Himachal Pradesh High Court
Vakil Singh And Others vs State Of H.P. And Others on 20 June, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 252 of 2006.
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Reserved on : 12th June, 2018.
Decided on : 20th June, 2018.
Vakil Singh and others .....Appellants/Plaintiffs.
Versus State of H.P. and others Coram:
r to The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
..Respondents/Defendants.
Whether approved for reporting?1 For the Appellant: Mr. Ajay Kumar, Sr. Advocate with Mr. Dheeraj K. Vashishta, Advocate.
For Respondent No.1: Mr. Vikrant Chandel and Mr. Yudhveer Singh Thakur, Deputy Advocate Generals.
For Respondents No.3(a) to 3(h): Mr. J. L. Bhardwaj, Advocate.
Other respondents already ex-parte.
Sureshwar Thakur, Judge.
The instant appeal is directed, against, the concurrently recorded verdicts, by both the learned 1 Whether reporters of the local papers may be allowed to see the judgment?
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Courts below, whereby, the plaintiff's suit for rendition, of, a decree for declaration, as well as for, rendition of a decree for permanent prohibitory injunction qua the suit khasra number(s), was, hence dismissed.
2. Briefly stated the facts of the case are that the plaintiffs have filed a suit for declaration tot he effect that they are owners in possession of the land comprised in Khata No.18 min, Khatauni No.59 min, Khasra Nos. 17, 22, 26, 4,5,6, 7, 9, 14, 16, 21, 23, 24, 25, 27, 28, 29, 31, 15, 30, plots 20, measuring 14-45-02 hectare meters, situated in village Ban, Chariyati, Mouza Barla, Tehsil Jawali, District Kangra, H.P. It has been averred that they have been coming in cultivating possession of the suit land, since the time of their fore-fathers and the said possession is before 26.01.1950. The plaintiffs further averred that their possession is continuous, open, peaceful and without interruption to the knowledge of the defendants for more than 12 years and as such their ::: Downloaded on - 25/06/2018 23:00:03 :::HCHP ...3...
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possession has ripened into the ownership by efflux of time. It has further been averred that defendant No.3 had been in possession of the different land equal to the suit land and he go no concern or connection with land in dispute. The plaintiff also averred that prior to the Punjab Re-organization Act, 1966, the area in which the suit land is situated was a part of Punjab and as such the Punjab Village Common Lands (Regulations) Act, 1961 was prevalent. The plaintiffs also averred that the suit land did not vest under defendant No.2 under the said Act as per Section 4 (3) (ii) because of the legal position, however, mutation No.2 of 29.05.1955 was illegally sanctioned in favour of defendant No.2, which is illegal and void and has got no effect on the right of the plaintiffs. It has further been averred by the plaintiffs that subsequently this area in which the suit land is situated became a part of Himachal Pradesh and after the enforcement of H.P. Village Common Lands Vesting ::: Downloaded on - 25/06/2018 23:00:03 :::HCHP ...4...
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and Utilization Act, 1974, mutation No.4, of 10.01.1976 was sanctioned and said mutation is also illegal and without the consent and knowledge of the plaintiffs and is not binding on them. The plaintiffs also averred that the revenue record which is in the custody of defendant No.1 is liable to be corrected accordingly. That in the year 1980, the plaintiffs came to know about the illegal record, which was contrary to the spot situation and the defendants have been asked number of times to make necessary correction in the revenue record. The plaintiffs further asserted that a notice under Section 80 CPC was also served, but to no avail. It has been averred by the plaintiffs that vide order dated 3.5.1991 in second appeal, the Hon'ble High Court, permitted the plaintiffs to withdraw the previously instituted suit with permission to file fresh on the same cause of action and that the second suit was instituted without service of notice, therefore, the plaint was rejected for non-service of the ::: Downloaded on - 25/06/2018 23:00:03 :::HCHP ...5...
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same. However, the plaintiffs again served a notice to the State of H.P. on 18.3.1994 and the present suit was filed in the yea 1996. The plaintiffs further averred that cause of action accrued to them in the year 1955, 1976, 1980 and 22.1.1980 onwards and on 18.3.1994 and the Hence the suit.
r to existence of wrong entries is continuous cause of action.
3. The defendants contested the suit and filed separate written statements. In the written statement filed by defendants No.1 and 2, various preliminary objections have been taken inter alia, maintainability, locus standi, estoppel, resjudicata, jurisdiction etc. On merits, it has been averred by defendants No.1 and 2 that the plaintiffs had never been in possession of the suit land but during the settlement operation, in the year 1983-84, some of the inhabitants of the locality have encroached the government land, and their possession is illegal and without any authority. The defendants further ::: Downloaded on - 25/06/2018 23:00:03 :::HCHP ...6...
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averred that the suit land is a forest land and the same was rightly vested in favour of defendants No.1 and 2 and that the order of vestment was never challenged by the plaintiffs. Defendant No.3, in his written statement, has submitted that the plaintiffs were not in possession of the suit land and it has been denied that the plaintiffs were in possession of the suit land prior to 26.01.1956.
The defendant further averred that the plaintiffs have no right in the suit land and the revenue record is correct, according to the spot situation.
4. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:-
1. Whether the plaintiffs are owners in possession of the suit land, as alleged?OPP
2. If issue No.1 is not proved in the affirmative, whether the plaintiffs have also become the owners of the suit land by way of adverse possession, as alleged?OPP.::: Downloaded on - 25/06/2018 23:00:03 :::HCHP
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3. Whether this Court has no jurisdiction to entertain and try the present suit, as alleged?OPD.
4. Whether the plaintiffs are estopped by their acts and conduct to file the present suit, as alleged?OPD.
5. Whether the suit is not maintainable in the present form, as alleged?OPD.
6. Whether the suit is barred under the principle of resjudicata, as alleged?
OPD.
7. Whether the plaintiffs have no cause of action, as alleged?OPD.
8. Whether the suit is bad for non joinder of the necessary parties, as alleged?OPD.
9. Relief.
5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiffs/appellants herein. In an appeal, preferred therefrom, by the plaintiffs/appellants herein, before the learned First Appellate Court, the latter Court ::: Downloaded on - 25/06/2018 23:00:03 :::HCHP ...8...
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dismissed the appeal, and, affirmed the findings recorded by the learned trial Court.
6. Now the plaintiffs/appellants herein, have instituted the instant Regular Second Appeal, before, this Court, wherein they assail the findings, recorded in its Appellate Court.
r to impugned judgment and decree, by the learned first When the appeal came up for admission, this Court, on 26.04.2007, admitted the appeal instituted by the plaintiffs/appellants, against, the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:-
1. Whether respondent No.1 and 2 have any right, title and interest in the suit land which was originally recorded as "Shamlat Deh Hasab Rasad Malgujari" in the revenue record (Ex. D-5 Jamabandi of 1943-44) and whether any subsequent entries to the contrary in the revenue records would affect the right and possession of the appellants?
2. Whether in view of the entry of "Shamlat Deh Hasab Rasad Malgujari" with respect to the suit land coming the revenue records of 1943-44, as per Ex. D5, would the provisions of the Punjab Village Common Lands ::: Downloaded on - 25/06/2018 23:00:03 :::HCHP ...9...
(Regulation) Act, 1961 and then the H.P. Village Common Lands Vesting and .
Utilization Act, 1974, as amended from time to time be applicable to the suit land entitling the respondents to take possession of the same from the appellants?
3. Whether the courts below have rendered totally erroneous and rather contradictory findings while deciding issue Nos. 1,2,3,5 and 8 and if so its effect on the judgments and decrees of the Court?
4. Whether the judgments of the learned Courts below are sustainable in view of the amendment made in the Himachal Pradesh Village Common Lands Vesting and Utilization Act by Act No.20 of 2001?
Substantial questions of Law No.1 to 4:
7. Before alluding to the factual matrix, prevailing in the extant suit, it is of utmost importance, to bear in mind, the apposite provisions borne, in Section 4, of the Punjab Village Common Lands (Regulation) Act, 1961, provisions whereof stand extracted hereinafter:-
4. Vesting of rights in Panchayats and non-proprietors. -
(1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any agreement, instrument, custom or usage or any decree or order of any court or other authority, all rights, title and interests whatever in the land:-
(a) which is included in the shamilat deh of any village and which has not vested in a panchayat under the shamilat law shall, at the commencement ::: Downloaded on - 25/06/2018 23:00:03 :::HCHP ...10...
of this Act, vest in a panchayat constituted for, .
such,village, and, where no such panchayat, has been constituted for such village; vest in the panchayat on such date, as a panchayat having jurisdiction over that village is constituted;
(b) which is situated within or outside the abadi deh of a village and which is under the house owned by a non-proprietor, shall on the commencement of the shamilat law, be deemed to have been vested in such non-proprietor.
(2) Any land which is vested in a panchayat under the shamilat law shall be deemed to have been vested in the panchayat under this Act.
(3) Nothing contained in clause (a) of sub-section (1)and in sub-section (2) shall affect or sholl' be deemed ever to hove affected the-
(I) existing rights, title or interest of persons who though not entered as occupancy tenants in the revenue records are accorded a similar status by custom or otherwise, such as Dholidars, Bhondedars, Butimars, Bosikhuopahus, Saunjidars, Muqararidars;
(ii) rights of persons in cultivating possession of shamilat deh for more than twelve years without payment of rent or by payment of charges not exceeding the land revenue and cesses payable thereon;
(iii) rights of a mortagee to whom such land is mortgaged with possession before, the 26th January, 1950."
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wherein in sub section 3 (ii) thereof, a specific mandate is engrafted, whereby, stand pointedly excluded, the diktat, hence, of, the preceding thereto provisions, rather, containing an explicit mandate, vis-a-vis, the vestment of all rights qua lands reflected, as Shamlat Deh, in the revenue records apposite thereto, (i) besides thereunder preservation of all rights, is, bestowed upon persons in cultivating possession, of Shamilat Deh, for more than twelve years, without payment of rent or by payments of charges not exceeding the land revenue and cesses payable thereon, (ii) or in other words, the aforesaid mandate borne in clause (ii) of sub section (3) of Section 4 of the Punjab Village Common Lands (Regulation) Act, 1961, excludes, the operation, of, the preceding thereto provisions, occurring, in Section 4 of the aforesaid Act, wherein rather shamlat land, is, ordained to stand vested, in the Panchayat deh, (iii) also apart therefrom, provisions analogous, to the aforesaid provisions, are, ::: Downloaded on - 25/06/2018 23:00:03 :::HCHP ...12...
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also borne in clause (d) of Section 3, of The Himachal Pradesh Village Common Lands Vesting and Utilization (Amendment) Act, No.20 of 2001, provisions whereof stand extracted hereinafter:-
"(d) land records as "Shamlat tika Hasab Raad Malguzari" or by any such other name in the ownership column of jamabandi and assessed to land revenue and has been continuously recorded in cultivating possession of co-sharers so recorded before 26th January, 1950 to the extent of their shares therein"
(iv) wherein a specific mandate, is engrafted, qua vis-a-
vis all land(s) recorded, as "Shamlat Tika Hasab Rasad Malguzari" or by any such other name in the ownership column, of jamabandi, and, assessed to land revenue, and, continuously recorded in cultivating possession, of the cosharers, and, cultivating possession whereof, is evidently existing, in records, prepared prior to 26 th January, 1950, (v) thereupon, rather the mandate of preceding thereto provisions, contrarily, ordaining ::: Downloaded on - 25/06/2018 23:00:03 :::HCHP ...13...
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its/their vestment in the "panchayat deh", being hence specifically excluded besides excepted.
8. Both the aforesaid statutory provisions, for hence purveying strength, to the espousal of the counsel, for the appellant, (i) that, with theirs excluding, the mandate, and, operation, of the substantive provisions, borne respectively, in sub-section 3(ii) of Section 4, of the Punjab Village Common Lands (Regulation) Act, and, in clause (d) of Section 3 of the Himachal Pradesh Village Common Lands Vesting and Utilization (amendment) Act, No.20 of 2001, (a) AND, whereunder, stand statutory excluded hence the prior thereto explicit statutory contemplation(s), rather ordaining the vestment of shamlat land, in, the panchayat concerned, (b) does, obviously, and, necessarily require an allusion to the evidence, bearing absolute tandem, with, the afore-
referred apt exclusionary provisions, as, contained in the afore stated statutory provisions. The apt revenue ::: Downloaded on - 25/06/2018 23:00:03 :::HCHP ...14...
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record, is borne in Ex. D-1, exhibit whereof comprises, a copy, of, jamabandi, appertaining to the suit land, and, it appertains to the year 1912-1913, (c) wherein, in the column, of classification, reflections occur qua, vis-a-vis, land classified, as Shamlat deh Hasab Rasab Malgujari, hence the apt co-sharer therein, holding, the apposite rights, in proportion of their/his shares, hence making user thereof. The afore referred, entries borne in Ex. D-1, are not contested nor evidence, is adduced, for ripping apart the presumption of truth, carried by them, consequently, it is to be concluded, that the afore referred, displays occurring therein, hence enjoying conclusivity, (d) whereupon, it is to be concluded, of the suit land holding hence the apposite description, of "Shamlat tika hasab rasad Malguzari", thereupon, the exclusionary mandate borne, in clause (d) of Section 3 of the Himachal Pradesh Village Common Lands Vesting, and, Utilization (amendment) Act, No.20 of 2001, against ::: Downloaded on - 25/06/2018 23:00:03 :::HCHP ...15...
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its vestment, in the "panchayat deh" concerned, concomitantly making its evident surfacing, (e) and, also the apt therewith exclusionary benefits thereof, hence, ensuing, vis-a-vis, the appellants/plaintiffs. Moreover, the afore-referred reflections, borne in ex. D-1 are lent vigorous succor, by Ex. D-10, whereon, is borne, an order of mutation attested on 29.05.1995, and, wherein a clear display is embodied, of despite, the suit land being reflected in the apposite order, to be bearing the classification of "Shamlat Hasab Rasab Malgujari", (f) yet, in consonance with a letter issued by the Government of Punjab, bearing No.382, even the afore-
referred classification, evidently donned by the suit land, purportedly rendering valid, its, vestment, in, the government/panchayat. Nowat, the reflections, in the apposite order, hence, attesting mutation qua vestment, of the suit land, in the Panchayat concerned, suit land whereof, rather carries the classification of "Shamlat ::: Downloaded on - 25/06/2018 23:00:03 :::HCHP ...16...
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Hasab Rasab Malgujari", reiteratedly renders the aforesaid factum, as, clearly borne, in the order attesting the relevant mutation, order whereof, is, borne in Ex. D-
10, to, hence thereupon acquire conclusivity, (g) thereupon, the evident mantle, donned by the suit land, both obviously, r and,to vis-a-vis, it being "Shamlat Hasab Rasab Malgujari", is openly, acquiesced by the respondent/State, also, hence the factum probandum, of the suit land, earlier depicted, in Ex. D-1, to be bearing the character, of "Shamlat Hasab Rasab Malgujari", rather acquires corroborative vigour, as also, conclusivity.
The order borne in Ex. D-10, in pursuance whereof, also jamabandis, were, prepared subsequent thereto, hence, also carrying reflections in compatibility thereof, is apparently, made on anvil, of a letter issued, by the Government of Punjab. However, the letter, mentioned in Ex. D-10, and, as issued by the Government of Punjab, and, in compliance wherewith, the vestment of the suit ::: Downloaded on - 25/06/2018 23:00:03 :::HCHP ...17...
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land, occurred, in the panchayat deh concerned, despite, it evidently, bearing, the exclusionary classification, of "Shamlat Hasab Rasab Malgujari", (h) is neither at par, nor is construable to be any piece, of a valid legislation, whereunder, rather occurred, any apposite valid supplantation or amendment, vis-a-vis, the mandate of clause (ii) to sub section (3) of Section 4, of the Punjab Village Common Lands (Regulation) Act. In aftermath, with the provisions, borne in clause (ii), to sub section (3) of Section 4 of the Punjab Village Common Lands (Regulation) Act, remaining hence unsubstituted, through, a valid amendment, rather carried, by the legislative assembly concerned, (i) thereupon, with a candid diktat borne therein, especially, vis-a-vis, preservations of rights, of persons, in cultivating possession, of "shamlat land rather for more than 12 years, without payment of rent or by payment of charges nor exceeding the land revenue, and, cesses payable ::: Downloaded on - 25/06/2018 23:00:03 :::HCHP ...18...
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thereon", (j) in category whereof, both the suit land, and, the appellants/plaintiffs, fall, given emphatically, with both Ex. D-1 and Ex. D-10, for reasons aforesaid, bearing out the factum, of, the predecessors-in-interest, of, the appellants/plaintiff, holding continuous cultivating possession, of shamlat land, since 1912 upto 1955, whereat Ex. D-10,hence was prepared, (k) thereupon, with the suit land, falling, within the ambit, of, the apposite exclusionary mandate, borne in clause (ii) to sub section (3) of Section 4 of the Punjab Village Common Lands (Regulation) Act, vis-a-vis, the preceding thereto mandate, (i) wherein, contrarily, excepting, the lands evidently falling, within, the domain of clause (ii) to sub-section (3) of Section 4, of, the Punjab Village Common Lands (Regulation) Act, and, bearing the classification of Shamlat deh, are, rather mandated to be vested, in the Panchayat, (l) sequelly, hence, the lack of valid supplantation thereof, through, a valid legislative ::: Downloaded on - 25/06/2018 23:00:03 :::HCHP ...19...
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amendment, rather rendered, the apposite exclusionary mandate, borne in clause (ii) to sub Section (3) of Section 4 of the Punjab Village Common Lands (Regulation) Act, to, both hold clout and sway, (m) whereas, Ex.D-10, rather unveiling, of the order made thereunder, being a sequel of a letter issued, by the Government of Punjab, letter whereof, obviously did not, either override or benumb the operation or clout, and, the command, of the apposite exclusionary statutory provisions, vis-a-vis, the preceding thereto provisions, borne in Section 4, of the Punjab Village Common Lands (Regulation) Act, hence renders any meteing, of, reverence thereto, in, the apt order, to be not thereupon clothing it, with any sanctity.
9. Be that as it may, even during, the pendency of the instant suit, through, a valid legislative amendment, as, occurred, vis-a-vis, Section 3 of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, whereby, the apt exclusionary clause (d), ::: Downloaded on - 25/06/2018 23:00:03 :::HCHP ...20...
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was, added to Section 3 thereof, (i) wherein, clearly and expressly the coinage "Shamlat tika hasab Rasad Malguzari", hence occurs, also the land bearing the aforesaid coinage, is expressly excluded, from vestment, in the panchayat, (ii) thereupon, with, for all reasons aforestated, the suit land, being evidently, described, in the apt revenue records, to carry, the classification of "Shamlat Hasab Rasab Malgujari", hence, the evident apt classification, donned, by the suit land, did hence render, it to fall, within, the ambit, of clause (d) of Section 3, of the Himachal Pradesh Village Common Lands Vesting and Utilization (amendment) Act, No.20 of 2001, (iii) and, also rendered mandate thereof being attractable vis-a-vis the suit land, (iv) besides obviously, when the apt exclusionary mandate, is foisted, upon land hence bearing, the aforesaid evident classification, in the apposite revenue records, prepared prior to January, 1950, (iii) thereupon, with Ex. D-1 standing prepared prior ::: Downloaded on - 25/06/2018 23:00:03 :::HCHP ...21...
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to 1950, hence, the apt therewith reflections, occurring therein, acquires conclusivity, (iv) hence, the recording of or making, of, Ex. D-10, whereunder, the suit land is ordered to be vested, in the panancyat, is stained with a vice, of , aforesaid entrenched statutory infractions, besides all the reflections in revenue records, prepared subsequent thereto, and, in consonance therewith, are, also rendered void and nonest.
10. Be that as it may, the learned counsel appearing. for the respondents places reliance. upon a judgment of the Hon'ble Apex Court, rendered, in a case titled as Gurbachan Singha and another vs. Gram Pancyayat and others, reported in (2000)10 SCC 594, the relevant paragraphs whereof are extracted hereinafter:-
"1. This litigation has had a chequered history; the dispute confining to jurisdiction. The High Court has taken the view that the civil suit did not lie and that an application under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 will lie before the Collector of the district. In our ::: Downloaded on - 25/06/2018 23:00:03 :::HCHP ...22...
view, the High Court was right in coming to that view .
especially when a question of title has been raised and Section 13 of the said Act puts a bar to the civil court determining that question. We, therefore, dispose of this appeal in letting the appellants approach the Court of the Collector under Section 11 of the said Act.
2. Under interim orders of this Court dated 27-11-1990 the appellants were required to deposit a sum of Rs 100 p.m. regularly. In terms of that order, the said sum was required to be depositedan the District Court. The sum thus collected be handed over to the respondent Gram Panchayat. This order would not, however, preclude the appellants from obtaining interim orders from the Collector when proceeding under Section 11 of the Act. In this manner, the appeal stands disposed of. No costs.
Wherein, Section 13, of the Punjab Village Common Lands (Regulation) Act, alike Section 10, of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974, foists a statutory bar, against, the civil Court, exercising jurisdiction, over any matter, arising, from the question of title, (i) and, when in absolute alikeness or affinity therewith, provisions also occur in Section 10 of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, (ii) AND when in respect whereof, the Hon'ble Apex Court, in the apt paragraphs extracted ::: Downloaded on - 25/06/2018 23:00:03 :::HCHP ...23...
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hereinabove, had concluded of the civil courts, holding no jurisdiction, vis-a-vis, any matter falling with the domain, of the aforesaid Act, (iii) hence, no pronouncement, in the affirmative being meted, vis-a-vis, the substantial question of law, whereon, the second appeal is admitted.
However, the reliance, as placed by the learned counsel appearing, for the respondents, upon, the aforesaid statutory bar, created in the apposite provisions, occurring in both, the Himachal Pradesh Village Common Lands Vesting, and, Utilization Act, and, in the Punjab Village Common Lands (Regulation) Act, for hence rendering, not maintainable, the extant suit, before the civil court concerned, (iv) is clearly a sequel, of his misreading, the entire statutory provisions, as, borne in both the afore referred statutes, (v) also arises from his being unmindful vis-a-vis (a) the evident description, of the suit land, in the apt record, as "Shamlat Hasab Rasab Malgujari, whereon, the apt exclusionary statutory ::: Downloaded on - 25/06/2018 23:00:03 :::HCHP ...24...
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provisions, as, referred hereiabove, are firmly concluded, to hence stand attracted, (vi) and, as a corollary thereof, the vestment of the suit land in the panchayat concerned, is, concluded to stand stained, with, vices of apt statutory infractions. The sequel of the learned counsel appearing, for the respondents, hence remaining unmindful, vis-a-vis, the afore referred conclusions, is obviously qua hence, the apt hereafter ensual, rather arising, (vii) qua with all revenue records, specifically Ex.
D-10, being manifestly prepared in derogation, of, the apt exclusionary statutory provisions, and, in sheer derogation, of, apposite therewith classification hence donned, by the suit land, (viii) thereupon with the apt order comprised in Ex. D-10 being invalidly recorded, (ix) besides, its begetting open infraction, of, the mandate of the apt exclusionary provisions, borne in clause (ii) to sub-section (3) of Section 4 of the Punjab Village Common Lands (Regulation) Act, and, in clause (d) of ::: Downloaded on - 25/06/2018 23:00:03 :::HCHP ...25...
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Section 3 of the Himachal Pradesh Village Common Lands Vesting and Utilization (Amendment) Act, 20 of 2001, (x) thereupon, unless the apt excepting relief(s), as, created in the afore referred statutes, is accepted, and, is applied hereat, (xi) thereupon, alone the solemn holistic purpose, of the apt exclusionary mandate, would be preserved, (xii) concomitantly, for keeping alive the apt excepting mandate, thereupon, the apt statutory bar, rather hence cannot be construed, to be creating any obstruction. Contrarily, rather, the ill besides insagacious sequel, would ensue, of even invalidly made orders, anchored upon a clear lack of adherence, to the revenue records, bearing absolute congruity, with the mandate of the apt exclusionary clauses, to the relevant inclusionary or vesting provisions, respectively, borne in clause (ii) to sub-section (3) of Section 4 of the Punjab Village Common Lands (Regulation) Act, and, in clause
(d) of Section 3 of the Himachal Pradesh Village Common ::: Downloaded on - 25/06/2018 23:00:03 :::HCHP ...26...
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Lands Vesting, and, Utilization (Amendment) Act, 20 of 2001, rather, being hence untenably validated. Corollary thereof, is that the bar, of jurisdiction, is applicable, vis-a-
vis, only validly made orders, by the revenue officers, and, it being not be applicable, vis-a-vis, any invalidly made orders or orders made in blatant transgression, of, the apt excepting statutory provisions.
r Moreover, the judgment whereon, the learned counsel, appearing for the respondents, has, placed reliance, makes a clear display, of the Hon'ble Apex Court, affirming the view taken, by the Hon'ble High Court, (i) that, the remedy available, to the aggrieved litigant, being to cast, an application under Section 11 of the Act, before the revenue officer concerned, and, not by his canvassing, his grievance, through, his instituting, a civil suit suit.
Consequently, with Section 11 of the Punjab Village Common Lands (Regulation) Act, hence, appertaining to an interdiction, against, any preemption, against, sale of ::: Downloaded on - 25/06/2018 23:00:03 :::HCHP ...27...
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land, in shamlat deh, (ii) whereas, contrarily, hereat, there is open, gross and blatant transgression, of, the apt statutory hence excepting exclusionary mandate, vis-a-
vis, the mandate, of, apt vesting provisions, (iii) thereupon, no remedy other than, for setting aside, the apposite order or for setting aside, all concurring therewith entries, as, carried in the revenue record, through, the institution of the civil suit, rather comprised the only remedy available, vis-a-vis, the aggrieved, and, also vis-a-vis the appellants/plaintiffs herein.
11. The learned counsel appearing, for the respondents, has made a vehement, espousal before this Court (I) that with this Court while making a pronouncement, upon, CMP No. 380 of 1990, instituted, in RSA No.410 of 1988, whereunder (ii) after the impugned judgments and decrees, rendered by both the learned courts, being set aside, hence, liberty was afforded to the plaintiffs, to institute a fresh suit, on the ::: Downloaded on - 25/06/2018 23:00:03 :::HCHP ...28...
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same cause of action, (iii) hence, enjoined, the plaintiffs, to with utmost promptitude, since the rendition upon CMP No.380 of 1990, on 3rd May, 1991, rather institute, the instant suit, whereas, theirs instituting it, after five years elapsing therefrom, (iv) hence, the suit being grossly barred by limitation,
(v) hence, the disaffirmative findings, rendered on the issue, appertaining, to the suit being barred by limitation, being enjoined to be revered.
However, the aforesaid submission, cannot be accepted, given (a) with pervasive stains of statutory illegalities, ingraining, the order borne in Ex. D-10, and, in pursuance wherewith, erroneous entries were made, in the revenue records apposite to the suit land, (b) thereupon, with the order borne, in Ex. D10, and, consequent therewith entries, occurring in the revenue records, being stained with vices of entrenched statutory infractions, and, their inceptive makings, rather being gripped with vices, of nullity, consequence whereof being, of, the order borne ::: Downloaded on - 25/06/2018 23:00:03 :::HCHP ...29...
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in Ex. D-10, being both void and nonest, (c) hence, all the evident stains of voidness or illegalities, being construable, to be removable or remediable, at any time, and, the bar of limitation, not being attracted, for baulking the setting aside or the quashing, of, both the apt orders or the revenue entries. Concomitantly, the order borne in Ex. D-10, and, consequent therewith entries, occurring, in the revenue records, appertaining to the suit land, rather being construable to be a continuing wrong or besides bestowing a continuing cause of action, qua, the aggrieved, hence, the mere factum of any bar, of, limitation, purportedly arising, since this court making a pronouncement on 3rd May, 1991, yet, the plaintiffs instituting, the suit with five years elapsing therefrom, is not attractable, vis-a-vis, the plaintiffs' suit and nor hence the embargo, of limitation is attractable hereat.
12. The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court ::: Downloaded on - 25/06/2018 23:00:03 :::HCHP ...30...
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as also by the learned trial Court, being not 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 excluded germane and apposite material from consideration.
Accordingly, the substantial questions answered in favour of the appellants/plaintiffs, and, r of law are against the respondents/defendants.
13. In view of the above discussion, the present Regular Second Appeal is allowed. In sequel, the judgments and decrees rendered by both the learned Courts below are set aside, and, the suit of the plaintiff is decreed. Consequently, the plaintiffs are held owners in possession of the land comprised in khata No.18 min, Khatauni No. 59 min, Khasra Nos. 17, 22, 26, 4, 5, 6, 7, 9, 14, 16, 21, 23, 24, 25, 27, 28, 29, 31, 15, 30, measuring 15-45-02 HM, situated in village Ban Chariyati, Mauza Barla, Tehsil Jawali, District Kangra, H.P. and mutation ::: Downloaded on - 25/06/2018 23:00:03 :::HCHP ...31...
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No.2 of 29.5.1955, and, mutation No.4 of 10.01.1976 attested in favour of the defendants No.1 and 2 are held to be null and void. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs.
20 th June, 2018.
(jai)
r to (Sureshwar Thakur)
Judge.
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