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2012 DIGILAW 364 (HP)

Karam Singh v. Daulat Ram, son of Shri Ramu

2012-06-29

V.K.AHUJA

body2012
JUDGMENT Justice V.K. Ahuja, J.:This is a regular second appeal under Section 100 of the Code of Civil Procedure filed by the appellant/plaintiff against the judgment and decree of the court of learned District Judge, Mandi, dated 15.7.1999, vide which the learned District Judge dismissed the Cross Objections filed in the appeal preferred by the State and the appeals preferred against the judgment and decree of the court of learned Civil Judge (Junior Division), Chachiot at Gohar, dated 30.3.2007, were allowed and consequently the suit was dismissed. 2. Briefly stated the facts of the case are that the appellant, hereinafter also referred to as the plaintiff, filed a suit for permanent prohibitory injunction as against the State of H.P. and Collector, who were impleaded as defendants No.1 and 2 and as against respondents No.1 and 2, who were impleaded as defendants No.3 and 4. The plaintiff alleged that he is owner in possession of the suit land comprised in Khasra No.684/2, measuring 5-1-11 bigha, which was granted to him by way of nautor in the year 1974 and patta was also issued to him. He alleged that after fulfilling all formalities, he was put in possession by he revenue officials and since then, he is in lawful ownership and possession of the suit land. The plaintiff also pleaded that on the objections of defendants No.3 and 4, the Deputy Commissioner passed an order that alternate land should be given to the plaintiff, which order was affirmed by the Divisional Commissioner on 8.1.1985. It was also pleaded that defendants No.1 and 2, in connivance with defendants No.3 and 4, have started interfering in the ownership and possession of the plaintiff over the suit land, hence the suit for permanent injunction filed by the plaintiff. 3. Defendants No.1 and 2 took up various preliminary objections in regard to the maintainability, estoppel etc. On merits, they pleaded that the suit land was granted to the plaintiff as nautor but no possession was delivered to the plaintiff since some people of the area raised objections and defendants No.3 and 4 filed an appeal before the Deputy Commissioner, Mandi, which was accepted and he passed an order that some alternate land be granted to the plaintiff since the land granted to the plaintiff was covered with forest. The plaintiff filed an appeal before the Divisional Commissioner, who upheld the order of the Deputy Commissioner. The plaintiff filed an appeal before the Divisional Commissioner, who upheld the order of the Deputy Commissioner. Thus, it was pleaded that since the plaintiff was not in possession of the suit land, there is no question of interference by the defendants and as such the plaintiff was not entitled to the relief as claimed by him. Defendants No.1 and 2 also took up similar pleas. 4. On the pleadings of the parties, the following issues were settled by the learned trial Court:“1. Whether the plaintiff is owner in possession of the suit land as alleged? OPP 2.Whether the defendants have started causing interference in the suit land? OPP3.If the issues No.1 and 2 are proved in affirmative, then whether the plaintiff is entitled for decree of permanent prohibitory injunction? OPP4.Whether the plaintiff is entitled for a decree of mandatory injunction as prayed? OPP5. Whether the suit of the plaintiff is not maintainable? OPD 6.Whether the suit is bad for non-service of notice under Section 80 C.P.C.? OPD 7. Whether the plaintiff is estopped by his own act and conduct to file the present suit? OPD 8.Whether the plaintiff has no locus standi to file the present suit? OPD 9.Whether the suit is bad for non-joinder and mis­joinder to the necessary parties? OPD.10.Whether the plaintiff has not come with clean hands? OPD 11.Whether the plaintiff is not in possession of the suit land? OPD 3 and 4.12.Whether the suit of the plaintiff is barred by limitation? OPD 3 and 4.13.Relief.” 5. Parties led their evidence and the learned trial Court vide its impugned judgment held that the plaintiff was not the owner of the suit land, but since he was held to be in possession, the relief of permanent injunction was granted in favour of the plaintiff and as against the defendants restraining them from causing any sort of interference in the suit land except in due course of law. 6. An appeal was filed by the State of H.P. before the learned District Judge and Cross Objections were also filed by the plaintiff and the learned District Judge allowed the appeal filed by the State of H.P. and dismissed the Cross Objectionsfiled by the plaintiff and consequently held that the suit of the plaintiff is liable to be dismissed. 7. An appeal was filed by the State of H.P. before the learned District Judge and Cross Objections were also filed by the plaintiff and the learned District Judge allowed the appeal filed by the State of H.P. and dismissed the Cross Objectionsfiled by the plaintiff and consequently held that the suit of the plaintiff is liable to be dismissed. 7. Being aggrieved, the plaintiff has come up in second appeal, which was admitted on the following substantial questions of law: “1. Whether the learned appellate Court below is right in law in holding that the appellant is not the owner in possession of land in dispute particularly when there is no order of resumption of land by competent Authority, on the record of the case? 2. Whether the learned appellate Court below is right in law in coming to the conclusion that the possession of the land was not handed over to the appellant after the same was granted to him particularly when revenue record to the contrary has been produced by the appellant which has not been rebutted by legal evidence? 3. Whether the presumption of truthness attached to the revenue record can be rebutted by just casual and bald oral statement?” 8. I have heard Mr.B.K. Malhotra, learned counsel for the appellant, Mr.G.R. Palsara, learned counsel for respondents No.1 and 2 and Mr.J.S. Guleria, learned Assistant Advocate General, for respondents No.3 and 4, and have gone through the record of the case. 9. The submissions made by the learned counsel for the appellant were that the grant made in favour of the plaintiff was not cancelled, though the Deputy Commissioner suggested that some other land be granted in favour of the plaintiff and, therefore, the plaintiff was entitled to the relief as granted by the learned trial Court. It was also submitted that the plaintiff has filed this suit for declaration challenging the order passed by the Deputy Commissioner affirmed by the Divisional Commissioner, which order was liable to be set aside. It was also submitted that defendants No.3 and 4 had not raised objections at the time of original allotment in favour of the appellant and as such they had no right to file an appeal and their objections were wrongly allowed by the Deputy Commissioner. 10. It was also submitted that defendants No.3 and 4 had not raised objections at the time of original allotment in favour of the appellant and as such they had no right to file an appeal and their objections were wrongly allowed by the Deputy Commissioner. 10. In support of his above submissions, the learned counsel for the appellant had relied upon the decision of a Division Bench of this court in Percy Chauhan versus State and another, Indian Law Reports (Himachal Series) (1979) 35. The observations made in para 56 were relied upon by the learned counsel for the appellant, which read as under: “The contention of the respondents, that a person can prefer an appeal or a review even though he has not objected during the course of original proceedings before the Revenue authorities, cannot be accepted because the scheme of the Rules, as evidenced by clause (e) of rule 14 read with rule 21 is that only the person who has objected during the course of the original proceedings can prefer an appeal or review. In other words, the right to prefer an appeal or review arises only in favour of that person who has been vigilant enough the raise an objection during the original proceedings. As already noted above, the Revenue Assistant concerned passes an order sanctioning the grant under rule 16 only after the detailed procedure contemplated by rule 14 is complied with. Therefore, if a person, sleeps over these original proceedings and awakens to the desirability or otherwise of the grant at a later stage, he would have no right of preferring either an appeal or a review. Therefore, this extreme contention of the respondents that any body can prefer an appeal or review at any stage must necessarily be rejected.” 11. On the other hand, the submissions made by the learned counsel for respondents No.1 and 2 and by the learned Assistant Advocate General for respondents No.3 and 4 were that the suit was never filed by the plaintiff for declaration challenging the orders passed by the Deputy commissioner upheld by the Divisional Commissioner and the suit was filed only for permanent injunction and no relief of declaration could be granted in this regard. It was also submitted that once the grant was cancelled, as made in favour of the plaintiff, he cannot be held to be the owner of the suit land. It was also submitted that once the grant was cancelled, as made in favour of the plaintiff, he cannot be held to be the owner of the suit land. It was further submitted that even though the original order of grant of land was passed in favour of the plaintiff, but he was never put in possession by the revenue agency at any time in pursuance of the grant made and, therefore, the plaintiff was not proved to be in possession and was not entitled to the relief of injunction granted by the learned trial Court. 12. Coming to the plea raised by the learned counsel for the appellant that the decision in Percy Chauhan’ s case (supra) applies and as such defendants No.1 and 2 were not entitled to raise any objection to the grant since they never raised objections earlier, it was submitted that the said decision was set aside and the observations made are not attracted to the present facts. 13. In support of his submissions, the learned Assistant Advocate General had relied upon the decision in Mangheru versus State of Himachal Pradesh and others, Indian Law Reports (Himachal Series) (1981) 283, wherein the Full Bench had differed with the findings of the Division in Percy Chauhan’ s case (supra). A perusal of the judgment shows that the Full Bench was constituted to reconsider some of the points decided by a Division Bench of this Court in Percy Chauhan’ s case and the Full Bench had differed with the findings given by the Division Bench. 14. Coming to the submissions made by the learned counsel for the appellant that the appellant had filed the suit for declaration challenging the orders of the Deputy Commissioner as well as that of the Divisional Commissioner, while going through the plaint, I am unable to agree to such submission having been made by the learned counsel for the appellant, even though he was confronted with the plaint filed by the plaintiff. A perusal of the plaint shows that the suit was filed for permanent prohibitory injunction and reference was made only to the order of the Deputy Commissioner affirmed by the Divisional Commissioner, but no relief of declaration was sought challenging the said orders passed by both the Revenue Courts. A perusal of the plaint shows that the suit was filed for permanent prohibitory injunction and reference was made only to the order of the Deputy Commissioner affirmed by the Divisional Commissioner, but no relief of declaration was sought challenging the said orders passed by both the Revenue Courts. Therefore, the suit remains for permanent prohibitory injunction only and the orders passed by the Deputy Commissioner, as affirmed by the Divisional Commissioner, cannot be set aside once there was no prayer made in this regard. 15. A perusal of the record further shows that the plaintiff had not tendered in evidence the copy of the order dated 26.5.1973 recommending grant of nautor land in his favour, though it was necessary. The form of patta issued was also not proved in evidence. However, a perusal of the order passed by the Deputy Commissioner Ext.DW-2/A, dated 30.3.1977, shows that he had accepted the appeal filed by Daulta Ram, Bhagu and defendants No.3 and 4 and one Hem Raj, which makes a reference to the fact that the land was sanctioned as nautor in favour of the plaintiff under Rule 28 of the H.P. Nautor Rules. The Deputy Commissioner heard the objectors and others and observed that since the land was a forest land, the same could not have been allotted in favour of the plaintiff. Therefore, he accepted the appeal filed by the defendants and others and remanded the case to the learned S.D.O. (C), Sadar, Mandi with the order that the respondent i.e. the plaintiff may be given suitable alternate site as nautor in lieu of the land already given to him. The said order, on appeal, by the Divisional Commissioner was upheld vide Ext.PL, passed on 19.1.1985. 16. It is, therefore, clear from the above discussion that the order was passed against the order of grant of land, dated 14.2.1974, and within a short time, the defendants raised objections and filed an appeal before the Deputy Commissioner, who allowed the appeal in the year 1977 on March 30. It was also observed by the Deputy Commissioner that proper publicity etc. had not been given by the Field Kanungo and in case there had been proper publicity, the present objectors would have certainly raised objections at that time only. It was also observed by the Deputy Commissioner that proper publicity etc. had not been given by the Field Kanungo and in case there had been proper publicity, the present objectors would have certainly raised objections at that time only. This answers the question in regard to the right of the objectors to file an appeal since this point was specifically considered by the Deputy Commissioner, who gave his findings with sound reasoning and there is substance in the findings given that since the objectors were not aware of this fact, they could file the appeal. There is nothing in the order passed by the Deputy Commissioner that the plaintiff had raised the objections that no such appeal was maintainable by the objectors, but this question had been duly answered by the Deputy Commissioner. The said order had become final. Since the Deputy Commissioner recommended the grant of another land, it does amount to cancellation of the grant, not as was being argued by the learned counsel for the appellant, and this presumption cannot be drawn. Once the appeal has been accepted, which was against the allotment of the land in favour of the plaintiff and the Deputy Commissioner suggested and remanded the case to the SDO(C) for giving some alternate piece of land as nautor in lieu of the land already given to the plaintiff, it only leads to one conclusion that the grant made in favour of the plaintiff was cancelled and, therefore, only direction was made to suggest some other land and by no stretch of imagination, it can be presumed that the grant was not cancelled as made in favour of the plaintiff. 17. Coming to the question that there was no right of appeal to the objectors raised by the learned counsel for the appellant relying upon the decision rendered in Percy Chauhan’s (supra), I am of the opinion that there is no merit in the submission for two reasons given below. First reason is that the Full Bench had differed with the findings given by the Deputy Commissioner in which a reference was also made to the right of objectors to file an appeal. The second reason is that the said question was not directly involved in the said appeal when the observations were made by the Division Bench in regard to the right of the objectors. The second reason is that the said question was not directly involved in the said appeal when the observations were made by the Division Bench in regard to the right of the objectors. It is true that in case the objectors did not learn about the proposed allotment and in the absence of due publicity, they have every right to challenge the allotment. Moreover, this question was not directly in issue before the Division Bench and also the fact that the said judgment was set aside also weighs in my mind in favour of the respondent- State that the objectors had a right to file objections which were duly allowed by the Deputy Commissioner, affirmed by the Divisional Commissioner, which orders had become final and were never challenged by the plaintiff while filing the suit. Therefore, this point is not in issue and in view of the order of the Court having become final whereby the allotment of nautor was set aside and as such the plaintiff cannot claim ownership on the basis of the nautor land order granted in his favour. 18. Another question which arises for consideration is as to whether the plaintiff was ever put in possession in pursuance of the nautor order in his favour, dated 14.2.1974. The plaintiff in his own statement has not been able to substantiate that he was ever granted possession of the land in pursuance of the allotment of land in his favour as nautor. During the course of arguments, I had pointed out to the learned counsel for the appellant to point out any document on record, which suggests that the plaintiff was ever put in possession by the revenue agency. Once the allotment of nautor land has been made in favour of a person, he cannot himself take possession of the land, which was owned by the State of H.P. He has to be given possession in accordance with law and until and unless he gets possession, no right is there of the plaintiff to be in possession of the land allotted to him as nautor. Therefore, the oral evidence led by the plaintiff in this regard relying upon the copies of the jamabandies Ext.PB for the year 1975-76, Ext.PC for the year 1980-81, Ext.PD for the year 1985-86, Ext.PE for the year 1990-91 and Ext.PF for the year 1996-97 cannot be relied upon to hold that the plaintiff was put in possession by the revenue agency at any time. It only suggests that he may have forcibly taken possession of the land which was never given to him by the revenue agency since the original order of grant of nautor land was cancelled. Once the plaintiff had not been given possession by the revenue agency, he had no right to be in possession or to protect his possession accordingly and once the grant was cancelled, he had no right to be put in possession or in case he has taken forcible possession, he has no right to protect the same as against the true owner i.e. State of H.P. Therefore, once the plaintiff had unlawfully taken the possession of the land and got the jamabandi entries in his favour, he has no right to protect his possession. 19. There was no necessity of resumption of the land by the competent authority when the plaintiff had never been put in possession and, therefore, the substantial question of law No.1 is answered that the learned Appellate Court was right in holding that the plaintiff was not owner in possession of the land in dispute. The presumption of correctness attached to the revenue entries stood rebutted by the fact that the plaintiff was never put in possession and these entries appear to have been made in routine. There is also statement of DFO examined as DW-4 that large number of trees existed over the suit land and that observation is also borne out from the order passed by the Deputy Commissioner while canceling the grant and once the grant had been cancelled, the plaintiff had no right to take forcible possession. The evidence placed on record does not prove that the possession was handed over to the plaintiff at any time and, therefore, all the substantial questions of law are answered accordingly. 20. In view of the above discussion, I hold that there is no merit in the appeal filed by the appellant, which is dismissed. The evidence placed on record does not prove that the possession was handed over to the plaintiff at any time and, therefore, all the substantial questions of law are answered accordingly. 20. In view of the above discussion, I hold that there is no merit in the appeal filed by the appellant, which is dismissed. However, the judgment passed by the learned trial Court of granting relief in favour of the plaintiff to be evicted by due process of law is liable to be modified to the extent that the Revenue Officer/SDO(C), Mandi shall take steps to get back the possession of the land through revenue agency and the State shall be put back in possession of the land illegally occupied by the plaintiff within two months from today and then the case of the plaintiff for allotment of alternate land shall be considered. The appeal stands disposed of accordingly.