Himachal Pradesh High Court
Mehar Chand vs State Of H.P. on 9 November, 2005
Equivalent citations: 2006(1)SHIMLC177
Author: V.M. Jain
Bench: V.M. Jain
JUDGMENT V.M. Jain, J.
1. This Regular Second Appeal has been filed by the plaintiff - appellant against the judgments and decrees of the Courts below, whereby the suit filed by the plaintiff was dismissed by the trial Court and the appeal filed by him was also dismissed by the learned District Judge.
2. Mehar Chand, plaintiff had filed a suit for declaration to the effect that he was the absolute owner in possession of the suit property, having acquired ownership thereof by adverse possession and that the orders passed by the Assistant Collector, Collector, Commissioner and the Financial Commissioner in the proceedings under Section 163 of the Himachal Pradesh Land Revenue Act, seeking his ejectment from the suit property were illegal and void and were liable to be declared as such. Inspite of various opportunities no written statement was filed on behalf of the defendant. However, the learned trial Court framed various issues and fixed the case for plaintiff's evidence. The plaintiff produced evidence in support of his case. After hearing both sides, the learned trial Court dismissed the suit of the plaintiff. The appeal filed by the plaintiff was also dismissed by the learned District Judge holding that the Civil Court had no jurisdiction to go into this question and the plaintiff-appellant had failed to show that he had become the owner of the suit property by adverse possession. Aggrieved against the same, the plaintiff filed the present Regular Second Appeal in this Court.
3. I have heard the learned Counsel appearing for the plaintiff - appellant and have gone through the record carefully.
4. The learned Counsel appearing for the plaintiff - appellant submitted before me that the defendant - State of H.P. having not filed any written statement, the trial Court ought to have decreed the suit of the plaintiff under Order 8 Rule 10 C.PC. He has further submitted that in any case the lower appellate Court could not have dismissed the appeal on the ground that the Civil Court had no jurisdiction to entertain the present suit. It has further been submitted that the plaintiff - appellant having acquired the ownership over the suit property by adverse possession, he could not have been ordered to be ejected from the suit property by the revenue Courts and as such, the orders passed by the revenue Courts are illegal and void.
5. However, I find no force in these submissions of the learned Counsel appearing for the plaintiff - appellant. Under Order 8 Rule 10 C.P.C., it has been provided that where the defendant fails to file the written statement, the Court shall pronounce the judgment against him, "or make such order in relation to the suit as it thinks fit." From a perusal of the provisions of Order 8 Rule 10 C.P.C. as referred to above, in my opinion it will be clear that the Court is not bound to decree the suit of the plaintiff, where the defendant fails to file the written statement. The Court could either pronounce the judgment against the defendant or make such order in relation to the suit as it thinks fit. In the present case, the learned trial Court instead of decreeing the suit of the plaintiff and pronouncing the judgment against the defendant, thought fit to frame issues and to give opportunity to the plaintiff to prove his case. This, in my opinion, was perfectly in accordance with law and no fault could be found with the same.
6. So far as the lower appellate Court holding that the Civil Court had no jurisdiction to entertain and decide the present suit is concerned, in my opinion, no fault could be found with the same. As referred to above, the plaintiff had filed the suit seeking a declaration that he was the owner in possession of the suit property having acquired the ownership by adverse possession and the orders passed by the Assistant Collector, Collector, Commissioner and the Financial Commissioner in the proceedings under Section 163 of the Himachal Pradesh Land Revenue Act, orderng his ejectment from the property in dispute were illegal and void. The learned District Judge while holding that the Civil Court had no jurisdiction to entertain and decide the present suit had placed reliance on the provisions of Section 171 of the Himachal Pradesh Land Revenue Act read with Section 163 of the said Act. A perusal of Section 171 of the said Act would show that under Sub-section (2), a Civil Court shall not exercise jurisdiction over any of the matters detailed therein and under Clause (xxvi) of Sub-section (2) of Section 171, it has been provided that a Civil Court shall not exercise the jurisdiction in respect of the ejectment of any person under Section 163 of the said Act. Thus, in respect of any order passed under Section 163 of the Himachal Pradesh Land Revenue Act, the Civil Court would not exercise jurisdiction. This however, would be subject to the condition that the Civil Court would still have the jurisdiction if the orders passed by the revenue authorities under Section 163 of the said Act were illegal and without jurisdiction. In the present case, nothing has been pointed out before me to show that the various orders passed by the Assistant Collector, Collector, Commissioner and the Financial Commissioner in the proceedings under Section 163 of the said Act, were illegal and/or without jurisdiction. In case, the present plaintiff - appellant had set up title in respect of the suit property by claiming adverse possession and in case the Assistant Collector had not converted itself into a Civil Court and had not decided the question of title, it could not be said that the Assistant Collector had no jurisdiction to decide the case or that the order passed by him was illegal and void, especially when the said order was challenged in appeal before the Collector and thereafter before the Commissioner and ultimately upto Financial Commissioner level. If the plaintiff - appellant had taken this point before the appellate and/or revisional authorities and these authorities had not agreed with him, it could not be said that the orders passed by these authorities were without jurisdiction. In case, the plaintiff - appellant had not taken this point before the appellate/revisional authorities, in that eventuality, in my opinion, the plaintiff - appellant cannot take up this point before the Civil Court and could not be allowed to urge that the orders passed by the revenue authorities were without jurisdiction. In the absence of any further material on the record, in my opinion, the learned District Judge had rightly held that the plaintiff had failed to prove that the orders passed by the revenue authorities were illegal and void or that the same were without jurisdiction.
7. Coming on the question of ownership by adverse possession, in my opinion, the learned District Judge was perfectly justified in holding that the plaintiff - appellant had failed to prove that he had become the owner of the suit property by adverse possession. This is especially so when the revenue authorities upto the level of the Financial Commissioner had found that the plaintiff - appellant was in unauthorized possession of the Government property and had ordered his ejectment therefrom in the proceedings under Section 163 of the Himachal Pradesh Land Revenue Act. In this view of the matter, in my opinion, no fault could be found with the findings of the learned District Judge holding that the plaintiff had failed to prove his ownership over the suit property by adverse possession.
8. No other point has been urged before me in this appeal.
9. In view of the detailed discussion above, in my opinion, there is no merit in this appeal, especially when no question of law muchless a substantial question of law, arises for determination in this appeal. Hence, the present appeal is dismissed.
CMP No. 997 of 2005 :
10. In view of the dismissal of the main appeal, this application has become infructuous.