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2021 DIGILAW 461 (HP)

Mohini Ram v. State Of Himachal Pradesh & Anr.

2021-07-26

AJAY MOHAN GOEL

body2021
JUDGMENT Ajay Mohan Goel, J. - By way of this Regular Second Appeal, the appellant/plaintiff has prayed for setting aside of judgment and decree dated 05.02.2019, passed by the Court of learned Civil Judge, Court No. 2, Nalagarh, District Solan, H.P. in Civil Suit No. 102/1 of 2013, titled as Mohani Ram Vs. State of Himachal Pradesh and another, vide which, the suit for declaration with consequential relief of permanent prohibitory injunction filed by the appellant/plaintiff stood dismissed by the learned Court below as well as for setting aside of judgment and decree dated 13.12.2019, passed by the Court of learned Additional District Judge, Nalagarh, District Solan, H.P. in Civil Appeal No. 59-NL/13 of 2019, titled as Mohani Ram Vs. State of Himachal Pradesh and another, vide which, the appeal preferred by the present appellant against the judgment and decree passed by the learned Trial Court, stood dismissed. 2. Brief facts necessary for the adjudication of the present appeal are that the appellant-plaintiff (hereinafter referred to as "the plaintiff") filed a suit for declaration with consequential relief of permanent prohibitory injunction, on the pleadings that he was a permanent resident, proprietor and Khewatdar of Village Musselwal, Tehsil Nalagarh, District Solan, H.P. The suit land comprised in Khasra No. 235/92/1, Khata Khatauni No. 215/224, situated in Village Musselwal, Pargana Nalagarh, Tehsil Nalagarh, District Solan was in possession of his predecessor-in-title, who had raised construction of a residential house and Khokha (small shop) etc. over the same on 10.04.1963. Part of the suit land was also used as a Courtyard and the plaintiff through his predecessor-in-title was coming in peaceful, continuous and uninterrupted possession of the same, over which, a residential house, Courtyard as well as a Khokha (small shop) were now existing. The house was renovated and reconstructed from time to time. Shamlat land before coming into force of the H. P. Village Common Lands (Vesting & Utilization) Act, 1974 (hereinafter referred to as "the 1974 Act) was in possession of the proprietors of Village Musselwal, including the suit land, which was part of the State of Punjab before the year 1966. Constructed Shamlat land stood saved from vesting in the Gram Panchayat under the provisions of the above Act. It was mandatory for the statutory authorities under the aforesaid Act to make inquiry regarding the vesting of Shamlat land in the Gram Panchayats. Constructed Shamlat land stood saved from vesting in the Gram Panchayat under the provisions of the above Act. It was mandatory for the statutory authorities under the aforesaid Act to make inquiry regarding the vesting of Shamlat land in the Gram Panchayats. In the present case, no such inquiry was ever made. The authorities had failed to comply with the mandatory provisions of the Statute to initiate inquiry regarding vestment of suit land and in this background, the proceedings, which stood initiated against the plaintiff of ejectment under the provisions of Section 163 of the Himachal Pradesh Land Revenue Act, 1954 were bad, so also was the warrant of possession issued against him. The ejectment order passed by the Assistant Collector, 1st Grade, Nalagarh, H.P. in case No. 44/12, titled as State Vs. Mohani Ram and warrant of possession issued by the revenue officer/officials in the said case were wrong, illegal, null and void and also inoperative and ineffective, being without jurisdiction. According to the plaintiff, as the statutory authorities had failed to comply with the mandatory provisions of law, therefore, the Civil Court was having powers to look into the legality of the order passed by the revenue authorities and in this background, suit stood filed praying for a decree of declaration with consequential relief of permanent prohibitory injunction qua the suit land against the defendants. 3. The suit was contested by the defendants, inter alia, on the ground that the plaintiff had not substantiated the averments made in the plaint with any documentary proof qua his being proprietor and Khewatdar upon the suit land, as contended by the plaintiff. It was further pleaded by the defendants that the plaintiff was an encroacher over the suit land and was earlier dispossessed from the same vide Rapat No. 732, dated 24.07.2010. Patwari concerned again reported on 29.05.2012 regarding the encroachment made by the plaintiff on the Government land, comprised in Khasra No. 235/92/1, measuring 1-0 Marla by constructing a Khokha on the same and Assistant Collector, 2nd Grade, Nalagarh initiated the encroachment proceedings against the plaintiff on the basis of the said report of the Patwari. The proceedings were decided after complying with the principles of natural justice and ejectment orders were passed by the Assistant Collector, 2nd Grade on 30.10.2012 against the plaintiff. The proceedings were decided after complying with the principles of natural justice and ejectment orders were passed by the Assistant Collector, 2nd Grade on 30.10.2012 against the plaintiff. According to the defendants, the status of the plaintiff was that of an encroacher upon the suit land and he had no right and title over the same and had no locus to maintain the suit. The land in question was in exclusive ownership of the State of Himachal Pradesh under the provisions of the Himachal Pradesh Village Common Lands (Vesting and Utilization) Act, 1974 and prior to vestment in the State of Himachal Pradesh, was owned and possessed by the Gram Panchayat at the relevant time. Plaintiff had encroached upon the Government land and now wanted to usurp the same, though he was a stranger qua the same. The suit land stood encroached upon by the plaintiff in the year 2010 by constructing a Khokha and again in the year 2012, post his ejectment in the earlier case in the year 2010. 4. On the basis of pleadings of the parties, learned Trial Court framed the following issues: "1. Whether the plaintiff is entitled for the decree of declaration to the effect that ejectment order/warrant of dispossession dated 19.03.2013, passed by A.C. IInd Grade, Nalagarh, in case No. 44/12, titled as "State Vs. Mohani Ram" and warrant of dispossession dated 19.03.2013, issued by Field Kanungo are wrong, illegal, null and void, as prayed for?OPP 2. If issue No. 1 is proved in affirmative, whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as prayed for? OPP 3. Whether the suit is not maintainable, as alleged? OPD 4. Whether the plaintiff has no cause of action to file the present suit, as alleged? OPD 5. Whether the plaintiff has no locus standi to file the present suit, as alleged? OPD-1 6. Whether suit is not properly valued for the purpose of Court fee and jurisdiction, as alleged OPD-1 7. Whether suit is bad for non-compliance of mandatory provision under Section 80(1) CPC, as alleged? OPD-1 8. Whether the plaintiff is estopped from filing the present suit due to his own act and conduct, as alleged? OPD-1 9. Whether this Court is having no jurisdiction to try the present suit, as alleged? OPD-1 10. Whether suit is bad for non-joinder and mis-joinder of necessary parties, as alleged? OPD-2 11. Relief. OPD-1 8. Whether the plaintiff is estopped from filing the present suit due to his own act and conduct, as alleged? OPD-1 9. Whether this Court is having no jurisdiction to try the present suit, as alleged? OPD-1 10. Whether suit is bad for non-joinder and mis-joinder of necessary parties, as alleged? OPD-2 11. Relief. 5. On the basis of the evidence adduced by the respective parties in support of their respective pleadings, the issues were decided as under:- "Issue No. 1: No. Issue No. 2: No. Issue No. 3: Yes. Issue No. 4: Yes. Issue No. 5: Yes. Issue No. 6: No. Issue No. 7: No. Issue No. 8: No. Issue No. 9: No. Relief: Suit of the plaintiff is dismissed as per operative part of the judgment." 6. The suit was dismissed by the learned Trial Court by holding that the averments made by the plaintiff that his predecessor-in-title raised construction of a residential house and Khokha (small shop) upon the suit land on 10.04.1963 and part of the disputed land was used as a Courtyard, had not been proved and in fact the suit stood filed on fictional bundle of facts. In the course of cross-examination of the plaintiff as well as his witness Ram Prakash, numerous contradictions were there, including to the effect that though the plaintiff had denied the Khokha shown in photographs Ex. D-1 and D-2, however, PW-1 Ram Prakash, one of the witnesses of the plaintiff, had admitted the same. In terms of the Jamabandi, State of Himachal Pradesh was the absolute owner in possession of the suit land and it was an admitted case that ejectment order was passed against the plaintiff on the basis of a complaint preferred by the Gram Panchayat Rajpura and plaintiff had earlier also been evicted from the suit land. Learned Court also held that the proceedings initiated under Section 163 of the Himachal Pradesh Land Revenue Act were taken to their logical conclusion by following the fundamental principles of natural justice and that the status of the plaintiff was that of an encroacher upon the suit land and he had no right to remain upon the same and continue to obstruct the general public. Learned Trial Court also held that the plaintiff miserably failed to demonstrate that any vestment had occurred as per the provisions of the 1974 Act. Learned Trial Court also held that the plaintiff miserably failed to demonstrate that any vestment had occurred as per the provisions of the 1974 Act. On these bases, learned Trial Court dismissed the suit. 7. In appeal, learned Appellate Court, while affirming the findings returned by the learned Trial Court, further held that even otherwise the vestment of the suit property in the State of Himachal Pradesh was not open to scrutiny of the Civil Court and no evidence in this regard was brought on record. Learned Appellate Court held that Civil Court cannot look into the question of lawful and legal vestment in view of Section 10 of the 1974 Act, which creates a complete bar for Civil Court to entertain and decide a suit, wherein declaration sought for is about the validity of the vestment of the land in the State Government under the provisions of the said Act. It further held that the relief sought for by the plaintiff that the suit land could not have vested under the provisions of the said Act, could not be entertained and decided by the Civil Court and the remedy of the aggrieved persons was somewhere else. Learned Appellate Court held that as per the statement of DW-1 Rameshwar Dass alongwith the statement of DW-2 and also Ex. DW1/A and Ex. DW2/A, no fault could be attributed to the proceedings which stood initiated against the plaintiff under Section 163 of the Himachal Pradesh Land Revenue Act, as the record demonstrated that the plaintiff was indeed an encroacher upon the suit land. On these basis, learned Appellate Court also held that the plaintiff was not entitled for any relief of permanent prohibitory injunction. 8. Feeling aggrieved, the plaintiff/appellant filed this appeal. 9. I have heard learned counsel for the appellant as well as learned Additional Advocate General. I have also gone through the judgments and decrees passed by both the learned Courts below as well as the record of the case, which was called for by the Court. 10. 8. Feeling aggrieved, the plaintiff/appellant filed this appeal. 9. I have heard learned counsel for the appellant as well as learned Additional Advocate General. I have also gone through the judgments and decrees passed by both the learned Courts below as well as the record of the case, which was called for by the Court. 10. Though the case of the plaintiff, as put forth in the plaint, was that the suit land was coming in peaceful, continuous and uninterrupted possession of the plaintiff through his predecessor-in-title, who had raised construction of a residential house, Courtyard as well as a Khokha (small shop) over the same on 10.04.1963, however, there is not even an iota of evidence led by the plaintiff to demonstrate this fact. In other words, the plaintiff has miserably failed to demonstrate that his predecessor-in-title had constructed any Khokha upon the suit land in the year 1963, as alleged or the plaintiff, in any manner, was in possession of the suit land, as before the date on which the Gram Panchayat initiated proceedings against him for being an encroacher upon the same. There are concurrent findings returned by both the learned Courts to the effect that the status of the plaintiff over the suit land was that of an encroacher. During the course of arguments, learned counsel for the appellant could not demonstrate that there was any perversity in the findings returned by the learned Courts below to the effect that earlier also, an order of eviction stood passed against the plaintiff qua the suit land under Section 10 of the 1974 Act, which was duly given effect to by way of ejectment of the plaintiff, but thereafter, the plaintiff again encroached upon the suit land, which culminated into the initiation of fresh proceedings against him under Section 163 of the Himachal Pradesh Land Revenue Act, on the basis of a fresh complaint of the concerned Gram Panchayat. It could also not be demonstrated from the record that the proceedings so initiated under Section 163 of the Himachal Pradesh Land Revenue Act were not conducted by the authorities in consonance with the relevant Rules. It could also not be demonstrated from the record that the proceedings so initiated under Section 163 of the Himachal Pradesh Land Revenue Act were not conducted by the authorities in consonance with the relevant Rules. Be that as it may, as no perversity could be pointed out during the course of arguments by the appellant qua the findings returned by both the learned Courts below that the plaintiff was having no title whatsoever upon the suit land and as the status of the plaintiff upon the same is indeed that of an encroacher, these being findings of fact returned against the plaintiff, this Court finds that said findings are clearly borne out from the record of the case and the same neither warrant any interference nor on the basis of the said findings, it can be said that this appeal is worth admission, because no substantial question of law is involved in the same. 11. Now, referring to the submission made by learned counsel for the plaintiff with regard to the provisions of the 1974 Act and non-implementation of the same by the revenue authorities, this Court is of the view that except a bald ascertain made in the plaint with regard to the predecessor-in-title of the plaintiff being in possession of the suit land since the year, 1963, not even an iota of evidence has been placed on record by the plaintiff to demonstrate that he had inherited any interest upon the suit land, as mentioned in the plaint on the basis of some right upon the same of his predecessor-in-title. On the other hand, the defendants have been able to prove their case that the plaintiff was an encroacher upon the suit land and no rights ever stood conferred upon him under the provisions of the 1974 Act. Thus, in the absence of any evidence being on record to demonstrate that any right had accrued upon the plaintiff qua the suit land under the provisions of the 1974 Act, this Court does not find that any substantial question of law, even with regard to the 1974 Act is involved in this appeal, more so, in view of the findings returned by the learned Appellate Court with regard to the 1974 Act in general and Section 10 thereof in particular. 12. 12. In view of the findings returned hereinabove, as this Court finds no merit in the appeal, the same is dismissed, so also the pending miscellaneous applications, if any. Record be returned.