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2014 DIGILAW 1418 (HP)

Hem Raj v. State of Himachal Pradesh

2014-10-13

RAJIV SHARMA

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JUDGMENT : Rajiv Sharma, J. Encroachment proceedings were initiated against the petitioner under section 163 of the Himachal Pradesh Land Revenue Act, 1954 on the basis of the report of Patwari dated 28.7.2009. The Assistant Collector 2nd Grade, Bharari passed order of eviction in case No. 16/13 dated 22.9.2010 on the basis of statements of PW-1 Basu Dev, Patwari Halqua and PW-2 Parkash Chand, Kanungo. He ordered the eviction of the petitioner from the suit land bearing Khasra No. 328/1 measuring 0-3 bigha. In fact, petitioner has constructed a house and cow-shed on the same. Warrants of ejectment were ordered to be issued against the petitioner after the expiry of period of limitation. Petitioner preferred an appeal before the Sub-Divisional Collector, Ghumarwin. He remanded the matter to the Assistant Collector 2nd Grade, Bharari on 30.3.2012. Fresh demarcation was carried out by the Tehsildar, Ghumarwin on 26.5.2012. Petitioner was again found to be encroacher upon Khasra No. 328/1 measuring 0-3 bigha. Thereafter, Assistant Collector 2nd Grade, Bharari passed the ejectment order on 30.10.2012. Petitioner feeling aggrieved by the order of Assistant Collector 2nd Grade, Bharari filed Civil Appeal No. 54-13 of 2013 before the District Judge, Bilaspur. It was dismissed by the District Judge on 16.11.2013, being not maintainable. Hence, the present petition. 2. Mr. Vinod Thakur has vehemently argued that since the petitioner has raised the question of adverse possession over the suit land, the matter was required to be heard by the Assistant Collector 1st Grade as per section 163 (3) of the Himachal Pradesh Land Revenue Act, 1954. According to him, he was required to determine the question as if he were a civil court and he was to exercise all such powers as are exercised by a civil court. 3. We have gone through the reply filed by the petitioner filed before the Assistant Collector 2nd Grade. Petitioner in his reply has specifically taken a plea that land measuring 4-17 bighas comprised in Khasra No.1020/1 situated in village Lathyani, Pargana Ajmerpur, Tehsil Ghumarwin, District Bilaspur was granted to his grand-father, namely, Nanku son of Sh. Thitho on 24.5.1962. The possession was delivered to his grand-father. He remained in possession of the same as well as in possession of Nautor land as per delivery of possession on 28.9.1962 openly, peacefully, continuously and without any interruption. Thitho on 24.5.1962. The possession was delivered to his grand-father. He remained in possession of the same as well as in possession of Nautor land as per delivery of possession on 28.9.1962 openly, peacefully, continuously and without any interruption. In case petitioner's grand-father had been granted Nautor land then there was no question of his claiming adverse possession on the same. The owner cannot claim adverse possession qua his own land. It is true that as per section 163 (3) of the Himachal Pradesh Land Revenue Act, 1954, if the plea of adverse possession is taken, the same is required to be adjudicated upon by Assistant Collector 1st Grade by converting himself as a civil court and has to exercise all such powers as are exercisable by a civil court. The person is required to at least show prima facie that he has acquired title by way of adverse possession. Merely making bald assertion that his possession was adverse to the true owner would not entail the matter to be adjudicated upon by the Assistant Collector 1st Grade. In this case, the matter has rightly been adjudicated upon by the Assistant Collector 2nd Grade on the basis of fresh demarcation dated 26.5.2012. The Assistant Collector 2nd Grade was competent to decide the matter. The appeal was maintainable against his order as prescribed under law and not before the District Judge. Since the order has been passed by Assistant Collector 2nd Grade under section 163 (3), the appeal was not maintainable before the learned District Judge. The appeal was maintainable, if the order had been passed by the Assistant Collector 1st Grade by converting himself to a civil court and then passing a decree as per section 163 (4) of the Himachal Pradesh Land Revenue Act, 1954. 4. Accordingly, in view of the analysis and discussion made hereinabove, there is no merit in the petition and the same is dismissed. Pending application(s), if any, also stands disposed of. No costs.