2 vs State Of Himachal Pradesh
2021 Latest Caselaw 4205 HP

                                       REPORTABLE

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA




                                                    .
                ON THE 27TH DAY OF AUGUST, 2021





                        BEFORE
           HON'BLE MR. JUSTICE SURESHWAR THAKUR





          REGULAR SECOND APPEAL NO. 322 OF 2004

    Between:-

    1.
    2.
    3.
    4.
          BIDHI CHAND
          RATTAN CHAND
          KEHAR SINGH
          SUNKA RAM
                   r      to

    SONS OF SHANKAR DASS R/O VILLAGE
    GUHAL, TAPPA MAJHOG SULTANI,
    TEHSIL AND DISTRICT HAMIRPUR,


    HIMACHAL PRADESH.

                                           ........ APPELLANTS.




    (BY SH. M.L SHARMA, ADVOCATE)





    AND

    1.  STATE OF HIMACHAL PRADESH





    THROUGH     DISTRICT    COLLECTOR,
    HAMIRPUR, DISTRICT HAMIRPUR, HP.

                                          .....RESPONDENT

    (BY. MR. ASHWANI SHARMA &
    MR. HEMANT VAID, ADDITIONAL
    ADVOCATE GENERALS WITH
    MR. VIKRANT CHANDEL AND
    MR. GAURAV SHARMA,
    DEPUTY ADVOCATE GENERALS).




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                                         ...2




                                                                .

    RESERVED ON: 19.8.2021
    DECIDED ON : 27.8.2021





    This appeal coming on for hearing this day, the Court passed the following:-

                              JUDGMENT

The plaintiffs/appellants instituted a Civil Suit bearing

No. 145 of 1993 before the learned Senior Sub Judge, Hamirpur.

In the afore drawn suit, the plaintiffs claimed, for a decree of

permanent prohibitory injunction being pronounced against the

defendants, and, vis-à-vis, the suit khasra numbers. The afore

Civil Suit became decreed by the learned trial Court. However,

the decreeing of the plaintiffs' suit, by the learned trial Court, was

made subject to the plaintiffs becoming evicted from the suit land,

in accordance with law.

2. The aggrieved defendant No.1/respondent herein

carried there-against Civil Appeal No. 184 of 1998 before the

learned District Judge, Hamirpur. Moreover the aggrieved

plaintiffs also within the afore Civil Appeal preferred cross-

objections No. 04 of 1999. Both the Civil Appeal and Cross-

objections (supra) became cumulatively decided through a

...3

common verdict made thereons on 6.5.2004. Through the afore

.

made verdict, the learned District Judge rejected the cross-

objections, and, partly allowed the appeal of the aggrieved

defendant to the extent, that the plaintiffs and proforma defendant

No.2, being made amenable for eviction from the suit land,

through recoursings by the defendant of the procedure

constituted under law.

3. The plaintiffs become aggrieved from the verdict

recorded by the learned first appellate Court, and, are led to

institute there-against the instant appeal before this Court.

4. When the appeal came up for admission before this

Court, this Court had admitted the same, on the here-in-after

extracted substantial questions of law:-

1. Whether the suit land could not have vested in the

Panchayat and consequently in the State of Himachal

Pradesh in view of the provisions of Sections 2 (g) and 4 of

the Punjab Village Common Lands (Regulation) Act, 1961.

2. Whether the suit land could not have been defined as

Shamlat Deh because it was in possession of the

plaintiffs/predecessor-in-interest of the plaintiffs on the

...4

coming into force of the Punjab Village Common Lands

.

(Regulation) Act, 1961."

5. A perusal of the jamabandi appertaining to the year

1954-1955, does vividly disclose, that therein a reference is made

to mutation No. 68. A reading of the afore mutation No. 68 also

does unveil, that the suit land was sanctioned as Nautor, vis-à-

vis, one Shankar Dass, hence through an order made on

12.2.1954, by the Deputy Commissioner Kangra. However,

though through the afore made order, the suit land became

granted as Nautor, to one Shankar Dass, yet the tenure of the

relevant grant became limited only for a period of five years.

Upon expiry of afore tenure of the grant of the suit land, as made

to the afore Shankar Dass, the defendants concerned through

making hence on 12.12.1963 mutation No. 76, rather cancelled

the grant of land, as made, by way of Nautor to the afore Shankar

Dass.

6. Further more, through mutation No. 78 attested on

30.6.1964, the suit land became vested in the Gram Panchayat

concerned. Subsequent to the making of mutation No. 78 hence

on 30.6.1964, obviously in tandem therewith rather corresponding

...5

entries are made in the jamabandi(s) appertaining to the suit

.

land. The plaintiffs for theirs ensuring, the decreeing of their suit,

were enjoined to place on record the Nautor allotment rules, as

were prevalent in contemporanity to the grant of suit land, being

made in favour of Shankar Dass, hence through an order made

by the Deputy Commissioner concerned on 12.2.1954, and, the

afore rules also making candid bespeaking(s), that there occur no

provisions therein, hence, reducing or curtailing the grant of land

by way of Nautor to one Shankar Dass. Since only upon

adduction of afore relevant rules, the plaintiffs could succeed in

convincing this Court, that the restriction of the tenure of the

apposite grant up to five years by the Deputy Commissioner,

through his making an order of 12.2.1954, was invalid to the

extent, that it breached the afore relevant rules, whereas, the

tenure of the apposite allotment was not required to be curtailed

rather the apposite grant to him was in perpetuity.

7. However, the afore relevant rules never came to be

placed on record by the plaintiffs. Therefore, this Court concludes

that the limited tenure of grant of land by way of Nautor, by the

Deputy Commissioner, through his order made on 12.2.1954,

...6

was a valid order. Further more, this Court also concludes that

.

on expiry of the afore tenure of grant, the rescission thereof, as

made through mutation No.76, is valid, and, thereafters its being

vested in the Panchayat through mutation No. 78, is also valid.

8. Since the grant of land to one Shankar Dass, by way

of Nautor, does evidently comprise Shamlat land. Therefore,

when in concurrence with Section 4 of the Punjab Village

Common Lands (Regulations) Act, 1961, as was in force at the

time, of, the respective drawings of mutations No. 76 and 78,

and, respectively wherethroughs the grant became rescinded,

and, the land became vested in the Panchayat Deh.

Consequently, the plaintiffs cannot claim that the afore orders are

invalid. The only claim which could become raised, was that

within the corners of a saving clause occurring in the statute

(supra), rather the suit land was save-able from vestment.

However, the afore plea become neither averred nor any

evidence in consonance therewith became adduced. Thereupon,

no benefit of the apposite saving clause can became conferred

upon the plaintiffs.

...7

9. Be that as it may, since the description of the suit land

.

as carried in the apposite column of the jamabandi, is Shamlat

land. Consequently, the afore description of the suit land, in the

revenue records, does vest, in the estate right holders, whose

name(s) occur in the list of Bartandaran, the right to use it, in the

manner as enshrined in the apposite Wajib Ul Urz . Though the

plaintiffs could claim exclusivity of user of the suit land. However,

cogent evidence was required to the adduced by them, and, its

displaying, that in the list of Bartandarans, as, appertaining to the

suit land, only their name occurs, and, that the names of other

estate right holders, do not occur therein. The adduction of the

afore evidence could lead this Court, to dehors, its validating

mutations (supra), to, may be render a decree of injunction

against the defendants. However, even the afore evidence is

grossly amiss. Therefore, the plaintiffs cannot claim exclusivity of

enjoying the suit land through the ouster of the other estate right

holder in the Mohal concerned nor obviously any apposite

injunction can be rendered. Further more, the effect of the

plaintiffs not adducing the afore evidence, is that their name did

...8

not occur in the list of bartandarans, as, appertaining to the suit

.

land concerned.

10. The afore made inference constrains this Court, to

form a further sequel, that the plaintiffs, could not dehors, the

afore valid order for vestment of the suit land, in the Panchayat

concerned, hence claim any right of possession or user of the suit

land by them, much less, to the exclusion of other legitimate

estate right holders concerned. There is no merit in the appeal,

and, the same is accordingly dismissed, and, the impugned

verdict is maintained and affirmed. Substantial questions of law

are answered accordingly. All pending applications stand

disposed of accordingly. No costs.

    27th August, 2021                         (Sureshwar Thakur),





       (priti)                                     Judge.