Himachal Pradesh High Court
Between vs Through The District on 3 September, 2021
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
ON THE 3rd DAY OF SEPTEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE SURESHWAR THAKUR
REGULAR SECOND APPEAL NO. 473 of 2008
Between:-
SHRI GITA RAM
SON OF SH. RAM SARAN
(DECEASED) THROUGH HIS LRS:-
1(A) SMT. SAWROOPI DEVI,
WIDOW OF LATE SH. GITA
RAM.
1(B) SH. MADAN GOPAL SON
OF LATE SH. GITA RAM
1(C) SH. VIJAY KUMAR S/O
LATE SH. GITA RAM
1(D) SH. GUMAN SINGH, SON
OF LATE SH. GITA RAM
1(E) SH. NARESH KUMAR SON
OF LATE SH. GITA RAM
1(F) SMT. SUDESH THAKUR
D/O LATE SH. GITA RAM
ALL R/O VILLAGE CHOHRA, P.O
JHAJA, TEHSIL KANDAGHAT,
DISTRICT SOLAN, H.P.
2. SH. SHIRI RAM S/O SH. RAM
SARAN
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3. SMT. LAJWANTI D/O LATE SH.
.
JAI RAM.
4. SMT. BIMLA D/O LATE SH. JAI
RAM
5. SMT. SALOCHNA D/O LATE SH.
JAI RAM
6.SH. SURINDER KUMAR S/O
LATE SH. JAI RAM.
7. SH. NARINDER KUMAR, SON
OF LATE SH. JAI RAM
ALL R/O VILLAGE CHOHRA, POST
OFFICE JHAJA, VIA CHAIL,
TEHSIL KANDAGHAT, DISTRICT
SOLAN, H.P.
........ APPELLANTS
(BY MR. ROMESH VERMA, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
THROUGH THE DISTRICT
COLLECTOR, SOLAN, DISTRICT
SOLAN, H.P.
.....RESPONDENT
( BY MR. HEMANT VAID, ADDL.
A.G WITH MR. VIKRANT
CHANDEL, AND MR. GAURAV
SHARMA, DY. A.GS)
RESERVED ON: 25.8.2021
DECIDED ON: 3.9.2021
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.
This appeal coming on for orders this day, the Court passed the following:-
JUDGMENT
The State of Himachal Pradesh/respondent herein initiated
ejectment proceedings under Section 163 of Land Revenue Act
against appellants herein (for short "plaintiffs"), in respect of land
khasra No. 698/403, 588/1 and 685 min measuring 39-17 bighas
situated in mauza Chohra, Pargana Chail, Tehsil Kandaghat, District
Solan, H.P. (for short "suit land"). However, during the pendency of
the afore proceedings before the Revenue Officer concerned, the
plaintiffs claimed acquisition of title over the suit land on the basis of
adverse possession. He also claimed that reflections in the apposite
column of the Jamabandi appertaining to the suit land qua the State
of Himachal Pradesh being owner of the suit land rather being
erroneous. The Revenue Court concerned hence converted itself
into a Civil Court, and, the plaintiffs, instituted a suit before it,
claiming therein that they have acquired a valid title over the suit
land through adverse possession.
2. The Assistant Collector, 1st Grade (functioning as Civil
Court u/s 163(3) of H.P land Revenue Act) (for short A.C 1st Grade)
Kandaghat District Solan, H.P, after framing the hereinafter
.
extracted issues, on the contentious pleadings of the contesting
litigants, returned findings hence adversarial, to the
appellants/plaintiffs therein, upon Issue No.1. Moreover, the A.C 1st
Grade proceeded to render dis-affirmative findings on issue No.2 .
"1. Whether the plaintiff's have become owner of the
suit land by adverse possession-if so its effect......OPP
2. Whether the State of H.P has the right to evict the
plaintiffs' from the suit land. OPD"
3. In the operative portion of the verdict drawn by the A.C 1st
Grade, the hereinafter extracted directions were made:-
"After going through the evidence on record and the
arguments put forward I am of the view that the
plaintiff's plea of adverse possession does not hold
whereas the State being the actual owner has every
right to correct the Revenue entries in its favour and to
evict the plaintiffs from the suit land. They are
accordingly ordered to be evicted from the sut land.
However the defendant state is restrained from evicting
the plaintiff from the house constructed in khasra No.
685 minmeasuring 0-9 biswas which was constructed in
1970 and which was not to be vested with the State
Govt. as per sub-section 2 (c) of Section 3 of H.P
Village Common Land Vesting and Utilisation Act, 1974.
Parties are directed to bear their own cost. Decree
sheet be drawn up accordingly. File be consigned to
.
G.R.R after due compliance."
4. The appellants herein being aggrieved from the afore drawn
verdict, preferred there-against Case No. 39 FTC/13 of 2007 before
the learned District Judge, Fast Track Court, Solan, District Solan,
H.P. The State of H.P also became aggrieved from the findings
recorded by the A.C 1st Grade upon issue No.2 (supra) and hence
preferred within the afore case No. 39 FTC/13 of 2007, cross
objections No. 39 FTC/13 of 2008.
5. Both the afore appeal and cross-objections became
decided through a common verdict being rendered thereon(s), by
the learned first Appellate Court.
6. The learned first Appellate Court, in the operative part of its
verdict, dismissed the appeal preferred before it, by the aggrieved
appellants herein, and, also proceeded to accept the cross-
objections reared by the State of Himachal Pradesh against the
adversarial findings recorded against it, upon issue No.2, by the A.C
1st Grade.
7. The appellants (hereinafter referred to as "the plaintiffs")
became aggrieved from the verdict hence recorded by the learned
first Appellate Court, hence instituted the instant RSA before this
.
Court.
8. When the instant appeal came up for admission, this Court
admitted it, on the hereinafter extracted substantial questions of
law:-
"2. Whether Respondent has not acquired title of
ownership over suit lands keeping in view the fact
that land in suit was previously in separately and
exclusive possession of the predecessor of the
appellants and thereafter they continue to possess
the same and therefore since the land in suit was
not utilized for the benefit of the village community
therefore, same would not vest neither in
Nagar/Gram Panchayat nor in the State of H.P.
3 Whether the Assistant Collector 1st Grade
failed to comply with the prescribed procedure as
provided under Section 163 of HP Land Revenue
Act?"
9. A careful perusal of the evidence existing on record,
discloses that both the Courts below, did not commit any impropriety
or illegality, as may become aroused from theirs purportedly mis-
.
appreciating evidence on record, and, or upon theirs purportedly not
appreciating evidence germane to issue No.1 (supra).
10. The findings adversarial to the plaintiffs, as, become
recorded upon issue No.1, assume the completest aura of validity,
as the plaintiffs, came into possession of the suit land, upon, demise
of one Sholiya, whose demise occurred in the year 1968.
r The
patwari concerned reported about the illegal entries in the year
1991. The entries appertaining to the plaintiffs become recorded in
the column of possession of the apposite Jamabandi. It appears
that since the land comprised in khasra No. 698/403, is village
common land, whereon(s) the entire body Bartandarans, whose
names occur in the list of Bartandarans, rather collectively hold in
consonance with their rights depicted in the Wajib Ul Urj, the
apposite right of user thereof. Thereupons, the plaintiffs, did not ever
hold any right to claim exclusivity of possession thereof, moreso to
the ouster of the other estate right holders. The afore inference is
well merited, as, in so far as Khasra No. 698/403 is concerned, as
no exclusivity of possession by the plaintiffs can either be assumed
thereon nor can be validated by this Court. Obviously it being village
common land rather whereon(s) the entire village community, does
.
collectively have a right, to make joint user thereof in the manner
supra.
11. Even otherwise as afore-stated, when the plaintiffs
assumed possession of the suit land in the year 1968, and, with the
Patwari concerned making detection of unlawful entries in the year
1991, thereupon up till 1991 from 1968, the requisite period of 30
years, was enjoined to elapse, for hence the plaintiffs validly staking
a claim for theirs holding possession of the suit land hence with any
animus possidendi. However, since during the afore interregnum
the plaintiffs, did not make, the afore espousal before the Civil Court
concerned, thereupon they are barred to raise the afore plea before
the A.C 1st Grade.
12. Be that as it may, even prima-facie the afore plea,
was not amenable for becoming recoursed by the plaintiffs, as the
rights in so far as, Khasra numbers (supra) are concerned, the entire
village body held, and, holds the apt collective right of user of the
suit land, in the manner supra, and, hence all of them were required
to be impleaded as co-defendants in the civil suit, whereas none of
them has been impleaded, hence makes the suit to be mis-
constituted, for non arraying of all necessary and proper parties to
.
the lis. The afore may have been undone, only upon, evidence
becoming adduced, that all the other villagers or estate right holders,
though holding collective rights alongwith the plaintiffs to equally use
the suit land, rather theirs becoming completely ousted from user
thereof, by proven overt ousting acts of the plaintiffs. However,
even the afore evidence is amiss. Therefore, given the description of
the suit land in the Jamabandi, as Shamlat land, the plaintiffs
obviously, cannot claim exclusive right of user of the suit land, and,
obviously to the exclusion of the other estate holders, nor also they
can claim prescriptive acquisition of title thereon, through afflux of
time, especially when the basic rubric governing the acquisition of
title by prescription rather becoming embodied in the maxim animus
possidendi, obviously remaining for reasons supra, hence un-
satiated. Therefore, they cannot rest any valid claim to validate their
possession over the suit land.
13. However a house raised on Khasra No. 685, and,
measuring 9 biswas, and, constructed in the year 1970, and hence
may be falling within the realm of the apposite saving clause, if
permissible under law. Thereupon, the learned A.C 1st Grade, after
applying thereons the apposite saving clause, saved the eviction
.
therefrom of the plaintiffs. The learned A.C 1st Grade, hence clearly
beyond the ambit of the jurisdiction to be exercised rather through
his recoursing the mandate of Section 163(3) of the land Revenue
Act, has untenably after adopting the procedure rather to be adopted
by the statutory authority contemplated in the Himachal Pradesh
Village Common Lands Vesting and Utilization, Act 1974, has
untenably saved, the, eviction of the plaintiffs from the dwelling
house. Reiteratedly, also for the reason, that the special statutory
mechanism constituted in the H.P Village Common Lands Vesting
and Utilization Act 1974, was the only recoursable remedy with the
plaintiffs, to save from vestment, the afore house, rather in the State
of Himachal Pradesh. Though the learned first Appellate Court partly
reversed the verdict (supra) as made by the collector concerned in
so far as it is relating to dwelling house. However, both the learned
Courts below, could not make the respective verdict(s) supra, unless
the afore statutory mechanism qua therewith, became recoursed,
which however, has evidently, remained unrecorded at the instance
of the plaintiffs.
14. Consequently, in so far as the respective verdicts, as,
.
made by both the Courts below to respectively save from vestment
and order for vestment of the house, as, borne on the suit land, is
concerned, the same is quashed and set aside. Therefore, the
instant RSA is partly allowed (supra) with a condition that the
plaintiffs may, only qua dwelling house recourse forthwith the special
statutory mechanism (supra), and, till a decision in accordance with
law, is made thereon by the legally competent authority, as is
constituted for the relevant purpose, under the special statute
(supra) rather there up to the plaintiffs may not be evicted from the
suit house. However, the verdict of the learned first Appellate Court
in so far as it ordering for the eviction of the plaintiffs, in accordance
with law, from the suit land, is maintained and affirmed. All pending
applications stand disposed of accordingly.
3rd September, 2021 (Sureshwar Thakur),
(priti) Judge.
