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2011 DIGILAW 2219 (HP)

Puran Singh v. State Of H. P.

2011-06-13

KULDIP SINGH

body2011
JUDGMENT : Kuldip Singh, J. The appeal has been admitted on the following substantial question of law:- Whether the impugned judgment and decree are vitiated as both the courts below have read in evidence the documentary evidence produced by the respondents which had not been proved in accordance with law? 2. The appellant was plaintiff and he filed a suit for permanent prohibitory injunction against the respondents not to eject him from the suit land till he is compensated for the improvements carried out by him by planting 85 apple trees on the suit land. The further case of the appellant is that land comprised in khasra Nos. 93/1, 94/1, 130/1, new khasra Nos. 455/93, 457/97 and 460/130 in Mohal Jehal was granted to him by way of Nautor on 10.1.1975. The land measuring 1-14 bigha, comprised in khasra No. 185/1 corresponding to new khasra Nos. 453/450/185 in Mohal Jehal was also granted to appellant by way of Nautor on 18.2.1976. The appellant had been coming in possession on the land so allotted to him. He had made lot of improvements on the land by planting apple orchard and brought the land under cultivation after spending huge amount. 3. In the year 1984, Sub Divisional Officer, Chachiot took suo motu action resulting in revocation of the grant. This was due to complaint of some unknown political opponents, the Tehsildar, Chachiot conducted an inquiry. The appellant filed an appeal before the Collector, Mandi against the cancellation order dated 31.8.1984 passed by Sub Divisional Officer (Civil), Chachiot. The Collector dismissed the appeal. The appellant carried the matter before the Divisional Commissioner, Kangra Division, who dismissed the revision of the appellant. Thereafter, appellant ultimately approached the High Court, which has also not granted the relief to the appellant. 4. The Patwari Halqua informed the appellant that Tehsildar Chachiot would visit the land on 27.5.1992 and hand over the possession to Panchayat after canceling the mutation, as the grant has been cancelled even by the apex court. 5. The Government has granted the land to the appellant, which grant was later on cancelled. The Government has no right to eject the appellant but to seek the remedy by filing the suit. The appellant cannot be ejected from the land unless he is compensated for making improvements on the suit land. The appellant had spent about Rs. 5. The Government has granted the land to the appellant, which grant was later on cancelled. The Government has no right to eject the appellant but to seek the remedy by filing the suit. The appellant cannot be ejected from the land unless he is compensated for making improvements on the suit land. The appellant had spent about Rs. 75,000/- on improvement for planting 85 apple trees till the year 1984 and another sum of Rs. 50,000/- for bringing the land under cultivation. In all, the appellant has claimed Rs. 1,25,000/- as damages. On these allegations, the appellant has filed the suit for permanent prohibitory injunction restraining the respondents not to eject the appellant from the suit land till he is compensated for improvements carried out by him on the suit land. 6. The suit has been contested by the respondents by filing written statement, in which several preliminary objections have been taken like jurisdiction, alternative remedy, suit is pre-mature, improper valuation, suit has not been filed in accordance with Order 7 Civil Procedure Code, want of notice under Section 80 (2) Civil Procedure Code, non compliance of Section 80 Civil Procedure Code, non- joinder of necessary parties and estoppel. On merits, it has been pleaded that Nautor has been cancelled by the Deputy Commissioner, Mandi, as Nautor was against the H.P. Nautor Rules. The mutation has been cancelled on 30.5.1992 on the basis of order of the High Court. The appellant is not the owner of the suit land. The State of H.P. is the owner of the suit land. The appellant has no right to remain in possession of the suit land. The respondents are not liable to pay any compensation to the appellant. The prayer for dismissal of the suit has been made. 7. The appellant filed replication. On the pleadings of the parties, the following issues were framed:- 1. Whether the orders of the Collector dated 31.8.84 is illegal, null and void and not binding upon the plaintiff? OPP. 2. If issue No. 1 is proved, whether the plaintiff is entitled to the relief of injunction, as prayed? OPP 3. Whether the plaintiff has made improvement and planted apple orchard? If, so, its effect? OPP 4. Whether the plaintiff is entitled to the relief of damages? If so to what Extent? OPP 5. Whether this court has jurisdiction to entertain the present suit? OPP. 6. OPP 3. Whether the plaintiff has made improvement and planted apple orchard? If, so, its effect? OPP 4. Whether the plaintiff is entitled to the relief of damages? If so to what Extent? OPP 5. Whether this court has jurisdiction to entertain the present suit? OPP. 6. Whether the suit has been properly valued for the purpose of jurisdiction and court fee? OPD 7. Whether the suit is not filed in accordance with the provisions of Order 7 Rule 4.11 and 21 of Civil Procedure Code, if so its effect? OPD 8. Whether the provisions of section 80 Civil Procedure Code has been complied with? If so its effect? OPD. 9. Whether the suit is bad for non-joinder of necessary parties? OPD. 10. Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD. 11. Relief. The issues No. 5, 6 and 8 were answered in affirmative and remaining issues in negative and the suit was dismissed by the learned trial court on 27.11.1998. The learned District Judge on 15.1.2001 dismissed the appeal, hence the second appeal. 8. I have heard Mr. B.K. Malhotra, learned counsel for the appellant and Mr. J.S.Rana, learned Assistant Advocate General for the respondents and have also gone through the record. The learned counsel for the appellant has argued that appellant is not liable for ejectment from the suit land unless he is compensated by the respondents for the improvements made by him on the suit land. He has also submitted that allotted land can be resumed only on the grounds provided in the Nautor Rules, but case of the appellant does not fall in that category. No authority has been designated under the rules to consider the resumption or ejectment of the allottee like the appellant. The respondents cannot be judge in their own cause. It has been submitted that in these circumstances, the civil court has the jurisdiction to look into the grievance raised by the appellant and grant him the relief. The appellant is entitled to protection of possession. The learned Assistant Advocate General has supported the impugned judgment, decree and has prayed for dismissal of the appeal. 9. The appeal has been admitted on the aforesaid substantial question of law. The appellant is entitled to protection of possession. The learned Assistant Advocate General has supported the impugned judgment, decree and has prayed for dismissal of the appeal. 9. The appeal has been admitted on the aforesaid substantial question of law. Section 100 of the Civil Procedure Code provides that appeal shall be heard on the questions so formulated and the respondents shall at the hearing of appeal, be allowed to argue that the appeal does not involve such questions. It has also been provided that nothing in sub-section (5) shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. Rule 2 Order 42 Civil Procedure Code further provides that it shall not be open to the appellant to urge any other ground in the appeal without the leave of the court given in accordance with the provisions of Section 100 Civil Procedure Code. In the present appeal, no such leave has been granted by this court nor any application to this effect has been filed by the appellant to allow him to argue the appeal on additional substantial question of law. Thus scope of the appeal is limited to the above substantial question of law. The learned counsel for the appellant has cited some case law on the points, which are not covered by above substantial question of law, therefore, it is not necessary to refer to that case law in this judgment, in view of point of controversy limited to the above substantial question of law. 10. In the second appeal, no documents have been referred which have not been proved and considered by the courts below while rejecting the case of the appellant nor such documents have been pointed out at the time of hearing of the appeal on behalf of the appellant. The respondents during trial have placed on record mark-A judgment dated 10.7.1991 in CWP No. 630 of 1986, titled Puran Singh vs. State of H.P. passed by the High Court and order dated 17.1.1994 in Nautor Remand File No. 3/1993, titled Puran Singh vs. State decided by Deputy Commissioner, Mandi. 11. The respondents during trial have placed on record mark-A judgment dated 10.7.1991 in CWP No. 630 of 1986, titled Puran Singh vs. State of H.P. passed by the High Court and order dated 17.1.1994 in Nautor Remand File No. 3/1993, titled Puran Singh vs. State decided by Deputy Commissioner, Mandi. 11. The appellant in the plaint has stated that Deputy Commissioner has dismissed his appeal and High Court also did not grant him any relief. It is not the case of the appellant that mark-A and mark-B are not the correct copies of the judgment dated 10.7.1991 and order dated 17.1.1994. In the second appeal also, there is no ground that copy of judgment dated 10.7.1991 mark-A and copy of order dated 17.1.1994 mark-B are not the correct copies. In these circumstances, the appellant cannot be permitted to raise grievance against mark-A and mark-B simply on the ground that these are the copies without challenging their authenticity, more so when he himself is a party in both the cases. 12. The courts below were bound to take note of the judgment dated 10.7.1991 of this court when a copy of the judgment was placed on record and nobody objected the correctness of the judgment dated 10.7.1991. The appellant has failed to make out a case that two courts below have relied the documents which were not proved. No other document relied by the court allegedly not proved has been pointed out during the course of the arguments. The substantial question of law is thus decided against the appellant. 13. The learned Assistant Advocate General has relied Devi Singh vs. State of H.P. 1991 (1) S.L.J. 254 and has submitted that all basic contentions beyond the scope of aforesaid substantial question of law advanced by the learned counsel for the appellant have been taken note in Devi Singh (supra). I have gone through the judgment and it has touched several points raised by the learned counsel for the appellant, suffice to add that in Devi Singh this court has not accepted those contentions. The scope of the appeal is confined to aforesaid substantial question of law. 14. In view of above, there is no merit in the appeal and the same is dismissed with no order as to costs. The interim orders dated 8.6.2001 and 10.9.2001 stand vacated.