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2013 DIGILAW 1053 (HP)

Duni Chand v. State Of H. P.

2013-12-24

SANJAY KAROL

body2013
JUDGMENT : Sanjay Karol, J. Plaintiff Duni Chand (appellant herein) has filed the present appeal under the provisions of Section 100 of the Code of Civil Procedure, assailing the judgment and decree dated 20.7.2013, passed by learned Additional District Judge (1), Mandi, in Civil Appeal No.75 of 2012, titled as Duni Chand v. State of H.P. and another, whereby judgment and decree dated 2.7.2012, passed by Assistant Collector 1st Grade (exercising the powers of Civil Court under Section 163 (3) of the H.P. Land Revenue Act, 1954) Padhar, District Mandi, in Civil Suit No.1/2010, titled as Duni Chand v. State of H.P., stands affirmed. 2. Challenge to the judgment and decree passed by the lower appellate Court/authority, affirming the judgment and decree passed by the competent authority, is on the ground that direction of the Assistant Collector 1st Grade to file a suit for declaration is nonest; Assistant Collector 1st Grade should have converted himself as a Civil Court and decided the initial proceedings, under the provisions of Section 163 (3) of the H.P. Land Revenue Act, 1954 (hereinafter referred to as Revenue Act); findings with regard to adverse possession of the present appellant are contrary to the material on record and also the settled position of law laid down by the apex Court in P.T. Munichikkanna Reddy and others v. Revamma and others, (2007) 6 SCC 59 . 3. Plaintiff Shri Duni Chand claims himself to be owner of the suit land by way of adverse possession. Proceedings under the Revenue Act for his ejectment were initiated by the State. That the land belonged to the State is not in dispute. Assistant Collector 1st Grade, on 20.12.2002, ordered ejectment of the plaintiff. Appeal filed by the plaintiff also stands rejected by the Collector, Sub Division, Jogindernagar. On his asking, Commissioner, Mandi Division, recommended the matter to the Financial Commissioner (Appeals), who remanded the matter back to the Assistant Collector 1st Grade, Padhar, with a direction to decide the case by converting himself into a Civil Court, under the provisions of the Revenue Act. It is a matter of record that Assistant Collector directed the plaintiff to file a suit for declaration. Plaintiff filed the suit before the Revenue Authorities under the provisions of Revenue Act, in which following issues were framed: 1. It is a matter of record that Assistant Collector directed the plaintiff to file a suit for declaration. Plaintiff filed the suit before the Revenue Authorities under the provisions of Revenue Act, in which following issues were framed: 1. Whether the plaintiff is in possession of the suit land since May, 1964 and has become owner of the suit land by way of adverse possession? OPP 2. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction against the defendant? OPP 3. Whether the suit of the plaintiff is not maintainable and sustainable? OPD 4. Whether the plaintiff has not come to the Court with clean hands? OPD 5. Whether the suit of the plaintiff is barred? OPD 6. Whether the plaintiff has got no locus standi enforceable cause of action to file the present suit? OPD 7. Whether the suit of the plaintiff is not properly valued? OPD 8. Relief. 4. Parties were afforded opportunity to lead evidence. 5. Appreciating the material placed on record, Assistant Collector 1st Grade decided Issues No.1 and 2 against the plaintiff. Findings of fact stand affirmed by the lower appellate Court, being the appellate authority under Section 163 (5) of the Revenue Act. 6. Having heard learned counsel for the parties, I am of the considered view that no case for interference is made out. 7. Section 163 of the Revenue Act reads as under: "163. Prevention of encroachment on lands.- (1) Where Government land or land which has been reserved for the site of a village or for the common purposes of the co-sharers therein has been encroached upon by any co-sharer or other person for any purpose including construction of a building or other structure thereon, then- (a) the Revenue Officer may of his own motion or on the application of any other co-sharer eject the encroaching person (hereinafter in this section referred to as the encroacher) from such land and by order, proclaimed in the manner mentioned in section 23, prohibit repetition of the encroachment therein: Provided that no encroacher shall be ejected under this clause unless he has been given a reasonable opportunity of showing cause against the ejectment. (b) the Revenue Officer may, having regard to such principles of assessment of damages as may be prescribed, assess the damages on account of such encroachment and may, by order, require the encroacher to pay the damages within such period and in such instalments as may be specified in the order; (c) If the encroacher has erected any building or other structure or has grown crops or planted trees on the encroached land it shall be competent for the Revenue Officer, while ordering his ejectment, to dismantle such building or other structure and confiscate any produce or other material on such land and put the same in public auction and deposit the sale proceeds thereof into the Government Treasury; and (d) the Revenue Officer may impose upon the encroacher a fine upto one thousand rupees per bigha or part thereof in the case of first encroachment and, where the encroachment is repeated, a fine upto two thousand rupees per bigha or part thereof for each such subsequent encroachment. (2) any amount payable as damages under clause (b) of sub-section (1) or as fine under clause (d) of that sub-section may be recovered in the same manner as arrears of land revenue. (3) When there is a question as to title or to the adverse possession, wherein the possession is claimed by an encroacher for a period beyond thirty years in relation to the land from which ejectment is made or is to be made under this section, the Revenue Officer, not below the rank of an Assistant Collector of the First Grade, shall proceed to determine the question, as if he, were a civil court and shall exercise all such powers as are exercise able by a civil court. (4) For the determination of the question under sub-section (3), the Revenue Officer shall follow the same procedure as is applicable to the trial of an original suit by a civil court, and he shall record a judgment and decree containing the particulars required by the Code of Civil Procedure, 1908 to be specified therein. (5) An appeal from the decree of the Revenue Officer made under sub-section (4) shall lie to the District Judge as if that decree were a decree of a Subordinate Judge in an original suit. (5) An appeal from the decree of the Revenue Officer made under sub-section (4) shall lie to the District Judge as if that decree were a decree of a Subordinate Judge in an original suit. (6) A further appeal from the appellate decree of a District Judge upon an appeal under sub-section (5), shall lie to the High Court only if the High Court is satisfied that a substantial question of law is involved."; and (7) No suit or other legal proceeding shall lie against the Revenue Officer or any person acting under this Section in respect of in anything good faith done or purported to have been done under the provisions thereof or the rules made thereunder. Explanation.- For the purposes of this section, any person who holds land under a lease granted by the Government for a fixed term and continues to be in possession of the land beyond the expiry of the period of lease shall be deemed to be an encroacher unless such person gets the lease extended or renewed." 8. It is true that Assistant Collector 1st Grade could not have directed the plaintiff to file a separate suit. In terms of sub Section 3 of Section 163 of the Revenue Act, he should have decided the proceedings pending before him, by converting himself as a Civil Court. But then the fact of the matter is that plaintiff did not assail this order passed by the Assistant Collector 1st Grade. He complied with the directions and filed the suit. Filing of fresh suit/proceedings, seeking declaration and consequential relief of injunction has not caused any prejudice to the present plaintiff 9. The fact that land is owned by the State is not in dispute. It is not that the Assistant Collector 1st Grade did not have jurisdiction to adjudicate the proceedings (suit) filed by the plaintiff. Question of title and adverse possession has been decided by the competent authority as if it were a Civil Court. 10. With regard to plea of adverse possession, it be only observed that the apex Court in P.T. Munichikkanna Reddy (supra), has held as under: "The intention to dispossess needs to be open and hostile enough to bring the same to the knowledge and the plaintiff has an opportunity to object. 10. With regard to plea of adverse possession, it be only observed that the apex Court in P.T. Munichikkanna Reddy (supra), has held as under: "The intention to dispossess needs to be open and hostile enough to bring the same to the knowledge and the plaintiff has an opportunity to object. After all adverse possession right is not a sustentative right but a result of the waiving (willful) or omission (negligent or otherwise) of the right to defend or care for the integrity of property on the part of the owner of the property on paper. Adverse possession statutes, like other statutes of limitation, rest on a public policy that does not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence. Intention implies knowledge on the part of adverse possessor. The issue is that intention of the adverse user gets communicated to the owner of the property on paper. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the owner of the property on paper." 11. In the instant case, plaintiff's witnesses have only deposed that plaintiff is in possession of the suit land, where he has constructed a Khokha in the year 1964. This fact itself cannot be construed as his intention, claiming ownership of the suit land, proclaiming his possession to be hostile to that of the State. At no point in time, he proclaimed such fact. 12. His plea of adverse possession as a defence stands considered by the authority/Court below. Plaintiff has not been non-suited, for the reason that plea of adverse possession is not a sword but a shield. 13. As such, it cannot be held that findings returned by the authorities/Courts below are illegal, perverse and erroneous, warranting interference by this Court. No question of law, much less substantial question of law, arises for consideration in the present appeal. For all the aforesaid reasons, the appeal, devoid of merit, is dismissed and disposed of, so also pending application(s), if any.