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2015 DIGILAW 245 (HP)

Singhu Ram v. State of H. P.

2015-03-26

RAJIV SHARMA

body2015
JUDGMENT : Rajiv Sharma, J. This regular second appeal is directed against the judgment and decree dated 8.7.2002, of the learned District Judge, Kinnaur, Civil Division at Rampur Bushahr, H.P., rendered in Civil Appeal No. 1 of 2002. 2. Key facts, necessary for the adjudication of this second appeal are that the appellant-defendant had instituted application on 19.5.1993 before the Settlement Collector and requested that he be recorded in possession of Kh. Nos. 973/1 and 965/1, measuring 0-19-73 hectare of revenue estate Karoli. The Settlement Collector referred the application to the A.C. Ist Grade-cum-Tehsildar, Rampur for necessary action. The A.C. Ist Grade-cum-Tehsildar, Rampur Bushahr, referred the application to Settlement Naib Tehsildar. The field agency of the settlement had carried out the local investigation and proceeded to record the appellant in possession of Kh. Nos. 973/1 and 965/1, measuring 0-19-73 hectare without any status. The proceedings were initiated against the appellant under Section 163 of the H.P. Land Revenue Act, 1953 (hereinafter referred to as the Act). These proceedings were transferred to A.C. IInd Grade, Nankhari for necessary action. The A.C. IInd Grade, Nankhari, on 17.9.1997 issued order of ejectment of appellant from the land in question. The appellant preferred Civil Appeal No. 23 of 1997 against the order dated 17.9.1997, before the learned District Judge, Kinnaur at Rampur Bushahr. The learned District Judge, Kinnaur at Rampur Bushahr, allowed the appeal vide judgment dated 20.2.1998 and remanded the matter to A.C. IInd Grade for disposal afresh in accordance with law. The appellant did not appear before the A.C. IInd Grade, Nankhari on 6.3.1998. The ejectment order was passed by the A.C. IInd Grade, Nankhari. The warrant of ejectment was issued against the appellant on 6.4.1998. The appellant was ejected on 18.7.1998. Report No. 492 was registered by the Field Kanungo in the Daily Diary of the village Patwari on 18.7.1998. The appellant moved an application for setting aside the ex-parte order dated 6.3.1998. The A.C. IInd Grade, on 3.7.1998 rejected the applications of the appellant on the ground of limitation. The appellant preferred an appeal bearing FAO No. 282/98 in this Court against the order dated 3.7.1998. This Court allowed the FAO No. 282/98 on 28.8.1998 and ex-parte order dated 6.3.1998 was set aside. The parties were directed to appear before the A.C. IInd Grade, Nankhari on 25.9.1998. 3. The A.C. IInd Grade, Nankhari, referred the proceedings to the Collector. The appellant preferred an appeal bearing FAO No. 282/98 in this Court against the order dated 3.7.1998. This Court allowed the FAO No. 282/98 on 28.8.1998 and ex-parte order dated 6.3.1998 was set aside. The parties were directed to appear before the A.C. IInd Grade, Nankhari on 25.9.1998. 3. The A.C. IInd Grade, Nankhari, referred the proceedings to the Collector. Vide order dated 2.11.2000, the Collector transferred the proceedings under Section 163 of the Act against the appellant to the A.C. Ist Grade, Rampur. The A.C. Ist Grade, Rampur has taken up the proceedings on 26.12.2000. The appellant did not file any written statement despite opportunity granted. The matter was adjourned repeatedly. The A.C. Ist Grade, Rampur, decided the question of adverse possession against the appellant. The A.C. Ist Grade, Rampur returned the findings that the respondent-plaintiff was in possession of the suit land comprised in Kh. Nos. 973/1 and 965/1, measuring 0-19-73 hectare, situated in Chak Karoli and the appellant has encroached upon the suit land. It was also observed by him that the appellant stood dispossessed from the suit land. The appellant has filed an appeal before the learned District Judge, Rampur Bushahr. The learned District Judge, Rampur Bushahr, dismissed the same on 8.7.2002. Hence, this regular second appeal. 4. This regular second appeal was admitted on 22.10.2002 on the following substantial questions of law: “1. Whether the Hon’ble High Court of H.P. having set-aside the order dated 6.3.1998 in FAO No. 282/98, on which date, the appellant was proceeded exparte, therefore, trial of the suit was required to be carried afresh and, since, this has not been done, therefore, findings by both the courts below are vitiated. 2. Whether in the absence of plaint on behalf of the respondent, ld. Assistant Collector Ist Grade was not competent to proceed in the matter and the appellant could have been required to file written statement, only when there was a valid plaint.” 5. Mr. G.D.Verma, learned Senior Advocate, on the basis of the substantial questions of law framed, has vehemently argued that both the Courts below have not correctly appreciated the oral as well as documentary evidence on record. He then contended that after the judgment rendered by this Court in FAO No. 282 of 1998 dated 6.3.1998, the trial of the suit was required to be carried out afresh. He then contended that after the judgment rendered by this Court in FAO No. 282 of 1998 dated 6.3.1998, the trial of the suit was required to be carried out afresh. He lastly contended that his client was not required to file written statement. On the other hand, Mr. Parmod Thakur, Addl. Advocate General for the respondent-State has supported the judgment and decree/orders passed by the Courts below. 6. I have heard the learned Advocates for both the sides and gone through the records of the case carefully. 7. Since both the substantial questions of law are interconnected, hence are being taken up together for disposal. 8. The appellant has moved an application for recording his possession over Kh. Nos. 973/1 and 965/1, measuring 0-19-73 hectare, situated in Chak Karoli. The Field Agency has carried out local inspection. The Agency has proceeded to record the appellant in possession of Kh. Nos. 973/1 and 965/1, measuring 0-19-73 hectare, situated in Chak Karoli, as encroacher. The eviction proceedings were initiated against the appellant under Section 163 of the Act. The order of ejectment was passed against the appellant on 17.9.1997. The learned District Judge, Kinnaur at Rampur Bushahr set aside the order dated 17.9.1997 and order the parties to appear before the A.C. IInd Grade on 6.3.1998. The appellant was proceeded exparte by the A.C. IInd Grade, Nankhari and warrant of ejectment was issued against him on 6.4.1998. It was duly executed on 18.7.1998. The necessary entries were made in the daily dairy of the village Patwari on 18.7.1998 vide report No. 492. The appellant moved an application on 27.6.1998 for staying the operation of the order dated 6.3.1998 and also moved an application for setting aside the orders dated 6.3.1998. The A.C. IInd Grade, Nankhari, dismissed the application(s) of the appellant, which led to the filing of FAO No. 282/1998 before this Court. This Court vide order dated 28.8.1998, allowed the first appeal. The Collector has transferred the proceedings to A.C. Ist Grade, Rampur. The appellant did not file any written statement, though numerous opportunities were granted to him. Since no written statement was filed, the matter was decided by the A.C. Ist Grade, Rampur on 5.9.2001 by passing a detailed and speaking order. The A.C. Ist Grade, Rampur has framed the issues and has found the appellant to be encroacher upon the suit land i.e. over Kh. Nos. Since no written statement was filed, the matter was decided by the A.C. Ist Grade, Rampur on 5.9.2001 by passing a detailed and speaking order. The A.C. Ist Grade, Rampur has framed the issues and has found the appellant to be encroacher upon the suit land i.e. over Kh. Nos. 973/1 and 965/1, measuring 0-19-73 hectare. 9. The appellant had already been ejected when the FAO No. 282 of 1998 was allowed by this Court on 28.8.1998. It was incumbent upon the appellant to file written statement and lead his evidence to prove the plea of adverse possession by taking specific plea. The A.C. IInd Grade, Nankhari, has examined Sh. Bala Nand, Field Kanungo on 30.8.2000. The appellant was given full opportunity to cross-examine the witness but the appellant despite opportunity has not cross-examined Sh. Bala Nand, Field Kanungo on 30.8.2000. The appellant has not disclosed in the grounds of appeal in FAO No. 282 of 1998 that he stood ejected on 18.7.1998. His wife and son were present on the spot at the time of his dispossession. There is no merit in the contention of Mr. G.D.Verma, learned Senior Advocate that the trial of the suit was required to be carried out afresh after the orders dated 6.3.1998 rendered in FAO No. 282 of 1998. The appellant, as noticed hereinabove, was given opportunity to file written statement, lead his evidence and cross-examine the witness produced by the respondent-State. He has neither filed any written statement to the notice served upon him under Section 163 of the Act, nor has he led any evidence. The learned Courts below have correctly appreciated the oral as well as the documentary evidence on record. The substantial questions of law are answered accordingly. 10. Consequently, there is no merit in this regular second appeal, the same is dismissed. No costs.