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2012 DIGILAW 875 (HP)

State of Himachal Pradesh v. Sohan Lal

2012-11-23

DHARAM CHAND CHAUDHARY

body2012
Judgment Dharam Chand Chaudhary, J. The challenge herein is to the judgment and decree dated 1.9.1997 passed by learned District Judge, Bilaspur in Civil Appeal No.69 of 1991 affirming thereby the judgment and decree dated 15.6.1991 passed by learned Senior Sub Judge, Bilaspur, camp at Ghumarwin in civil suit No.67/1 of 1990/88 whereby orders Ex.P-7 passed on 17.5.1988 by the Financial Commissioner (Revenue & Appeals), Himachal Pradesh in Revenue Appeal No.20 of 1998 and Ex.P-8 passed by the Commissioner, Shimla Division on 21.5.1987 have been declared without any jurisdiction and the plaintiff is declared to be the owner in possession of suit land measuring 1-4 bighas bearing Khasra Nos.108/3 and 160/150 situate in Mauja Lethwin, Tehsil Ghumarwin, District Bilaspur and also that the plaintiff cannot be ejected from the suit land. 2. The defendant in the trial Court has assailed the judgment and decree impugned in the present appeal on the ground, inter-alia, that the same is perverse being not legally sustainable. The findings recorded on issues No.1 to 4 are contrary to the evidence available on record. The provisions contained under Rule 27-B and 28 of the H.P. Nautor Land Rules, 1968 (hereinafter referred to as “the rules” for short), have been wrongly interpreted. It is claimed that since the suit land was granted as nautor to plaintiff by the Deputy Commissioner, therefore, the appeal against said order was maintainable before the Divisional Commissioner under Rule 16 of the rules ibid. In view of the plaintiff himself and the witnesses, he examined, have admitted the existence of a path and Dev Sathal (place of local deity) over the suit land and in view of the objections to this effect raised by defendants No.2 to 5, the suit could have not been decreed. There being no evidence suggesting that the plaintiff had spent Rs.25,000/- for developing this land, no finding to the contrary could have been recorded. The reports submitted by the Revenue Agency and Forest Department were ignored by the Deputy Commissioner at the time of grant of suit land as nautor to the plaintiff. 3. The appeal has been admitted on the following substantial questions of law:- 1. The important question of law involved is whether a grant made under Rule 27-B of the H.P. Nautor Rules, 1968 is also not subject to Rule 30 providing for Revision thereof. 2. 3. The appeal has been admitted on the following substantial questions of law:- 1. The important question of law involved is whether a grant made under Rule 27-B of the H.P. Nautor Rules, 1968 is also not subject to Rule 30 providing for Revision thereof. 2. Whether the words not-withstanding as contained in the Rule 27-B have the power to debar even the revisional and writ powers of the higher courts as provided under law. 3. Whether the illegal order is passed by any authority in flagrant violations of Rules and if same undone by the higher authorities, whether exercising of that powers to rectify an illegal act would amount to a ultra-wire act or not. 4. The above points arising for determination in the present appeal have to be decided in the light of the relevant rules and also the evidence available on record as well as the settled legal principles attracted to the proposition like the one in the present appeal. However, before that to give the detail of facts, in a nutshell, would facilitate this Court in adjudicating the same more effectively. 5. The bone of contention in the present lis is a piece of land measuring 1-4 bighas, description whereof has been given hereinabove at the very outset. The same prior to its grant to plaintiff by the Deputy Commissioner, Bilaspur vide order dated 27.12.1982 (Ex.R-A) was Government land. The application submitted by plaintiff for grant of suit land as nautor was processed under Rule 27-B of the rules and order Ex.R-A was passed by the Deputy Commissioner on the basis of report submitted by Tehsildar, Ghumarwin, mark “X”, dated 15.12.1982, report of Forest Department, dated 19.8.1977 Ex.D-C and after assessment of Nazarana to the tune of `2812.10 as well as the value of trees standing thereon, i.e. Rs.220/-. Plaintiff deposited the nazarana and the value of trees as assessed. It is thereafter that he was put in possession of the suit land as is apparent from the perusal of Rapat Roznamcha No.140, dated 12.12.1983, Ex.P-4. In the subsequent jamabandi for the year 1984-85 Ex.P-1, plaintiff came to be recorded as owner in possession of the suit land. Copy of girdawari Ex.P-2 for the period 28.10.1985 to 13.3.1988 also establishes the cultivating possession of plaintiff over the suit land. 6. In the subsequent jamabandi for the year 1984-85 Ex.P-1, plaintiff came to be recorded as owner in possession of the suit land. Copy of girdawari Ex.P-2 for the period 28.10.1985 to 13.3.1988 also establishes the cultivating possession of plaintiff over the suit land. 6. It is on 9.7.1984, Gram Panchayat Gahar vide its resolution No.2, Ex.D-Y requested the Deputy Commissioner, Bilaspur to cancel the grant of suit land as nautor to plaintiff on the ground that no land of the plaintiff adjoining to it is situated and to the contrary there exists a path over it. On this resolution, Tehsildar, Ghumarwin seems to have conducted an inquiry vide report Ex.D-D, no doubt recommended thereby that the order granting suit land as nautor to the plaintiff should be reviewed being granted wrongly. 7. One of the defendants, i.e. defendant No.5 has preferred an appeal under Rule 28 of the rules ibid before the Divisional Commissioner, Shimla Division, which was allowed. The order Ex.R-A was set aside and the grant of suit land as nautor to the plaintiff cancelled. The plaintiff, no doubt, did assail the order passed by the Divisional Commissioner in an appeal before the Financial Commissioner (Revenue & Appeals), Himachal Pradesh, however, unsuccessfully as the same was also dismissed vide order dated 17.5.1988, Ex.P-7. 8. Aggrieved by the order passed by Financial Commissioner (Revenue & Appeals), Himachal Pradesh and by the Divisional Commissioner, Shimla Division, the plaintiff assailed the legality and validity thereof before the trial Court by filing the suit seeking thereby a decree of declaration that the same being wrong, illegal and without any jurisdiction be declared as such and also that he could not be ejected from the suit land without payment of compensation of the house he constructed thereon by spending a sum of Rs.25,000/- after the grant of suit land as nautor and delivery of its possession to him on deposit of nazarana and the value of tress as assessed by the Revenue Agencies and Forest Department. 9. 9. In written statement the 1st defendant besides the preliminary objections, has contended that initially the proposal to grant the suit land to plaintiff was opposed by the Forest and Revenue Departments, however, ignored by the Deputy Commissioner and, as such, by sanctioning the suit land as nautor to the plaintiff, the Deputy Commissioner has committed an irregularity and therefore, the order passed by the Deputy Commissioner was rightly cancelled by the appropriate authority. Also that in view of the growth of forest over the suit land and the place of village deity situate there, the same is not fit for being granted in nautor. The orders passed by Divisional Commissioner, Shimla Division and the Financial Commissioner (Revenue & Appeals), Himachal Pradesh are stated to be just, legal and well within their jurisdiction. 10. Defendants No.2 to 5 have also claimed that irrespective of the objections raised by the Forest and Revenue Departments as well as the local Gram Panchayat, the Deputy Commissioner has passed the order sanctioning the suit land to plaintiff as nautor, illegally. As per their case set-up in the written statement also, there exists a path and the place of their deity over the suit land. Hence, the same being not fit for cultivation, could have not been granted in nautor to the plaintiff under Rule 27-B of the rules. 11. The trial Court has tried the parties on the following issues:- 1. Whether the order dated 21-5-1987 of Divisional Commissioner and 17-5-1988 of Financial Commissioner are wrong and illegal? OPP. 2. Whether the plaintiff is owner in possession of the suit land by virtue of order dated 27-12-1982 of Deputy Commissioner? OPP. 3. Whether after the grant of the suit land, the plaintiff spent Rs.25,000/-on the improvement of the same, if so to what effect? OPP. 4. Whether the plaintiff has also constructed a cow shed over the suit land as alleged? OPP. 5. Whether the suit is not maintainable? OPD. 6. Whether the plaintiff has no locus standi to file the suit? OPD. 7. Whether the suit is not properly valued for the purpose of court fees and jurisdiction? OPD. 8. Whether the suit is bad for non-joinder of necessary parties? OPD. 9. Whether this court has no jurisdiction to try the suit? OPD. 10. Whether no legal and valid notice has been served upon defendant? OPD. 11. Relief. 12. OPD. 7. Whether the suit is not properly valued for the purpose of court fees and jurisdiction? OPD. 8. Whether the suit is bad for non-joinder of necessary parties? OPD. 9. Whether this court has no jurisdiction to try the suit? OPD. 10. Whether no legal and valid notice has been served upon defendant? OPD. 11. Relief. 12. While issues No.1 to 4 have been answered in favour of the plaintiff, issues No.5 to 10 against defendants, and as such, the suit has been decreed. Learned lower appellate Court on re-appraisal of the facts of this case and evidence available on record, while concurring with the findings recorded by the trial Court, has affirmed the judgment and decree passed by the trial Court in the suit. 13. The present is a case of concurrent findings recorded by both Courts below. The defendants are before this Court in the second appeal, filed under Section 100 of the Code of Civil Procedure. The law is no more res-integra and as per the settled legal principles in a case of concurrent findings, the High Court while exercising the jurisdiction under Section 100 of the Code of Civil Procedure should not interfere with the findings recorded by the trial Court and lower appellate Court after analyzing and appreciating the evidence available on record unless and until it is other-wise established that the judgment and decree impugned in the appeal is perverse. It has been held so by the Apex Court in Bandhu Mahto (dead) by LRs. And another Versus Bhukhli Mahatain and others, (2007) 10 SCC 564 , the concurrent findings recorded after proper appreciation of the evidence should not be interfered with in regular second appeal, which reads as follows:- “On examination of the reasonings recorded by the First Appellate Court, which are affirmed by the learned Single Judge of the High Court in Second Appeal, we are of the view that the judgments of the First Appellate Court as well as the High Court are well-reasoned based upon proper appreciation of the entire evidence on record. No question of law much less a substantial question of law was involved in this case before the High Court. No question of law much less a substantial question of law was involved in this case before the High Court. We do not find any perversity or infirmity in the concurrent findings of fact recorded by the First Appellate Court and affirmed by the learned Single Judge of the High Court to warrant interference in this appeal. None of the contentions of the learned counsel for the plaintiffs-appellants can be sustained.” 14. It is in this legal back-ground, the legal questions reproduced supra, on which the appeal has been admitted, have to be determined. 15. It is the findings recorded on issue No.1 that the suit land having been granted as nautor to the plaintiff under Rule 27-B of the rules vide order Annexure R-A, no appeal against it was maintainable under Rule 28 and that the orders passed by the Divisional Commissioner, Shimla Division and Financial Commissioner (Revenue & Appeals), Himachal Pradesh, Ex.P-7 are without any jurisdiction, have been hotly contested by the parties on both sides. Learned District Judge has reproduced Rule 27-B below para-11 of the judgment, he rendered in the appeal. The rule demonstrate that on an application duly stamped with the court fee of Rs.2.50, submitted by a right holder for the grant of Government land not exceeding 2 bighas surrounded by his land or other right holders, from all sides, can be granted as nautor by the Deputy Commissioner of the district concerned to him on payment of market price to be calculated upon by the revenue agencies on the basis of 5 years average of Rs.200/- per bigha, whichever is higher as ‘nazarana’ and the price of the forest growth, if any, existing on such land, however, after taking into consideration the report made by the revenue agencies after conducting spot inspection. 16. The case now being set up on behalf of the defendants that the suit land being not surrounded by other land of the plaintiff on either side is not legally and factually sustainable as the report sought from Tehsildar Ghumarwin, mark ‘X’ makes it crystal clear that the same is surrounded on Northern-Western side by the land of plaintiff. 16. The case now being set up on behalf of the defendants that the suit land being not surrounded by other land of the plaintiff on either side is not legally and factually sustainable as the report sought from Tehsildar Ghumarwin, mark ‘X’ makes it crystal clear that the same is surrounded on Northern-Western side by the land of plaintiff. Not only this, but while the revenue agencies have assessed the market value as was to be realized from the plaintiff in the shape of nazarana as Rs.2821.10, at the same time, the Forest Department assessed the value of forest produce existing thereon vide Ex.D-C as Rs.220/-. The report of Tehsildar mark “C” further reveals that the adjoining right holders did not raise any objection to the grant of suit land as nautor to the plaintiff. Also that the path in existence over the suit land, was separated on the spot from the area proposed to be granted as nautor to the plaintiff and the recommendation for grant of the suit land as nautor to the plaintiff was made thereafter. Even in the report Ex.D-C of Forest Department also nothing suggestive is there that the department has any objection to the grant of suit land as nautor to the plaintiff. There is no iota of evidence suggesting that the local Gram Panchayat and defendants No.2 to 5 had objected to the grant of suit land as nautor to the plaintiff at the relevant time. No doubt, when the defendants seem to have made application Ex.D-4 (colly) to the Gram Panchayat with the request to cancel the grant of suit land as nautor to the plaintiff, the Gram Panchayat in its meeting held on 9.7.1984 resolved vide resolution No.2, Ex.D-Y to request the Deputy Commissioner, Bilaspur for cancellation of order Ex.R-A whereby the suit land was granted as nautor to the plaintiff and on receipt of such resolution, Tehsildar Ghumarwin was directed to conduct an inquiry and submit report. The report submitted by the Tehsildar is Ex.D-D. However, irrespective of the Tehsildar recommended that order Ex.R-A needs to be reviewed, the Deputy Commissioner did not pass any order and rightly so as the order if any, passed, would have been without any jurisdiction. There is thus no substance that the grant of suit land as nautor to the plaintiff is not covered under Rule 27-B of the rules. 17. There is thus no substance that the grant of suit land as nautor to the plaintiff is not covered under Rule 27-B of the rules. 17. If coming to the controversy that the appeal preferred before the Divisional Commissioner, Shimla Division against order Ex.R-A, under Rule 28 was maintainable or not, in all fairness and ends of justice, the answer would be in the negative for the reasons that a bare perusal of Rule 28, reproduced by learned District Judge in para-10 of the judgment, makes it crystal clear that under that rule only the original order passed under Rule 16, either by S.D.O.(Civil) or Deputy Commissioner, can be assailed before Deputy Commissioner if passed by S.D.O.(Civil) and before Commissioner, if passed by the Deputy Commissioner. Thus, no appeal is maintainable under Rule 28 of the rules ibid against an order passed by the Deputy Commissioner under Rule 27-B of the rules. The Courts below have thus committed no illegality or irregularity while holding that no appeal, that too, after about five years of the grant of suit land as nautor to the plaintiff could have been filed nor entertained by the Commissioner. Nothing has been brought to the notice of this Court during the course of arguments to take a view contrary to the one taken by both the Courts below qua this aspect of the matter. 18. The only conclusion would be that the Divisional Commissioner had no jurisdiction to entertain the appeal and set aside the order Ex. R-A after five years of the grant of suit land as nautor to the plaintiff. There is, however, no point in issue in the present lis qua the challenge to order Ex.R-A before this Court in writ jurisdiction. Hence, this Court deems it proper not to enter into any such controversy. 19. The legality and validity of the orders passed by the Divisional Commissioner and Financial Commissioner (Revenue & Appeals), Himachal Pradesh has been examined by the trial Court and also the lower appellate Court and for that matter by this Court also and it is after proper appreciation of the rules and evidence available on record, the same has been held to be illegal and without any jurisdiction. The present is a case where order Ex.R-A passed by the Deputy Commissioner has been held to be legal and valid one. The present is a case where order Ex.R-A passed by the Deputy Commissioner has been held to be legal and valid one. No question thus arises that the same was passed in flagrant violation of the rules. Thus in substantial question of law at Sr. No.3 also, this Court finds no substance. 20. If coming to the factual matrix, the sanction of the suit land as nautor in favour of the plaintiff on the basis of recommendations made by various agencies and deposit of nazarana as well as the cost of forest produce standing thereon stands proved satisfactorily from the own testimony of plaintiff while in the witness box as PW-1 and from that of PW-2 Shri Lohku Ram, PW-3 Tota Ram and PW-4 Dev Raj. They all admitted in one voice the existence of a public path in the suit land and the place of village Deity being worshipped by the villagers. It is however nobody’s case that the plaintiff has ever objected to the user of the path and prevented the villagers from worshipping the Deity nor is it the case of the defendants pleaded in the written statement or put to the witnesses examined by the plaintiffs in their cross-examination. The facts thus remain that there exits a public path over the suit land and also the place of village Deity and the plaintiff never objected to the user of the path or prevented the villagers from visiting the place of Deity and offering obeisance to the deity. He has developed the suit land by raising construction of a cow-shed over a portion thereof and also planted trees. It is established so from order Ex.P-8 passed by the Divisional Commissioner. The trial Court has thus rightly decreed the suit. 21. In view of the foregoing reasons, lower appellate Court cannot also be said to have committed any illegality or irregularity in affirming the judgment and decree passed by the trial Court. The judgment and decree impugned before this Court in the present appeal being well reasoned and based upon proper appreciation of the evidence available on record warrants no interference and deserves to be up-held. 22. For the foregoing reasons, this appeal fails and the same is accordingly dismissed. However, no order so as to costs. Let decree sheet be prepared accordingly. Records be sent down.