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Himachal Pradesh High Court · body

2019 DIGILAW 1608 (HP)

Nand Lal v. State of H. P.

2019-10-24

SURESHWAR THAKUR

body2019
JUDGMENT : Sureshwar Thakur, J. The instant appeal, stands, directed, against, the concurrently recorded verdicts, hence, by both the learned Courts below, where through, the plaintiff's suit for rendition, of, a declaratory decree, for, setting aside mutation bearing No. 199, and, mutation No.237, where through, the suit land was respectively vested, in, the Gram Panchayat, and, in the State of Himachal Pradesh, rather stood dismissed. 2. Now the plaintiff/appellant herein, has instituted the instant Regular Second Appeal, before, this Court, wherein he assails the findings, recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, this Court, on 30.09.2004, admitted the appeal instituted by the plaintiff/appellant, against, the judgment and decree, rendered by the learned first Appellate Court, on, the hereinafter extracted substantial questions of law:- Whether the findings of the learned trial Court and the first Appellate Court are dehors the evidence on record and perverse? Substantial questions of Law No.1: 3. The strived for declaratory decree(s), for, nullifying the attestation, of, mutation No.199, and, mutation No.237, where through, the suit land, was, respectively ordered to vest, in, the Gram Panchayat, and, in the State of H.P., is/are, for the reasons to be assigned hereinafter hence amenable, for, being accorded, (i) given the revenue entires borne in the revenue records appertaining, to, the suit khasra numbers, and, also appertaining, to, the phase/era, prior to the recording, of, the afore mutations, and, respectively borne in Ex. P-4, exhibit whereof, is, a jamabandi, appertaining, to, the suit kahsra number, and, appertaining to the year 1915, (ii) and, borne in Ex.P-9, exhibit whereof, is, a jamabandi appertaining, to, the year 1954-55, besides appertains to the suit khasra numbers,(iii) rather making clear, graphic unfoldings, vis-a-vis, the suit land becoming described, in, the column of ownership, as, ?Shamlat Deh Hasab Rasab Araji Khewat?, and, in the column of possession thereof, the, predecessor-in-interest, of, the plaintiff, one Girdhari standing recorded, to be, holding possession thereof. The afore entries existing, in, the afore alluded jamabandis, appertaining to the phase, prior, to, the recording of the afore mutations, do, all carry, a presumption truth, (iv) unless the afore presumption truth carried by the afore entires, is, rebutted, through adduction, of, cogent evidence, (v) and, whereas, for, want, of, cogent adduced rebuttal evidence, whereupon, they would rather acquire, an, aura of conclusivity, and, also would become amenable, for, completest reliance being placed thereon. Since, the requisite rebuttal evidence remains unadduced, thereupon, all the afore entries carry, an, aura of conclusivity. The effects thereof, is, qua thereon(s), hence, the mandate, of, the apposite provisions borne, in Section 4, of the Punjab Village Common Lands (Regulation) Act, 1961, becoming attracted, provisions whereof stand extracted hereinafter:- 4. Vesting of rights in Panchayats and non-proprietors. - (1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any agreement, instrument, custom or usage or any decree or order of any court or other authority, all rights, title and interests whatever in the land:- (a) which is included in the shamilat deh of any village and which has not vested in a panchayat under the shamilat law shall, at the commencement of this Act, vest in a panchayat constituted for, such,village, and, where no such panchayat, has been constituted for such village; vest in the panchayat on such date, as a panchayat having jurisdiction over that village is constituted; (b) which is situated within or outside the abadi deh of a village and which is under the house owned by a non-proprietor, shall on the commencement of the shamilat law, be deemed to have been vested in such non-proprietor. (2) Any land which is vested in a panchayat under the shamilat law shall be deemed to have been vested in the panchayat under this Act. (2) Any land which is vested in a panchayat under the shamilat law shall be deemed to have been vested in the panchayat under this Act. (3) Nothing contained in clause (a) of sub-section (1)and in sub-section (2) shall affect or sholl' be deemed ever to hove affected the- (I) existing rights, title or interest of persons who though not entered as occupancy tenants in the revenue records are accorded a similar status by custom or otherwise, such as Dholidars, Bhondedars, Butimars, Bosikhuopahus, Saunjidars, Muqararidars; (ii) rights of persons in cultivating possession of shamilat deh for more than twelve years without payment of rent or by payment of charges not exceeding the land revenue and cesses payable thereon; (iii) rights of a mortagee to whom such land is mortgaged with possession before, the 26th January, 1950.? (a) given in sub section 3 (ii) thereof, a specific mandate becoming engrafted, whereby, stands pointedly excluded, the diktat, hence, of, the preceding thereto provisions, rather, containing, an, explicit mandate, vis-a-vis, the vestment, in the ?Panchayat Deh?, of, all rights qua lands reflected, as Shamlat Deh, in the revenue records apposite thereto, (b) besides thereunder, the, ordained preservation of all rights, is, bestowed upon persons, in, cultivating possession, of, Shamilat Deh, hence, for more than twelve years, and, without payment, of, rent or by payments of charges not exceeding the land revenue, and, cesses payable thereon, (c) or in other words, the aforesaid mandate borne in clause (ii) of sub section (3) of Section 4 of the Punjab Village Common Lands (Regulation) Act, 1961, excludes, the operation, of, the preceding thereto provisions, occurring, in Section 4 of the aforesaid Act, wherein rather shamlat land, is, ordained to stand vested, in the Panchayat deh, (d) also apart therefrom, provisions analogous, to, the aforesaid provisions, are, also borne in clause (d) of Section 3, of, The Himachal Pradesh Village Common Lands Vesting and Utilization (Amendment) Act, No.20 of 2001, provisions whereof stand extracted hereinafter:- ?(d) land records as ?Shamlat tika Hasab Rasad Malguzari? or by any such other name in the ownership column of jamabandi and assessed to land revenue and has been continuously recorded in cultivating possession of co-sharers so recorded before 26th January, 1950 to the extent of their shares therein? (e) wherein a specific mandate, is, engrafted, qua vis-a-vis all land(s) recorded, as ?Shamlat Tika Hasab Rasad Malguzari? or by any such other name in the ownership column of jamabandi and assessed to land revenue and has been continuously recorded in cultivating possession of co-sharers so recorded before 26th January, 1950 to the extent of their shares therein? (e) wherein a specific mandate, is, engrafted, qua vis-a-vis all land(s) recorded, as ?Shamlat Tika Hasab Rasad Malguzari? or by any such other name in the ownership column, of jamabandi, and, assessed to land revenue, and, continuously recorded in cultivating possession, of, the apt recorded cosharers, and, with cultivating possession whereof, becoming evidently displayed, in records, prepared prior to 26th January, 1950, (f) thereupon, rather the mandate, of, preceding thereto provisions, contrarily, ordaining its/their vestment in the ?panchayat deh?, being hence specifically excluded besides excepted. 4. Both the aforesaid statutory provisions, for, hence purveying strength, to the espousal of the counsel, for the appellant, (i) that, with theirs excluding, the mandate, and, operation, of, the substantive provisions, borne respectively, in sub-section 3(ii) of Section 4, of, the Punjab Village Common Lands (Regulation) Act, and, in clause (d), of Section 3, of, the Himachal Pradesh Village Common Lands Vesting and Utilization (amendment) Act, No.20 of 2001, (a) AND, whereunder, stand statutory excluded hence the prior thereto explicit statutory contemplation(s), rather ordaining, the, vestment, of, shamlat land, in, the panchayat concerned, (b) does, obviously, and, necessarily require an allusion, to, the evidence, bearing absolute tandem, with, the afore-referred apt exclusionary provisions, as, contained in the afore stated statutory provisions. The apt revenue record, is borne in Ex. P- 4, exhibit whereof comprises, a copy, of, jamabandi, appertaining to the suit land, and, it appertains to the year 1915, and, also in Ex.P-9, exhibit whereof comprises a copy, of, the jamabandi appertaining to the suit land, it appertains, to, the year 1954-55, (c) wherein, in the column, of ownership, reflections occur qua, vis-a-vis, land classified, as ?Shamlat Deh Hasab Rasab Araji Khewat?, hence the apt co-sharer therein, inclusive, of, the descrbied therein hence the predecessor-in-interest, of, the plaintiff, holding, the apposite rights, in proportion of their/his shares, to, rather make user(s) thereof. The afore referred, entries borne in Ex. The afore referred, entries borne in Ex. P-4, and, in Ex.P-9, are not contested nor evidence, is adduced, for ripping apart the presumption of truth, carried by them, consequently, it is to be concluded, that the afore referred, displays occurring therein, hence enjoy conclusivity, hence, on all requisite fronts, and, areas, specifically also qua hence, the afore paying, the, apt land revenue, to the Revenue Agency concerned, more so when evidence contra therewith, stand unadduced, rather by the defendants, (d) whereupon, it is to be concluded, qua with the suit land holding hence the apposite description, of ?Shamlat Deh Hasab Rasab Araji Khewat?, thereupon, the exclusionary mandate borne, in clause (d) of Section 3 of the Himachal Pradesh Village Common Lands Vesting, and, Utilization (amendment) Act, No.20 of 2001, against its vestment, in the ?panchayat deh? concerned, hence, concomitantly making its evident surfacing, (e) and, also the apt therewith exclusionary benefits thereof, hence, ensuing, vis-avis, the appellants/plaintiffs. (f) Nowat, also with the reflections, in the apposite order, hence, attesting mutation qua vestment, of, the suit land, initially, in, the Panchayat concerned, and, latter in the State, suit land whereof, rather carries, the, classification of ?Shamlat Deh?, reiteratedly renders, the, aforesaid factum/echoings, as, clearly borne, in the orders attesting the relevant mutation, order(s) whereof, is/are, borne in Ex.P-1, and, Ex.P-2, to, hence thereupon acquire conclusivity, (g) thereupon, the evident mantle, donned by the suit land, vis-a-vis, it becoming classified, as, ?Shamlat Deh Hasab Rasab Araji Khewat?, is, both obviously, and, openly, acquiesced by the respondent/State, also, hence the factum probandum, of, the suit land, earlier depicted, in Ex. P-4, and, Ex.P-9, to be bearing the character, of, ?Shamlat Deh Hasab Rasab Araji Khewat?, rather acquires corroborative vigour, as also, the fullest conclusivity. The orders borne in Ex. P-1, and, Ex.P-2, in pursuance whereof, also jamabandis, were, prepared subsequent thereto, hence, also carrying reflections, in, compatibility thereof. P-4, and, Ex.P-9, to be bearing the character, of, ?Shamlat Deh Hasab Rasab Araji Khewat?, rather acquires corroborative vigour, as also, the fullest conclusivity. The orders borne in Ex. P-1, and, Ex.P-2, in pursuance whereof, also jamabandis, were, prepared subsequent thereto, hence, also carrying reflections, in, compatibility thereof. In aftermath, with the provisions, borne in clause (ii), to sub section (3) of Section 4 of the Punjab Village Common Lands (Regulation) Act, remaining hence unsubstituted, through, a valid amendment, rather carried, by the legislative assembly concerned, (i) thereupon, with a candid diktat borne therein, especially, vis-a-vis, apt preservations of rights, qua persons, in evident cultivating possession, of ?shamlat land rather for more than 12 years, without payment of rent or by payment of charges nor exceeding the land revenue, and, cesses payable thereon?, (j) in category whereof, both the suit land, and, the appellant/plaintiff, fall, given emphatically, with both Ex. P-4, and, Ex.P- 9, for reasons aforesaid, bearing out the factum, of, the predecessors-in-interest, of, the appellant/plaintiff, holding continuous cultivating possession, of shamlat land, since 1915 upto 1956, whereat Ex. P-1, hence was prepared, (k) thereupon, with the suit land, falling, within the ambit, of, the apposite exclusionary mandate, borne in clause (ii) to sub section (3) of Section 4 of the Punjab Village Common Lands (Regulation) Act, vis-a-vis, the preceding thereto mandate, (i) wherein, contrarily, excepting, the lands evidently falling, within, the domain of clause (ii) to sub-section (3) of Section 4, of, the Punjab Village Common Lands (Regulation) Act, and, bearing the classification of Shamlat deh, are, rather mandated to be vested, in, the Panchayat, (l) sequelly, hence, the lack of valid supplantation thereof, through, a valid legislative amendment, rather rendered, the apposite exclusionary mandate, borne in clause (ii) to sub Section (3) of Section 4 of the Punjab Village Common Lands (Regulation) Act, to, both hold clout and sway, (m) whereas, Ex.P-1, and, Ex. P-2, obviously did not, either override or benumb the operation or clout, and, the command, of the apposite exclusionary statutory provisions, vis-a-vis, the preceding thereto provisions, borne in Section 4, of, the Punjab Village Common Lands (Regulation) Act, hence renders any meteing, of, reverence thereto, in, the apt order, to be not thereupon clothing it, with any sanctity. 5. P-2, obviously did not, either override or benumb the operation or clout, and, the command, of the apposite exclusionary statutory provisions, vis-a-vis, the preceding thereto provisions, borne in Section 4, of, the Punjab Village Common Lands (Regulation) Act, hence renders any meteing, of, reverence thereto, in, the apt order, to be not thereupon clothing it, with any sanctity. 5. Be that as it may, even during, the pendency of the instant suit, through, a valid legislative amendment, as, occurred, vis-a-vis, Section 3, of, the Himachal Pradesh Village Common Lands Vesting and Utilization Act, whereby, the apt exclusionary clause (d), was, added to Section 3 thereof, (i) wherein, clearly and expressly the coinage ?Shamlat tika hasab Rasad Malguzari?, hence occurs, and, with the suit land also bearing, a, similar thereto coinage, is, expressly excluded, from vestment, in, the ?panchayat deh?, (ii) thereupon, with, for all reasons aforestated, the suit land, being evidently, described, in the apt revenue records, to carry, the classification of ??Shamlat Deh Hasab Rasab Araji Khewat??, hence, the afore evident apt classification, donned, by the suit land, did hence render, it to fall, within, the ambit, of clause (d) of Section 3, of the Himachal Pradesh Village Common Lands Vesting and Utilization (amendment) Act, No.20 of 2001, (iii) and, also rendered mandate thereof being attractable vis-a-vis the suit land, (iv) besides obviously, when the apt exclusionary mandate, is foisted, upon land hence bearing, the aforesaid evident classification, in, the apposite revenue records, prepared prior, to, January, 1950, (iii) thereupon, with Ex. P-4 standing prepared prior to 1950, hence, the apt therewith reflections, occurring therein, acquire(s) conclusivity, (iv) hence, the recording of or making, of, Ex. P-1, and, of, Ex.P-2, whereunder, the suit land is ordered to be vested, respectively in the panancyat, or in the State, is stained with a vice, of , aforesaid entrenched statutory infractions, besides all the reflections in, the, revenue records, prepared subsequent thereto, and, in consonance therewith, are, also rendered void and nonest. 6. Be that as it may, the learned counsel appearing, for the respondents places reliance, upon, a judgment of the Hon'ble Apex Court, rendered, in a case titled as Gurbachan Singh and another vs. Gram Pancyayat and others, reported in (2000) 10 SCC 594 , the relevant paragraphs whereof are extracted hereinafter:- ?1. This litigation has had a chequered history; the dispute confining to jurisdiction. This litigation has had a chequered history; the dispute confining to jurisdiction. The High Court has taken the view that the civil suit did not lie and that an application under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 will lie before the Collector of the district. In our view, the High Court was right in coming to that view especially when a question of title has been raised and Section 13 of the said Act puts a bar to the civil court determining that question. We, therefore, dispose of this appeal in letting the appellants approach the Court of the Collector under Section 11 of the said Act. 2. Under interim orders of this Court dated 27-11-1990 the appellants were required to deposit a sum of Rs 100 p.m. regularly. In terms of that order, the said sum was required to be depositedan the District Court. The sum thus collected be handed over to the respondent Gram Panchayat. This order would not, however, preclude the appellants from obtaining interim orders from the Collector when proceeding under Section 11 of the Act. In this manner, the appeal stands disposed of. No costs. Wherein, Section 13, of the Punjab Village Common Lands (Regulation) Act, alike Section 10, of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974, foists a statutory bar, against, the civil Court, exercising jurisdiction, over any matter, arising, from the question of title, (i) and, when in absolute alikeness or affinity therewith, provisions also occur in Section 10 of the Himachal Pradesh Village Common Lands Vesting, and, Utilization Act, (ii) AND when in respect whereof, the, Hon'ble Apex Court, in the apt paragraphs extracted hereinabove, had concluded qua the civil courts, holding no jurisdiction, vis-a-vis, any matter falling with the domain, of the aforesaid Act, (iii) hence, no pronouncement, in the affirmative being meted, vis-a-vis, the substantial question of law, whereon, the second appeal is admitted. However, the reliance, as placed by the learned counsel appearing, for the respondents, upon, the aforesaid statutory bar, created in the apposite provisions, occurring in both, the Himachal Pradesh Village Common Lands Vesting, and, Utilization Act, and, in the Punjab Village Common Lands (Regulation) Act, for hence rendering, not maintainable, the extant suit, before the civil court concerned, (iv) is clearly a sequel, of his misreading, the entire statutory provisions, as, borne in both the afore referred statutes, (v) also arises, from, his being unmindful vis-a-vis (a) the evident description, of the suit land, in the apt record, as ?Shamlat Deh Hasab Rasab Araji Khewat?, whereon, the apt exclusionary statutory provisions, as, referred hereinabove, are firmly concluded, to hence stand attracted, (vi) and, as a corollary thereof, the vestment of the suit land in the panchayat concerned, is, concluded to stand stained, with, vices of apt statutory infractions. The sequel of the learned counsel appearing, for the respondents, hence remaining unmindful, vis-a-vis, the afore referred conclusions, is obviously qua hence, the apt hereafter ensual, rather arising, (vii) qua with all revenue records, specifically Ex. P1, and, Ex.P-2, being manifestly prepared in derogation, of, the apt exclusionary statutory provisions, and, in sheer derogation, of, apposite therewith classification hence donned, by the suit land, (viii) thereupon with the apt orders comprised in Ex. P-1, and, Ex.P-2, being invalidly recorded, (ix) besides, its begetting open infraction, of, the mandate of the apt exclusionary provisions, borne in clause (ii) to sub-section (3) of Section 4 of the Punjab Village Common Lands (Regulation) Act, and, in clause (d) of Section 3 of the Himachal Pradesh Village Common Lands Vesting and Utilization (Amendment) Act, 20 of 2001, (x) thereupon, unless the apt excepting relief(s), as, created in the afore referred statutes, is, accepted, and, is applied hereat, (xi) thereupon, alone the solemn holistic purpose, of, the apt exclusionary mandate, would become preserved, (xii) whereupon, concomitantly, for keeping alive the apt excepting mandate, rather the apt statutory bar, hence cannot be construed, to be creating any obstruction(s), vis-a-vis, the rendition, of, the espoused decree. Contrarily, rather, the ill besides insagacious sequel, would ensue, of even invalidly made orders, anchored upon a clear lack of adherence, to the revenue records, bearing absolute congruity, with, the mandate of the apt exclusionary clauses, to, the relevant inclusionary or vesting provisions, respectively, borne in clause (ii) to sub-section (3) of Section 4 of the Punjab Village Common Lands (Regulation) Act, and, in clause (d) of Section 3 of the Himachal Pradesh Village Common Lands Vesting, and, Utilization (Amendment) Act, 20 of 2001, rather, becoming hence untenably validated. Corollary thereof, is that the bar, of jurisdiction, is applicable, vis-a-vis, only validly made orders, by the revenue officers, and, it being not be applicable, vis-a-vis, any invalidly made orders or orders made in blatant transgression, of, the apt excepting statutory provisions. Moreover, the judgment whereon, the learned counsel, appearing for the respondents, has, placed reliance, makes a clear display, of the Hon'ble Apex Court, affirming, the, view taken, by the Hon'ble High Court, (i) that, the remedy available, to the aggrieved litigant, being to cast, an application under Section 11 of the Act, before the revenue officer concerned, and, not by his canvassing, his grievance, through, his instituting, a civil suit. Consequently, with Section 11 of the Punjab Village Common Lands (Regulation) Act, hence, appertaining to an interdiction, vis-avis, any preemption, vis-a-vis, sale of land, in shamlat deh, (ii) whereas, contrarily, hereat, there is open, gross and blatant transgression, of, the apt statutory hence excepting exclusionary mandate, vis-a-vis, the mandate, of, apt vesting provisions, (iii) thereupon, no remedy other than, hence for setting aside, the apposite order or for setting aside, all concurring therewith entries, as, carried in the revenue record, being, comprised, in, the institution, of, a civil suit. 7. The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court as also by the learned trial Court, being not based, upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court as well as the learned trial Court, have excluded germane and apposite material from consideration. Accordingly, the substantial question of law is answered in favour of the appellant/plaintiff and against the respondents/defendants. 8. In view of the above discussion, the present Regular Second Appeal is allowed. While rendering the findings, the learned first Appellate Court as well as the learned trial Court, have excluded germane and apposite material from consideration. Accordingly, the substantial question of law is answered in favour of the appellant/plaintiff and against the respondents/defendants. 8. In view of the above discussion, the present Regular Second Appeal is allowed. In sequel, the judgments and decrees rendered by both the learned Courts below are set aside, and, the suit of the plaintiff, is, decreed. Consequently, the plaintiff along with performa defendants is held owner in possession of the land comprised in Khata Khatauni no.37 min/96 min, bearing Khasra No.605/13 min, measuring 2-0 bighas, situated in Village Anji Sunaran,Tehsil Kandaghat, District Solan, H.P., AND, mutation No. 199 of 2.5.1956, and, Mutation No.237 of 26.8.1975, where through, the suit land was respectively vested in the Gram Panchayat, and, in the State of H.P. are set aside, and, all the subsequent entries thereto showing the Gram Panchayat, and, the State of H.P. to be owner in possession, of, the suit land are null and void. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs.