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2014 DIGILAW 220 (HP)

Baso v. Lakshmi Devi

2014-03-20

TARLOK SINGH CHAUHAN

body2014
JUDGMENT Tarlok Singh Chauhan, Judge Both these appeals arise out of the judgment and decree passed by learned Additional District Judge-II, Kangra at Dharamshala in Civil Appeal No.60-K/1999 decided on 26.11.2001 whereby learned Additional District Judge reversed the judgment and decree dated 23.4.1999 passed by learned Sub Judge-I, Dharamshala, District Kangra in Civil Suit No. 62-A/97/90 and consequently decreed the suit as prayed for. 2.The appellant is defendant. The plaintiff/respondent instituted a suit for declaration to the effect that the land comprised in Khata No. 58 min, Khatauni No. 107 min, Khasra No. 165 area 0-04-81 hectares jamai 0-29 Ps as per jamabandi for the year 1986-87 situated at Mohal Thamba Mauza Rehloo, Tehsil and District Kangra, H.P. (hereinafter referred to as the 'suit land') was obtained by the plaintiff on 'Chakota' in the year 1962 from Gram Panchayat, Rehloo alongwith his brothers on payment of yearly rent of !1 0/- and continuously thereafter made the land fit for cultivation and plaintiff/respondent is paying rent as 'Gair Marusi tenant' under the defendant No.2 i.e. State Government and the defendant/respondent No.1 has got no right, title or interest with the land in question. It was also averred that the revenue entry effected in pursuant to mutation No. 41 regarding allotment and thereby change of ownership in favour of defendant No.1 was contrary to law and liable to be set-aside. 3.The suit was contested and resisted by defendant/ respondent No.1 on the ground that the suit was not maintainable since no notice under Section 80 of the Code of Civil Procedure had been served upon the State, the plaintiff was estopped by his act and conduct to file the suit and that the suit was time barred and had not been properly valued for the purpose of Court fee and jurisdiction. On merits, it was averred that the defendant/respondent No.1 has rightly become the owner of the suit land pursuant to mutation No.41 dated 30.1.1979 attested in his favour. The State of Himachal Pradesh was the owner of the land, who had allotted the same in favour of defendant No.1 under the provisions of H.P. Village Common Lands (Vesting and Utilisation) Act, 1974 (hereinafter referred to as the 'Act'). 4.The defendant No.2 filed separate written statement in which preliminary objections regarding maintainability of the suit, jurisdiction, locus-standi and non-service of notice under Section 80 CPC were raised. 4.The defendant No.2 filed separate written statement in which preliminary objections regarding maintainability of the suit, jurisdiction, locus-standi and non-service of notice under Section 80 CPC were raised. On merits, it was averred that during the settlement operation which took place in Mohal Thamba, Mauza Rehloo during 1971-72, the land owned by the Panchayat was vested under the State of Himachal Pradesh vide mutation No. 19 dated 5.8.1975 inclusive of the suit land. The plaintiff had not objected at the time of attestation of the mutation which had been done in the presence of respectable persons of the locality. The plaintiff had not even preferred any appeal before the competent revenue authority. It was lastly stated that since the State of Himachal Pradesh had become complete owner of the suit land comprised in Khasra No. 165, it had allotted the same to defendant No.1 vide mutation No. 41 dated 30.1.1979. 5.The replication was filed on behalf of the plaintiff in which all the averments made in the plaint were reiterated and those of the written statements has been refuted and denied. On the pleadings of the parties, the learned trial Court on 16.12.1992 framed the following issues: 1. Whether the suit land was validly allotted on payment of Chakota to the plaintiff by the G.P. Rehloo, as alleged? If so, its effect? OPP 2. Whether the plaintiff has made improvement over the suit land, if so, its nature and extent? OPP 3. Whether the revenue entries in the name of defendant No.1 are wrong? OPD 4. Whether the suit is not maintainable in the present form ?OPD 5. Whether this court has no jurisdiction to try the suit? OPD 6. Whether the plaintiff has no locus standi to sue? OPD 7. Whether the suit is barred as alleged? OPD 8. Whether the suit is bad for want of necessary parties? OPD 9. Whether valid notice u/s 80 CPC has not been served on defendant No.2, as alleged? If so, its effect? OPD 10. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD 11. Relief. 6.After recording the evidence, the learned trial Court vide its judgment and decree dated 23.4.1999 dismissed the suit of the plaintiff. If so, its effect? OPD 10. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD 11. Relief. 6.After recording the evidence, the learned trial Court vide its judgment and decree dated 23.4.1999 dismissed the suit of the plaintiff. 7.Aggrieved by the judgment and decree passed by the learned trial Court, the plaintiff/respondent No.1 preferred an appeal before the learned 1st Appellate Court, who vide its judgment and decree dated 26.11.2001 had been placed to accept the appeal and accordingly the suit filed by the plaintiff has been ordered to be decreed as prayed for. It is this judgment which has been preferred not only by the defendant No.1 but also defendant No.2 by way of RSA No. 80 of 2002 and RSA No. 334 of 2002, respectively. 8.On 29.5.2002 this Court was pleased to admit RSA No. 80 of 2002 on the following substantial questions of law No. 2 and 3: 2. Whether the possession over the land is not vested in the State of Himachal Pradesh on the vesting of the land to the State of Himachal Pradesh from the Panchayat under the provisions of Himachal Pradesh Village Common Land (Vesting and Utilisation) Act, 1975? 3 .Whether an allotment made under Section 4 of the H.P. Village Common Land (Vesting and Utilisation) Act, 1975, can be set aside in the absence of any pleadings or evidence to that effect? Insofar as RSA No. 334 of 2002 is concerned, this Court vide order dated 12.11.2002 this Court was pleased to connect this appeal with RSA No. 80 of 2002 and it was further ordered that this appeal is also admitted on the same substantial questions of law as in RSA No. 80 of 2002. 9. I have heard the learned counsel for the parties and records of the case have been perused. Mr. Virender Singh Rathour, learned counsel for the appellant in RSA No. 80 of 2002 and Mr. Virender Kumar Verma, learned Additional Advocate General for the appellant in RSA No. 334 of 2002 have strenuously argued that the learned lower Appellate Court has completely ignored the provisions of Section 3 of the Act and thereby reached wrong conclusion. Mr. Virender Singh Rathour, learned counsel for the appellant in RSA No. 80 of 2002 and Mr. Virender Kumar Verma, learned Additional Advocate General for the appellant in RSA No. 334 of 2002 have strenuously argued that the learned lower Appellate Court has completely ignored the provisions of Section 3 of the Act and thereby reached wrong conclusion. They further contended that once the plaintiff had not challenged the vestment of the land in favour of the State Government and the subsequent allotment made by the State Government in favour of the appellant/defendant Baso, then the suit filed by him was not maintainable. 10.I have considered the submissions made by the learned counsel for the parties and since both the substantial questions of law are inter-linked and inter-connected, therefore, I proceed to deal with by common reasoning. 11.The only point which arises for consideration is as to whether the State Government after having become complete owner of the property by vestment in terms of Section 3 of the Act could deal with the property in any manner it liked without taking into consideration the provisions of lease, contract or agreement entered into between the Panchayat in respect of any land which had vested in the Panchayat under the Punjab Village Common Lands (Regulation) Act, 1961. The answer to such a proposition is definitely in the negative in view of the provisions contained in Section 4 of the Act, which reads as under: "4. (1) The Collector shall call for from Panchayats in his district, the record of leases, contracts or agreements entered into by the Panchayats in respect of any land vested in the Panchayats under the Punjab Village Common Lands (Regulation) Act, 1961, and the Rules made thereunder and examine such record for satisfying himself as to the legality or propriety of such leases, contracts or agreements. (2) Where on examination of the record under subsection (1) and after making such enquiry as he deems fit, the Collector is satisfied that such leases, contracts or agreements are in accordance with the provisions of the said Act and rules, he shall pass orders declaring such leases, contracts or agreements having been made on behalf of the State Government. (2) Where on examination of the record under subsection (1) and after making such enquiry as he deems fit, the Collector is satisfied that such leases, contracts or agreements are in accordance with the provisions of the said Act and rules, he shall pass orders declaring such leases, contracts or agreements having been made on behalf of the State Government. (3) Where on such examination and enquiry the Collector finds that a lease, contract or agreement has been entered into in contravention of any of the provisions of the said Act or the rules made thereunder or has been enteredinto as a result of fraud or concealment of facts or is detrimental to the interest or the estate right-holders, he shall conceal such a lease, contract or agreement and such person shall be liable to ejectment under the provisions of Section 150 of the Punjab Land Revenue Act, 1887.Provided that no order under sub-section (2) and (3) of this Section shall be passed by the Collector without affording an opportunity of being heard to the parties to the lease, contract or agreement." 12.On a bare perusal and examination of the aforesaid provision, it is clear that sub section (1) of Section 4, it is mandatory for the Collector to call for the records of leases, contracts or agreements entered into by the Panchayats in respect of any land vested in the Panchayats under the provisions of the Punjab Village Common Lands (Regulation) Act, 1961 and thereupon on examination of the said record and after holding enquiry, the Collector if satisfied that such leases, contracts or agreements are in accordance with law is required pass orders regularizing such leases, contracts or agreements. 13.In the present case, it has been established on record that the suit land was allotted to the plaintiff/respondent in 1962 on payment of 'Chakota' by the Gram Panchayat, Rehloo. In the year 1970 it was again allotted by the Gram Panchayat and till 1975 it continued to remain in possession of the appellant. Thus, even at the time when the Act came into force, the plaintiff/respondent was in possession of the land and accordingly his case was required to be dealt with in strict compliance and conformity with the provisions of Section 4 of the Act. Thus, even at the time when the Act came into force, the plaintiff/respondent was in possession of the land and accordingly his case was required to be dealt with in strict compliance and conformity with the provisions of Section 4 of the Act. It was obligatory upon the Collector to make an examination of the record under sub-section (1) of Section 4 and it is only after making such enquiry as he deemed fit, the Collector was required to pass further order in this regard. In case the Collector was satisfied that such leases, contracts or agreements were in accordance with the provisions of the Act and Rules, he was to pass such order declaring such leases, contracts or agreements having been made on behalf of the State Government. But in case on such examination and enquiry the Collector found that a lease, contract or agreement had been entered into in contravention of any of the provisions of the Act or the Rules made thereunder or had been entered into as a result of fraud or concealment of facts or was detrimental to the interest of the estate right-holders, he was supposed to cancel such contract or agreement and such person was liable to be ejected under the provisions of Section 150 of the Punjab Land Revenue Act. Admittedly in this case, no such exercise as prescribed under the provisions of Section 4 of the Act has been undertaken by the Collector. 14. The learned counsels representing the appellant(s) in both the appeals strenuously argued that the vesting of the rights in the State Government was automatic in terms of Section 3 of the Act, which reads as under: "3. 14. The learned counsels representing the appellant(s) in both the appeals strenuously argued that the vesting of the rights in the State Government was automatic in terms of Section 3 of the Act, which reads as under: "3. Vesting of rights in the State Government-(1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any agreement, instrument, custom or usage or any decree or order of any court or other authority, all rights, title and interests including the contingent interest, if any, of the landowner in the lands in any estate- (a) vested in a Panchayat under-section 4 of the Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961) as in force in the areas added to Himachal Pradesh under section 5 of the Punjab Re-organisation Act, 1966 (31 of 1966) except lands, used or reserved for the benefit of village community including streets, lanes, playgrounds, school, drinking wells or ponds within abadi deh or gorah deh; (b) described in the revenue records as shamlat taraf, patties, pannas, thola, shamlat, shamlat deh, shamlat chak, shamlat tika or by any such other description and not used according revenue records for the benefit of the community in the village or a part thereof or for common purposes of the village in the areas added to Himachal Pradesh under section 5 of the Punjab Reorganisation Act, 1 966; and (c ) described in the revenue records as shamlat, shamlat deh, shamlat taraf, shamlat chak, patti or by any other such description in the areas comprised in Himachal Pradesh immediately before 1st November, 1966;shall stand extinguished and all such rights, title and interests shall vest in the State Government free from all encumbrances. (2) The provisions of sub-section (1) of this section shall not apply lands described in clauses (b) and (c ) of that subsection if, before the date of commencement of this Act- (a) partition of such lands is made by the individual co- sharers through a process of law by a competent court or authority; (b) transfer of such lands is made by the landowner by way of sale gift or exchange; (c) such land built upon by an inhabitant by raising a residential house or cow-shed. (d) land recorded as "shamlat tika Hasab Rasad Malguzari" or by any such other name in the ownership column of jamabandi and assessed to land revenue and has been continuously recorded in cultivating possession of the Co- sharers so recorded before 26th January, 1950 to the extent or their shares therein:Provided that the provisions of this clause shall not be applicable to such lands which have already been put to use by the Government. (3) The State Government shall be liable to pay, and the landowners whose rights have been extinguished under subsection (1) of this section shall be entitled to receive, the amount in lieu thereof, at the following rates:- (i) for the land reserved for grazing and other common purposes under clause (a) of sub-section (1) of section 8, five times the annual land revenue including rates and cesses chargeable thereon; and (ii) for the remaining land, fifteen times the annual land revenue including rates and cesses chargeable thereon:Provided that where the land vested in the State Government under this Act is not assessed to land revenue, the same shall be construed to be assessed as on similar land in the estate and if not available in the estate then in the adjoining estate or estates, as the case may be. (4) The amount paid to a Panchayat under section 7 shall be deemed to be the Sabha Fund and shall be utilized for such purposes as are mentioned in section 40 of the Himachal Pradesh Panchayati Raj Act, 1968, (19 of 1970). (5) the Collector may, by order in writing, at any time after the land vested in the State Government, direct the landowners to deliver possession thereof within 10 days from the service of the order to such person as may be specified in the order. (6) If the landowners refuse or fail without reasonable cause to comply with the order made under sub-section (5), the Collector may take possession of the land and may for that purpose use, such force as may be necessary." 15.In support of their plea, the learned counsels have relied upon the decision of this Court in Gram Panchayat Khunyara etc. vs. State of Himachal Pradesh etc. ILR 1978 (HP) 225. vs. State of Himachal Pradesh etc. ILR 1978 (HP) 225. There is no quarrel with the proposition that in terms of Section 3 of the Act, the vestment of the property, which either to before coming of the Act vested in the Panchayat under Section 4 of the Punjab Village Common Lands (Regulation) Act, 1961 would automatically vest in the State Government. But then, what would happen to the existing or subsisting leases, contracts or agreements, which had been validly entered into by the Gram Panchayat, who prior to coming into force of the Act, were the complete owners of such land. Provisions for this was set out and taken care of under Section 4 of the Act (supra). 16.That State Government has failed to prove when it came into possession over the suit land and, therefore, there is no question of the appellant Basu Ram, being in possession of the suit land. 17.Once no enquiry was held by the Collector as was contemplated and required to be conducted under Section 4 of the Act, the respondent/plaintiff was under no legal obligation to have challenged either the vestment or allotment made in favour of the appellant/ defendant as the possession of the land remained with the plaintiff/respondent. 18.Even otherwise when the respondent/plaintiff has claimed herself to be a tenant under the Panchayat, mere fact of vesting of the property from the Gram Panchayat to the State Government does not in any manner affect the right, title or interest of the plaintiff/respondent and, therefore, she was under no obligation to challenge such an order. Both the substantial questions of law are answered accordingly. 19.I do not find any merit in both these appeals and the same are accordingly dismissed without any order as to costs.