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2019 DIGILAW 1264 (HP)

Bhagat Singh v. State of H. P.

2019-08-30

SURESHWAR THAKUR

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JUDGMENT : Sureshwar Thakur, J. The instant appeal, stands, directed by the aggrieved plaintiff, against, the concurrent verdicts of dismissal, pronounced, respectively, by the learned trial Judge, upon, Civil Suit No. 117/91, and, upon Civil Appeal No. 300/2K RBT 169/04/2000, by the learned First Appellate Court, where throughs, his espoused decree for rendition of relief, of, permanent injunction, and, for possession, vis-a-vis, suit khasra numbers, and, against the defendant, stood declined. 2. Briefly stated the facts of the case are that the one Gulab Singh son of Sh. Sucheta resident of village Jatoli alias haroly, Tehsil and District Una was the land owner in the village with a share in shamlat land of the village according to Shajra nasab. The said Sh. Gulab Singh sold 53 kanals 17 marlas land along with share in shamlat land to late Sh. Rai Bahadur Jodha Mal vide registered sale deed dated 26.6.1934 for a consideration of Rs. 3,000/- and a mutation to this effect was sanctioned on 14.2.1935 vide mutation No. 1112. Due to this sale Rai Bahadur Jodha Mal became owner of Shamlat land measuring 108 kanals 8 marlas along with proprietary land measuring 53 kanals17 marlas and came in exclusive possession of the same. He continued in exclusive hissedari possession of shamlat land measuring 119kanals 2 marlas till his death and after his death his successors namely Sh. Joginder Lal and Sh. Jatinder Lal etc. inducted the plaintiff as non-occupancy tenant over 68 kanals of shamlat land i.e. suit land on payment of yearly rent of Rs. 10/- and since then he is continuing in possession of the suit land as tenant. He has planted mango and other fruit bearing trees and has built his abadi over the suit land. He has spent about Rs. 35,000/- in improving and reclaiming the suit land and now the same is irrigate done. An orchard is also thereon it. It is further alleged that the suit land never vested into Panchayat or the State Government but a wrong entry was incorporated in the revenue record by the revenue official showing 47 share of the suit land in the ownership of Gram Panchayat/State Government by way of vestment which was corrected by the order of Assistant Collector-I Grade through Fard Badar dated 27.8.1969. The plaintiff has been claiming in possession of the suit land under the owners and the defendant has no right, title or interest in it but the Collector, Una at the instance of some interested and influential person made an entry in favour of the owners vide his order dated 30.4.91. This order of Collector is beyond jurisdiction and he has no authority to change the entry incorporated in the series of jamabandis. The said order is still subjudice before the Divisional Commissioner Kangra at Dharmshala. On the basis of that order dated 30.4.1991 the defendant is now threatening to dispossess the plaintiff from the suit land. Hence the plaintiff filed a suit for issuance of permanent injunction restraining the defendant to interfere with the possession of the plaintiff over the suit land in any manner. 3. The defendant contested the suit on the grounds that the suit land was vested earlier with the Panchayat in the year 1955 and a mutation to this effect was sanctioned in favour of the panchayat vide mutation No. 2057 dated 7.2.1955 and the possession of the same remained with the panchayat and thereafter in the year 1976 it vested in State of H.P. and a mutation to this effect was sanctioned on 13.2.1976 vide mutation No. 2959. So the plaintiff has no right, title or interest with the suit land and the order of Collector dated 30.4.1991 is correct, legal and in accordance with law, and, it is denied by the defendant that the plaintiff has done plantation in the suit land or he improved the same. Rather it is alleged that since the suit land had already been vested in the panchayat, there was no occasion to induct the plaintiff as tenant on the suit land and the entry regarding this has been procured by the plaintiff wrongly. After coming into force of H.P. Village Common Lands Vesting and UtilisationAct,1974, the suit land has vested in the State Government of H.P. free from all encumbrances and more over its nature is "Kharaitar" and 'Khad' and the same is not in possession of the plaintiff and besides this the defendant raised legal objections regarding maintainability, non-joinder, cause of action and non-compliance of the provisions of Section 80 CPC and prayed for the dismissal of the suit. 4. 4. On the basis of the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiff is entitled for the relief of permanent injunction as alleged? OPP 2. Whether the plaintiff has no cause of action and the suit is not maintainable? OPD 3. Whether the suit is bad for non-joinder of necessary parties? OPD 4. Whether this Court has no jurisdiction to try the suit? OPD 5. Whether the suit is bad for want of notice under Section 80 CPC? OPD 6. Relief. 5. On an appraisal of evidence, adduced before learned trial Court, the learned trial Court, dismissed the plaintiff's suit. In an appeal, preferred therefrom, by, the plaintiff, before the learned First Appellate Court, the latter Court also dismissed, the, appeal, and, affirmed the findings recorded by the learned trial Court. 6. Obviously, through the instant Regular Second Appeal, cast, before this Court, by the plaintiff, he seeks reversal of the concurrent pronouncements, made, against him, by both the learned Courts below. 7. This Court, on 6.8.2007, had, admitted the appeal, instituted by the plaintiff/appellant against the judgment and decree, rendered, by the learned first Appellate Court, upon substantial questions of law No. 1 and 4, occurring at page No.4, of the paper book, for, hence its making, an adjudication thereon:- 1. Whether the Shamlat land can vest in the Panchayat under the Punjab Act if the owner is in possession of the land before 26th January, 1950? 2. Whether the courts below are legally duty bound to decide all the material facts and application in the case if not decided what is its effect. Substantial questions of Law No.1 & 4: 7. 2. Whether the courts below are legally duty bound to decide all the material facts and application in the case if not decided what is its effect. Substantial questions of Law No.1 & 4: 7. The veracity, or efficacy of the entries,, occurring in khasra girdawari, and, subsequently carried in, the, jamabandi appertaining, to the year 1973-74, and, vis-a-vis, the suit khasra numbers, reflections, in, jamabandi whereof, are made, on, anvil of rapatroznamcha, made by the halqua patwari, on 20.4.1972, is, rather denuded, for, the reasons, (a) the suit khasra numbers, under, unchallenged mutations, respectively recorded, on 20.1.1955, and, on 7.2.1955, and, where throughs, after the vestment, of, the suit khasra numbers, in the State of Himachal Pradesh, it being vested in the Panchayat concerned, and, possession thereof, being, also delivered, vis-a-vis, the Panchayat concerned, (b) conspicuously rather in contemporaneity, vis-a-vis, makings, of, all the afore mutations, no apposite entries, in, the column, of, possession, in the relevant jamabandi, hence being cast (c) thereupon, the occurrence of, a, stray entry, in the khasra girdawari, hence in the jamabandi, prepared subsequent, to, making, of, the afore orders, is, inferred, to, stand cast through, sheer concoction(s), and, manipulation(s), (d) importantly with khasra girdawari, appertaining to the suit khasra numbers, and, rojnamcha borne, in, ext. PW-5/A, being respectively drawn subsequently, and, earlier, vis-a-vis, theirs respective makings, (e) and, when the base, for the change in possession(s), vis-a-vis, suit khasra numbers, is, the khasra girdawari, (f) thereupon the rapat rozmancha, drawn and prepared prior, to the preparation, of the girdawari, by the halqua patwari, is, imbued, with, a, deep suspicion, (g) as aptly concluded, in an order recorded, in, Ext. DW-2/C, by the Divisional Commissioner, while affirming the order rendered by the Deputy Commissioner-cum-Collector concerned, (h) also where through, the afore manner of change, in the entry of possession, vis-a-vis, the suit khasra numbers, were, conjointly deprecated, (i) thereupon though dehors, the pendency of proceedings, appertaining to the requisite lis, hence before the Financial Commissioner concerned, rather the effect of the afore unchallenged mutations, recorded, on 21.1.1955, and, on 7.2.1955, (h) is, qua when reiteratedly, in contemporaneity, vis-a-vis, recording of the afore mutations, no entry of possession, standing borne, in the relevant revenue record, hence reflecting the plaintiff, to be in possession of the suit khasra numbers, (i) thereupon, the, much belated therefrom, occurrence, of, a stray entry in the jamabandi appertaining, to, the year 1973-74, and, vis-a-vis, the suit khasra numbers, and, when the afore change, for, the afore reasons rather sparks suspicion, thereupon the afore change, is, discountenanced, and, does not rather render legally frail, the afore unchallenged mutations, recorded, vis-a-vis, the suit khasra numbers. 8. The above discussion, unfolds, qua the conclusion(s), as arrived by the learned Courts below, being based, upon a proper and mature appreciation, of, evidence on record. Accordingly, the substantial questions, of law are answered in favour of the defendant/respondent, and, against the plaintiff/ appellant herein. 9. In view of the above discussion, the instant appeal, is, dismissed, and, the judgment and decree impugned, before this Court, is, affirmed and maintained. Consequently, the plaintiff's suit is dismissed. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs. Records be sent back forthwith.