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2015 DIGILAW 717 (HP)

Pradeep Kumar v. State of H. P.

2015-06-18

RAJIV SHARMA

body2015
JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 7.4.2001 rendered by the Addl. District Judge, Solan in Civil Appeal No. 6-S/13 of 2000. 2. “Key facts” necessary for the adjudication of this appeal are that the appellant-plaintiff (herein after referred to as ‘plaintiff’ for convenience sake) instituted a suit for declaration with consequential relief of injunction stating therein that the predecessor in interest of Puran Singh son of Wazir Singh had purchased a plot No.5, Block-B, Saproon Mandi, Solan, now depicted as Khasra Nos. 827, 828, 829, 833, 834, 879 and 882 as per Jamabandi for the year 1992-93 Mauja Dahun, Tehsil and District Solan, H.P. Puran Singh remained owner in possession of the land till his death. He died on 1.11.1995. Plaintiff succeeded to the property as sole successor on the basis of registered will dated 13.10.1992. It was registered before the Sub-Registrar, Patiala. Plaintiff came to know from the record of the Administrator, Saproon Mandi, Solan that the Administrator has resumed the property in favour of State of Himachal Pradesh vide case No. SP No. 8/1980 dated 29.6.1981. Plaintiff was owner in possession of the same and the predecessor-in-interest of the plaintiff was not afforded hearing by the respondents/defendants (hereinafter as the ‘defendants’ for the convenience sake) at any point of time. Notice under Section 80 of the Code of Civil Procedure dated 8.4.1997 was served upon the defendants. 3. The suit was contested by the defendants. According to them, plot No.5 Block-B was reported to have been purchased by Sh. Puran Singh. Patwari, Saproon Mandi made a report on 28.8.1980 that the bidder has not constructed the house within the prescribed period of 2 years, and thus, he has violated the condition of auction. Since the residential address of Puran Singh was not available, therefore, a general public notice was published in the weekly gazette dated 28.2.1981 requiring all the bidders to complete the construction after getting the plans approved from the defendants. They were granted 30 days period, failing which the plot could be resumed. Thereafter, the plot was resumed by the Administrator (Deputy Commissioner, Solan) and the order was given effect to in the revenue record on 1.12.1981. 4. Replication was filed by the plaintiff. Issues were framed by the Sub Judge on 21.4.1998. Sub Judge decreed the suit on 15.1.2000. They were granted 30 days period, failing which the plot could be resumed. Thereafter, the plot was resumed by the Administrator (Deputy Commissioner, Solan) and the order was given effect to in the revenue record on 1.12.1981. 4. Replication was filed by the plaintiff. Issues were framed by the Sub Judge on 21.4.1998. Sub Judge decreed the suit on 15.1.2000. Defendants preferred an appeal before the Additional District Judge, Solan. He allowed the same on 7.4.2001. Hence, the present appeal. It was admitted on 27.6.2001 on the following substantial questions of law: 1. “Whether the suit by the plaintiff-appellant as laid is within time? 2. Whether the provisions of H.P. New Mandi Townships (Development and Regulation) Act, 1973 are not applicable to the facts of the present case?” 5. Mr. Neeraj Gupta, learned counsel for the appellant, has vehemently argued that the suit was within limitation from the date of knowledge. He has also contended that provisions of H.P. New Mandi Townships (Development and Regulation) Act, 1973 were not applicable in the present case. 6. Mr. Shrawan Dogra, learned Advocate General has supported the judgment and decree passed by the first appellate court. 7. I have heard the learned counsel for the parties and have gone through the records carefully. 8. Since both the substantial questions of law are interlinked, they are being discussed together to avoid repetition of discussion of evidence. 9. It is not in dispute that the predecessor interest of the plaintiff Sh. Puran Singh has purchased the plot in the year 1940 in public auction. Puran Singh has executed “will” Ex.PW-3/A in favour of the plaintiff on 13.10.1992. The land has been resumed vide order dated 31.6.1981. Plaintiff came to know about the resumption of the plot vide order dated 29.6.1981 only on 8.4.1997 when he visited the office of Administrator. Notice under section 80 of the Code of Civil Procedure was served upon the defendants. Possession of the land despite order dated 29.6.1981 was not taken by the defendants. Suit was thus within the period of limitation from the date of knowledge. Plaintiff came to know about the impugned order on 8.4.1997 and the suit was filed on 18.6.1997. Thus, the first appellate court has come to a wrong conclusion that the suit was barred by limitation. 10. Suit was thus within the period of limitation from the date of knowledge. Plaintiff came to know about the impugned order on 8.4.1997 and the suit was filed on 18.6.1997. Thus, the first appellate court has come to a wrong conclusion that the suit was barred by limitation. 10. PW-1 Bhagwan Singh, Registration Clerk office of the Sub-Registrar, Patiala has produced the summoned record and as per summoned record, “will” No. 363 was executed on 13.10.1992. Entry of the “will” was recorded at Sr. No. 363 Bahi No.3 and Zild No. 126. 11. PW-2 Om Parkash Garg was Document Writer. Puran Singh came to him for the execution of “will”. The “will” was scribed by him at the instance of Puran Singh. Contents of the will were read over to Puran Singh. Puran Singh was in his senses. He after admitting the contents of the “will” to be correct signed the same. 12. According to PW-3 Rachpal Singh, Om Parkash has scribed the “will”. Contents of the “will” were read over and explained to the testator. He after admitting the contents of the “will” to be true signed the same. Thereafter, marginal witnesses signed the “will”. It was registered before the Sub-Registrar. 13. PW-4 Pardeep Kumar has proved the death certificate Ex.PW-4/A. According to him, Puran Singh has executed the “will” Ex.PW-3/A in his favour in the month of October, 1992. The suit land was resumed by the defendants vide order Ex.PW-4/H. Puran Singh was in possession of the suit land. No summons were issued. He came to know about the order on 8.4.1997. Notice Ex.PW-4/K was issued. He has proved postal receipt Ex.PW-4/L. According to him, revenue entry Ex.PW-4/B was wrong. 14. DW-1 Dhani Singh has deposed that as per record plot No.5 Block-B area 5 biswas was allotted to deceased Puran Singh. Puran Singh did not raise construction within 2 years over the plot for which purpose it was allotted. On 28.8.1980, a report was given by the Halqua Patwari. A notice was given to the allottee. Allottee did not appear despite notice and on 29.6.1981, plot was resumed by the State. 15. Puran Singh did not raise construction within 2 years over the plot for which purpose it was allotted. On 28.8.1980, a report was given by the Halqua Patwari. A notice was given to the allottee. Allottee did not appear despite notice and on 29.6.1981, plot was resumed by the State. 15. It has come on record that a notice was published in the weekly gazette dated 28.2.1981 requiring all the bidders to complete the construction after getting the plans approved within 30 days order dated 29.6.1981 has been passed by the Administrator in exercising the powers vested in him under H.P. New Mandi Townships (Development and Regulation) Act, 1973. The plot, admittedly, has been purchased by Sh. Puran Singh in the year 1940. Thus, the previsions of the H.P. New Mandi Townships (Development and Regulation) Act, 1973 were not applicable. Order dated 29.6.1981 is without jurisdiction. 16. The question raised in the present Regular Second Appeal is no more res integra in view of the principles laid down by Division Bench of this Court in CWP No. 303/1984 decided on 4.4.1984. Operative portion of the judgment dated 4.4.1984 reads as under: “It would thus appear that for the applicability of the Act, subject to other conditions, the sale must have been made: 1. Under the provisions of the Act, or 2. Under the provisions of the Punjab Act, or 3. Under the notification No. 359-D(M)-57/884, dated March 5, 1957 of the Punjab Government Agriculture Department. Unless the sale falls under anyone of the aforesaid categories, the power of resumption or forfeiture under Section 14 of the Act cannot possibly be exercised. In the instant case, the petitioner claims that the land in dispute was purchased at a public auction by his deceased father in or about 1940. The fact that the land in dispute was sold at a public auction in 1940 by the ex-Patiala State is not in dispute, though the title of the petitioner is disputed. Under the circumstances, it is apparent that the power of resumption of forfeiture cannot be exercised under Section 14 of the Act. The Act does not apply in such cases. Any such exercise of power is wholly without authority and jurisdiction. On this short ground alone, the petition is entitled to succeed.” 17. It is reiterated that the suit was filed within limitation from the date of knowledge. The Act does not apply in such cases. Any such exercise of power is wholly without authority and jurisdiction. On this short ground alone, the petition is entitled to succeed.” 17. It is reiterated that the suit was filed within limitation from the date of knowledge. The plot could not be resumed under section 14 of the H.P. New Mandi Townships (Development and Regulation) Act, 1973 since the same has been purchased in the year 1940. 18. Both the substantial questions of law are answered accordingly. 19. In view of the analysis and discussion made herein above, present appeal is allowed. Judgment and decree dated 7.4.2001 rendered by the Additional District Judge Solan in Civil Appeal No. 6-S/13 of 2000 is set aside and the judgment and decree dated 15.1.2000 rendered by the Sub Judge, Kasauli at Solan in case No. 233/1 of 1997 is restored. Pending applications, if any, also stands disposed of. There shall, however, be no order as to costs.