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Himachal Pradesh High Court · body

2008 DIGILAW 257 (HP)

Shadi Ram v. State of H. P.

2008-05-28

RAJIV SHARMA

body2008
JUDGMENT Rajiv Sharma, J. 1. This Regular Second Appeal is directed against the judgment and decree passed by the learned District Judge, Solan, H.P. in Civil Appeal No. 29-S/13 of 1996 dated 9.6.1997. 2. The brief facts necessary for the adjudication of the Second Appeal are that the appellants/plaintiffs (hereinafter referred to as the 'plaintiffs' for convenience sake) had filed a suit in the Court of learned Senior Sub-Judge, Solan on 24.2.1990 for declaration and permanent injunction on the ground that they had been coming in possession as owners of the suit land since the time of their ancestors and revenue entries to the contrary showing the land as Shamlat Deh was wrong, illegal and not affect their right, title or interest and subsequent mutation qua the suit land measuring 125 Bighas 19 Biswas situated in village Chhrol, Tehsil Kandaghat, now Tehsil Kasauli, in favour of Nagar Panchayat and in possession of Makbuja Bashindgaan Deh is wrong, illegal and without jurisdiction. They also assailed the subsequent transfer of the land in the ownership of the State of Himachal Pradesh vide Mutation No. 90 dated 8.7.1975. The Respondent-State (hereinafter referred to as the 'defendant' for convenience sake) resisted and contested the suit. 3. The learned trial Court partly decreed the suit and the defendant was restrained from dispossessing the plaintiffs except by due process of law. The plaintiffs filed an appeal before the learned District Judge, Solan on 28.10.1996. The learned District Judge, Solan affirmed the judgment and decree passed by the learned Senior Sub-Judge, Solan and consequently, the appeal was dismissed on 9.6.1997. 4. This Regular Second Appeal has been filed against the judgment and decree of the learned District Judge, Solan dated 9.6.1997. 5. This Regular Second Appeal was admitted on the following substantial questions of law: 1. Whether the title of the claimant over the suit land have to be decided by the Civil Court ? 2. That whether by taking a view that subject-matter of dispute regarding vestment of land in suit is tryable by the Collector under the H.P. Village Common Land Vesting and Utilization Act, the Civil Court has failed to exercise jurisdiction properly? 3. Whether the findings against the Appellant are vitiated for lack of proper application of law and exercise of jurisdiction ? 6. Mr. G.D. Verma, Senior Advocate with Mr. 3. Whether the findings against the Appellant are vitiated for lack of proper application of law and exercise of jurisdiction ? 6. Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate had strenuously argued that the judgment and decree passed by the learned District Judge, Solan is not sustainable in the eyes of law. He had strenuously argued that the Civil Court had jurisdiction to decide the issues raised by the plaintiffs before the lower Courts. 7. Mr. Rajinder Dogra, learned Additional Advocate General had supported the judgment and decree passed by the learned District Judge, Solan. 8. I have heard the learned Counsel for the parties and perused the record carefully. 9. Since all the substantial questions are inter-connected, they are taken up together for adjudication to avoid repetition of referring to the evidence again. 10. PW-1 Sh. Hira Singh has stated that the total land is 160 Bighas and their ancestors were owners of the land and the same was in their possession. He has further stated that they have been paying land revenue. He has further stated that some portion of the land is cultivated and some portion of the land is Ghasni and on some portion of the land, they have raised orchard and have also constructed houses. They came to know about the mutation made in favour of the State only in the year, 1988 when they were apprised by the Patwari. He has further stated that they did not know about the mutation changed in favour of the State Government since they had not received any notice from the concerned authorities. He has denied that the land in question was Shamlat Deh or Charand (grazing pasture). However, in his cross-examination he has stated that he was not aware how much land was in his possession. He has further stated that the suit land was in common ownership of the villagers. He has shown his ignorance that the mutations were changed in favour of the State. 11. PW-2 Shri Devi Dayal has stated that the entire suit land is jointly owned by the villagers. He has further stated that they cultivated the land and they have also raised orchard. He has denied in cross-examination that the land in question is 'Ghasni'. DW-1 Sh. 11. PW-2 Shri Devi Dayal has stated that the entire suit land is jointly owned by the villagers. He has further stated that they cultivated the land and they have also raised orchard. He has denied in cross-examination that the land in question is 'Ghasni'. DW-1 Sh. R.D. Patwari, has stated that initially the mutation was entered in favour of the Nagar Panchayat vide Mutation No. 71 and after the enforcement of the H.P. Village Common Lands (Vesting and Utilization) Act, 1994, the Shamlat Deh has been vested in the State of Himachal Pradesh. He has further stated that the State Government is owner in possession of the land. He has produced Ext.D-1, D-2, D-3, D-4, D-5 and copy of mutation No. 90 vide Ext.D-6. He has shown his ignorance whether any notice was issued to the plaintiffs or not. He has admitted that as per revenue record till 1962-63, the plaintiffs were paying land revenue. 12. What emerges from the oral and documentary evidence placed on record by the plaintiffs and defendant is that initially vide mutation No. 71, the land was mutated in favour of the Nagar Panchayat and thereafter, the land was mutated in favour of the defendant-State vide Mutation No. 90 on 8.7.1975 after coming into force of the H.P. Common Lands (Vesting and Utilization) Act, 1974. In Ext. D-5, the nature of the entire land has been shown as either 'Gair Mumkin' or Charand. In Ext. PH, it is specifically mentioned that the mutation has been attested in favour of the State as per provisions of the H.P. Common Lands (Vesting and Utilization) Act, 1974. The learned Appellate Court on the basis of the law laid down by this Court had come to a right conclusion that in view of the embargo under Section 10 of the H.P. Common Lands (Vesting and Utilization) Act, 1974, the Civil Court had no jurisdiction. 13. Mr. G.D. Verma, had strenuously argued that this finding recorded by the learned Appellate Court below is not maintainable since the learned Appellate Court has failed to take into consideration the relief sought for in the suit and he has also not taken into consideration the entire scheme of the H.P. Common Lands (Vesting and Utilization). Act, 1974. Mr. Rajinder Dogra, learned Additional Advocate General to the contrary had strenuously relied upon the judgment of this Court rendered in Dalip Singh and Ors. Act, 1974. Mr. Rajinder Dogra, learned Additional Advocate General to the contrary had strenuously relied upon the judgment of this Court rendered in Dalip Singh and Ors. v. State of H.P. and Ors. 1992(I) SL.C. 320. He has drawn the attention of the Court to paras 10 and 15 of the judgment to strengthen his submissions. The learned Single Judge after taking into consideration the Full Bench judgment rendered in Gram Panchayat Khunyara v. State of Himachal Pradesh etc. ILR (1978) H.P. 225, has held that the relief claimed by the plaintiffs with regard to declaration of their rights as owners could not be gone into in view of the jurisdictional bar created under Section 10 of the Act, for which the appropriate forum was Collector. It will be apt to reproduce paras 10 and 15 of the judgment which reads thus: The reading of the above-quoted Section makes it clear that all rights, title and interest of the land-owners in the land in any estate, which vested in a Panchayat, under Section 4 of the Punjab Act, except the land used or reserved for the benefit of village community and also the land described in the revenue records as shamlat taraf, patties, pannas and thola and not used for the benefit of village community shall vest in the State free from all encumbrances. There is an exception to certain lands not vesting in the State for which provision is made in Sub-section (2) of Section 3 of the Himachal Act. This vestment of land is automatic and once the land is vested in the State, the Collector, by virtue of Sub-section (5) of Section 3 is empowered to call upon the land-owners to deliver possession thereof after a notice has been duly served ten days prior to the date. On failure of the land-owner to comply with this order, the Collector is empowered to take possession by force on the strength of powers vested in Sub-section (6) of Section 3. A duty is enjoined upon the Collector by virtue of Rule 9, which has been framed under Section 13 of the Act to decide a dispute raised before him regarding entry of land vested in the State after a summary enquiry in accordance with the procedure as applicable for the Revenue Officers. A duty is enjoined upon the Collector by virtue of Rule 9, which has been framed under Section 13 of the Act to decide a dispute raised before him regarding entry of land vested in the State after a summary enquiry in accordance with the procedure as applicable for the Revenue Officers. The scheme of the Himachal Act, as analysed by the Full Bench in Gram Panchayat Khunyara's case (supra), envisages that the enquiry contemplated by Rule 9 should be started before action under Sub-section (5) of Section 3 of the Himachal Act is taken and it would be only after the matter is finally settled through appeal or otherwise that proceedings contemplated by the abovementioned provisions of law with regard to taking of possession could be undertaken because till then it would not be clear whether a particular piece of land has or has not legally vested in the State Government. The Full Bench also found that the Collector was also bound to ascertain whether a particular case falls within any of the three exceptions enumerated in Sub-section (2) of Section 3 of Himachal Act and it would be only thereafter that it could be ascertained whether the land which is said to be covered by the provisions of Sub-section (2) of Section 3 of Himachal Act and it would be only thereafter that it could be ascertained whether the land which is said to be covered by the provisions of Sub-section (2) of Section 3 legally vests in the State or not. As observed by the Full Bench in Gram Panchayat Khunyara's case (supra) and as is apparent from the reading of the Himachal Act, there is an adequate remedy provided for what the Civil Courts would normally do in suits, namely, whether particular land has or has not vested in the State Government. The Act also provides for the remedy to carry the matter in appeal against an order passed by the Collector. The Act also provides for the remedy to carry the matter in appeal against an order passed by the Collector. In these circumstances, it can be said that the Himachal Act gives a finality to the orders passed by the Collector or the State Government and jurisdiction of Civil Court is ousted to entertain and decide a suit of the nature but, as observed above, Section 10 of the Himachal Act does not exclude those cases where it is shown that provisions of a particular Act have not been complied with or that the Collector or the State Government has not acted in conformity with the fundamental principles of judicial procedure. The primary relief claimed by the plaintiffs with regard to declaration of their rights as owners cannot be gone into in view of the jurisdictional bar created under Section 10 of the Act for which appropriate forum would be the Collector as observed in Gram Panchayat Khunyara's case. The Civil Court's jurisdiction to entertain and decide a suit for grant of a decree for prohibitory injunction founded upon settled possession is not ousted by way of the provisions of the Act. 14. Since this judgment is on the interpretation of Section 10 of the H.P. Common Lands (Vesting and Utilization) Act, 1974, the same is binding on this Court. Their Lordships of the Hon'ble Supreme Court of India in S. Vanathan Muthuraja v. Ramalingam alias Krishnamurthy Gurukkal and Ors. [1997] 3 SCR 581 , have held that where Land Reforms Act extinguishes pre-existing rights, creates new rights and provides for jurisdiction of tribunals to enquire into rival claims and decide and also provides for appeal and finality of orders passed under the T.N. Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 by necessary implication Civil Court's jurisdiction is excluded. Their Lordships have held as under: The patta under Ex. B-I dated 28.2.1974 granted under Section 8(2)(ii) of the Act by the Tehsildar was confirmed. On appeal, it was confirmed which order has become final. Thus, the title to the property was vested in the institution and thereby, none of the parties has any right, title and interest in the property. Therefore, the suit of the appellant without impleading the institution is not maintainable. On appeal, it was confirmed which order has become final. Thus, the title to the property was vested in the institution and thereby, none of the parties has any right, title and interest in the property. Therefore, the suit of the appellant without impleading the institution is not maintainable. Under Section 9 Civil Procedure Code, the Courts shall, subject to the provisions contained therein, have jurisdiction to try all suits of civil nature excepting suits cognizance of which is either expressly or impliedly barred. When a legal right is infringed, a suit would lie unless there is a bar against entertainment of such civil suit and the Civil Courts would take cognizance of it. Therefore, the normal rule of law is that Civil Courts have jurisdiction to try all suits of civil nature except those of which cognizance is either expressly or by necessary implication excluded. The rule of construction being that every presumption would be made in favour of the existence of a right and remedy in a democratic set-up governed by rule of law and jurisdiction of the Civil Courts is assumed. The exclusion would, therefore, normally be an exception, Courts generally construe the provisions strictly when jurisdiction of the Civil Courts is claimed to be excluded. However, in the development of civil adjudication of civil disputes, due to pendency of adjudication and abnormal delay at hierarchical stages, statutes intervene and provide alternative mode of resolution of civil disputes with less expensive but expeditious disposal. It is settled legal position that if a tribunal with limited jurisdiction cannot assume exclusive jurisdiction and decide for itself the dispute conclusively, in such a situation, it is the Court that is required to decide whether the tribunal with limited jurisdiction has correctly assumed jurisdiction and decided the dispute within its limits. It is settled law that when jurisdiction is conferred on a tribunal, the Courts examine whether the essential principles of jurisdiction have been followed and decided by the tribunals leaving the decision on merits to the tribunal. It is also equally-settled legal position that where a statute gives finality to the orders of the special tribunal, the Civil Court's jurisdiction must be held to be excluded, if there is adequate remedy to do what the Civil Court would normally do in a suit. It is also equally-settled legal position that where a statute gives finality to the orders of the special tribunal, the Civil Court's 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 a 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. Where there is an express bar of 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. Where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary that the statute creates a special a right or liability and provides remedy for the determination of the right or liability and further lays down that all questions about the said right or liability shall be determined by the tribunal so constituted and the question whether remedies are normally associated with the action in Civil Courts or prescribed by the statutes or not require examination. Therefore, each case requires examination whether the statute provides right and remedy and whether the scheme of the Act is that the procedure provided will be conclusive and thereby excludes the jurisdiction of the Civil Court in respect thereof. After the advent of independence, the land reforms was one of the policies of the Government abolishing feudal system of land tenures and conferment of the ryotwari patta on the tiller of the soil. Thereby, the land reform laws extinguish pre-existing rights and create new rights under the Act. The Act provides for the jurisdiction of the tribunals in matters relating thereto and hierarchy of appeals/revisions are provided thereunder giving finality to the orders passed thereunder. Thereby, the land reform laws extinguish pre-existing rights and create new rights under the Act. The Act provides for the jurisdiction of the tribunals in matters relating thereto and hierarchy of appeals/revisions are provided thereunder giving finality to the orders passed thereunder. Thereby, by necessary implication, the jurisdiction of the Civil Court to take cognizance of the suits of civil nature covered under the land reform laws stands excluded giving not only the finality to the decisions of the tribunal but also ensuring disposal of the matters by the tribunal and making the ryotwari patta granted to the tiller of the soil conclusive. Under the normal course of civil procedure, the jurisdiction for the trial of the civil suits, in relation to the matters covered under the Acts, being time-consuming and tardy, and there being the lack of financial resources or otherwise incapacity to defend or want of knowledge of the parties as to their rights, energy-sapping civil suits with hierarchy of appeals are intended to be avoided. Obviously, therefore, the civil suits by necessary implication stand excluded unless the fundamental principles of procedure are followed by the tribunals constituted under the land reform laws. In this case, the Act concerned extinguishes the pre-existing right, creates new rights under the Act and requires tribunals to enquire into the rival claims and a form of appeal has been provided against the order of the primary authority. Thereby the right and remedy made conclusive under the Act are given finality by the orders passed under the Act. Thereby, by necessary implication, the jurisdiction of the Civil Court stands excluded. 15. Their Lordships of the Hon'ble Supreme Court in Vankatnamidi Venkata Subba Rao v. Chatlapalli Seetharamaratna Ranganayakamma: [1997] 3 SCR 530 , have held that where under the A.P. (Andhra area) Estates. (Abolition and Conversion into Ryotwari) Act, 1948, conferring jurisdiction on tribunals in matters relating to new rights created by it, providing hierarchy of appeals/revisions and giving finality to orders passed thereunder, thereby the jurisdiction of Civil Court is intended to be excluded by necessary implication. Their Lordships of the Hon'ble Supreme Court have held as under: This Court in Vatticherukuri Village Panchayat v. Nori Venkatarama Deekshithulu after considering the entire case law, had held that the Civil Court has no jurisdiction to go into the correctness of the patta granted by the Settlement Authorities. Their Lordships of the Hon'ble Supreme Court have held as under: This Court in Vatticherukuri Village Panchayat v. Nori Venkatarama Deekshithulu after considering the entire case law, had held that the Civil Court has no jurisdiction to go into the correctness of the patta granted by the Settlement Authorities. Under Section 9, CPC, the Courts shall, subject to the provisions contained therein, have jurisdiction to try all suits of civil nature excepting suits cognizance of which is either expressly or impliedly barred. When a legal right is infringed, a suit would lie unless there is a bar against entertainment of such civil suit and the Civil Courts would take cognizance of it. Therefore, the normal rule of law is that Civil Courts have jurisdiction to try all suits of civil nature except those of which cognizance is either expressly or by necessary implication excluded. The Rule of construction being that every presumption would be made in favour of the existence of a right and remedy in a democratic set up governed by rule of law and jurisdiction of the Civil Courts is assumed. The exclusion would, therefore, normally be an exception. Courts generally construe the provisions strictly when jurisdiction of the Civil Courts is claimed to be excluded. However, in the development of civil adjudication of civil disputes, due to pendency of adjudication and abnormal delay at hierarchical stages, statutes intervene and provide alternative mode of resolution of disputes with less expensive but expeditious disposal. It is settled legal position that if a Tribunal with limited jurisdiction cannot assume jurisdiction and decide for itself the dispute conclusively, in such a situation, it is the Court that is required to decide whether the Tribunal with limited jurisdiction has correctly assumed jurisdiction and decided the dispute within its limits. It is also equally settled that when jurisdiction is conferred on a Tribunal, the Courts examine whether the essential principles of jurisdiction have been followed and decided by the Tribunals leaving the decision on merits to the Tribunal. It is also equally settled legal position that where a statute gives finality to the orders of the special Tribunal, the Civil Court's jurisdiction must be held to be excluded, if there is adequate remedy to do what the Civil Court would normally do in a suit. It is also equally settled legal position that where a statute gives finality to the orders of the special Tribunal, the Civil Court's 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 a 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. Where there is an express bar of 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. Where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary that the statute creates a special right or liability and provides procedure for the determination of the right or liability and further lays down that all questions about the said right or liability shall be determined by the Tribunal so constituted and whether remedies is normally associated with the action in Civil Courts or prescribed by the statutes or not. Therefore, each case requires examination whether the statute provides right and remedies and whether the scheme of the Act is that the procedure provided will be conclusive and thereby excludes the jurisdiction of the Civil Court in respect thereof. After the advent of independence, the land reforms was one of the policies of the Government abolishing feudal system of land tenures and conforment of the Ryotwari patta on the tiller of the soil. Thereby, the land reform laws extinguish pre-existing rights and create new rights under the Act. The Act confers jurisdiction on the Tribunals in matters relating thereto and hierarchy of appeals/revisions are provided thereunder giving finality to the orders passed thereunder. Thereby, the land reform laws extinguish pre-existing rights and create new rights under the Act. The Act confers jurisdiction on the Tribunals in matters relating thereto and hierarchy of appeals/revisions are provided thereunder giving finality to the orders passed thereunder. Thereby, by necessary implication, the jurisdiction of the civil Court to take cognizance of the suits of Civil nature covered under the land reform laws stands excluded giving not only the finality to the decisions of the Tribunal but also ensuring expeditious, inexpensive and simple procedure for disposal of the matters by the Tribunal and make the Ryotwari patta granted to the tiller of the soil conclusive. Under the normal course of civil procedure, the jurisdiction of the trial of the civil suits in relation to the matters covered under the Acts being time consuming and tardy the lack of his financial support or otherwise incapacity in defending or working the rights in the Civil Courts and by hierarchy of appeals defeat justice. Obviously, therefore, the civil suits by necessary implication stands excluded unless the fundamental principles of procedure are not followed by the Tribunals constituted under the land reform laws. In this case, the Act concerned extinguishes the pre-existing right, creates new rights under the Act and requires Tribunals to enquire into the rival claims and a form of appeal has been provided against the order of the primary authority. Thereby the right and remedy made conclusive under the Act are given finality by the orders passed under the Act. Thereby, by necessary implication, the jurisdiction of the Civil Court stands excluded. 16. Their Lordships of the Hon'ble Supreme Court while interpreting Section 3 of the Punjab Village Common Lands (Regulation) Act, 1961 in Punjab Wakf Board v. Gram Panchayat alias Gram Sabha (2000) 2 SCC 121 , have held that when Assistant Collector has given a finding that Gram Panchayat was owner of the property in question and it was being used for common purposes of the Gram Panchayat, the finding became final and under Section 13 of the Act, the suit was not competent. Their Lordships have held as under: In this connection, we, may refer to the findings recorded by the Assistant Collector that the revenue records show that the Gram Panchayat as the owner and also that the property in question is being used for common purposes of the Gram Panchayat. Their Lordships have held as under: In this connection, we, may refer to the findings recorded by the Assistant Collector that the revenue records show that the Gram Panchayat as the owner and also that the property in question is being used for common purposes of the Gram Panchayat. We have already extracted the above findings recorded by the Assistant Collector. The revenue records thus showed the land was being used by Village community. It is obvious from the definition of 'Shamlat Deh' in Section 2(g) of the Punjab Village Common Land (Regulations) Act, 1961 that the land in question did not fall within the exclusionary part of the definition. Therefore, the land was 'Shamlat Deh' and was being used as such as per the revenue records. Thus, Section 12 of the Act would apply and preclude a suit by the Wakf Board. 17. The land in question is a Shamlat land and the plaintiffs only had right to use the same for grazing purposes. The land has vested in the defendant-State under the provisions of H.P. Common Lands (Vesting and Utilisation) Act, 1974. Once the land has vested in the State of Himachal Pradesh, the remedy of the plaintiffs was to approach the authorities prescribed under the Act for redressal of their grievances. The findings recorded by the Appellate Court that the suit was not maintainable qua the declaration with regard to ownership after the vesting of the land in question in the State vide mutation dated 8.7.1975 are upheld. 18. Mr. G.D. Verma had also argued alternatively that the plaintiffs had become owners by way of adverse possession. The plaintiffs have not led any evidence either orally or documentary to prove this issue. The plaintiffs have also failed to show their exclusive possession over the suit land. The land in question was 'Gair Mumkin/Charand' and was used primarily for grazing purposes. PW-1 and PW-2 had admitted that the land in question was in joint ownership which suggested that the same was not exclusive/separate possession of any of the co-villagers. The plaintiffs have not produced on record any partition proceedings to substantiate that they were in exclusive possession of the land. The land in question as noticed above is Shamlat land used by the entire village for the purpose mentioned under the Act. The plaintiffs have not produced on record any partition proceedings to substantiate that they were in exclusive possession of the land. The land in question as noticed above is Shamlat land used by the entire village for the purpose mentioned under the Act. There is no question of law much less any substantial question of law involved in this Second Appeal and this Court will not interfere in the concurrent findings of the facts recorded by the Courts below. 19. Consequently, in view of the observations made hereinabove, there is no force in this appeal and the same is dismissed with no order as to costs.