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2015 DIGILAW 1819 (HP)

VINOD KUMAR v. STATE OF HIMACHAL PRADESH

2015-12-08

NARINDER CHAUHAN

body2015
ORDER : 1. This revision Petition under section 17 of the H.P. Land Revenue Act, 1954, has been preferred against the order dated 16.12.2010 passed by Commissioner, Shimla Division in revenue appeal No. 241/2010 vide which order dated 12.5.2010 passed by Sub-Divisional Collector, Nahan in appeal No. 25/2008 and order 18.9.2008 passed by the Id. AC. IInd Grade Dadahu in case No. 5/2007, have been upheld. 2. Briefly stated, the facts of the case as stated in the revision are that on the report of Patwar Circle Dadahu dated 9.3.2007, the AC IInd Grade, Dadahu initiated proceedings under Section 163 of the H.P. land Revenue Act, 1954 against the petitioner qua land comprised in khasra No. 776/411/2 measuring area 0-00-08 big has and passed the eviction orders against the petitioner on 18.9.2008, in case No. 5/2007. 3. Feeling aggrieved by the aforesaid order of the AC IInd Grade, Dadahu, the present petitioner preferred an appeal No. 25/2008 before the Collector, Sub-Division, Nahan mainly on the ground that since, the land in question is in continuous, uninterrupted, open, peaceful, hostile possession of petitioner since 2.3.1973, as such issue of title by way-of adverse possession was raised before the AC IInd Grade and he was requested to refer the matter to AC 1st Grade, but he has declined the request and proceeded illegally to decide the same. The Id. Collector, Nahan dismissed the appeal vide his order dated 12th May, 2010 observing that; "the appellant admitted the encroachment over the suit land, though from a long period, but he was failed to prove the alleged period of encroachment over the suit land in the lower court except one oral evidence which could not be relied upon in absence of solid documentary evidence to prove the possession of the solid documentary evidence to prove the possession of the appellant over the suit land prior to the present reports of Patwari halqua and Field Kanungo about the alleged encroachment. In view of the facts and circumstances narrated above, the question of title is not appeared to have been involved in the case, appealed against." 4. The petitioner, agitated the aforesaid order of the Collector, Nahan by filing further appeal No. 241/10, before the Ld. Collector, Shimla who after hearing the parties and going through the record, dismissed the same. Hence, the present revision petition. 5. I have heard the Ld. The petitioner, agitated the aforesaid order of the Collector, Nahan by filing further appeal No. 241/10, before the Ld. Collector, Shimla who after hearing the parties and going through the record, dismissed the same. Hence, the present revision petition. 5. I have heard the Ld. Counsel for the petitioner and the District Attorney (Revenue) appeared on behalf of the State of H.P. The Ld. Counsel for the petitioner argued that the Ld. Court below has miserably failed to appreciate the evidence and law in its true perspective and passed the impugned order in contravention of the mandate of the statute, which is liable to be set aside, that the petitioner has claimed his possession over land in dispute for more than thirty years, continuous, uninterrupted, open, peaceful, hostile to the knowledge of the state and it has ripened into ownership, by way of adverse possession. That a question of title having arisen was required to be decided by the AC 1st Grade, Nahan but the Court below has failed to follow the mandate of Section 163 (3) and (4) of the H.P. Land Revenue Act, 1954 and passed an illegal order, which is liable to be set aside. He cited 2002 (1) Shim. L.C. 124 in support of his claim. The Ld. Counsel for the petitioner further argued that the demarcation of land in dispute has not been given by the competent authority and as such the order passed by the AC IInd Grade, is liable to be dismissed. He has cited 2013 (3) Shim. L.C. 1303 in support of his claim. Ld. Counsel urged that in view of his foregoing pleading/arguments, the present revision may be allowed and the order of the AC IInd Grade dated 18.9.2008, as well as the order passed by Sub-Divisional Collector, Nahan dated 12.5.2010, in Appeal No. 25/2008 and the orders dated 16.12.2010 of the Commissioner, Shimla, may be set aside in the interest of justice. 6. In reply the Ld. District Attorney (Revenue) appearing on behalf of respondent State argued that the Ld. AC 2nd Grade has righty passed the order of eviction against the petitioner has totally failed to produce any substantial documentary evidence to prove his plea of adverse possession. Ld. 6. In reply the Ld. District Attorney (Revenue) appearing on behalf of respondent State argued that the Ld. AC 2nd Grade has righty passed the order of eviction against the petitioner has totally failed to produce any substantial documentary evidence to prove his plea of adverse possession. Ld. DA further averred that the plea of the petitioner that demarcation has not been given by the competent authority' is not sustainable because the land in question is not abutting to the land of the petitioner. 7. On considering the arguments advanced by the Ld. Counsel for both the parties and carefully going through the contents of revision petition and record of courts below, it is evident that the petitioner had encroached upon the land in dispute, which clearly belongs to the Government of Himachal Pradesh. Mere raising the question of title or adverse possession does not make it incumbent upon the Revenue Officer to accept it, as he has to ascertain and determine whether such a question is involved or not, such a plea cannot be taken to thwart the process of eviction. There was no material placed before AC 2nd Grade, whereby he could reasonably assess that a question of title is involved. The Hon'ble High Court of H.P. (Justice Rajiv Sharma) in case Bishan Dass v. State, 2011 (2) HLR 829 , has held that "if the Revenue Officer is satisfied that yes this question arises, only in those cases, he has to determine this question as if he were a Civil Court." In the instant case, the petitioner could not produce any substantial documentary evidence before the AC 2nd Grade, to establish his claim of adverse possession. So far has the citation quoted by the Ld. Counsel for petitioner qua demarcation is concerned, the same is not applicable in the instant case because the land in question does not abut the private land of the petitioner. Moreover, now the Financial Commissioner (Revenue) to the Government of Himachal Pradesh has issued instructions vide letter No. Rev. B.A. (3)-3/2012 dated 13th September, 2012, empowering the Field Kanungo to demarcate such Government land or private land abutting the government land, subject to provisions of Section 107 of the H.P. Land Revenue Act, 1954. 8. Keeping in view of the foregoing observations, I am of the view that the Ld. B.A. (3)-3/2012 dated 13th September, 2012, empowering the Field Kanungo to demarcate such Government land or private land abutting the government land, subject to provisions of Section 107 of the H.P. Land Revenue Act, 1954. 8. Keeping in view of the foregoing observations, I am of the view that the Ld. AC 2nd Grade, has rightly passed the eviction orders dated 18.9.2008, in case 5/2007, against the present petitioner which has further been rightly upheld by both appellate courts. Hence, I find no reason to interfere in the findings of the courts below and the same are upheld and present revision petition is accordingly dismissed. 9. Announced in open court on 8.12.2015. The records of the courts below be returned and file of this court be consigned to the record room after due completion.