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2017 DIGILAW 1353 (HP)

Vidya Sagar Sood v. Hir Singh Lal

2017-12-07

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. Both these appeals, arising out of the common judgment and decree, have been considered together in the light of the record of both Courts below, which has since been received in this Court. 2. The subject matter of the dispute in the present lis is a piece of land measuring 6 bishwas, a portion of the land measuring 11 bighas 4 bishwas, bearing Khasra Khasra No.1293/601, situated in Up Mohal Reckong Peo, District Kinnaur. Admittedly, Amar Chand, predecessor-in-interest of Hir Singh Lal, respondent No.1 (hereinafter referred to as defendant No.1), was owner of the land in dispute. Said Amar Chand allegedly borrowed Rs.6,000/- from the appellant (hereinafter referred to as the plaintiff) and in lieu thereof agreed to transfer the land in dispute to him. He, however, failed to transfer the land in question in favour of the plaintiff during his life time despite repeated requests to do so orally and even by way of serving legal notices upon him. Later on, defendant No.1 started causing interference in the possession of the plaintiff over the suit land. On being demanded that the land stands sold by his predecessor to the plaintiff in a sum of Rs.6,000/- and that he should transfer the same in favour of the plaintiff, defendant No.1 failed to do so and to the contrary through his general power of attorney Abhishek Thakur, managed to initiate proceedings before the Deputy Commissioner, Kinnaur at Reckong Peo, under Section 5 of the H.P. Transfer of Land (Regulation) Act, 1968 (hereinafter referred to as the “ Regulation Act” in short). The plaintiff did not participate in the proceedings so initiated by defendant No.1 and to the contrary filed the present suit for seeking declaration to the effect that he has become owner of the suit land by way of adverse possession and that the proceedings initiated under Section 5 of the Regulation Act before the Deputy Commissioner, Kinnaur (defendant No.2), are illegal, null and void ab-initio. A direction was also sought against defendant No.1 to seek permission from defendant No.2, Deputy Commissioner, qua transfer of the suit land to the plaintiff. 3. Defendant No.1 on entering in appearance has, however, contested the suit on the ground, inter alia, that the same was not maintainable nor the plaintiff had any locus-standi to file the same. A direction was also sought against defendant No.1 to seek permission from defendant No.2, Deputy Commissioner, qua transfer of the suit land to the plaintiff. 3. Defendant No.1 on entering in appearance has, however, contested the suit on the ground, inter alia, that the same was not maintainable nor the plaintiff had any locus-standi to file the same. The complaint under Section 5 of the Regulation Act filed against the plaintiff and the consequential proceedings pending before defendant No.2 are claimed to be legal and well within the provisions of the Act. The land which is situated in tribal area cannot be transferred by way of sale mortgage, lease gift or otherwise under the provisions of the Regulation Act except for the prior permission of the competent authority, i.e. defendant No.2. 5. Learned trial Judge, after holding trial and on appreciation of the facts of the case as well as the evidence produced by the parties on both sides, has held that the plaintiff is in possession of the suit land and defendant No.1 was directed to file an application seeking permission to transfer the same in favour of the plaintiff under the provisions of the Regulation Act. The complaint under Section 5 of the Act filed by defendant No.1, was held to be not maintainable. By way of decree for permanent prohibitory injunction, the defendants were restrained from causing any interference in the possession of the plaintiff over the suit land till the competent authority decides the application which was to be filed by defendant No.1 under the provisions of Regulation Act. 6. Against the judgment and decree, passed by learned trial Court, two appeals, one by defendant No.1 Hir Singh Lal and another by the plaintiff, registered as Civil Appeal No.0100030 of 2011 and Cross Appeal No.0000035 of 2014, respectively, came to be filed in the lower appellate Court. Learned lower appellate Court has partly allowed the appeal filed by defendant No.1 and quashed that part of the judgment and decree passed by learned trial Court whereby defendant No.1 was directed to seek permission for transfer of the suit land in favour of the plaintiff. The decree qua the plaintiff in possession of the suit land was, however, maintained and it was directed that the defendants shall not evict the plaintiff from the suit land except in due course of law. The decree qua the plaintiff in possession of the suit land was, however, maintained and it was directed that the defendants shall not evict the plaintiff from the suit land except in due course of law. The counter appeal filed by the plaintiff was, however, dismissed. 7. Therefore, as per the decree passed by the lower appellate Court, the possession of the plaintiff over the suit land has been protected and he cannot be evicted there-from except in due course of law. As regards the proceedings initiated under Section 5 of the Regulation Act, learned appellate Court has observed that power has been conferred by defendant No.2 to accord the requisite permission in appropriate cases. 8. On hearing learned counsel representing the parties on both sides at length and going through the record, admittedly, the suit land is situated in tribal area, i.e. Reckong Peo in District Kinnaur. The provision contained under Section 3 read with Section 5 of the Regulation Act, makes it crystal clear that the tribal area land cannot be transferred in favour of the person belonging to non-tribal area like plaintiff, except for seeking the permission from the competent authority, i.e. defendant No.2, the Deputy Commissioner. The claim of the plaintiff is that deceased Amar Chand, the predecessor-ininterest of defendant No.1, was not “Kinnaura” (the Tribal) and as such, no such permission was required for transfer of the suit land in favour of the plaintiff. Had it been so, the plaintiff should have joined the proceedings initiated under Section 5 of the Regulation Act by defendant No.1 and raised all pleas available to him in his defence, including that deceased Amar Chand was not a “Kinnaura” nor the permission to transfer the suit land under the provision of the Regulation Act is required to be sought. 9. Instead of contesting the proceedings initiated under Section 5 of the Regulation Act by defendant No.1, the plaintiff has chosen to seek declaration to the effect that the proceedings so initiated are illegal, null and void ab-initio, hence, not binding on him by filing the present suit. No such declaration could have been sought as, as per the opinion of this Court, the only remedy available to the plaintiff was to have contest the proceedings so initiated against him and if aggrieved by any order, to have assail the same by resorting the remedy available in accordance with law. No such declaration could have been sought as, as per the opinion of this Court, the only remedy available to the plaintiff was to have contest the proceedings so initiated against him and if aggrieved by any order, to have assail the same by resorting the remedy available in accordance with law. The trial Court had also no occasion to have directed defendant No.1 to seek permission qua transfer of the suit land in favour of the plaintiff and according to such observation even learned trial Court had also no occasion to comment upon this aspect of the matter and should have left it open to be decided by the competent authority. The proceedings initiated by defendant No.1 before defendant No.2, the Deputy Commissioner, must be pending as the judgment and decree passed by learned trial Court to the extent of quashing the same, has not been affirmed by learned lower appellate Court. Any how, the plaintiff has been declared in possession of the suit land and he cannot be evicted by defendant No.1 there-from save and except by resorting the due process of law. As already observed, in case the pending application under Section 5 of the Regulation Act is relied upon by defendant No.1 or should civil suit for possession is to be filed before the competent Court of Law, the plaintiff shall have the right to raise all available defences, including an agreement executed by deceased Amar Chand in his favour and also that he has acquired title in the suit land by way of adverse possession for the reason that in lieu of the judgment of Hon’ble Apex Court in Gurdwara Sahib versus Gram Panchayat Village Sirthala, (2014) 1 SCC 669 , the pleas of adverse possession can be raised as shield and not as a sword. In that event, defendant No.2 or the competent Civil Court shall consider the matter in accordance with law, uninfluenced by the findings recorded by learned lower appellate Court and also by this Court in this judgment. However, so far as both these appeals are concerned, no substantial question of law has been formulated which arise for determination and the same are accordingly disposed of, so also the pending application(s), if any.