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2017 DIGILAW 577 (HP)

Jagdish Ram v. State of H. P.

2017-05-23

CHANDER BHUSAN BAROWALIA

body2017
JUDGMENT : Chander Bhusan Barowalia, J. 1. The present Regular Second Appeal under Section 100 of the Code of Civil Procedure is maintained by the appellants against the judgment and decree, dated 17.5.2005, passed by the learned Additional District Judge, Ghumarwin, District Bilaspur (H.P), in Civil Appeal No.37/13 of 2004/1998, where by the learned lower Appellate Court has affirmed the judgment and decree passed by the then learned Sub Judge, 1st Class, Ghumarwin, District Bilaspur, (H.P), passed in Case No.100/1 of 1992, dated 30.6.1998. 2. Briefly stating the facts giving rise to the present appeal are that appellants/plaintiffs (hereinafter referred to as ‘plaintiffs’) maintained a suit for declaration and permanent prohibitory injunction against the respondents/defendants (hereinafter referred to as ‘defendants’) alleging that plaintiffs are permanent residents of village Panyala, Pargana Sunnani, Tehsil Ghumarwin, District Bilaspur and they are the right holders of the village, where they have movable and immovable property in the village from the time of their forefather and the ancestral land in ownership of the plaintiffs are also situated on the bank of ‘Suker Khad’. All the inhabitants of village Panyala including the plaintiffs are governed by well recognized rules of alluvion and deluvion, as recorded in Missal Hakiat Bandobast Sani of village Panyala. It is averred that land measuring 24-3 bighas comprised in Khasra No.122/1, 122/2 and 146 has been restored by the side of the land owned by the plaintiffs and the same has been coming in possession of the plaintiffs under the aforesaid custom of alluvion and deluvion rules, the plaintiffs are entitled to possess and cultivate the suit land. However, the District Collector, Bilaspur, has illegally allotted the land measuring 20-12 bighas, comprising Khasra No.117/1, 122/1, 122/2, 137/1 and 146 in favour of defendant No.2, for cultivation vide order dated 14.9.1990, subject to the payment of land revenue of Rs. 10/-, where as the suit land was not restored by the side of land in ownership of defendant No.2 and was restored just adjoining the land in ownership of the plaintiffs. Defendant No.2 has no right, title or interest in the suit land. The order of District Collector, Bilaspur, dated 14.9.1996, order of Assistant Collector, IInd Grade, Ghumarwin, dated 30.10.1990, mutation No.325 and order of Divisional Collector, Ghumarwin, dated 25.2.1992 are illegal, null and void and not binding upon the plaintiffs. 3. Defendant No.2 has no right, title or interest in the suit land. The order of District Collector, Bilaspur, dated 14.9.1996, order of Assistant Collector, IInd Grade, Ghumarwin, dated 30.10.1990, mutation No.325 and order of Divisional Collector, Ghumarwin, dated 25.2.1992 are illegal, null and void and not binding upon the plaintiffs. 3. No written statement was filed by defendant No.1, where as the suit was contested by defendant No.2 raising preliminary objection with regard to maintainability, limitation, mis-joinder and non-joinder of necessary parties, jurisdiction of the Court, locus standi, valuation and estoppel. On merits, it has been contended by defendant No.2 that the suit land has been coming in his possession for the last more than 50 years, as the same was restored in that land and just adjoining to his land. His possession is also recorded in the revenue record. The proceedings under Section 163 of the Himachal Pradesh Land Revenue Act, were initiated against him by the revenue agency. He has denied that the suit land was restored by the side of land in ownership of the plaintiffs. Further, as per defendant No.2, plaintiffs have no right, title or interest in the suit land. It is further alleged that the suit land has been rightly allotted by District Collector, Bilaspur, in his favour vide order dated 14.9.1990 and accordingly mutation was attested in his favour. 4. The learned trial Court framed the following issues : “1. Whether the plaintiff has right to possess and cultivate the suit land on account of alluvion and diluvion, as alleged ? OPP. 2. Whether the order dated 14.9.1990 of District Collector, Bilaspur, order dated 30.10.1990 of A.C. IInd Grade, Ghumarwin and order dated 25.2.1992 of Collector Ghumarwin, are illegal and wrong? OPP. 3. Whether the plaintiff is entitled to the relief of permanent injunction? OPP. 4. Whether in alternative the plaintiff is entitled to the possession of suit land if found to be dispossessed from the suit land during the pendency of suit ? OPP. 5. Whether the suit is not within time? OPD. 6. Whether the suit is not within limitation? OPD. 7. Whether the suit is bad for non-joinder of necessary parties? OPD. 8. Whether this Court has no jurisdiction to hear and decide the present case? OPD. 9. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD. 10. Relief.” 5. OPD. 6. Whether the suit is not within limitation? OPD. 7. Whether the suit is bad for non-joinder of necessary parties? OPD. 8. Whether this Court has no jurisdiction to hear and decide the present case? OPD. 9. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD. 10. Relief.” 5. The learned trial Court after deciding Issue Nos.1 to 4 against the plaintiffs, Issue Nos.5 to 9 against the defendants, dismissed the suit. 6. Feeling aggrieved thereby the plaintiffs maintained first appeal before the learned Additional District Judge, Ghumarwin, District Bilaspur, H.P, assailing the findings of learned trial Court below being against the law and without appreciating the evidence and pleading of the parties to its true perspective. The learned Appellate Court below affirmed the findings of the learned trial Court and dismissed the appeal. Now, the appellant has maintained the present Regular Second Appeal, which was admitted for hearing on 11.11.2005 on the following substantial questions of law: “ 1. Whether the learned District Collector, Bilaspur, was competent to pass the order of allotment dated 14.9.1990 under the alluvion and deluvion Rules as recognized in Missal Haquiat Bandobast Sani of Village Panyala in favour of defendant No.2 for cultivation, in the face of the fact that the respondent No.2 was non-suited and his claim was dismissed by a Civil Court vide judgment and decree dated 31.8.1985 (passed by the learned Sub Judge first Class, Ghumarwin) ? 2. Whether the learned District Collector, Bilaspur was estopped from allotting the suit land in favour of defendant No.2/respondent No.2 in view of the fact that the Government of Himachal Pradesh had contested the suit of the defendant No.2/respondernt No.2 previously pertaining to the same claim i.e. grant of cultivatory rights over the suit land under the alluvion and deluvion Rules ? 3. Whether the order dated 14.9.1990 passed by the learned District Collector, Bilaspur and further orders in pursuance of this order i.e. dated 30.10.1990 and 25.2.1992 passed by the learned Assistant Collector IInd Grade, Ghumarwin and learned Sub Divisional Collector, Ghumarwin, are illegal, null and void and without jurisdiction as allotment in favour of respondent No.2 effected through these orders was dehors the alluvion and deluvion Rules as recorded in Missal Haquiat Bandobast Sani of the Village in which the suit land is situate ? 4. 4. Whether the learned Courts below have misconstrued, mis-appreciated and mis-read oral as well as documentary evidence available on record? 7. Learned counsel appearing on behalf of the plaintiffs has argued that the judgment and decree passed by the learned Courts below are against the facts, which have come on record and thus, liable to be set aside, as the learned Courts below have failed to apply the law correctly to the facts of the present case. He has further argued that the substantial questions of law, which are involved in the present case, are required to be answered in favour of the appellants. On the other hand, learned counsel appearing on behalf of the defendant has argued that the findings of the learned Courts below are just, reasoned and after appreciating the facts and law, which have come on record to its true perspective and law has been correctly applied. 8. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the entire record in detail. 9. Plaintiff Bhagat Ram while appearing as PW-1, deposed that he is resident of village Panyala, where he is having his land on the bank of ‘Sukar Khad’. He has also stated that there is a custom of alluvion and deluvion in the village and is incorporated in the Misal Haquiat. He has further stated that the suit land was restored just adjoining the land of the plaintiffs on the bank of ‘Sukar Khad’ and the plaintiffs are in possession of the same. He has also deposed that as per custom, the plaintiffs are entitled to retain possession of the suit land for cultivation, which has been restored just adjoining land of the plaintiffs. He has also stated that the suit land was illegally allotted by District Collector, Bilaspur, in favour of defendant Sukh Ram. In his cross-examination, he has admitted that since the District Collector, had sanctioned the suit land to defendant No.2, the appeal was withdrawn by defendant No.2. He has denied that on 14.9.1990, Sub Divisional Magistrate, visited the spot. He has also denied that Tehsildar and Kanungo, also visited the spot. He has also shown his ignorance that on 23.4.1988, an application for correction of revenue entry was dismissed. PW-2 Bhag Singh, has proved the custom qua the land situated on the bank of ‘Sukar Khad’. He has denied that on 14.9.1990, Sub Divisional Magistrate, visited the spot. He has also denied that Tehsildar and Kanungo, also visited the spot. He has also shown his ignorance that on 23.4.1988, an application for correction of revenue entry was dismissed. PW-2 Bhag Singh, has proved the custom qua the land situated on the bank of ‘Sukar Khad’. He has stated that the inhabitants of village Panyala, are governed by the custom of Burdgi and Bramdgi. His land was also washed away by the river and was restored and then the land was allotted to him, on the payment of land revenue. PW-3 Ramesh Chand, Patwari, has brought the requisitioned record. PW-4 Gian Chand, Field Kanungo, has also stated that tatima Ex.PW4/A, was prepared by him. In his cross-examination, he has admitted that the land was allotted to Sukh Ram (defendant No.2) during his tenure. He has also stated that suit land was adjoining to the land of Sukh Ram and on the basis of the possession of Sukh Ram, the land was sanctioned to him. To controvert the evidence of plaintiffs, defendants have examined Ramesh Chand as DW-1, he has deposed that the suit land was restored on the bank of ‘Sukar Khad’ adjoining the land of defendant No.2 Sukh Ram and Sukh Ram, was coming in possession of the same. DW-2 Sukh Ram, has deposed that he has been coming in possession of the suit land for the last more than 50 years, which was restored by the ‘khad’ adjoining his land. The suit land was allotted to him by District Collector, Bilaspur, for cultivation. He has further stated that ejectment proceedings were initiated against him by the Revenue Official in the year 1970 and he was held to be in possession of the suit land and he was ordered to be evicted from an area of 11-18 bighas land out of the suit land. He has further stated that ejectment proceedings were initiated against him by the Revenue Official in the year 1970 and he was held to be in possession of the suit land and he was ordered to be evicted from an area of 11-18 bighas land out of the suit land. Ex.D-2, order dated 3.3.1978 passed by the Assistant Collector IInd, Grade, Ghumarwin, which shows that on the report of field staff, Assistant Collector IInd Grade, Ghumarwin, had initiated proceedings against defendant No.2, qua land measuring 28-10 bighas bearing Khasra No.122/1, 122/2, 137/1 and 146 in the year 1970 and order dated 3.3.1978 defendant No.2 Sukh Ram, was in possession of 28-10 bighas land bearing Khasra Nos.122/1, 122/2, 137/1 and 146, as encroacher and he was ordered to be ejected from land measuring 11-18 bighas bearing Khasra No.122/1, whereas the remaining land bearing Khasra No.146/1, 137/1 and 122/2, was held to be in his possession, as already recorded in the revenue record. Ex.P- 4, copy of order dated 14.9.1990, passed by the learned District Collector, Bilaspur, shows that after holding an inquiry the District Collector held that the land measuring 29-12 big has, comprised Khasra No.117/1, 122/1, 122/2, 137/1 and 146, was restored adjoining land of defendant No.2 Sukh Ram and the same was in his possession, therefore, under the alluvion and deluvion custom, the land was allotted in favour of Sukh Ram for cultivation on payment of Rs. 10/-, as land revenue. Ex.D-7, copy of mutation No.325, which shows that mutation qua suit land on the basis of order of District Collector, dated 14.9.1990, was attested in favour of the plaintiff on 30.9.1990. It is also apparent from Ex.P-9, the appeal preferred by the plaintiffs before the Sub Divisional Collector, Ghumarwin, was dismissed on 25.2.1992. Ex.D-5, copy of jamabandi for the year 1988-89, State of Himachal Pradesh is recorded, as owner of land bearing Khasra No.137/1, 146, 117 min. and 122 min, Sukh Ram along with Smt. Kalan Devi, is recorded in possession thereof as ‘Gair Maursi’ and entries in remarks column of the same are that Sukh Ram has also inherited the land of Smt. Kalan Devi, vide mutation No.318 dated 30.9.1990. and 122 min, Sukh Ram along with Smt. Kalan Devi, is recorded in possession thereof as ‘Gair Maursi’ and entries in remarks column of the same are that Sukh Ram has also inherited the land of Smt. Kalan Devi, vide mutation No.318 dated 30.9.1990. Ex.D-8, copy of jamabandi for the year 1993-94, State of Himachal Pradesh is recorded owner of land measuring 29-12 big has, bearing Khasra No.290/117, 292/122, 293/122, 137/1, 146 and Sukh Ram is recorded in possession of the same, as the land was coming in possession for the last about 50 years, Sukh Ram was in possession of the suit land, which is duly supported by the statement of Revenue Official and what has come here-in-above, substantial question of law No.1, answered holding that the learned District Collector, Bilaspur, has passed the order of allotment dated 14.9.1990 under the alluvion and deluvion Rules as recognized in Missal Haquiat Bandobast Sani of village Panyala, for cultivation, as per law. Substantial question of law No.2, is decided accordingly holding that defendant No.2, was in possession of the suit land and his land was adjoining to the same, so the learned District Collector, Bilaspur, has committed no illegality in allotting the suit land to defendant No.2. Substantial question of law No.3, is answered holding that the order passed by the revenue authority i.e. District Collector, Bilaspur, dated 14.9.1990, 30.10.1990 and 25.2.1992, passed by the learned Assistant Collector IInd Grade, Ghumarwin and learned Sub Divisional Collector, Ghumarwin, are legal and valid and as per the alluvion and deluvion Rules, as the land of defendant No.2, was adjacent to the suit land and was in possession of defendant No.2 since last 50 years. The learned Courts below have taken into consideration each and every aspect, which has come on record and the evidence has been appreciated to its true perspective, so the substantial question of law No.4, answered holding that the learned Court below has appreciated the facts, which have come on record to its true perspective and law has been applied correctly. 10. In view of what has been discussed hereinabove, the findings recorded by the learned trial Court and affirmed by the learned lower Appellate Court are just, reasoned and no interference is required. The appeal, which sans merits, deserves dismissal and is accordingly dismissed. 10. In view of what has been discussed hereinabove, the findings recorded by the learned trial Court and affirmed by the learned lower Appellate Court are just, reasoned and no interference is required. The appeal, which sans merits, deserves dismissal and is accordingly dismissed. However, in view of peculiar facts and circumstances of the case, the parties are left to bear their own costs. 11. The appeal, so also pending miscellaneous applications, if any, also stands disposed of, accordingly.