petition No. 116/75 against the order of the Deputy Commissioner to the Divisional Commissioner who vide order dated 24.9.1975 recommended the same to the Financial Commissioner. The Financial Commissioner vide order dated 31.12.1976 remanded the case to the Deputy Commissioner for fresh findings and decision. Vide order dated 9.2.1978 the Additional Deputy Commissioner, on receipt of the records from the Financial Commissioner, further remanded the matter to the Sub-Divisional Officer (Civil), Rampur for fresh decision on merits. The Sub Divisional Officer (Civil), Rampur vide order dated 17.2.1981 held the grant of Nautor in favour of the plaintiff legal and correct. Aggrieved by this order, said Mast Ram filed an appeal before the Deputy Commissioner which was dismissed on 6.8.1981. The matter, however, was carried further by said Mast Ram by filing CWP No. 339 of 1981 which was decided by this Court on 29.5.1991 observing that it was not inclined to go into the eligibility of the matter and felt that appropriate authority should think over it and the case was thus sent back to the Sub Divisional Officer (Civil), Rampur. The Sub Divisional Officer (Civil), Rampur vide order dated 11.10.1993, after re-examining the whole matter, confirmed the grant of Naturo in favour of the plaintiff. The Sub Divisional Officer (Civil), Rampur vide order dated 11.10.1993, after re-examining the whole matter, confirmed the grant of Naturo in favour of the plaintiff. Being aggrieved, said Mast Ram again filed CWP No. 425 of 1994 assailing the order dated 11.10.1993 passed by the Sub Divisional Officer (Civil), Rampur. In the reply to the said writ petition, the State of Himachal Pradesh fully supported the case of the plaintiff and raised objections with regard to the maintainability of the writ petition. The said writ petition was accepted by this Court vide order dated 25.5.1998 and set aside the order of the Sub Divisional Officer (Civil) granted Nautor to the plaintiff. The plaintiff preferred a Special Leave Petition in the Apex Court which was dismissed on 25.1.1999. It is further claimed that the plaintiff planted apple orchard, i.e. 250 apple plants during the last 25 years which trees are now fruit bearing. He had also planted 40 pear plants in the land granted to him as Nautor which are also fruit bearing. Apart from this, he had made the land cultivable and made improvements therein by cutting the bushes, making terraces, building boundary walls, retaining walls and a house and that the land was duly transferred to the plaintiff who believing in good faith that he is the absolute owner and entitled to the Nautor land granted to him, made the aforesaid improvements thereon. However, after the conclusion of the aforesaid litigation, the defendant is about to cause the eviction of the plaintiff from the land in suit claiming better title, over the suit land, therefore, claims the plaintiff, that he is entitled to the estimated value of improvements or claim transfer of the land to him by the defendant under the provisions of Section 51 of the Transfer of Property Act. It is also claimed that the improvements made by the plaintiff on the suit land are worth about Rs. 48,21,581/- and that though the valuation of the improvements is to be determined in accordance with Section 51 of the Transfer of Property Act, but he may be awarded value of the improvements in the sum of Rs. 48,21,581/-. Hence, the present suit. 3. The defendant contested the suit. 48,21,581/- and that though the valuation of the improvements is to be determined in accordance with Section 51 of the Transfer of Property Act, but he may be awarded value of the improvements in the sum of Rs. 48,21,581/-. Hence, the present suit. 3. The defendant contested the suit. In the written statement the defendant took the preliminary objections that the suit is misconceived and not maintainable and is barred by the principle Of res judicata, that the reliefs claimed in the suit are not covered under Section 51 of the Transfer of Property Act, principle of res judicata as the grant of Nautor to the plaintiff has been held void by the High Court vide its judgment dated 25.5.1998 in CWP No. 425 of 1994, that the reliefs claimed in the suit are not covered under Section 51 of the Transfer of Property Act and the suit is an attempt to misuse the process of this Court with ulterior motive. On merits, the facts as averred in the plaint about the grant of the suit land to the plaintiff as Nautor and the various litigations arising therefrom are not disputed. It is, however, claimed that the eligibility criteria for grant of Nautor had finally been discussed in detail in the judgment delivered by this Court in Civil Writ Petition No. 425 of 1994 on 25.5.1998 and at the same time the said judgment directs the defendant to take possession of the land in dispute from the plaintiff and keep it as forest land. It is pursuant to this direction that the State Government, through its Revenue Agency, had started to take possession of the suit land and such proceedings cannot be now called in question in the present suit. Basing its defence mainly on the setting aside of the grant of Nautor in favour of the plaintiff by this Court as aforesaid, the defendant has submitted that the plaintiff is not entitled to the relief claimed. 5. The plaintiff filed application wherein grounds of defence taken in the written statement have been denied and the claim as made out in the plaint has been reaffirmed. 6. On the pleadings of the parties, following issues were framed: 1. Whether the plaintiff believing in good faith that he is the absolute owner of the suit property, made improvements as alleged? OPP 2. In case Issue no. 6. On the pleadings of the parties, following issues were framed: 1. Whether the plaintiff believing in good faith that he is the absolute owner of the suit property, made improvements as alleged? OPP 2. In case Issue no. 1 is proved, whether the plaintiff is entitled to the estimated value of the improvements in view of the provisions of Section 51 of the Transfer of Property Act? If so, in what amount? OPP. 3. Whether the plaintiff is entitled to claim transfer of the suit land from the defendant by virtue of the provisions of Section 51 of the Transfer of Property Act, as alleged? OPP. 4. Whether the present suit is misconceived, not maintainable and barred by the principles of res judicata? OPD 5. Whether the reliefs claimed by the plaintiff are not covered within the provisions of Section 51 of the Transfer of Property Act? OPD 6. Relief. 7. Parties led evidence. Arguments were heard. 8. My findings on the aforesaid issues are as follows: Issue No. 1 9. It is not disputed by the defendant that on application dated 12.10.1973 made by the plaintiff and after getting the requisite reports from the Panchayat, Revenue Officials and Forest Department, the suit land was granted as Nautor to the plaintiff by the revenue Assistant, Rampur vide order dated 12.3.1974. The claim of the plaintiff regarding payment of the value of the trees and usual Nazrana for Nautor land having been made his having entered into possession and still continuing in possession of the suit land is also not in dispute. The pleadings in the plaint in respect of litigations regarding the said grant in favour of the plaintiff carried on by one Mast Ram, another applicant for grant of the suit land as Nautor, and re-consideration of the grant in favour of the plaintiff by the concerned Revenue Officers and affirmation of grant in favour of the plaintiff twice, are also not in dispute. It is admitted case of the parties that it was in second writ petition, i.e. CWP No. 425/94, decided by this Court on 25.5.1998 that the grant once made and twice confirmed by the concerned Revenue Officers, was set aside for the reason that the rule regarding eligibility criteria was interpreted by the Apex Court in Gopinder Singh v. The Forest Department of HP., AIR 1991 SC 433 and it was held that a person who has less than 10 Bighas of land and annual income not more than Rs. 2000/-, was entitled for grant of Nautor but a person despite having less than 10 Bighas of land but having annual income of more than Rs. 2000/- was not entitled for such grant. The plaintiff though had less than 10 Bighas of land, was having annual income of more than Rs. 2000/-, therefore, the grant of Nautor in his favour was set aside. It is not in dispute that the grant in favour of the plaintiff was made before the eligibility rule was interpreted in the manner as aforesaid and the plaintiff had by that time undertaken the development activities on the suit land. It is not in dispute that at the time of grant of the Nautor to the plaintiff, the rule was implemented in the manner as was done in the case of the plaintiff. It was for this reason that the averments made vide para 14 of the plaint, that in the aforesaid Civil Writ Petition the defendant filed reply to the petition and fully supported the case of the plaintiff, has not been denied in the corresponding paras of the written statement or at the time of arguments. Thus, the defendant itself considered the grant in favour of the plaintiff in conformity with the rules till this court held it otherwise after about 18 years of the initial grant. 10. The plaintiff has pleaded vide paras 18 to 20 of the plaint that believing in good faith that he is the absolute owner of the suit land, made the improvements thereon and has also stated so on oath while appearing as his own witness (PW-4). The defendant in reply to the above paras has not denied the acts of improvements/developments over the suit land having been made by the plaintiff under the bona fide belief that he was the absolute owner of the suit land. The defendant in reply to the above paras has not denied the acts of improvements/developments over the suit land having been made by the plaintiff under the bona fide belief that he was the absolute owner of the suit land. There is no rebuttal of the statement of the plaintiff in this regard. 11. It is nobodys case that in the application for grant of Nautor land the plaintiff misrepresented or concealed any fact having any bearing on the question of his eligibility for grant of Nautor land. 12. In view of the above, it is proved on record that the improvements made by the plaintiff over the suit land were made believing in good faith that he is the absolute owner thereof. This issue is accordingly held in favour of the plaintiff. Issues No. 2 and 5 13. Section 51 of the Transfer of Property reads as under:- "51. When the transferee of immovable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he is subsequently evicted therefrom by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell his interest in the property to the transferee at the then market-value thereof, irrespective of the value of such improvement. The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction. When, under the circumstances aforesaid, the transferee has planted or sown on the property crops which are growing when he is evicted therefrom, he is entitled to such crops and to free ingress and egress to gather any carry them." 14. The provision of the above Section is an application of the equitable maxim that he who seeks equity must do equity and provides that when a transferee of immovable property believing in good faith that he is absolutely entitled to such property, makes any improvement thereon but is later evicted from such property by a person having a better title, the transferee has a right to require the person causing eviction to (i) pay the value of the improvements or (ii) transfer the better title to him at a valuation of the property. Thus, to enable enforcement of right under Section 51 of the Act, the person evicted must be a transferee and he must have made the improvements believing in good faith that he was absolutely entitled to do so. 15. It is indisputable that by virtue of the grant of the suit land to the plaintiff by the concerned authorised Revenue Officer the plaintiff became transferee of the land and now he is admittedly being evicted therefrom. While deciding issue No. 1 above, it has already been held that the improvements made by the plaintiff on the suit land were made believing in good faith that he was absolutely entitled thereto. 16. In view of the above conclusions, it is held that the plaintiff is entitled to the value of the improvements made by him on the suit land till 25.5.1998 (when the grant of suit land as Nautor to him was set aside) to be estimated at the time of his actual eviction from the suit land, under the provisions of Section 51 of the Act and in view of the legal and factual aspects of the matter, it cannot be held that the reliefs claimed in the suit are not covered under the provisions of Section 51 of the Act. Accordingly issue No. 2 is held in favour of the plaintiff and issue No. 5 is held against the defendant. , Issue No. 3 17. It is not in dispute that this Court in CWP No. 425 of 1994 set aside the grant of the suit land to the plaintiff as Nautor and held that Patta granted to the plaintiff as inconsequential and rejected his prayer to grant the land to him and directed the defendant State to take possession of the suit land and to keep it as forest land in view of the number of forest trees standing thereon. The S.L.P. preferred by the plaintiff, admittedly, stood dismissed by the Honble Supreme Court. Therefore, the rejection of prayer of the plaintiff and directions to the defendant to take possession of the suit land and keep it as a forest vide judgment of this Court in the said C.W.P. have become final and, thus, requirement implementation. 18. It is, therefore, held that the plaintiff is now debarred from claiming transfer of the suit land in his favour under the provisions of Section 51 of the Act. 18. It is, therefore, held that the plaintiff is now debarred from claiming transfer of the suit land in his favour under the provisions of Section 51 of the Act. This issue is accordingly held against the plaintiff. Issue No. 4 19. In view of the findings recorded on issues No. 1, 2, 3 and 5 above, this issue is held against the defendant. Issue No. 6 Relief 20. In view of the findings given above, the suit of the plaintiff is partly decreed and the defendant is restrained from evicting the plaintiff from the suit land, unless and untill the value of the improvements made by the plaintiff till 25.5.1998 are got estimated from approved or official evaluator(s) at the time of eviction and such value is paid to the plaintiff. Rest of the claim in the suit is dismissed.21. In the facts and circumstances of the case, parties are left to bear their own costs.