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Himachal Pradesh High Court · body

2016 DIGILAW 108 (HP)

Anjana D/o. Sh. Partap Singh v. State of H. P.

2016-02-24

P.S.RANA

body2016
ORDER : P.S. Rana, J. Present civil writ petition is filed under Article 226 of Constitution of India with the prayer to delete the illegal and wrong entry of ‘Amda forest Kasauli’ recorded by the non-petitioners in the record of rights relating to land comprised in Khata No.147 Khatauni No. 257 Khasra No. 2525/76 measuring 7 bighas and 9 biswas situated at Mohal Kasauli Tehsil Kasauli Distt. Solan (H.P.). BRIEF FACTS OF THE CASE 2. It is pleaded that w.e.f. 1946 to 1973 land in question was recorded as ‘Grazing field’ in the record of rights. It is further pleaded that in the year 1976 proprietary rights granted to Kanshi Ram and Paras Ram under the H.P. Tenancy and Land Reforms Act. It is further pleaded that on 06.03.1976 wrong entry of ‘Amda forest Kasauli’ was recorded in the record of rights. It is further pleaded that this entry is continuing in the revenue record. It is further pleaded that land in dispute is purchased by the petitioner vide registered sale deed on 27.01.2010 in consideration amount of Rs.35 lacs. It is further pleaded that thereafter on 20.04.2010 notice was issued for correction of wrong entry in the revenue record. It is further pleaded that suit land was earlier owned by Ruler of Baghat State before merger of the State in the dominion of India. It is further pleaded that in the month of December 2010 non-petitioner No.3 was advised to file a case in the competent Court of law. It is further pleaded that w.e.f. 1946 till 1973 land in dispute was shown as ‘Grazing field’ and in the subsequent jamabandi i.e. 1977-1978 wrong entry was recorded in the record of rights. Prayer for acceptance of civil writ petition sought. 3. Per contra response filed on behalf of non-petitioner No.1 pleaded therein that land in question is demarcated protected forest under the title D-246 Kasauli forest and is entirely in possession of the Forest Department since long back and is protected by boundary pillars. It is further pleaded that earlier land in dispute was owned by Ruler of Baghat State before merger and thereafter after the independence of the country said land was notified as D-246 Kasauli forest vide Govt. of Himachal Pradesh Gazette Notification No.51 dated 17.12.1960. It is further pleaded that forest is continuing in possession of the Forest Department since long back. of Himachal Pradesh Gazette Notification No.51 dated 17.12.1960. It is further pleaded that forest is continuing in possession of the Forest Department since long back. It is further pleaded that as per order of Hon’ble Apex Court of India announced in Writ Petition (C) No.202 of 1995 dated 12.12.1996 titled T.N. Godavarman vs. Union of India and others land in dispute would come under the forest land. It is further pleaded that Forest Department is under the full control over the suit land. It is further pleaded that tenancy right could not be claimed upon Government land. Prayer for dismissal of civil writ petition sought. 4. Per contra separate response filed on behalf of non-petitioners No.2 & 3 pleaded therein that petitioner has deliberately purchased the land bearing revenue entries as (Amda forest Kasauli). It is further pleaded that suit land in dispute was in the ownership of State of Himachal Pradesh as per jamabandi for the year 1950-51. It is further pleaded that entry of (Amda forest Kasauli) was recorded in the revenue record much prior to the purchase of land by petitioner. It is further pleaded that vendor did not challenge the entry of (Amda forest Kasauli) at any point of time prior to sale. It is further pleaded that vendee has purchased the land with an encumbrance of (Amda forest Kasauli). It is further pleaded that petitioner has purchased the land in the year 2010 but entry of (Amda forest Kasauli) in the revenue record was in existence much prior to the purchase of property by petitioner i.e. w.e.f. 06.03.1976. 5. Petitioner filed rejoinder and reasserted the allegations mentioned in the civil writ petition. 6. Court heard learned Advocate appearing on behalf of petitioner and learned Additional Advocate General appearing on behalf of non-petitioners at length and also perused the entire records carefully. 7. Following points arise for determination in the present case : (1) Whether civil writ petition filed under Article 226 of Constitution of India is liable to be accepted as mentioned in memorandum of grounds of civil writ petition and whether there is alternative efficacious remedy? (2) Final order. Findings upon point No.1 with reasons: 8. 7. Following points arise for determination in the present case : (1) Whether civil writ petition filed under Article 226 of Constitution of India is liable to be accepted as mentioned in memorandum of grounds of civil writ petition and whether there is alternative efficacious remedy? (2) Final order. Findings upon point No.1 with reasons: 8. Submission of learned Advocate appearing on behalf of petitioner that w.e.f. 1946 till 1973 (Annexure P-2 to Annexure P-8) land was continuously shown as ‘Grazing field’ and in the subsequent jamabandi for the year 1977-78 illegal entry of ‘Amda forest Kasauli’ was recorded by the revenue official and thereafter entry of ‘Amda forest Kasauli’ reflected in the subsequent jamabandies for the year 1977-78, 1987-88, 1992-93, 1997-98 and 2007-2008 illegally cannot be decided in civil writ petition for the reasons hereinafter mentioned. It is proved on record that in jamabandies for the year 1977-78, 1987-88, 1992-93, 1997-98 and 2007-2008 and till date there is entry of ‘Amda forest Kasauli’ in the suit land. Fact whether the entry of ‘Amda forest Kasauli’ in the subsequent jamabandies is contrary to factual position cannot be decided in civil writ petition as same is complicated matter of fact. Same fact will be decided by the Civil Court after giving due opportunity to both parties to lead evidence in support of their case in affirmative and in rebuttal manner. It is held that there are two kinds of issues (i) Issue of law and (ii) Issue of fact. In the present case matter in dispute is issue of fact and it is held that complicated issue of fact cannot be decided in writ proceedings. It is well settled law that complicated facts are decided by regular Civil Court by way of giving opportunity to both parties to lead evidence oral or documentary in affirmative and in rebuttal manner. It was held in case reported in 2015 (4) SCC 204 titled Swati Ferro Alloys Pvt. Ltd. vs. Orissa Industrial Infrastructure Dev. Corpn. & Others that disputed question of fact should not be decided in writ petition filed under Article 226 of Constitution of India. 9. It is proved on record that petitioner has purchased the land on 27.01.2010. It is also proved on record that owner from whom petitioner has purchased land did not challenge the entry of ‘Amda forest Kasauli’ prior to sale deed. 9. It is proved on record that petitioner has purchased the land on 27.01.2010. It is also proved on record that owner from whom petitioner has purchased land did not challenge the entry of ‘Amda forest Kasauli’ prior to sale deed. Entry of ‘Amda forest Kasauli’ was recorded in the revenue record in the year 1977-78 and w.e.f. 1977 till 2010 vendor did not challenge the entry of ‘Amda forest Kasauli’. It is held that petitioner has purchased the encumbrance title from the vendor by way of registered sale deed on 27.01.2010. 10. As per Section 46 of H.P. Land Revenue Act 1954 if any person considers himself aggrieved as to any right of which he is in possession by an entry in a record of rights or in a periodical record he may institute a suit for declaration of his right under Chapter VI of the Specific Relief Act 1963. It is held that alternative efficacious remedy is available to the petitioner under Section 46 of H.P. Land Revenue Act 1954. See 1992 PLJ 612 titled Babu Ram (deceased) through his LRs and others vs. Pohhlo Ram (deceased) through his LRs and others. Also see 1989 PLJ 285 titled Raja Ram Partap Singh vs. State of Punjab and others. Also see 1977 PLJ 1 titled Mangal Singh and Another vs. Nihal Singh. Also see 1975 Indian Law Reports 807 titled Kannu vs. Channu & Another. 11. Section 46 of H.P. Land Revenue Act 1954 is quoted in toto : “46. Suit for declaratory decree by persons aggrieved by an entry in a record:- If any person considers himself aggrieved as to any right of which he is in possession by an entry in a record of rights or in a periodical record he may institute a suit for declaration of his right under Chapter VI of the Specific Relief Act 1963”. In view of the above stated facts point No.1 is answered in negative. Point No.2 (Final Order). 12. In view of findings upon point No.1 above civil writ petition is dismissed. Petitioner is directed to file a declaratory suit under Section 46 of H.P. Land Revenue Act 1954. It is held that complicated question of fact is involved in the present case. It is held that alternative efficacious remedy is available to the petitioner under Section 46 of H.P. Land Revenue Act 1954. No order as to costs. Petitioner is directed to file a declaratory suit under Section 46 of H.P. Land Revenue Act 1954. It is held that complicated question of fact is involved in the present case. It is held that alternative efficacious remedy is available to the petitioner under Section 46 of H.P. Land Revenue Act 1954. No order as to costs. CWP No. 7064/2011-H is disposed of. Pending application(s) if any also disposed of.