Himachal Pradesh High Court
State Of Himachal Pradesh vs And on 3 January, 2022
Bench: Sandeep Sharma
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 3RD DAY OF JANUARY, 2022
BEFORE
.
HON'BLE MR. JUSTICE SANDEEP SHARMA
REGULAR SECOND APPEAL No. 278 of 2017
Between:
1. STATE OF HIMACHAL PRADESH,
THROUGH THE DISTRICT COLLECTOR,
DISTRICT SHIMLA, H.P.
2. THE TEHSILDAR (RURAL) SHIMLA,
TEHSIL SHIMLA, DISTRICT SHIMLA,
HIMACHAL PRADESH.
....APPELLANTS
(BY MR. SUDHIR BHATNAGAR AND MR.
ARVIND SHARMA, ADDITIONAL
ADVOCATE GENERALS WITH MR.
NARENDER THAKUR AND MR. GAURAV
SHARMA, DEPUTY ADVOCATE
GENERALS)
AND
SH. OM PRAKASH CHAUHAN,
SON OF LATE SH. MANSA RAM CHAUHAN,
PRESENTLY R/O DURGA BHAWAN, RAM
NAGAR, SHIMLA, H.P.
....RESPONDENT
(BY MS. SHIKHA CHAUHAN, ADVOCATE)
Whether approved for reporting?
This Appeal coming on for orders this day, the Court passed the following:
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2
JUDGMENT
.
By way of instant appeal filed under Section 100 of CPC,
challenge has been laid to judgment and decree dated 28.5.2016
passed by learned District Judge (Forests) Shimla, District Shimla
H.P., in Civil Appeal RBT No.11-S/13 of 2015/14, reversing the
judgment and decree dated 21.10.2014, passed by learned Civil
Judge (Junior Division) Court No.6, Shimla, District Shimla, H.P., in
Civil Suit No.290/1 of 2010, whereby suit for declaration and
permanent prohibitory injunction having been filed by the
respondent-plaintiff(hereinafter referred to as the plaintiff), came to
be dismissed.
2. Precisely, the facts of the case as emerge from the record
are that the plaintiff filed a suit for declaration to the effect that the
order dated 25.11.1997, passed in Missal No.91/97 and 92/97 passed
by learned Assistant Collector Settlement changing the entry of
possession, cultivation and status as non-occupancy tenant of
plaintiff in respect of land comprised in Khata/Khatauni No.83/137,
Khasra No.1383, measuring 8-120 bighas, corresponding to new
Khata/Khatauni No.48/157 min, Khasra Nos. 763 and 764, measuring
0-71-53 hectares situate at Up Mauja Basti, Tehsil and District Shimla
(hereinafter referred to as suit land) is wrong, illegal and void
abinitio without jurisdiction and such liable to be quashed. Plaintiff
claimed that he has become owner of the suit land by virtue of
operation of law and automatic vestment of proprietary rights under
.
the HP Tenancy and Land Reforms Act and as such, be declared as
owner in possession of the suit land having acquired the title by way
of adverse possession with consequential relief of permanent
prohibitory injunction, restraining defendants from taking any action
on the basis of wrong revenue entry in the jamabandi entered on the
basis of order dated 2511.1997, passed by Assistant Collector
Settlement.
3. Aforesaid suit having been filed by the plaintiff came to
be dismissed vide judgment and decree dated 21.10.2014 passed by
learned Civil Judge (Junior Division) Court No.6, Shimla, District
Shimla, H.P. Being aggrieved and dissatisfied with the aforesaid
judgment, plaintiff preferred an appeal in the Court of learned District
Judge(Forests)Shimla, which came to be allowed vide judgment and
decree dated 28.5.2016, whereby learned appellate court held that
the plaintiff is entitled to have his possession protected by a decree
for prohibitory injunction restraining the defendants from interfering
with his possession otherwise than in accordance with law. Learned
District Judge categorically recorded in the judgment that State of
Himachal Pradesh has brought an amendment in H.P. Village
Common Lands Vesting and Utilization (Amendment) Act, 2015,
wherein a scheme has been framed for conferment of proprietary
rights on chakotadars, who have been leased out lands under
Chakota Common Lands (Regulation) Act, 1961, for which a
.
procedure has been laid down in the said scheme.
4. Being aggrieved and dissatisfied with the aforesaid
judgment and decree dated 28.5.2016 passed by learned District
Judge(Forests) Shimla, appellant-State has filed instant appeal,
praying therein to quash and set-aside the aforesaid judgment dated
28.5.2016 and restore the judgment and decree dated 21.10.2014
passed by learned Civil judge(Junior Division) Court No.6, Shimla,
District Shimla, H.P.
5. Vide order dated 13.12.2017, appeal at hand was
admitted on the following substantial questions of law:-
"1. Whether the findings recorded by the learned
District Judge (Forests) are against the law and
facts on record and contrary to the provisions to
the H.P. Land Revenue Act, 1954 and the
findings are perverse?.
2. Whether the learned District Judge(Forests) has
misread and misconstrued provisions of H.P.
Land Revenue Act and the findings are
perverse?.
3. Whether the Civil Court decide the lis, which is
time barred and on such ground the findings of
the Court is liable to be rejected straightway
and the findings are perverse?
4. Whether the judgment and decree as passed by
the learned courts below are liable to be set
aside being of mis-appreciation of evidence and
misinterpretation of pleadings as well as law,
which resulted into miscarried of justice and the
findings are perverse?.
6. Before the appeal at hand could be heard and decided on
its own merit, leaned Additional Advocate General on the instructions
.
of Ms. Sweta Gautam, Revenue Officer/Patwari, Tehsil Dhami, states
that appeal at hand having been filed by the State has rendered
infructuous for the reason that as per jamabandi for the year 2017-
2018, Khasra Nos.763 and 764 stand transferred in the name of
Villagers as Shamlat Deh vide mutation No.60, dated 4.3.2015.
Learned Additional Advocate General fairly states that since vide
mutation No.60, dated 4.3.2015 suit land has been shown to be in
the name of the villagers, appellant-State ceases to be owner of the
land as was being claimed by it in the proceedings initiated at the
behest of respondent-plaintiff. Report of revenue officer is taken on
record.
7. Ms. Shikha Chauhan, learned counsel representing the
respondent-plaintiff states that on account of aforesaid development,
appellant-State has no locus, whatsoever to file the appeal and as
such, deserves to be dismissed.
8. Consequently, in view of the discussion made
hereinabove, there appears to be merit in the claim of the
respondent-plaintiff, which fact has been otherwise fairly admitted by
learned Additional Advocate General that present appeal having been
field by the appellants-State has rendered infructuous as it ceases to
be owner of the suit land. Accordingly, present appeal fails and
same is dismissed. The judgment and decree passed by learned
District Judge (Forests) Shimla, District Shimla, H.P. is upheld.
.
9. Interim directions, if any, are vacated. All miscellaneous
applications are disposed of.
3rd January, 2022 (Sandeep Sharma),
(shankar) Judges
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