Himachal Pradesh High Court
Shukru Ram Through His Lrs vs State Of H.P And Others on 9 July, 2021
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA Nos. 621 of 2007 and 90 of 2011 .
Reserved on : 8.7.2021
Decided on: 9.7.2021
RSA No. 621 of 2007
Shukru Ram through his LRs
r ...Appellants
Versus
State of H.P and others
...Respondents
_______________________________________________________ _ RSA No. 90 of 2011 Shukru Ram through his LRs .Appellants Versus State of H.P and others ..Respondents Hon'ble Mr. Justice Sureshwar Thakur, Judge. Whether approved for reporting? yes _____________________________________________________ For the Appellant : Mr. K.D. Sood, Senior Advocate with Ms. Sanya Kaushal, Advocate, in both the appeals.
::: Downloaded on - 13/07/2021 20:13:06 :::HCHP 2For the respondent(s) : Mr. Hemant Vaid and Mr. Ashwani Sharma, Addl. AGs with Mr. Vikrant Chandel, Dy.
A.G. for respondent No. 1.
.
Mr. Ishan Sharma, Advocate, for respondents No. 2(a) to 2(d).
Mr. Bhag Chand Sharma,
Advocate, for respondents No.
3(a) to 3(h).
(in both the appeals)
Sureshwar Thakur, Judge
The plaintiff, one Shukru Ram, since deceased, and now substituted by his LRs, instituted Civil Suit No. 173 of 1993, before the learned Sub-Judge, 1st Class-I, Dharamshala. In the afore suit, he claimed, the, making of a declaratory decree, hence pronouncing him to acquire the proprietary rights, over the suit khasra Nos. Moreover, he also claimed the further relief that since he is in possession of the suit khasra Nos, the defendants be restrained from dis-possessing him therefrom, except, in accordance with law. The learned Sub-Judge, 1st Class,-I, Dharamshala, declined the espoused declaratory decree, inasmuch as, the plaintiff being declared to acquire proprietary rights, upon the suit khasra Nos. However, the relief of injunction was granted to him, and, the defendants were restrained from interfering with the 2 ::: Downloaded on - 13/07/2021 20:13:06 :::HCHP 3 possession of the plaintiff, upon the suit land, till he becomes evicted, in accordance with law.
2. The State of H.P., became aggrieved from the .
judgment and decree, pronounced by the learned Sub-
Judge, 1st Class,-I, Dharamshala, upon Civil Suit No. 173 of 1993, and for annulling it, it cast Civil Appeal No. 152- D/XIII/2010,before the learned First Appellate Court. The learned First Appellate Court, through its decision made thereon, on 7.1.2011, partly accepted the defendants' appeal and made a decision, that the plaintiff would not be dispossessed from the suit property, except in accordance with law. Further more, the learned First Appellate Court also, made a verdict that the proceedings drawn under Section 163 of the H.P. Land Revenue Act, against the plaintiff, are, maintainable. In addition, it was also declared that the suit land, vested in the State of H.P., free from all encumbrances, through the mandate, as enclosed in Section 3 of the H.P. Village Common Lands (Vesting and Utilization) Act 1974. Lastly, it was declared that the lease/patta, granted to the plaintiff, was only for a tenure of 5 years, qua khasra No. 324, and, for 10 years, qua khasra No. 325 and upon expiry of the 3 ::: Downloaded on - 13/07/2021 20:13:06 :::HCHP 4 afore tenure of lease(s), it/they ipso facto stood terminated.
3. The plaintiff, Shukru Ram, now substituted by his .
LRs, has challenged the afore verdict, pronounced upon Civil Appeal No. 152-D/XIII-2010, by the learned first Appellate Court, through his instituting RSA No. 90 of 2011, and, when the appeal came up for admission before this Court, on 18.3.2011, it became admitted, on the hereinafter extracted substantial questions of law No. 1, 2 and 5:
1. Whether the findings of the Court below are perverse, based on misreading of oral and documentary evidence as also pleadings of the parties and drawing up of wrong inferences from the facts proved on record which has vitiated the findings?
2. Whether in view of the admitted plea that the appellant was a tenant on the two khasra numbers 324 and 325 for five yeatrs and ten years respectively in the absence of determination of tenancy in accordance with law, it could be assumed that the tenancy stood determined and the appellate had become trespasser?4 ::: Downloaded on - 13/07/2021 20:13:06 :::HCHP 5
3. Whether the decision of the two appeals against the said judgment at the instance of two different parties giving contradictory findings is justified and which has resulted in failure of justice."
.
4. Pertinently, the State of H.P. has not cast any appeal, before this Court, rather challenging the afore alluded determinations, made by the learned First Appellate Court, in the operative part of its judgment.
Consequently, r the operative part of the verdict pronounced, by the learned First Appellate Court, upon Civil Appeal No. 152-D/XIII-2010, acquires in so far, as the State of H.P, is concerned, the fullest finality and conclusivity, and it is also estopped against giving fullest effect thereto.
5. In Civil Suit No. 173 of 1993, one Salig Ram, was arrayed as co-defendant No. 2, and one Guru Lal, was arrayed as co-defendant No.3. A perusal of the records of RSA No. 621 of 2007, disclose that the State of H.P., became aggrieved from the afore made judgment and decree, by the learned Civil Court, upon Civil Suit No. 173 of 1993, and, made a challenge thereon, through its casting Civil Appeal No. 134-D/XIII-1995. The afore civil Appeal, came to be decided on 19.1.1996, by the learned 5 ::: Downloaded on - 13/07/2021 20:13:06 :::HCHP 6 First Appellate Court, and the latter dismissed the appeal, filed by the State of H.P., as directed against the judgment and decree, as became passed by the learned .
trial Court, upon, Civil Suit No. 173 of 1993. The state of H.P., assailed the judgment and decree, passed by the learned First Appellate Court, through its instituting Regular Second Appeal No. 104 of 1997, before this Court. This Court, through a decision, made thereon, set aside the verdict made by the learned First Appellate Court, and also remanded Civil Appeal, bearing No. 115- D/XIII/1995, to the learned First Appellate Court, for its making a fresh decision thereon. After remand to the First Appellate Court, the latter made a decision on 27.9.2007, upon, Civil Appeal No. 115-D/XIII/1995.
Through the afore made verdict, the afore civil appeal was allowed and the plaintiffs' suit was dismissed in toto.
Necessarily, hence the decree of permanent prohibitory injunction, as became granted to the plaintiff, by the learned First Appellate Court, became annulled and also the latitude, as became granted to him, to save his possession upon the suit land, except upon his becoming evicted, in accordance with law, was withdrawn. The 6 ::: Downloaded on - 13/07/2021 20:13:06 :::HCHP 7 plaintiff, Shukru Ram, becomes aggrieved from the afore judgment and has challenged it, through his casting Regular Second Appeal No. 621 of 2007, before this .
Court. When, RSA No. 621 of 2007, came up for admission before this Court, on 29.12.2007, it became admitted on the hereinafter extracted substantial questions of law:
1. Whether in view of the admitted position that the plaintiff was tenant on the suit land and by mere expiry of the lease by afflux of time, his right to remain in possession of the property was lost.
2. Whether the judgment of the Court below is perverse, based on wrong assumptions that the tenancy of the appellant came to an end and whether such findings are sustainable in law.
3. Whether in view of the settled possession of the appellant on the land and also dismissal of the appeal of the state, whether the findings of the District Judge reversing the judgment of the trial Court are sustainable in law when the plaintiff was entitled to a decree of injunction of protection of his possession.
6. Since both the RSAs arise from a common verdict, made upon Civil Suit No. 173 of 1993, by the learned Civil Court concerned, and also obviously contain similar 7 ::: Downloaded on - 13/07/2021 20:13:06 :::HCHP 8 cause(s) of action, hence both are amenable for a common verdict being meted thereon(s).
7. Be that as it may, since interse contradictory .
judgments, become rendered, by the learned First Appellate Court, respectively, upon Civil Appeal No. 115- D/XIII/1995, and, upon Civil Appeal (RBT) No. 152- D/XIII-2010. Therefore, this Court is enjoined to reconcile both the apposite conflicting decision(s) made respectively, upon Civil Appeal No. 115-D/XIII/1995, and, upon Civil Appeal (RBT) No. 152-D/XIII-2010. In the afore endeavour, as aforestated, the State of H.P. is estopped from challenging the operative part of the verdict, pronounced by the learned First Appellate Court upon Civil Appeal No. 152-D/XIII-2010. It is apparent that the Civil Appeal, bearing No. 134-D/XIII-1995 and the Civil Appeal No. 152-D/XIII-2010, became instituted on 1.9.1995, before the learned First Appellate Court, however, Civil Appeal (RBT) No. 152-D/XIII-2010 became decided on 7.1.2011, and, Civil Appeal No. 134-D/XIII-
1995 became decided on 19.1.1996. It is also gathered from the records that, despite, Civil Appeal No. 134- D/XIII-1995 also coming to be instituted on 1.9.1995, 8 ::: Downloaded on - 13/07/2021 20:13:06 :::HCHP 9 hence before the First Appellate Court, yet both the Civil Appeals, came to be decided through conflicting judgment(s) made thereon, on dis-similar dates.
.
Consequently, the counsel for the parties concerned, to obviate the making of conflicting decisions) thereon, became enjoined to make a prayer before the learned First Appellate Court, to club, both the aforestated appeals. However, the counsel for the parties concerned, did not, make the afore prayer. Their afore conduct is not appreciated by this Court. In case the afore valid recoursing(s) were made by the counsel(s) for the litigants concerned, before the first Appellate Court, the aggrieved from the verdict made by the learned First Appellate Court, on Civil Appeal No. 134-D/XIII-1995, would not have carried RSA No.104 of 1997, before this Court, nor this Court, may be, would have, after annulling the judgment and decree, pronounced thereon, by the learned First Appellate Court, proceeded to make an order of remand upon the learned First Appellate Court, hence for deciding it afresh, nor interse conflicting decisions, after remand, would have emanated upon the afore Civil Appeals, though instituted on similar dates, 9 ::: Downloaded on - 13/07/2021 20:13:06 :::HCHP 10 before the first Appellate Courts, and, also though containing similar cause(s) of action, and, also directed, against a common verdict, made upon Civil Suit No. 173 .
of 1993, by the learned trial Court. Even thereafter, since Civil Appeal No. 152-D/XIII-2010 remained on the docket of the learned first Appellate Court, and, was decided on 7.11.2011 and, obviously, subsequent to the decision made on 27.9.2007, upon Civil Appeal No. 115- D/XIII/1995. Therefore, even at the afore stage, both the civil Appeals could have been asked to be clubbed together, and would hence have necessarily, obviated the making(s) of conflicting decisions, on the apposite Civil Appeals, by the learned First Appellate Court. However, even the afore endeavor remained un-recoursed by the counsel for the contesting parties. Even the lack of the afore recoursings by the learned counsel for the contesting litigants, is, not appreciated by this Court.
8. In so far, Civil Appeal No. 152-D/XIII-2010 is concerned, a deep reading of substantial questions of law, No. 2 and 3 of RSA No. 90 of 2011,does, ipso facto, mobilize an inference, that the appellant Shukru Ram, aspires against his being not declared a trespasser, upon 10 ::: Downloaded on - 13/07/2021 20:13:07 :::HCHP 11 the suit khara Nos. Therefore, it appears that he rests his espousal for maintaining his possession over the suit khasra Nos., excepting upon his becoming validly .
dispossessed therefrom, through the State of H.P., ensuring his ejectment through its recoursings the mandate of Section 163 of the H.P. Land Revenue Act.
Moreover, since a reading of the afore substantial questions of law, makes it imminently clear that the appellant admits, that his tenancy over the suit khasra Nos was limited for the apposite tenure. Thereupon, it is candidly clear that the appellant openly admits that the lease/patta, granted qua him over the suit khasra Nos, was limited for the apposite tenure. His contest as aforestated is limited to his being evicted from the State of H.P., only in accordance with law. Moreover, since any gair-marausi inducted upon suit land, owned by the government, is, statutorily absolutely barred for claiming conferment of properietory rights thereon, thereupon the plaintiffs cannot claim, the, vesting in him/them statutory title, as owners upon the suit khasra Nos.
9. The learned First Appellate Court, through a decision made upon Civil Appeal No. 152-D/XIII-2010, 11 ::: Downloaded on - 13/07/2021 20:13:07 :::HCHP 12 had accepted his afore plea. The State of H.P. is not aggrieved from the judgment made by the learned First Appellate Court, and as aforestated, is stopped from .
breaching it.
10. Even in paragraph-22 of the verdict pronounced by the learned First Appellate Court, upon Civil Appeal No. 115-D/XIII/1995, decided on 27.9.2007, para whereof stands extracted hereinafter:
"22. Plaintiff Shukru Ram as DW1, in his cross-
examination, has frankly admitted that he was a lessee of the suit land. PW-2 Salig Ram, PW-3 Rattan Chand, PW-4 Sushil Kumar and PW-5 Shukru Ram, plaintiff, who has been re-examined, have simply stated that the plaintiff is in possession of the suit land and had planted a large number of fruit bearing trees in the suit land. It is not disputed that Sh. B.S. Parmar, Advocate, who was appointed as a Local Commissioner, has submitted his report Ext. DW1/A. Sh. Gaggal Singh, Agricultural Extension Officer, who has been examined as DW-2, has also reported that there are large number of fruit bearing trees in the suit land. The said evidence amply prove that the plaintiff is in possession of the suit land. Even, the fact that the plaintiff is still in possession of the suit land, is not disputed on behalfof the defendants. DW-1 Duni Chand has stated that the 12 ::: Downloaded on - 13/07/2021 20:13:07 :::HCHP 13 plaintiff is maintaining forcible possession over the suit land after expiry of lease period. DW-2 Salig Ram-defenant No. 2, estate right holder, has also supported the version of DW-1 Duni Chand. DW-3 .
Shri Tulsi Ram is the retired Tehsildar. He has testified that proceedings for ejectment were started against the plaintiff from the suit land, which were stayed on 18.12.1990 as per the stay orders issued by the Civil Court, hence the said proceedings are still pending, which fact is not disputed by the plaintiff. DW-4 Ashok Kumar Patwari has also testified that ejectment proceedings against the plaintiff were initiated, which are pending for disposal and the plaintiff is in illegal possession of the suit land."
It had made a conclusion that the appellant Shukru Ram was in possession of the suit land. The afore conclusion is rested upon the testifications of the defendants' witnesses. He had also made a conclusion that the proceedings for ejectment were commenced against the plaintiff. However, the same were stayed through the verdict made by the learned Civil Court, on 18.12.1990.
Moreover, despite the Revenue Officer concerned, not concluding the proceedings drawn against the plaintiffs, through his recoursing the mandate of Section 163 of 13 ::: Downloaded on - 13/07/2021 20:13:07 :::HCHP 14 the H.P. Land Revenue Act, yet the learned First Appellate Court proceeded to make a decree for eviction of the plaintiff from the suit khasra Nos.
.
11. The afore verdict, as, made by the learned First Appellate Court upon Civil Appeal No. 115-D/XIII/1995 is perse legally flawed. The reasons, for making the afore conclusion, arises from the factum, that upon expiry of the tenure of the patta/lease, made in favour of the plaintiff, by the defendants, it stood ipso-facto terminated. However, the admitted possession of the plaintiff, upon the suit khasra Nos, was required to be ousted by the State of H.P., only through its adopting the legal mechanism. The legal mechanism, though was, recoursed by the State of H.P., and was also required to be completed, as aptly declared by the learned First Appellate Court, while deciding Civil Appeal No.152- D/XIII-2010. In the afore verdict, the learned First Appellate Court also permitted the State to open the proceedings, as, launched against the plaintiffs, through the Revenue Officer concerned, recoursing the statutory contemplations, borne in Section 163 of the H.P. Land Revenue Act. Contrarily, the pre-mature termination of 14 ::: Downloaded on - 13/07/2021 20:13:07 :::HCHP 15 the afore legal mechanism, by the learned First Appellate Court, while making a decision upon Civil Appeal No. 115-D/XIII/1995, is inapt. Strikingly the restoration of .
possession of the suit over khasra Nos. was to be made only in accordance with law, and not in the manner, pronounced by the learned First Appellate Court, while deciding Civil Appeal No. 115-D/XIII/1995.
10. Moreover, with the learned First Appellate Court in making a decree upon Civil Appeal No. 115- D/XIII/1995, while admitting, the, embarking of the statutory proceedings, by the Revenue Officer concerned, for ensuring the valid ouster of possession of the plaintiff on the suit khasra Nos., it could not terminate them, (i) as mutation No. 41, of, 25.4.1985, borne in Ext. DB, though declaring the suit Khasra Nos., to vest in the State of H.P., and also though declaring the latter to assume possession thereof, did, only carry a presumption of truth. Though the afore presumption of truth, is, as carried by Ext. DB, hence supported by the provisions of Section 35 of the Indian Evidence Act. However, the presumption of truth attached to Ext. PB, is, rebuttable.
The afore extracted paragraph of the verdict made by the 15 ::: Downloaded on - 13/07/2021 20:13:07 :::HCHP 16 learned First Appellate Court in Civil Appeal No. 115- D/XIII/1995, does, disclose the declaration in Ext. DB, inasmuch as the State of H.P., purportedly assuming .
possession of suit khasra Nos after the termination of the limited tenure of grant made by it, vis-à-vis, the plaintiffs, rather becoming therethrough to be denuded of its vigor, or its becoming rebutted.
11. In sequitur, it was un-amenable for the learned First Appellate Court, to, through its verdict, made upon Civil Appeal No. 115-D/XIII/1995 rather deny to the plaintiff the right to contest, the proceedings drawn under Section 163 of the H.P. Land Revenue Act, and, it was also legally in-sagacious for the learned First Appellate Court, to deny to the plaintiff the relief granted by the learend trial Judge, inasmuch as his possession upon suit khasra Nos, being protected till he is evicted therefrom, in accordance with law.
12. Consequently, the verdict made by the learned First Appellate Court, upon Civil Appeal No. 152-D/XIII-
2010 is maintained and affirmed. Consequently, RSA No. 90 of 2011 is dismissed. Moreover, for bringing interse consonance between the judgment made by the learned 16 ::: Downloaded on - 13/07/2021 20:13:07 :::HCHP 17 First Appellate Court, upon Civil Appeal No. 152-D/XIII-
2010, and the judgment made by the learned First Appellate Court, upon Civil Appeal No. 115- .
D/XIII/1995, the latters' verdict, is quashed and set aside. Consequently, RSA No. 621 of 2007 is allowed, to the extent of the possession of the plaintiff over the suit land, being protected till he is evicted therefrom, in accordance with law. Substantial questions of law in both the Regular Second Appeals are accordingly answered. Decree sheet be accordingly drawn. No costs.
(Sureshwar Thakur) Judge 9.7.2021 Kalpana 17 ::: Downloaded on - 13/07/2021 20:13:07 :::HCHP