Himachal Pradesh High Court
State Of H.P vs Murti Jagan Nathji Maharja & Ors on 31 July, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 637 of 2008.
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Reserved on : 23.07.2018.
Decided on : 31st July, 2018.
State of H.P. .....Appellant/defendant No.1.
Versus Murti Jagan Nathji Maharja & Ors.
Coram:
r to ....Respondents/Plaintiff(s).
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellant: Mr. Vikrant Chandel, Dy.
Advocate General.
For Respondent No.1: Mr. Suneet Goel, Advocate.
For Respondents No.3, 4, 9, 11 to 14: Mr. Anup Rattan, Advocate For other respondents: Nemo.
The plaintiff's suit for rendition of a declaratory decree vis-à-vis the suit land, stood, decreed by the learned trial Court. The State of H.P. being aggrieved therefrom, hence, preferred an appeal before 1 Whether reporters of the local papers may be allowed to see the judgment?
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the learned First Appellate Court and the Latter Court, upon, Civil Appeal No. 18 of 2003 recorded a verdict bearing concurrence with the verdict pronounced by the learned trial Court. The State of H.P. being aggrieved therefrom, hence, has preferred the instant Regular
2. to Second Appeal before this Court.
Briefly stated the facts are that plaintiff Murti Jagan Nath Ji Mharjan, field suit for declaration against the defendants to the effect that land measuring 1-49-59 comprised in Khewat No.32, Khatauni No.85, bearing Khasra Nos. 749 to 752, 755, 767, 756, 769 to 771, 778, 781, 783 to 787, 787/1, 788, 789, 768, 794, 795as entered in Nakal Misal Hakiat Bandobast Jadid Sani for the year 1987-88, situated in Up Mahal, Salahana, Majra Mairi, Tehsil Amb, District Una, H.P., is in possession of the plaintiff as owner and the entries appearing in the revenue record showing the plaintiff to be Gair Maurusi instead of owner and also the entries appearing in the ::: Downloaded on - 04/08/2018 22:57:54 :::HCHP ...3...
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name of the defendants qua the suit land showing him Gair Maurusi over the portion of the suit land are wrong, void ab initio, illegal and have bearing on the rights, title and interest of the plaintiff and the mutation conferring the ownership right on the defendant No.2 on the basis of rights of the plaintiff.
r to wrong entries are illegal, without notice and against the The case of the plaitniff is that the suit land was given to it by the government as "Muafi"
prior to the year 1912-13 and is in possession of the plaintiff since then as owner. The plaintiff is an idol installed inside Jagannath temple and the people of the are offer prayers at the said temple. Sh. Shayam Dass Chela Baldev Chela Narain Dass is the Mohitmim of the temple and he looks after the affirs of the temple.
Necessary facilities are being provided to the devotees who came from far flung areas out of the income which the suit land yields. The suit land never vested in the State and the revenue entries in favour of the State are ::: Downloaded on - 04/08/2018 22:57:54 :::HCHP ...4...
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illegal. Defendant No.2 in connivance with revenue staff managed to procure wrong entries of Gair Maurusi in his favour regarding part of the suit land. Neither defendant No.2 nor his predecessors were ever inducted a tenant over the suit land nor they entered into possession thereof.
The mutation conferring ownership rights on defendant No.2 on the basis of wrong entries is also illegal and not tenable which was made at the back and without notice to the plaintiff. Hence the suit.
3. The defendant No.1 contested the suit and filed written statement, wherein, it has taken preliminary objection qua maintainability, cause of action, estoppel, jurisdiction etc. On merits, it was asserted that the suit land was never given as "Muafi" tot he plaintiff nor the plaintiff is in possession of the same. The defendants averred that plaintiff is neither a murti nor installed any murti in the temple and there exists no temple in the suit land, and, as such question of paying offerings by the ::: Downloaded on - 04/08/2018 22:57:54 :::HCHP ...5...
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devotee to the said temple does not arise. It is also averred that the suit land is vested in the State of H.P. free from all encumbrances in the year 1976 and the said vestment is tenable. The defendant also refuted the averments of plaintiff regarding defendant No.2 in active connivance with the field revenue stff procuring the entries of tenant in his favour.
r According to the defendant, the plantiff is stranger to the suit land and it does not has any right, title or interest in it. The remaining defendants did not contest the suit and were proceeded against ex-parte.
4. The plaintiff filed replication to the written statement of the defendant(s), wherein, it denied the contents of the written statement and re-affirmed and re-
asserted the averments, made in the plaint.
5. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:-
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1. Whether the plaintiff is owner in possession of the suit land?OPP.
2. Whether the revenue entries showing the plaintiff to be Gair Maurusi and in favour defendant No.2 are wrong, illegal as alleged?
OPP.
3. Whether mutation conferring proprietary rights of defendant No.2 is also illegal, as alleged?OPP.
4. Whether the plaintiff is entitled to the relief of permanent injunction?
OPP.
5. Whether the plaintiff is entitled to the relief of possession in alternative?OPP.
6. Whether the suit is not maintainable ?OPD.
7. Whether the plaintiff is estopped by his act and conduct to file suit?OPD.
8. Whether the suit is within time?OPP.
9. Whether this Court has no jurisdiction to try the suit as alleged? OPD.
10. Whether the suit is not properly valued for the purpose of court fee and jurisdiction?OPD.
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11. Whether the suit is bad for non compliance of provisions of Section 80 CPC?OPD.
12. Whether the suit land has vested in the State under the provisions of H.P. Ceiling and Land Holdings Act, as alleged?OPD.
13. Relief.
6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff/respondent herein. In an appeal, preferred therefrom, by, the State of H.P./appellant herein, before the learned First Appellate Court, the latter Court dismissed, the, appeal, and, affirmed the findings recorded by the learned trial Court.
7. Now the State of H.P./appellant herein, has instituted the instant Regular Second Appeal, before, this Court, wherein it assails the findings, recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for ::: Downloaded on - 04/08/2018 22:57:54 :::HCHP ...8...
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admission, this Court, on 30.10.2012, admitted the appeal instituted by the State of H.P./appellant against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:-
1. Whether the impugned judgment and decree which are passed by the Courts below without referring the evidence on record are sustainable in the eyes of law?
2. Whether the court below has no jurisdiction to entertain the present suit in view of Section 18 of the H.P. Ceiling on Land Holdings Act, 1972?
3. Whether the Courts below wrongly construed the word "Muafi" which appear in the Revenue Record?
Substantial question of Law No.1 to 3:
8. The plaintiff, had, claimed rendition, of, a declaratory decree qua the entries, existing, in the revenue record, whereunder, it stood depicted, as, gair maurusie, vis-à-vis the suit khasra numbers, being quashed, theirs standing erroneously recorded, whereas, it acquiring title as owner vis-a-vis the suit khasra numbers. Ex.D-1, is, the jamabandi appertaining to the ::: Downloaded on - 04/08/2018 22:57:54 :::HCHP ...9...
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suit land, and, it appertains to the year 1968-69, and, therein the suit land is recorded in the ownership, of, the State of H.P.
9. Be that as it may, even though, the revenue records hence reflecting the plaintiff, as, gair maurusie, vis-à-vis, the suit khasra numbers, and, also revenue records, though, carry reflections, vis-à-vis, rather the apt proprietary rights qua the suit khasra numbers being conferred, upon, the deceased defendant Nanku, yet upon the apposite therewith issues which stand extracted hereinafter, the learned trial Court rather recorded disaffirmative findings thereon.
"2. Whether the revenue entries showing the plaintiff to be Gair Maurusi and in favour of defendant No.2, are wrong, illegal, as alleged? OPP.
3. Whether mutation conferring proprietary rights to defendant No.2 is also illegal, as alleged?OPP."::: Downloaded on - 04/08/2018 22:57:54 :::HCHP
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The disaffirmative findings recorded upon the apt hereinabove extracted issues, remained unchallenged by the aggrieved, by theirs respectively casting, an, apt first appeal before the learned first Appellate Court, thereupon, the apt findings recorded by the learned trial Court, upon, the afore extracted issues, hence, acquire finality, besides conclusivity.
r Nowat the validity, of, findings recorded by the learned Appellate court qua, with, the suit land being recorded, as, Muafi land in the apt revenue record, and, thereupon the plaintiff being hence construable to be in perpetuity a muafidar, is, to be tested. The learned First Appellate while drawing a conclusion, qua, the reflections carried in the apt revenue Records, depicting, the suit kahsra numbers, as Muafi land, and, the plaintiff, as, the apt muafidar thereof, rather, being construable to be carrying apt connotations, qua, perpetuities thereof, (i) and, thereupon, its, rejecting the submission in conflict therewith addressed ::: Downloaded on - 04/08/2018 22:57:54 :::HCHP ...11...
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before the learned First Appellate Court, by the learned District Attorney, who, failingly made an apt submission, in, conflict with the afore rendered conclusion, and, hence depended upon the apt rules, borne in H.P. Cancellation or Remission of Assignment of Land Revenue Rules 1966.
The validity of the submission aforesaid addressed, by the learned District Attorney, before, the learned First Appellate Court, and, validity, of, rejection thereof by the learned First Appellate Court, is, to be tested in the light of an allusion being made, to, apt Rules 4 and 5, borne, in H.P. Cancellation or Remission of Assignment of Land Revenue Rules 1966, apt underlined portions of the rules stand extracted hereinafter:-
4. Categories of muafis and jagirs. - The following categories of muafis and jagirs exist in Himachal Pradesh;
(i)(1) Perpetual (2) Life time (3) For a number of generations (4) Title and currency of settlement (5) Religious grants in favour of Dieties (6) Jagirs granted by the Ex-rulers to their family member from a common ancestor or to their relatives (7) muatis/jagirs granted to the military personnel for their services in the Army (8) Charitable grants for the maintenance of garden or "Sarai" (9) Muafis and Jagirs sanctioned in lieu of meritorious services (10) service items.
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(ii) Petty assignment of land-revenue conferred on wastage officials .
like Batwala'.
5. Basic principles for the resumption of muafis and Jagiris. - Notwithstanding anything contained in any Patta or Sanad of grant or the terms and conditions of a grant made before the Act came into force, the State Government shall have the power to cancel such grant/grants in the light of the following guiding principles;-
(a) in the case of grants for service, the primary test is whether the grantee is and will be in fact any longer rendering any service to the public or the State (As distinct from service to the ruler).
(b) In respect of charitable grants, the criteria is whether the grant is and will be still in public interest
(c) Grants purporting to be in perpetuity are to be considered in the light, firstly, of the fact that as it will known perpetuity had title or its true meaning in practice during the previous regime not with standing that sanads or other paper said, the tenure of every so- called perpetual grant being tacitly subject renewal at the will of every new ruler and secondly, of the consideration that modern trends are not much in favour of perpetual grants of public revenue.
(d) In deserving cases, some leniency may be shown as a matter of grace.
(e) All such muafis and jagirs which are not in public interest and conditions whereof have become redundant in the changed circumstances of today may be resumed forthwith.
(f) in most deserving cases, the jagirs/muafis may be allowed till life time of the present assignees, but it should be in very rare cases and the Deputy Commissioners should send their recommendations in this behalf.
(g) muafis and jagirs assigned in favour of deities and temples should be allowed to continue on the following terms.
(i) the existence of the temple in good condition and its proper management;
(ii) the existence of adequate number of followers of the god and goddess;
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(iii) the servants of the god or goddess should bear good moral .
character and should be loyal to the Government;
(iv) the muafi lands should not be alienated without prior approval of the Government.
(v) the servants of god or goddess would be trustee of the property of the temples.
(h) Jagirs granted by the ex-rulers to their family members may be allowed to continue till life time of the present assignees. Muajis granted to those persons who volunteered then services for the Indian Army at the time of national crisis e.g., during external aggression of internal commotion should be allowed to continue till life time of the present assignees. Muafis will be resumed if-
(1) the muafidar is declared deserter from the army, or (2) the muafidar is punished by court martial, civil courts for anti-
national activities
(i) muafis granted for the maintenance of garden or sarai and for good conduct, loyalty and obedience of the muafidar may be allowed to continue as the same are for the common good of the people
(j) muafis granted as inam lands may be allowed to continue on the conditions that the inamdar should bear good moral character and be loyal to the Government. The inamdar cannot alienate the inam without prior approval of the Government Resumption or further continuance of the assignments will be revised by the Government after the death of the present inamdar.
(k) "where right, title and interest in the land under section 11,14 and 27(4) have been acquired by a tenant or vested in the State Government under section 15 of 27( 1) (3) of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953, the muafi of the land-revenue attached to such land shall automatically stand resumed with effect from the date the right, title and interest of the land-owner is extinguished".
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A reading of Rule 4 of the of the relevant rules extracted hereinabove, unfolds, qua theirs rather creating various categories of muafi lands and jagiris, and, one amongst, the, categories, of, muafi land, is, of, it being perpetual, in tenure. Furthermore, clause (b) of Rule 5 of the relevant rules aforesaid, as, appertaining to charitable grants, makes hence prescription(s), qua upon proof emanating qua the charitable grant, being in public interest, the State government, rather holding apt discretions to keep it alive or keep it in perpetuity. Also clause (g) of Rule 5 of the relevant rules, appertaining, to muafies assigned, vis-à-vis, deities and temples, being permitted to be continued, upon, emanation, of, evidence qua the existence of temple thereon being in a good condition, (i) and, its being properly managed, and, the deities installed in the temple being evidently worshiped, by an adequate number of followers. (ii) Having culled out, the, nuance of the applicable hereat, relevant ::: Downloaded on - 04/08/2018 22:57:54 :::HCHP ...15...
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provisions of the apt rules, and, also upon adduction of cogent relevant thereto germane evidence, thereupon, hence all the apt beneficial ingredients thereof, would rather work towards an apt construction, of, assignment, of, muafi(es) qua deities, rather holding the apt perpetuity. (a) In sequel, it is rather, of, utmost important to also dwell, upon, the apt evidence, as, exists, in, satiation, of, the ingredients, of the apt rules, (b) and in case rather cogent evidence in satiation, of, the ingredients cast in the relevant rules, rather exists on record, thereupon, this Court would proceed, to, validate the findings recorded by the learned trial Court, even if they are conflict with the submission addressed before, it, by the learned District Attorney.
10. The apt evidence in satiation, of, all the ingredients of the relevant rules, is, comprised in the testification(s), of, PW1, PW-2 and PW-3. Their affirmative testifications, hence, comprised in their ::: Downloaded on - 04/08/2018 22:57:54 :::HCHP ...16...
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respective examinations-in-chief (i) make visible unfoldments qua rather satiation being meted, vis-à-vis, the apt ingredients occurring in the relevant rules, testifications whereof, though, hence, were, concerted to ripped of their efficacies, by, the learned ADA, by the latter holding them, to, an exacting cross-examination,
(ii) yet during the ordeal of cross-examinations of PW-1 to PW-3, by the learned ADA, he has been unable to elicit, from, them any elicitations, for, hence their testifications, as, comprised in their respective examinations-in-chief, rather suffering erosion, wherein, they rather espouse qua the nomenclatured deity, hence, existing on the suit land, and, also make open bespeakings therein, qua an adequate numbers of devotees paying obeisance thereto. Consequently, the aforesaid echoings rendered by the aforesaid PWs, in their respective examinations-in-
chief, echoings whereof, when hence, satiate the imperative statutory ingredients, existing in the relevant ::: Downloaded on - 04/08/2018 22:57:54 :::HCHP ...17...
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rules, (iii) thereupon, the benefit, of, the apt rules, holding prescriptions qua the assignments, as, Muafi of the suit land, vis-à-vis, the deity, being impermissible, for rescission or revocation, by the State government, rather, with an apt statutory prescription standing carried therein, qua the state government rather permitting the continuation, of, apt assignment(s) of the suit land, as, muafi vis-à-vis the plaintiff, (iv) and, besides, thereupon, the assignment of the suit land as muafi, vis-a-vis, the deity, does also, as a natural sequitur, hence carry the apt connotation, of it, being an apt assignment, rather holding perpetuity of tenure. (v) Preeminently, with the government being statutorily injuncted, to continue the apt assignment, vis-à-vis, the plaintiff, of, the suit khasra number, as muafi rather than to rescind or cancel it, (v) AND, when for reasons aforestated, evidence in satiation, vis-à-vis, the mandate, of, the apposite rules, stands adduced, by the plaintiff, and, is comprised in the ::: Downloaded on - 04/08/2018 22:57:54 :::HCHP ...18...
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uneroded testifications rendered by PW-1 to PW-3 , (vi) thereupon, also the government is barred to rescind the grant, rather, is entailed by statutory prescription, to continue it, until, evidence emanates qua the apt beneficial ingredients comprised, in sub clauses (i) to (iii) standing infringed.
r to of clause (g) of Rule 5, of, the relevant rules, rather
11. The learned Deputy Advocate General ha contended with vigour that with an apt bar, being encapsulated in Section 18 of the H.P. Ceiling on Land Holdings Act, 1973, provisions whereof stand extracted hereinafter, thereupon, the Civil Court, held no, jurisdiction to adjudicate upon the present lis.
"18. Bar of jurisdiction. - (1) No civil court shall have jurisdiction to-
(a) entertain or proceed with a suit for specific performance of a contract for transfer of land which affects the rights of the State Government to the surplus area under this Act; or
(b) settle, decide or deal with any matter which is under this Act required to be settled, decided or dealt with by the Financial Commissioner, the Commissioner, the Collector.::: Downloaded on - 04/08/2018 22:57:54 :::HCHP
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(2) No order of the Financial Commissioner, the .
Commissioner, the Collector made under or in pursuance of this Act, shall be called in question in any court."
However, the aforesaid submission holds no foundation and is rejected, (i) given, the bar being attractable, against, the institution of a suit for specific performance of contract, whereunder, rights of the State Government, vis-a-vis, the surplus area prescribed in the Act, rather is gravely affected or prejudiced, (ii) and, also the bar being attracted, upon, any matter in respect whereof, a decision is enjoined, to be recorded by the Financial Commissioner, Commissioner or Collector. Contrarily, hereat, the instant suit is not cast for rendition, of, a decree, for, specific performance of contract nor the declaratory decree as prayed for, appertains, to any other surplus area defined in the Act nor the declaratory decree, as espoused in the instant suit, appertains to any matter, hence, falling with the expanse or ambit of the Act, in respect whereof, any verdict is entailed, rather to ::: Downloaded on - 04/08/2018 22:57:54 :::HCHP ...20...
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be solitarily recorded by the statutory authorities, (I) rather with the lis, as, borne in the instant suit, hence, appertaining to an interpretation being hence afforded, vis-a-vis, the perpetuity, of, tenure assigned, to, the "muafi" land, conferred, vis-a-vis, the plaintiff. In aftermath, with the apposite herewith rules not creating any statutory bar, against, entertainments of suit, appertaining to the longevity, of, tenure, of, the grant, of, the suit land, as "Muafi" vis-a-vis, the plaintiff, thereupon, the attraction hereat, of the statutory bar encapsulated, in Section 18 of the H.P. Ceiling on Land Holdings Act, 1972, is, grossly impermissible.
12. The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court as also by the learned trial Court, being based, upon a proper and mature appreciation of evidence on record.
While rendering the findings, the learned first Appellate Court as well as the learned trial Court, have not ::: Downloaded on - 04/08/2018 22:57:54 :::HCHP ...21...
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excluded germane and apposite material from consideration. Accordingly, the substantial questions of law are answered in favour of the respondent/plaintiff and, against the appellant/ defendant No.1.
13. In view of the above discussion, there is not merit in the present Regular Second Appeal and it is dismissed accordingly. In sequel, the judgements and decrees rendered by both the learned Courts below are affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs. Records be sent back forthwith.
(Sureshwar Thakur) 31 July, 2018.
st Judge.
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