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2016 DIGILAW 1579 (HP)

Jaisi Ram v. State of Himachal Pradesh

2016-08-03

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present regular second appeal is maintained by the appellant against the judgment and decree, dated 09.06.2006, passed by the learned First Appellate Court in Civil Appeal No. 78 of 2004, whereby the learned First Appellate Court has modified the judgment and decree, dated 15.06.2004, of the learned Civil Judge (Senior Division), Hamirpur, H.P., passed in Civil Suit No. 60 of 1995. 2. The appellant, who was the plaintiff in the Court below (hereinafter referred as “the plaintiff”), maintained a suit against the State of Himachal Pradesh, respondent herein (hereinafter referred to as “the defendant”) when the defendant initiated proceedings under Section 163 of the Land Revenue Act on the basis of the revenue entries in their favour with respect to the land measuring 12 kanals, 2 marlas, as per the jamabandi for the years 1989-90, comprised in Khata No. 282 min, Khatauni No. 323 min, Khasra No. 1407/599, situated in village Daruhi, Tappa Bajuri, Tehsil and District Hamirpur, H.P. (hereinafter referred to as “the suit land”). 3. Brief facts of the case are that as per the plaintiff, he was granted Nautor land (the suit land) by the Deputy Commissioner, Kangra, on 08.03.1972. The application of the plaintiff was forwarded by the Deputy Commissioner, Kangra, to Divisional Forest Officer, Hamirpur for inquiry, as mandated under Kangra Nautor Rules. Divisional Forest Officer, Hamirpur, gave its recommendation that the suit land is fit for breaking and he had assessed the compensation for the trees etc. Afterwards, the Deputy Commissioner, Kangra, sanctioned Nautor to the plaintiff. Subsequently, the plaintiff deposited the requisite compensation for the trees, however, on 06.10.1975, to the utter surprise of the plaintiff, the mutation was illegally rescinded. The plaintiff challenged the revenue entries, which remained in the name of the defendant. As per the plaintiff, he is in continuous possession of the suit land without any interference and he has spent approximately Rs.50,000/- for making the land cultivable and also spent Rs.40,000/- for the construction of a house and cattle-shed thereon. Later on, defendants initiated proceedings under Section 163 of H.P. Land Revenue Act against the plaintiff with intent to illegally evict him. Therefore, the plaintiff instituted a suit for declaration that he is owner-in-possession of the suit land, as the suit land was granted to him as Nautor by the Deputy Commissioner, Kangra. Later on, defendants initiated proceedings under Section 163 of H.P. Land Revenue Act against the plaintiff with intent to illegally evict him. Therefore, the plaintiff instituted a suit for declaration that he is owner-in-possession of the suit land, as the suit land was granted to him as Nautor by the Deputy Commissioner, Kangra. The plaintiff also prayed for consequential relief of permanent prohibitory injunction restraining the defendant from dispossessing him from the suit land and from demolishing his structures existing over the suit land. 4. The defendant filed written statement and controverted the averments made in the plaint. The defendant took preliminary objections, viz., jurisdiction, non-compliance of Section 80 CPC and cause of action. Whereas, on merits, it is stated that suit land is owned and possessed by the defendants and plaintiff has encroached upon the same illegally and without any right, title or interest. The defendant has further averred that Deputy Commission, Kangra, concurred to grant of Nautor, however, the Nautor/lease was granted on the spot and concurrence was not given effect. It is further averred that as no lease was sanctioned in favour of the plaintiff, therefore, it cannot be construed that the plaintiff is owner of the suit land. Earlier the suit land was vested in Gram Panchayat and afterwards it vested in State of H.P. under H.P. village Common Land (Vesting & Utilization) Act, 1974 free from all encumbrances. It is denied that the plaintiff spend money over the suit land. The plaintiff encroached upon the suit land so, proceedings under Section 163 of H.P. Land Revenue Act were rightly initiated. The defendant prayed for dismissal of the suit of the plaintiff. 5. The learned Trial court framed the following issues: “1. Whether the plaintiff is owner in possession of the suit land as alleged? OPP 2. Whether this Court has no jurisdiction to try the present suit? OPD 3. Whether no valid notice under Section 80 CPC was served on the defendant? OPD 4. Whether the plaintiff has no cause of action? OPD 5. Relief” After deciding issue No. 1 in favour of the plaintiff and issues No. 2 to 4 against the defendant, decreed the suit holding that the plaintiff owner-in- possession of the suit land: 6. Whether no valid notice under Section 80 CPC was served on the defendant? OPD 4. Whether the plaintiff has no cause of action? OPD 5. Relief” After deciding issue No. 1 in favour of the plaintiff and issues No. 2 to 4 against the defendant, decreed the suit holding that the plaintiff owner-in- possession of the suit land: 6. The defendant approached the learned First Appellate Court in appeal and the learned First Appellate Court, while giving its findings, has modified the judgment and decree of the Court below, the judgment and decree of the learned Trial Court, declaring the plaintiff as owner of the suit land, were set aside and the decree, restraining the defendant from causing any sort of interference in the possession of the plaintiff, was upheld, holding that the plaintiff has right of possession over the suit land and the defendant has no right to interfere over the suit land, except through due course of law. Hence the present appeal. 7. The learned counsel appearing on behalf of the appellant herein has argued that the Court below has failed to take into consideration the fact that the Nautor land was sanctioned in favour of the appellant much prior to the coming into force of H.P. Village Common Lands (Vesting & Utilization Act), 1974, (hereinafter referred to as “the Act”), there was no occasion for this land to vest in the defendant free from all encumbrances. On the other hand, the learned Additional Advocate General has argued that as on date, the Act has come into force, the revenue entries of the suit land were in favour of the defendant and so the suit land vested with the defendant free from all encumbrances and, therefore, the judgment and decree by the learned First Appellate Court below passed after appreciating the facts correctly. In rebuttal, the learned counsel for the appellant has argued that the learned First Appellate Court without any application of mind and in a slip-shod manner has presumed that the land was ‘shamlat’ (village common land) without considering the fact that the ownership was with the plaintiff, before the Act was notified. 8. The appeal was admitted by this Hon’ble Court on the following substantial questions of law: “1. 8. The appeal was admitted by this Hon’ble Court on the following substantial questions of law: “1. Whether the findings of the Court below are perverse, based on misreading of the pleadings of the parties and oral and documentary evidence particularly the resolution of the Panchayat Exhibit PW-5/A and PW-5/B, recommendations of the Divisional Forest Officer Hamirpur Exhibit PW- 8/1, the order of grant by deputy Commissioner Kangra dated 8.3.1972 PW-1/A and the oral evidence of Rangila Ram, Kishore Lal and Pritam Chand PW2, PW3 and PW6 which has vitiated the findings. 2. Whether in view of the fact that the appellant had come in possession of the property on the basis of allotment made by the Panchayat and thereafter grant of Nautor under the Kangra Nautor Rules after due inquiry and recommendations of the Divisional Forest Officer, the learned District Judge erred in law in disallowing the declaration of ownership and lawful possession of the plaintiff by reversing the findings of the Trial Court. 3. Whether presumption of truth attached to the valid grant and the revenue record could be said to have been rebutted and the District Judge erred in law in holding that the plaintiff was not entitled for a decree of declaration and ownership of the land. 4. Whether the findings of the Court below are based on misconstruction of the provisions of Punjab Village Common Lands, H.P. Village Common Lands Vesting and Utilization Act as also the Kangra Nautor Rules.” 9. At the very outset, I would like to observe that the appeal under Section 100 CPC will only lie if there is a substantial question of law. Now whether in this case there is any substantial question of law or not, it is to be construed and this Court finds that the substantial question of law, as involved in this case, is required to be reframed, which is reframed as under: “Whether the learned First Appellate Court has mis-construed Ex. PW5/A, Ex. PW-5/B and the recommendation of the Divisional Forest Officer, Hamirpur, Ex. PW-8/1, order of the grant of Deputy Commissioner, Kangra, dated 08.03.1972, Ex. PW-1/A, and the findings are perverse for the reason that the learned Lower Appellate Court has failed to appreciate the fact that the Nautor was sanctioned and implemented prior to coming into Force of H.P. Village Common Lands Vesting and Utilization Act.” 10. PW-8/1, order of the grant of Deputy Commissioner, Kangra, dated 08.03.1972, Ex. PW-1/A, and the findings are perverse for the reason that the learned Lower Appellate Court has failed to appreciate the fact that the Nautor was sanctioned and implemented prior to coming into Force of H.P. Village Common Lands Vesting and Utilization Act.” 10. The above substantial question of law is re-framed for the reason that a substantial question of law, in my opinion, is not a mere wrong appreciation of evidence which has come on record or which can be appreciated in some other manner, but for entertaining and adjudicating an appeal under Section 100 CPC anyone of below enumerated can be a substantial question of law: “(a) If the Court below has committed a mistake in applying the law which goes to the root of the controversy; (b) judgment of the Court below is perverse for the reason that its bare perusal shows that the Court below has failed to apply the law or was ignorant about the law; (c) the Court below has committed error of judgment in regard to the points in controversy to such an extent that if allowed to stand, it will show that the law and the Court is incompetent; (d) the conclusion of the Court below is without considering the major piece of evidence at all; (e) a finding of the Court below was perverse that no reasonable person could arrive at that finding in the given facts and circumstances of the case; (f) the findings arrived at by the Court below are without any legal evidence; (g) the Court below has failed to interpret the documents in a manner that the interpretation is totally against the spirit of the documents; and (h) the Court below has totally mis-appreciated the evidence on record in a manner that from the judgment it is clear that the evidence on record is not at all considered.” 11. Now in order to decide the substantial question of law, as involved in the present case, it is necessary to advert to the evidence and documents which have come on record. As per the plaintiff, who stepped into the witness-box as PW-1, initially the land was allotted to him on patta (lease) basis for five years by Gram Panchayat. Now in order to decide the substantial question of law, as involved in the present case, it is necessary to advert to the evidence and documents which have come on record. As per the plaintiff, who stepped into the witness-box as PW-1, initially the land was allotted to him on patta (lease) basis for five years by Gram Panchayat. Subsequently, the plaintiff approached Deputy Commissioner, Kangra, for allotting the suit land as Nautor under the Kangra Nautor Rules, 1948, and he was allotted the land vide allotment order, Ex. PW-1/A. The Deputy Commissioner recommended to Forest Officer for ascertainment of compensation to be charged from the plaintiff for trees and he deposited the same vide challan, Ex. PW-1/B, on 08.08.1972. The plaintiff has further deposed that from 1970 onwards he is in possession of the suit land without any interference. PW-2, PW-3 and PW-6, Shri Rangila Ram, Shri Kishori Lal and Shri Pritam Chand, respectively, fortify the case of the plaintiff, by deposing that plaintiff was allotted suit land by the Deputy Commissioner, Kangra, and he is in possession of the same. Plaintiff and the above said witnesses have also deposed that plaintiff made the land fit for cultivation and raised construction of his house and cattleshed. Shri Sanjay Kumar (PW-4) in his deposition has testified that the plaintiff deposited the compensation amount assessed by the Divisional Forest Officer, Hamirpur. Shri Anand Swarup (PW-5) testified the Panchayat record, viz., copies of Resolutions passed, Ex. PW-5/A and Ex. PW-5/B, through which suit land was allotted to the plaintiff. 12. The above evidence is ample to hold that the plaintiff was firstly allotted the suit land by concerned Gram Panchayat and subsequently the suit land was allotted to him under the Nautor Rules. The plaintiff has also been able to prove his applications, Ex. PW-7/C and Ex. PW-7/A. Ex. PW-1/A, dated 08.03.1972, is copy of order of Deputy Commissioner, Kangra, whereby the suit land was given to the plaintiff. Deposition of PW-4, Shri Sanjay Kumar, substantiates that the plaintiff had deposited Rs.641.25, as quantified, compensation and the plaintiff has also produced copy of assessment of compensation amount, Ex. PW-7/B. Ex. PW-1/B is copy of challan depicting that Rs.641.25 had been deposited by the plaintiff in the Government Treasury. Deposition of PW-4, Shri Sanjay Kumar, substantiates that the plaintiff had deposited Rs.641.25, as quantified, compensation and the plaintiff has also produced copy of assessment of compensation amount, Ex. PW-7/B. Ex. PW-1/B is copy of challan depicting that Rs.641.25 had been deposited by the plaintiff in the Government Treasury. Ex.PW-8/1 is copy of communication by Divisional Forest Officer, Hamirpur to Deputy Commission, Kangra, recommending that the suit land may be sanctioned to the plaintiff for cultivation. Apparently, after fulfilling all the codal formalities the suit land was sanctioned to the plaintiff and only thereafter the plaintiff made the suit land cultivable and since then he is in continuous and uninterrupted possession over the same. PW-9, Shri Amar Jit, Patwari, testified that the plaintiff has also built a house and cattle-shed on the suit land. It is also clear that the procedure, as mandated under Section 15 of Kangra Nautor Rules, has been complied. Section 15 of the above Rules provides as under: “15. After the application has been sanctioned by the Deputy Commissioner, the file shall be sent to the Divisional Forest Officer for recovery of the price of the trees, if any. After effecting this recovery, the file shall be returned to the Deputy Commissioner and he shall thereupon take steps to have a mutation effected in the Revenue papers.” 13. Manifestly, the suit land was granted as Nautor to the plaintiff after completion of all codal formalities. However, mutation was not attested in favour of the plaintiff. It is needless to observe that mutation does not confer or quench title and purpose of effecting mutation is only to keep the record of rights updated. In fact, mutation, Ex. P-2, shows that Tehsildar Hamirpur, ordered review of the mutation. However, the same could not have been reviewed, except the settled procedure established in Rule 17(1) of Kangra Nautor Rules, which are reproduced hereinbelow: “17(1) A grant of nautor may be revoked by the Deputy Commissioner Kangra at any time if it is found that it has been made in consequence of any misrepresentation of facts or if the conditions of the grant are not complied with.” 14. The defendant, in written statement, has averred that owing to misrepresentation of facts the plaintiff was able to get the suit land sanctioned as Nautor. However, nothing has come on record which establishes the above averment of the defendant. Ex. The defendant, in written statement, has averred that owing to misrepresentation of facts the plaintiff was able to get the suit land sanctioned as Nautor. However, nothing has come on record which establishes the above averment of the defendant. Ex. P4 is the copy of jamabandi for the years 1970-71, which also demonstrates that the suit land was earlier vested with Gram Panchayat as village common land (shamlat). Subsequent jamabandi for the year 1975-76, Ex P5, shows that suit land vested in the ownership and possession of the State and it has been mentioned therein in a note in red ink that land measuring 15 kanals 2 marlas was allotted under Nautor Rules and the entry qua “khud Reu darakhtaan Malkiyat Sarkar” was erased. The above itself proves the fact that the plaintiff was allotted the suit land and was put in possession thereof. In fact, the plaintiff became owner in possession of the suit land in the year 1972, therefore, jamabandi for the year 1975-76 did not depict the actual position. As the plaintiff became owner of the suit land, there is no reason for vesting the suit land in the State of H.P. under the provisions of the Act. It is also noticeable that the Act came into force in 1974 and at that time Gram Panchayat was not owner of the suit land. However, the ownership and possession were with the plaintiff, meaning thereby that entries in jamabandies for the year 1979-80, Ex. P-6, 1984-85, Ex. P7 and 1989-90, Ex. P8, are wholly wrong and incorrect. As held above, the mutation was not sanctioned in favour of the plaintiff and the reason for non-sanctioning of the mutation has not come on record. For this reason only, entries in the subsequent jamabandies did not carry the name of the plaintiff. It is well settled that presumption of truth is attached to the revenue entries, but that presumption is always rebuttable and the above discussion has seemingly rebutted that presumption. 15. The defendant, in order to establish that proceedings under Section 163 of H.P. Land Revenue Act had started against the plaintiff, has examined a witness, i.e., Ahlmad from Tehsildar Office Hamirpur. Ex. DW- 1/B is copy of proceedings, which reveal that vide order dated 22.11.2000, Assistant Collector 1st Grade consigned the file to the record room keeping in view of the pending civil suit. Ex. DW- 1/B is copy of proceedings, which reveal that vide order dated 22.11.2000, Assistant Collector 1st Grade consigned the file to the record room keeping in view of the pending civil suit. The proceedings in itself establish a glaring fact that the proceedings were initiated to evict the plaintiff from the suit land, which clearly exhibit that plaintiff is in possession of the suit land. 16. The learned First Appellate Court while dealing with this case rendered its findings in para 12 of the judgment and has held as under: “12. Admittedly, the suit land is shamlat which vested in the Gram Panchayat, Bajuri under Section 4 of the Punjab Village Common Lands (Regulation) Act, 1961 and thereafter, the Gram Panchayat, Bajuri came to be recorded as absolute owner in possession of the suit land. Thereafter, the H.P. Village Common Lands (Vesting and Utilization) Act, 1974 came into operation on 29.08.1974. 17. There was no admission of the parties to the fact that the land was a shamlat land. The learned First Appellate Court has committed a glaring mistake by considering as if the suit land was a shamlat land by ignoring the record wherein the suit land was sanctioned as Nautor land by the Deputy Commissioner, Kangra, at Dharamshala, vide his order dated 08.03.1972. As per the Notification of the Punjab Government, Ex. PW-1/A, when the Nautor was sanctioned to the appellant, there was nothing on record on behalf of the defendant that the Nautor land was obtained by any mis-representation of the fact or the requisite conditions were not complied with and there could have been no reason to revoke this grant of Nautor land given to the plaintiff vide order dated 08.03.1972, Ex. PW-1/A. It is also on record that the plaintiff paid requisite fee and the charges to the Forest Department at the time when the Nautor was sanctioned to him. Nautor was sanctioned to the plaintiff under the Land Preservation Act, 1900. 18. It is also on record that the plaintiff, from 1965 onwards, has put in hard labour to convert the forest land into agriculture land, which was allotted to him under the Land Preservation Act, 1900, vide order dated 08.03.1972, Ex. PW-1/A and before that by Gram Panchayat. Nautor was sanctioned to the plaintiff under the Land Preservation Act, 1900. 18. It is also on record that the plaintiff, from 1965 onwards, has put in hard labour to convert the forest land into agriculture land, which was allotted to him under the Land Preservation Act, 1900, vide order dated 08.03.1972, Ex. PW-1/A and before that by Gram Panchayat. The learned First Appellate court has thus miserably failed to interpret the provisions of the H.P. Village Common Land (Vesting & Utilization) Act, 1974, and has held that the suit land vested with the defendant from all encumbrances by ignoring a very imperative piece of evidence on record, which is Ex. PW-1/A, which shows that the plaintiff has already become owner of the suit land. The findings of the learned First Appellate Court, setting aside the findings of the learned Trial Court, whereby the learned Trial Court has declared that the plaintiff is owner of the suit land, are perverse, as neither the learned First Appellate Court has considered Ex. PW-1/A nor interpreted it into its right perspective. There is nothing on record to hold that under Rule 17(1) of Kangra Nautor Rules, for regulating the clearing and breaking up of land declared Undemarcated Protected Forests by Punjab Government Notifications No. 992, dated 11th January, 1919, and No. 22675, dated the 28th October, 1919, Nautor allotment was revoked for any violation of Section 17(1) of the Notification. Therefore, the substantial question of law is answered holding that the findings of the learned First Appellate Court are perverse and are liable to be set-aside as the learned First Appellate Court has mis-construed Ex.PW-5/A, Ex. PW-5/B and the recommendation of the Divisional Forest Officer, Hamirpur, Ex. PW-8/1, order of the grant of Deputy Commissioner, Kangra, dated 08.03.1972, Ex. PW-1/A, and the findings are perverse for the reason that the learned Lower Appellate Court has failed to appreciate the fact that the Nautor was sanctioned and implemented prior to coming into Force of H.P. Village Common Lands Vesting and Utilization Act, and the judgment and decree passed by the learned First Appellate Court, holding that the plaintiff is not owner of the suit land, are set aside being wrong and the judgment and decree of the learned Trial Court is upheld in totality. Therefore, the appeal succeeds and is accordingly allowed. Therefore, the appeal succeeds and is accordingly allowed. However, taking into consideration the facts and circumstances of the present case, there is no order as to costs and the parties are left to bear their own costs. 19. In view of the above discussion, the appeal stands disposed of, as also pending applications, if any.