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2018 DIGILAW 57 (HP)

Lala Ludarmal Dharamshala Trust v. State of H. P.

2018-01-05

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. The instant petition is directed against the orders, respectively, borne in Annexure P-1 and in Annexure P-2. Annexure P-1 embodies a mandate pronounced, upon, the petitioner herein, (I) to institute a plaint before the Revenue Officer concerned, embodying therein averments bearing out its claim, of its, becoming owner, of, the suit property by adverse possession. Annexure P-1, was, appealed before the Collector Sub-division, Kandaghat. The latter under Annexure P-2, dismissed the appeal, on the short ground, (ii) of with a specific mandate occurring, in, sub-section (5) of Section 163 of the Himachal Pradesh Land Revenue Act, 1954, (hereinafter referred to as the Act), provisions whereof stands extracted hereinafter:- “(5) An appeal from the decree of the Revenue Officer made under sub-section (4) shall lie to the District Judge as if that decree were a decree of Subordinate Judge in an original suit.” against appeals being reared vis-a-vis orders rendered by Revenue Officers concerned upon the latter exercising powers, of, Civil Court, rather in consonance, with, sub section (4) of Section 163 of the Act, theirs being, preferable only before the learned District Judge concerned. Even, if the aforesaid order is per se infirm, given (i) no decree being rendered under Annexure P-2, yet with its tacitly affirming, the orders borne in Annexure P-1, thereupon, it acquires, for, reasons assigned hereafter, an intrinsic aura of validities. 2. Be that as it may, before determining the validities, of, the aforesaid orders, it is imperative to cull out the relevant germane facts thereto. Annexure P-3, comprises a show cause notice, issued by the competent officer upon the petitioner herein. Recitals occurring therein, make, a display of the petitioner herein, encroaching upon government land. The aforesaid statutory notice was replied by the petitioner herein AND therein it made echoings of the noticee/petitioner herein, holding, since 1946, with an animus possedendi, evident possession of the suit property, (i) thereupon, with the apposite statutorily mandated period, of, limitation, expiring upto the initiation of proceedings under Section 163 of the Act, (ii) thereupon the noticee/petitioner herein perfecting its title as owner vis-a-vis the suit property. The afore referred reply meted by the noticee vis-a-vis the statutory notice issued, within, the ambit of Section 163 of the Act, by the Revenue Officer concerned, upon noticee/petitioner herein, (iii) makes a vivid display, of, the noticee hence asserting acquisition of title, by adverse possession vis-a-vis the suit property. Consequently, with the aforesaid assertions, made by the noticee/petitioner herein, hence falling, within the domain, of, sub section (3) of Section 163 of the Act, the further mandates embodied therein, of, hence a Revenue Officer, not, below the rank of Assistant Collector 1st Grade, being enjoined, to determine the aforesaid assertions, as if he were Civil Court, (iv) hence necessarily was also rendered workable vis-a-vis the noticee/petitioner herein, besides were compliable by the Revenue Officer concerned. The pointed onslaught mounted upon the impugned orders, by the learned counsel for the noticee/petitioner herein, is (a) of the insistences, made, by the Revenue Officer concerned, upon, the noticee/petitioner herein, for, its furnishing a plaint, encompassing therein, pleadings apposite, to assertions of title by way of adverse possession, by it, vis-a-vis the suit land, rather begetting visible detractions vis-a-vis the mandate, of, both subsection (3) and of sub-section (4) to Section 163 of the Act; (b) conspicuously hence beneficial workings, of, the mandates of the aforesaid provisions of law, thereupon, being rendered both nugatory besides redundant. However, for the reasons to be assigned hereinafter, the initial espousal, made, by the counsel for the noticee/petitioner herein, of, untenable insistences, being made by the Revenue Officer concerned, upon, the noticee, to, furnish an apposite plaint, embodying therein pleadings apposite to acquisition of title, by it, vis-a-vis the suit property, conspicuously, by adverse possession, IS rendered diminished of its vigour (i) by the Hon'ble Apex Court in a judgment reported in (2014) 1 SCC 669 , rendered in a case title as Gurdwara Sahib versus Gram Panchayat Sirthala and another, the relevant paragraphs No. 8 & 9 whereof stand extracted hereinafter:- “8. There cannot be any quarrel to this extent the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings filed against the appellant and appellant is arrayed as defendant that it can use this adverse possession as a shield/defence. 9. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings filed against the appellant and appellant is arrayed as defendant that it can use this adverse possession as a shield/defence. 9. However, we also find from the reading of the judgment of the High Court that the High Court has refused the injunction observing that the appellant was not entitled to the same as it is the Gram Panchayat which is the owner of the property in dispute and as the appellant is in possession without any right, it has no right to seek injunction against the Gram Panchayat. This finding is totally perverse and, in fact, unnecessary. In the first instance, there was no occasion or reason for the appellant’s counsel to seek this prayer in the Second Appeal. As pointed out above, the relief of injunction had already been granted by the Civil Court and this portion of the decree had not been challenged by the respondents. Decree to this extent in favour of the appellant had attained finality. The First Appellate Court also specifically recorded this fact and observed that by not challenging the judgment and decree passed by the learned Civil Judge, the respondents accepted that the appellant was in adverse possession of the land since 13.4.1952. We, thus, clarify that observations of the High Court that the appellant is not entitled to injunction, were unnecessary and beyond the scope of the appeal.” (p..673) making, a clear categorical mandate therein, of, the espousals of adverse possession, by the plaintiff, being grossly impermissible also therein an explicit mandate, is borne of the apposite Article of the Limitation Act, purveying the aforesaid empowerments to the plaintiff, standing hence blunted besides becoming naturally redundant, besides unworkable emphatically vis-a-vis the plaintiff. Consequently, with the noticee/petitioner herein, striking at the insistences, made upon it, by the Revenue Officer concerned, for, furnishing an apposite plaint, containing therein pleas apposite, to its, acquiring title by adverse possession vis-a-vis the suit land, (ii) it is, obviously making a blatant open concert, to, benumb the efficacy of the verdict, of the Hon'ble Apex Court, wherein, rearings of the aforesaid pleas, by the plaintiff in the affirmative, has been firmly denounced. It also appears that the noticee/petitioner herein, has, attempted to resist the aforesaid insistences, made upon it, by the Revenue Officer concerned, for, enabling it to rear the aforesaid plea in its written statement, (iii) obviously it intends to injunct the Revenue Officer concerned, to, institute a plaint for rearing therein, reliefs, for, rendition of a decree for possession, of the suit property. 3. The aforesaid contrivances are grossly untenable, the reason being (i) of the Revenue Officer concerned, upon, his issuing besides ensuring service, of, statutory notice anvilled upon Section 163 of the Act, upon the noticee/petitioner herein, being not, thereafter either insisted upon, not it can be injuncted, to, hence institute a plaint, claiming therein rendition of a decree for declaration AND rendition, of a decree for possession of the suit land, (ii) given thereupon, rather with sub-section (4) of Section 163 of the Act, making a clear express mandate, of, upon a Revenue Officer concerned, trying questions of title, his, drawing proceedings in a manner alike the ones drawn by a Civil Court, upon the latter's trying a Civil Suit, besides his converting itself to a Civil Court, (iii) imperatively, he is enjoined to regulate, the trial of the suit, in the manner contemplated in the Code of Civil Procedure, (iv) thereupon, if the Revenue Officer concerned, who issues a statutory notice, within the ambit of Section 63 of the Act, thereafter, insists, upon, the authorities initiating apposite proceedings, under the Act, to furnish a plaint, it, would entail obviously the consequences of the plaint, being enjoined to also bear court fees ad valorem vis-a-vis the market value of the suit property concerned, with a concomitant unbefitting ill consequence of (v) statutory notice losing its vigour, besides its being effaced, whereas, therefrom, the statutorily contemplated proceedings commence rather, upon, the noticee purveying replies thereto when rear, a plea of adverse possessing, is enjoined to in consonance therewith form an apposite plaint, rendering it not akin, to, a plaint. (vi) The entire exchequer being drained of moneys, merely, for affixing on the apposite plaint, court fees ad valorem vis-a-vis the values of the suit property. In aftermath, the aforesaid ill consequences are to be obviated. (vi) The entire exchequer being drained of moneys, merely, for affixing on the apposite plaint, court fees ad valorem vis-a-vis the values of the suit property. In aftermath, the aforesaid ill consequences are to be obviated. Moreover, if the aforesaid plea, is, enjoined to be workable vis-a-vis the petitioner herein/noticee, (i) thereupon, it would beget infraction, of, the specific bar, encapsulated in the verdict rendered by the Hon'ble Apex Court, against, rearings in the affirmative, of, pleas of adverse possession, for, thereupon the claimant, in the affirmative, hence, canvassing his acquiring title vis-a-vis the suit land concerned, (ii) corollary whereof, is, of, unless reverence in the absolute rigour, is, meted therewith, thereupon, it may beget infraction of the mandate of the Hon'ble Apex Court rendered in Gurdwara Sahib's case (supra). Consequently, also the argument of the learned counsel appearing, for the noticee/petitioner herein, that, unless its plea, is accepted, thereupon, the mandate of subsection (3) of Section 163 of the Act would be rendered redundant, is also, of, no avail to him, (iii) given the Hon'ble Apex Court in an alike situation rendering redundant work abilities, of, the apposite Article of the Limitation Act, whereupon, leverage is purveyed to the plaintiff concerned, to rear pleas in the affirmative, pleas whereof appertaining to acquisition of title by adverse possession. Consequently, even if negativing, the plea of noticee/petitioner herein renders redundant the mandate of subsection (3) of Section 163 of the Act, thereupon, rather all the aforesaid ill consequences would be obviated. 4. For the foregoing reasons, the instant petition is dismissed and the impugned orders are maintained and affirmed. No order as to costs. All pending applications also stand disposed of.