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2017 DIGILAW 770 (HP)

State of H. P. v. Gurnam Singh

2017-07-06

SURESHWAR THAKUR

body2017
Sureshwar Thakur, J. Since, both these appeals arise out of a common verdict pronounced by the learned Additional District Judge, Solan, H.P., in Civil Appeal No. 20-NL/13 of 2002 and in Civil Appeal No. 33-NL/13 of 2002, hence, both are liable to be disposed off by a common verdict. 2. RSA No. 324 of 2005 stands directed against the judgment and decree recorded by the learned First Appellate Court upon Civil Appeal No. 20-NL/13 of 2002, whereby, the aforesaid appeal preferred before it by the plaintiff/respondent herein against the judgment and decree of the learned trial Court “stood allowed”, whereas, appeal No. 442 of 2005 stands directed against the judgment and decree recorded by the learned First Appellate Court upon Civil Appeal no. 33-NL/13 of 2002, whereby, the learned First Appellate Court dismissed the appeal preferred before it by the appellant herein “against” the judgment and decree pronounced by the learned trial Court, appeal whereof stood directed against adverse findings rendered against the State of Himachal Pradesh upon issues No.1 and 5. 3. The brief facts of the case are that the plaintiff has filed a suit for declaration and permanent injunction against the defendant with the allegations that the plaintiff is owner in possession of land in suit measuring 3 bighas 4 biswas, comprised in Khasra No.1444/3 presently comprised in Khasra No.1843/1444 bearing Khewat/Khatauni Nos. 46 min/566 min situated in Village Bhatoli Kalan, Pargana Dharampur, Tehsil Nalagarh, District Solan, H.P. The land in suit was allotted to the plaintiff by the State under the Provisions of H.P. Village Common Lands (Vesting and Utilization) Act, 1974 and the rules framed thereunder. The plaintiff had deposited the sale consideration with the Treasury and certificate was also issued in favour of the plaintiff and possession was delivered to the plaintiff. The plaintiff has spent a huge amount for making the land agriculturable and the land in suit was in peaceful and physical possession of the plaintiff. The Commissioner (ADM), Solan has cancelled the allotment of the plaintiff after a lapse of more than 9 years of passing of the orders of the Collector, Nalagarh, dated 9.9.1975 vide order dated 28.2.1984. The said order is without jurisdiction, therefore, is illegal, null and void. The defendant is threatening to take possession of the land in suit on the basis of the said order. The said order is without jurisdiction, therefore, is illegal, null and void. The defendant is threatening to take possession of the land in suit on the basis of the said order. So, the plaintiff filed a suit for declaration that he was owner in possession of the land in suit and the order dated 28.2.1984 passed by the Commissioner (ADM), was illegal, null and void along with a decree for permanent injunction restraining the defendant from taking forcible possession of the land in suit and in alternative a decree for possession has been claimed. 4. The defendant contested the suit and filed written statement, wherein, it has been pleaded that the plaintiff had obtained the allotment of the land in suit by mis-representing the facts. The plaintiff was living in joint family and also owned 14-12 bighas of land. Therefore, the allotment in favour of the plaintiff was cancelled validly under the provisions of the Act. The State of H.P. was owner in possession of the land in suit. The land in suit was Banjar Kadeem. The court had no jurisdiction to entertain and try the suit due to bar created under the provisions of Section 10 of the H.P. Village Common Lands (Vesting and Utilization) Act, 1974. Legal objections about maintainability, want of notice and estoppel were also raised. 5. The plaintiff/respondent herein filed replication to the written statement of the defendant/appellant, wherein, he denied the contents of the written statement and re-affirmed and re-asserted the averments, made in the plaint. 6. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether order dated 28.2.1984 passed by ld. A.D.M, Solan is wrong, illegal, null and void?OPP 2. Whether the plaintiff is in possession of the suit land?OPP 3. Whether this suit is not maintainable in the present form?OPD 4. Whether the plaintiff is estopped by act and conduct to file the present suit?OPD. 5. Whether this Court has no jurisdiction to try the present suit? OPD. 5A. Whether the suit of the plaintiff is barred by limitation?OPD. 6. Relief. 7. On an appraisal of evidence, adduced before the learned trial Court, the latter Court under its verdict proceeded to dismiss the suit of the plaintiff. 5. Whether this Court has no jurisdiction to try the present suit? OPD. 5A. Whether the suit of the plaintiff is barred by limitation?OPD. 6. Relief. 7. On an appraisal of evidence, adduced before the learned trial Court, the latter Court under its verdict proceeded to dismiss the suit of the plaintiff. In appeals, preferred therefrom by the aggrieved plaintiff as well as by the defendants before the learned First Appellate Court, the latter Court dismissed the appeal carried therebefore by the defendant/appellant herein, whereas, it allowed the appeal preferred therebefore by the plaintiff, whereby, it decreed the suit of the plaintiff. 8. Now the defendant/appellant, has instituted the instant Regular Second Appeals before this Court, wherein It assails the findings recorded in its impugned common judgment(s) and decree(s) by the learned first Appellate Court. When RSA No. 324 of 2005 and RSA No. 442 of 2005 came up for admission, respectively on 16.08.2005 and on 2.9.2005, this Court, admitted the aforesaid appeals instituted by the defendant(s)/appellant(s) against the common judgment(s) and decree(s), rendered by the learned first Appellate Court, on the hereinafter extracted common substantial questions of law:- RSA No.324 of 2005 1. Whether the judgment/decree under challenge is vitiated for misappreciation of evidence by the parties? 2. Whether the conclusion and inferences drawn by the Court below are permissible under law? 3. Whether more than one member of joint family can be allowed to retain land under the provision of H.P. Village Common Lands (Vesting and Utilization) Act, 1974. RSA No. 442 of 2005. 1. Whether the suit filed by the plaintiff is barred by limitation? 2. Whether the civil court has no jurisdiction to entertain and decide the suit? 9. Since, the substantial questions of law “as stand” formulated in both appeals are interlinked and interconnected with each other, hence, they all are taken together for discussion and determination. 10. The contentious order of cancellation of grant of the suit land by the authority concerned “upon” the plaintiff stood pronounced on 28.2.1984, whereas, the relevant grant upon the plaintiff/respondent herein occurred on 9.9.1975. Also the suit of the plaintiff assailing the apposite order of the authority concerned, whereby, the grant of the suit land upon him “stood cancelled”, stood instituted before the learned trial Court in the year 1998. Also the suit of the plaintiff assailing the apposite order of the authority concerned, whereby, the grant of the suit land upon him “stood cancelled”, stood instituted before the learned trial Court in the year 1998. The learned trial Court had recorded adverse findings vis-a-vis the plaintiff upon the apposite issue No. 5A, struck upon the contention of the appellant herein that the suit of the plaintiff being barred by limitation, findings whereof stood anchored upon the fact “of” the period of limitation warranting attraction, for the declaratory suit of the plaintiff claiming a decree that it be quashed and set aside, being construable to fall within the apposite statutorily enjoined period of limitation, being comprised in the provisions of Article 100 of the Limitation Act, wherein, a period of three years stands prescribed, period whereof commencing since the rendition of the relevant order by the Authority concerned, whereas, with the suit of the plaintiff “standing” since the making of the relevant impugned order “instituted” inordinately, therefrom, hence, much beyond the aforesaid apposite period of limitation, thereupon, hence the suit of the plaintiff being barred by limitation. In the learned trial Court rendering findings adversarial to the plaintiff upon the aforesaid apposite issue of limitation, it has irrevered the mandate pronounced by this Court in Latest HLJ 2000(HP) 252, wherein it stands expostulated that when evidently the apposite order of cancellation “of grant” of the suit land “made” upon the aggrieved plaintiff, remains in quick succession of its making “evidently not enforced”, thereupon, the mere factum of its rendition would not engender any cause of action, vis-a-vis the aggrieved plaintiff nor thereupon the belatedly instituted suit of the aggrieved plaintiff attracting the bar of limitation nor hence the date of rendition of the relevant order comprising the commencement of accrual of cause of action vis-a-vis the aggrieved, rather the commencement of the period of limitation prescribed therein standing engendered “on” occurrence of rearing(s) of cause of actions vis-a-vis the aggrieved plaintiff, “occurrences whereof”, taking place in contemporaneity of evident enforcement of the apposite order. Apparently with the aforesaid mandate standing openly irrevered, thereupon, he contends that adversarial conclusions recorded vis-a-vis the plaintiff by the learned trial Court upon the apposite issue of limitation, obviously hence faltering. 11. Apparently with the aforesaid mandate standing openly irrevered, thereupon, he contends that adversarial conclusions recorded vis-a-vis the plaintiff by the learned trial Court upon the apposite issue of limitation, obviously hence faltering. 11. Nowat, within the ambit of the aforesaid expostulation(s) encapsulated in the aforesaid judgment reported in Latest HLJ 2000(HP), 252, it is to be tested whether the purportedly illegal apposite order “stood enforced” by the authorities concerned, immediately on its rendition also it is imperative to determine whether hence the failure of the aggrieved plaintiff to within one year therefrom, institute a suit for setting aside the apposite order, begets the sequel of his being non suited, given his suit attracting the bar of limitation. For making a gauging with respect to the aforesaid fact, the fact that the hitherto classification borne by the suit land at the time contemporaneous to its allotment vis-a-vis the plaintiff, “standing” reflected in the apposite record borne in “Ex.D-3” of it being gair mumkin nadi, whereas, with the plaintiff “on” receiving its grant, from the Government of Himachal Pradesh, his bringing it “to” cultivation, factum whereof is unraveled by Ex. D-4 and Ex. D-5, fosters an inference that the plaintiff on receiving its allotment, “had” thereafter proceeded to bring it to cultivation also when the plaintiff's witnesses, one Ram Krishan (PW-2), who holds land adjoining to the suit land, testifies with respect to the plaintiff extantly holding possession of the suit land, constrains a firm conclusion that extantly the plaintiff holds possession of the suit land, whereupon, the report borne on Ex.D-1, purportedly prepared in sequel to the cancellation of the grant of the suit land upon the plaintiff, “stands belied”. Thereupon, hence, with the authority concerned “not in contemporaneity” to the apposite order, whereby, the grant of the suit land stood cancelled, “taking its possession” nor subsequently nowat “its” holding its possession, belies the entries, if any, recorded in the revenue record with respect to the plaintiff not holding possession of the suit land. Prominently when the Patwari concerned failed to adduce the best evidence comprised in “khasra girdawaries” prepared with respect to the suit land, for belying the inference aforesaid, thereupon, an adverse inference being drawable against the defendants' qua the relevant entries in the apposite records “holding no efficacy”,rather the evidence of the plaintiff in rebuttal thereof, holding efficacy. Prominently when the Patwari concerned failed to adduce the best evidence comprised in “khasra girdawaries” prepared with respect to the suit land, for belying the inference aforesaid, thereupon, an adverse inference being drawable against the defendants' qua the relevant entries in the apposite records “holding no efficacy”,rather the evidence of the plaintiff in rebuttal thereof, holding efficacy. Consequently, it is befitting to hold that the plaintiff was entitled to the relief of permanent prohibitory injunction being pronounced against the appellant(s) herein, for restraining them from invading or dispossessing or threatening to dispossess him from the suit land. Moreover, the factum of the plaintiff evidently holding continuous possession of the suit land “since” the making of the apposite impugned order, “when construed” along with the plaintiff's testification, that the Patwari concerned meted threats to him in July, 1997 for enforcing the apposite impugned order, whereupon he concerted to dispossess him from the suit land, testification whereof gathers immense strength from the factum of the Patwari concerned “not making” any efforts for belying the aforesaid testification(s) rendered by PW-1, thereupon, with the plaintiff adducing evidence qua his successfully within the ambit of the judgment pronounced by this Court reported in Latest HLJ 2000 (HP) 252, hence, establishing that he had “within one year of” meteing of apposite threats by the Patwari concerned, threats whereof constituted an endeavour of the authority concerned to enforce the apposite impugned order, “instituted a suit” for challenging the vires of the apposite impugned order, thereupon it was grossly inappropriate for the learned trial Court “to” irrevere the mandate of the aforesaid judgment pronounced by this Court, rather it was apt for the learned First Appellate Court to hence conclude that the suit of the plaintiff was within limitation. 12. The allotment of the suit land upon the plaintiff was made on 9.9.1975, whereas, its cancellation occurred 9 years thereafter. The apposite order of cancellation of the grant of the suit land, ensued from the authority concerned exercising powers under para 13 of para (4) of the Village Common Lands (Vesting and Utilization) Scheme, 1975. 12. The allotment of the suit land upon the plaintiff was made on 9.9.1975, whereas, its cancellation occurred 9 years thereafter. The apposite order of cancellation of the grant of the suit land, ensued from the authority concerned exercising powers under para 13 of para (4) of the Village Common Lands (Vesting and Utilization) Scheme, 1975. However, though the authority concerned, is empowered “to” in exercise of the apposite jurisdiction “to” hence rescind or cancel the grant also though the said empowerment of cancellation of grant bestowed upon the authority concerned “warrants its” being exerciseable within a reasonable time “yet” the import of the phrase “reasonableness of time” within which such power(s) of cancellation, is enjoined to be exercised by the authority concerned “cannot” be extended to be signifcatory of “its” being exerciseable even on evident occurrence of an inordinate delay, as has visibly occurred hereat. Consequently, with the jurisdictional empowerment of cancellation of grant standing hence exercised by the authority concerned beyond the apposite period of limitation, thereupon, also with the apposite impugned order, hence begetting a stain “besides” when the ground for cancellation of the grant of the suit land vis-a-vis the plaintiff, “demonstrably ensues” from a legislative amendment occurring in the “Act”, whereby, the definition of “other eligible persons” was inserted by addition therein of sub section (dd), provision whereof is reproduced hereunder, “whereas” the aforesaid relevant amendment is visibly unattractable vis-a-vis the plaintiff:- “(dd) Other eligible person means a person; (I) who, holding land for agricultural purposes less than an area whether as an owner or a tenant, earns his livelihood principally by manual labour on land and intents to take the profession of agriculture and is capable of cultivating the land personally; (ii) whose father is not alive; and (iii) whose annual income from all sources does not exceeds Rs.3,000/- and shall not include a person who holds a share or a portion of an estate jointly owned or cultivated by two or more persons.” Conspicuously, though within ambit thereof, the plaintiff evidently preceding the grant, hence, held membership of a joint family or title as co-owner(s) in the joint estate, hence stood disentitled to receive the relevant grant, therefrom, also on its anvil, “it stood concluded” by the authority concerned, that the relevant disqualificatory legislative amendment, amendment whereof, however, was not prevailing at the time of making of the apposite grant, rather, hence, standing attracted vis-a-vis the plaintiff, whereupon, it proceeded to hence render the apposite impugned order. However, evident non prevalence of the apposite exclusionary/disqualificatory provision(s) in the relevant statute “at the time of” making of the grant of the suit land upon the plaintiff, “by” the authority concerned, “whereas”, “its” finding occurrence in the statute in sequel to a legislative amendment carried subsequent thereto, rather renders its attraction vis-a-vis the plaintiff “to be” inappropriate. However, evident non prevalence of the apposite exclusionary/disqualificatory provision(s) in the relevant statute “at the time of” making of the grant of the suit land upon the plaintiff, “by” the authority concerned, “whereas”, “its” finding occurrence in the statute in sequel to a legislative amendment carried subsequent thereto, rather renders its attraction vis-a-vis the plaintiff “to be” inappropriate. Consequently, when this Court has in its judgment reported in Latest HLJ 2000 (HP) 252:- “That it was reasonable to hold that the power of revision under para 13(4) of the Scheme can be exercised within three years of the date of order of allotment in cases where the allotment is made without misrepresentation , fraud or deception having been played by the allottee and in case the allottee had procured the allotment by misrepresentation, fraud or deception, such powers can be exercised within a period of three years from the date of knowledge of misrepresentation, fraud or deception and not any time' beyond the aforesaid period” has concomitantly held, “that thereupon” an intra se alike impugned apposite order thereat vis-a-vis hereat standing hence per se nullified, corollary whereof “is”, with evidently an intra se alike thereto factual scenario prevailing hereat “likewise” constraining this Court to nullify the relevant impugned order. When the findings recorded hereinabove upon issue of limitation, wherein, it stands embodied that the plaintiff had acquired knowledge about the apposite impugned order only in the year 1997, whereat it stood evidently enforced thereupon rendering his suit “to hence” within the expostulation(s) extracted hereinabove “fall within the ambit of limitation”, “stand coagulated” with the aforesaid inference begets the inevitable effect “of” thereupon the apposite impugned order being per se ingrained with a pervasive stain of illegality, also yields a corollary that the attraction of the rigour of Section 10 of the apposite Act, upon the suit of the plaintiff, provisions whereof stand extracted hereinafter:- “10. Bar of jurisdiction- Save as otherwise expressly provided in this Act, no order made by the Collector or the State Government or any officer authorised by it, as the case may be, called in question by any court or before any officer or authority.” would entail an unbefitting ill consequence(s) upon the plaintiff “of his hence” standing incapacitated to remedy the vitiation(s) occurring in the palpably void ab initio apposite impugned order, especially when the Revenue Officer(s) concerned contemplated in the relevant Act where before whom he could assail the impugned order may not efficaciously “as the Civil Court holds”, hold any alike apposite jurisdictional empowerment to pronounce upon its legal efficacy nor also they would efficaciously “as the Civil Court would”, “hold” any efficacious trial of the relevant issue with respect to the bar of limitation envisaged under the relevant statute being attracted upon the authority concerned, whereby, it stood incapacitated to record the apposite impugned order nor would the Revenue Officer(s) concerned efficaciously “as a Civil Court would do”, hold trial of the issue with respect to the bar of limitation contemplated in Article 100 of the Limitation Act, standing purportedly attracted vis-a-vis the suit of the plaintiff. Consequently, when efficacious trial upon the apposite issue would occur only before a Civil Court, whereas, it would not occur before the Revenue Court, thereupon, the mandate of the Section 10 of the Act, if permitted to be invocable , it would bring hardship vis-a-vis the plaintiff also would render him incapacitated to cure the inherent stain(s) or infirmities gripping the apposite impugned order, given its author holding no jurisdiction to make it. Prima Donna also with a stain of jurisdictional dis-empowerment(s), for reasons aforesaid gripping the relevant order, thereupon, the relevant bar ousting the jurisdiction of Civil Court “is” unattractable hereat rather was attractable only on evident jurisdictional empowerment in making it, hence, vesting in the authorities. Accordingly, all the substantial questions of law are answered in favour of the respondent and against the appellant. 13. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court are based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court has not excluded germane and apposite material from consideration. 14. 13. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court are based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court has not excluded germane and apposite material from consideration. 14. In view of the above discussion, there is no merit in the instant appeals, which are accordingly dismissed. The impugned judgments and decrees are maintained and affirmed. All pending applications also stand disposed of. No order as to costs. Records be sent back.