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2023 DIGILAW 358 (HP)

Banto Devi v. State of H. P.

2023-06-19

VIVEK SINGH THAKUR

body2023
JUDGMENT : Vivek Singh Thakur, J. Petitioner herein is plaintiff in Civil Suit No. 90 of 2020 titled Banto Devi vs. State of HP, pending adjudication before Civil Judge, Hamirpur, District Hamirpur wherein application bearing CMA No. 187 of 2020 under Order 39 Rules 1 and 2 CPC filed for interim injunction by plaintiff has been dismissed vide order dated 4.1.2021, and appeal preferred against the said dismissal order has also been dismissed by Additional District Judge, Hamirpur vide order dated 31.8.2021 and, therefore, petitioner has approached this Court by filing present petition. 2. Petitioner has preferred a suit for declaration claiming her title of ownership in possession of suit land owned by State, by afflux of time of more than 35 years, on the ground of adverse possession along with consequential relief of permanent prohibitory injunction restraining the respondents from dispossessing the plaintiff forcibly from suit land. To substantiate her claim, petitioner has placed reliance upon various jamabandies since 1973-74 till filing of suit, wherein till 2010-11 Chandu son of Kirpa has been shown in possession of suit land under ownership of State of HP of certain land including 00-06 biswas Gair Mumkin Abadi and in jamabandi for the year 2016-17, petitioner Banto Devi adopted daughter of Chandu son of Kirpa has been shown in possession of suit land under ownership of State of HP. 3. Suit was filed on 7.7.2020 and as per record, application under Order 39 Rules 1 and 2 CPC was instituted on 21.7.2020. 4. Respondents have taken the defence that petitioner has not approached the Court with clean hands as she has not disclosed anything about previous litigation wherein in Civil Suit No. 22 of 1983 titled as Chandu vs. Rajender and State of HP, filed by Chandu for declaration and consequential relief with respect to certain land, including the suit land in present suit, was dismissed by Senior Civil Judge vide judgment and decree dated 18.9.1986 and Civil Appeal No. 209 of 1986 preferred by Chandu was also dismissed on 8.5.1991. It has been further stated that petitioner has also concealed the fact of another suit filed by Chandu through GPA Banto Devi (petitioner) who continued the suit after death of Chandu being his legal representative i.e. Civil suit No. 75 of 2006 titled Chandu (deceased) through his LRs/General Power of Attorney Smt. Banto Devi vs. State of HP and others, wherein suit for permanent prohibitory injunction was partly decreed in favour of plaintiff by restraining the defendants by permanent prohibitory injunction from dispossessing the plaintiff forcibly from suit land except in due course of law. It has also been claimed on behalf of respondents that on 27.7.2020, proceedings were initiated against petitioner under H.P. Public Premises and Land (Eviction and Rent Recovery) Act 1971 (in short ‘PP Act’) for removing her unauthorized occupation being Case No. 7 of 2020 titled State of HP vs. Banto Devi which was decided on 30.7.2020 whereby Collector, Sub Division Bhoranj had ordered the eviction of petitioner and she was directed to vacate premises at earliest but by 31.7.2020, 1 PM failing which direction was given to remove the encroachment by Revenue Officials. 5. It has been further stated on behalf of respondent/State that in furtherance to aforesaid order of Sub Divisional Collector, on 31.7.2020, at 2 PM Tehsildar Bhoranj with the help of police party and Public Works Department, in presence of witnesses, had removed the structure raised on spot by petitioner during nights of Saturday and Sunday i.e. 25.7.2020 and 26.7.2020. According to State, the proceedings were initiated on the basis of complaint of Pradhan Vyapar Mandal, Bhoranj received by Collector on 27.7.2020. It has also been contended on behalf of State that in furtherance to order dated 17.8.2020 passed by Sub Divisional Collector, Bhoranj in case No. 20 of 2020 titled State through Pradhan Vyapar Mandal Bhoranj vs. Banto Devi correction in revenue entries under Section 37 and 38 of H.P. Land Revenue Act, 1954 (HPLR Act) has also been undertaken by concerned Revenue Officials and now in revenue papers, there is no entry in favour of petitioner. 6. By referring K.D. Sharma vs. SAIL reported in (2008) 12 SCC 451 learned Advocate General has canvassed that for not approaching the Court with clean hands and by not disclosing the complete facts with respect to previous litigation(s), petitioner is not entitled for any relief and this petition deserves to be dismissed. 7. 6. By referring K.D. Sharma vs. SAIL reported in (2008) 12 SCC 451 learned Advocate General has canvassed that for not approaching the Court with clean hands and by not disclosing the complete facts with respect to previous litigation(s), petitioner is not entitled for any relief and this petition deserves to be dismissed. 7. According to learned counsel for petitioner, judgment and decree in Civil Suit No. 22 of 1983, affirmed in Civil Appeal No. 209 of 1986, dismissing the suit filed by Chandu predecessor-in-interest of petitioner is not relevant for adjudication of present suit as the claim of Chandu was rejected at that time on the basis of prevailing circumstances and available evidence on record and litigation therein was ended on 8.5.1991 and, thereafter, Chandu had filed another suit against respondents/State which was partly decreed in favour of plaintiff/petitioner vide judgment dated 31.8.2012 whereby respondents were restrained from dispossessing the petitioner except in due course of law and now petitioner is being dispossessed without adopting the due process of law and further that since 2006, i.e. from the date of filing Civil Suit No. 75 of 2006 and/or even after 31.8.2012, i.e. the date of decreeing the said suit, till date, no legally permissible action has been taken by respondents, but they are trying to deprive the plaintiff from fruits of judgment and decree dated 31.8.2012 passed in favour of petitioner and further that order dated 30.7.2020 passed by Sub Divisional Collector in case No. 7 of 2020 passed in complaint under PP Act has been set aside by Divisional Commissioner vide order dated 2.7.2021 and therefore, claim of respondents/State on the basis of eviction order passed by Sub Divisional Collector under PP Act is not sustainable and eviction order passed by Sub Divisional Collector and correction carried out on the basis of that are mere paper entries and cannot be made basis to deprive the petitioner from interim protection for which she is legally entitled. 8. Learned counsel for petitioner, referring A. Subramanian vs. R. Pannerselvam reported in (2021)3 SCC 675 has advocated that even trespasser has a right to protect the possession and he cannot be evicted except adopting the due process of law. 9. 8. Learned counsel for petitioner, referring A. Subramanian vs. R. Pannerselvam reported in (2021)3 SCC 675 has advocated that even trespasser has a right to protect the possession and he cannot be evicted except adopting the due process of law. 9. Learned Advocate General, taking note of setting aside of the order passed by Collector under PP Act but pressing for consideration of compliance report dated 4.8.2020, has contended that plaintiff, prima facie, is not in possession of suit land and, therefore, interim injunction as prayed by plaintiff could not have been granted. 10. Learned Advocate General submits that sooner suit land is to be utilized by respondents/State for public purpose and, therefore, any injunction order, even direction to maintain status quo, may hamper the public interest at large. I do not find any such plea taken by respondents/State either in written statement or in reply filed to petition. 11. In any case, if suit land is required to be utilized for public purpose as claimed by learned Advocate General, in that eventuality, respondents/State shall be at liberty to utilize the same by following due process and in case petitioner succeeds in establishing her claim either in Civil Suit or in proceedings under PP Act to have ownership and possession or even possession of suit property then by assessing the compensation payable for the said land and after paying so, respondents/State shall have right to utilize the suit land for public purpose but not for benefit of any individual or private person. Observation made in present matter in aforesaid manner shall not have any bearing on proceedings/Civil Suit initiated by or against the petitioner and payment or non-payment of compensation shall also depend upon final outcome of such litigation. 12. As on date, rightly or wrongly, structure of plaintiff stands dismantled in furtherance to eviction order passed by Collector under PP Act. The said order has been set aside by Divisional Commissioner and matter is pending adjudication under PP Act before the Collector. Petitioner has right to raise all contentions claiming her right on suit property in proceedings pending adjudication before the Collector under PP Act or in any other proceedings. 13. The said order has been set aside by Divisional Commissioner and matter is pending adjudication under PP Act before the Collector. Petitioner has right to raise all contentions claiming her right on suit property in proceedings pending adjudication before the Collector under PP Act or in any other proceedings. 13. For dismissing the application for interim stay, Civil Judge (Trial Court) has relied upon the fact that in compliance of order dated 30.7.2020, as reported in compliance report dated 4.8.2020, under proceedings under PP Act, petitioner had already been evicted from suit land after following due process of law and Civil Judge has also relied upon change of revenue entries on the basis of the said eviction order whereas the said order has now been set aside by Divisional Commissioner vide order dated 2.7.2021. 14. In Civil Suit No. 22 of 1983, it was observed by Court that Chandu had not contested the vestment of suit land in favour of Gram Panchayat within a period of limitation and, therefore, it has been canvassed that plaintiff was stopped from instituting the suit, and claim of plaintiff qua possession on disputed land since 80 years was rejected and vestment of suit land in Gram Panchayat, was held to be legal and claim of Chandu for ownership over the land by way of adverse possession was rejected and accordingly, plea of Chandu entitling him possession of suit land was also rejected, and suit was also held to be time barred. However, thereafter, the previous suit was filed qua land mentioned in various Khasra Numbers including the suit land comprised in Khasra No. 988/978 min measuring 10 marlas, however, later on suit filed by plaintiff was decreed in her favour granting her protection from dispossessing from suit land except in due course of law. 15. In present suit, plaintiff is claiming adverse possession against the State in Civil Suit No. 22 of 1983, decided vide judgment and decree dated 18.9.1986. Chandu was not found in possession since last 80 years but from revenue record it is evident that his possession has been recorded since 1973 and 1974. In judgment and decree dated 18.9.1986, it is not finding of Court that Chandu was not in possession at all. Chandu was not found in possession since last 80 years but from revenue record it is evident that his possession has been recorded since 1973 and 1974. In judgment and decree dated 18.9.1986, it is not finding of Court that Chandu was not in possession at all. Taking into consideration the revenue record, he may have a claim of possession of suit land since 1973-74 and during adjudication of Civil Suit No. 75 of 2006 it has been concluded by Civil Court that Chandu was in possession of suit land and, therefore, decree was passed partly in his favour protecting his possession with observation that he shall not be dispossessed except in due course of law. Possession of Chandu and thereafter of the petitioner, on suit land, has been acknowledged by Civil Court. Petitioner is claiming it since last 35 years but said fact is yet to be established on record by leading cogent and reliable evidence. Suit was filed prior to initiation of proceedings against the plaintiff under PP Act. But at the time of initiation of those proceedings, there was no interim stay in favour of plaintiff. Only decree in favour of plaintiff was that she shall not be dispossessed except in due process of law. 16. In case, PP Act is applicable in present case, then respondents are entitled to initiate such proceedings, but after following proper procedure as prescribed under PP Act and following the law of land. 17. It is also admitted fact that during pendency of application for interim stay, structure raised by plaintiff on suit land stands dismantled. 18. It is claim of respondents/State that such structure was raised during pendency of suit on 25.7.2020 and 26.7.2020, which prompted the Pradhan Vyapar Mandal to make the complaint, on the basis of which proceedings under PP Act were initiated. However, it is also a matter of fact that order passed by Collector under PP Act has been set aside by Divisional Commissioner. 19. However, it is also a matter of fact that order passed by Collector under PP Act has been set aside by Divisional Commissioner. 19. In aforesaid facts and circumstances, when petitioner stands dispossessed from suit land by dismantling the structure raised by her on suit land, the only order to protect the interest of both sides, which can be made is that parties shall maintain status quo qua nature, possession, user and title of suit land as exists on date subject to final outcome of present suit and/or proceedings initiated against the petitioner under PP Act whichever is applicable but in case eviction would be sought under PP Act, then respondent-State would have to seek leave of the Civil Court if at that time Trial/proceedings in Civil Court would be pending and interim direction is in force. 20. It is also clarified that for utilization of suit land for public purpose, respondent-State has to follow the due process of law and compensation, if any, determined payable to petitioner for her possessory rights, shall be deposited in the Court as per prescribed procedure. Petition stands disposed of in aforesaid terms, so also pending application(s), if any.