Himachal Pradesh High Court
Amar Singh And Ors. vs State Of Himachal Pradesh on 24 June, 1999
Equivalent citations: AIR1999HP106
Author: M.R. Verma
Bench: M.R. Verma
JUDGMENT M.R. Verma, J.
1. Feeling aggrieved by the judgment and decree dated 17-8-1993 passed by the learned District Judge, Una, thereby setting aside the judgment and decree passed by the learned Sub-Judge 1st Class, Una, whereby the suit of the plaintiffs-appellants (hereinafter referred to as 'the plaintiffs') was partly decreed to the effect that they have been in possession of land covered under abadies as reflected in copy of Khatauni Istemal Ext.P-7 over Khasra Nos. 1337, 1338 and 1339 and have become owners thereof under the provisions of H.P. Tenancy and Land Reforms Act and the order of Assistant Collector 1st Grade dated 29-8-1985 evicting the plaintiffs from the area under their abadies over the said khasra numbers is void, illegal and not binding on them and restraining the State from interfering or forcibly dispossessing them from the said abadies, was decreed, has preferred the present appeal.
2. Brief facts giving rise to the presentation of the appeal may be stated, thus;
3. The plaintiffs had instituted a suit for declaration that they have been in possession of the land measuring 25 kanals 6 marlas comprising Khasra Nos. 1337, 1338, 1339 and 1340, Khewat No. 220 min, Khatauni No. 326 situate in village Bangarh, Tehsil and District Una (hereinafter referred to as 'the suit land'), firstly as tenants-at-Will on payment of cash rent and now as owners by conferment of proprietary rights under the H.P. Tenancy and Land Reforms Act and the respondent-defendant (hereinafter referred to as 'the defendant') has no right and interest in the suit land and the order dated 19-8-1985 passed by the Assistant Collector, IInd Grade, Una, evicting the plaintiffs from the suit land as encroachers is illegal, void and not binding on the plaintiffs in any manner whatsoever and for issuance of permanent injunction restraining the defendant from interfering in any manner and from taking forcible possession of the suit land, in the alternative relief of possession was claimed.
4. Case of the plaintiffs as made out in the plaint is that the suit land was owned by Rai Samitra Chand who inducted the plaintiffs as tenants over the said land in 1952 on payment of cash rent and since then the plaintiffs had been in possession of the suit land. The land at the time of creation of tenancy was banjar and was reclaimed by the plaintiffs who constructed their abadies on some portion of the suit land for purposes subservient to agriculture and had been living therein. It is further claimed that after the enforcement of the H.P. Tenancy and Land Reforms Act the plaintiffs had become owners of the suit land. The entries in the revenue records, however, were not carried out as per the aforesaid possession, therefore, the plaintiffs moved the Revenue Officer for correction of the entries. The owner Rai Sanmitra Chand admitted the status of the plaintiffs as tenants-at-Will and consequently application of the plaintiffs for correction of the entries in the revenue records was allowed. It is further averred that the land under reference along with other land vested in the State under the H.P. Ceiling on Land Holdings Act but the plaintiffs continued to be in possession thereof earlier as tenants-at-Will and later on as owners as per the provisions of H.P. Tenancy and Land Reforms Act. However, on the basis of the absence of the names of the plaintiffs in the revenue records and on the basis of vesting of the suit land in favour of the State Government, Assistant Collector, Ilnd Grade, Una initiated proceedings for ejectment of the plaintiffs from the suit land in the year 1984. When the fact about the existence of the rights of me plaintiffs as tenants/owners was brought to the notice of the said Revenue Officer the proceedings against them were dropped and they were assured that no action will be taken against them. On the basis of this assurance the plaintiffs did not bother to get the entries corrected in the revenue records. In the meanwhile, they were again served with a notice of ejectment proceedings under Section 163 of the H.P. Land Revenue Act. The plaintiffs again brought to the notice of the concerned Revenue Officer that the action being taken against them was wrong, incorrect and illegal but of no avail and finally eviction order dated 19-8-1985 was passed against them. Hence, the suit.
5. The defendant contested the claim of the plaintiffs and in the written statement took the following preliminary objections :
"1. That the suit is bad for non-joinder of necessary party.
2. That the jurisdiction of this Court is barred under the Provisions of H.P. Land Revenue Act.
3. That no valid notice Under section 80, CPC has ever been served upon the defendant.
4. That no valid cause of action has ever accrued to the plaintiffs.
5. That suit is barred for improper valuation of suit for the purpose of jurisdiction."
On merits the claim of the plaintiffs as made out in the plaint was denied and it was claimed that the suit land has vested in the State of Himachal Pradesh under the H.P. Ceiling on Land Holdings Act and that the possession of the plaintiffs over the suit land is illegal and is that of an encroacher. It was also averred that the ejectment order passed against the plaintiffs is correct and legal.
6. On the pleadings of the parties the learned trial Judge framed the following issues:
"1. Whether the plaintiffs have been in possession as tenants and have become owners of the suit land as alleged? O.P.P.
2. Whether the suit is bad for non-joinder of necessary parties? O.P.D.
3. Whether the jurisdiction of this Court is barred under the provisions of H.P. Land Revenue Act? O.P.D.
4. Whether no valid notice Under Section 80, CPC has ever been served upon the defendant? O.P.D.
5. Whether the plaintiff has no cause of action? O.P.D.
6. Whether the suit is bad for improper valuation? O.P.D.
7. Relief."
7. Vide judgment dated 22-2-1988 the trial Court decided issue No. 1 partly in favour of the plaintiffs and partly against the defendant and issue Nos. 2 to 6 were decided against the defendants and consequently suit was partly decreed in respect of the land whereon the abadi existed.
8. Feeling aggrieved by the judgment and decree of the trial Court the defendant preferred an appeal in the Court of the learned District Judge, Una who by the impugned judgment set-aside the judgment and decree passed by the learned Sub-Judge and dismissed the suit of the plaintiffs. Hence the present appeal.
9. This appeal has been admitted for hearing on the following substantial question of law :
"Whether the order of Assistant Collector IInd Grade under Section 163 of the H.P. Land Revenue Act is illegal and void, so, as to order the eviction of the appellants?"
10. I have heard the learned counsel for the parties.
11. The learned counsel for the plaintiffs/ appellants has argued that since the suit land inter alia vested in the State Government under the provisions of the H.P. Ceiling on Land Holdings Act, 1972, therefore, the plaintiffs could be dispossessed from the suit land only by taking recourse to the provisions of Section 12 of the H.P. Ceiling on Land Holdings Act, 1972 and taking of action against them under the provisions of Section 163 of the Land Revenue Act is unwarranted and, therefore, the eviction order passed by the Assistant Collector, IInd Grade, in exercise of the powers under Section 163 ibid is illegal and not binding on the plaintiffs. To support his contention the learned counsel has relied on Roshan Lal v. State of H.P., (1997) 2 Sim LC 240, wherein a Division Bench of this Court has held as follows :--
"24. In the present case, the petitioner, admittedly, was coming in possession of the land in dispute as a tenant under the previous owner. Raja Rajinder Singh, since prior to the coming into force of the Ceiling Act and the vesting of the land in the State on its having been declared surplus. Therefore, the petitioner cannot be said to have "encroached upon" the Government land within the meaning of Section 163, quoted above. Therefore, the petitioner could not have been dealt with and proceeded against under the provisions of the said section. The order dated 22-6-1985 of the Financial Commissioner (Appeals) as at Annexure "P-6", therefore, is bad and liable to be quashed on this short ground alone.
The course open to the Collector for taking possession of the land in dispute on its becoming surplus was to proceed against the petitioner under Section 12 of the Ceiling Act, which provides :--
"(1) The Collector may, by order in writing, at any time after an area becomes surplus, direct the person in possession of such area to deliver possession thereof within ten days of the service of the order on him to such person as may be specified in the order.
(2) If the person in possession of surplus area refuses or fails without reasonable cause to comply with the order made under sub-section (1), the Collector may take possession of the surplus area and may for that purpose use force as may be necessary."
12. The above proposition will undoubtedly apply to a case where a person or persons had been in possession of land as tenants prior to the vesting of surplus area in the State Government.' In case a person without any right, title or interest enters upon such land after its having vested in the State Government it will be open to the concerned authorities to take action under the provisions of Section 163 of the Land Revenue Act.
13. It may be pertinent to refer here Section 163 of the Land Revenue Act which reads as follows :--
"163. Prevention of encroachment on lands-
(1) Where Government land or land which has been reserved for the site of a village or for the common purposes of the co-sharers therein has been encroached upon by any co-sharer or other person for any purpose including construction of a building or other structure thereon, then-
(a) the Revenue Officer may of his own motion or on the application of any other co-sharer eject the encroaching person (hereinafter in this section referred to as the encroacher) from such land and by order, proclaimed in the manner mentioned in Section 23, prohibit repetition of the encroachment therein:
Provided that no encroacher shall be ejected under this clause unless he has been given a reasonable opportunity of showing cause against the ejectment;
(b) the Revenue Officer may, having regard to such principles of assessment of damages as may be prescribed, assess the damages on account of such encroachment and may, by order, require the encroacher to pay the damages within such period and in such instalments as may be specified in the order;
(c) if the encroacher has erected any building or other structure or has grown crops or planted trees on the encroached land it shall be competent for the Revenue Officer, while ordering his ejectment, to dismantle such building or other structure and confiscate any produce or other material on such land and put the same in public auction and deposit the sale proceeds thereof into the Government Treasury; and
(d) the Revenue Officer may impose upon the encroacher a fine up to one thousand rupees per bigha or part thereof in the case of first encroachment and, where the encroachment is repeated, a fine up to two thousand rupees per bigha or part thereof for each such subsequent encroachment.
(2) Any amount payable as damages under Clause (b) of sub-Section (1) or as fine under Clause (d) of that sub-section may be recovered in the same manner as arrears of land revenue.
(3) When there is a question as to title or to the adverse possession, wherein the possession is claimed by an encroacher for a period beyond thirty years in relation to the land from which ejectment is made or is to be made under this section, the Revenue Officer, not below the rank of an Assistant Collector of the First Grade, shall proceed to determine the question as if he, were a civil Court and shall exercise all such powers as are exercisable by a Civil Court.
(4) For the determination of the question under sub-section (3), the Revenue Officer shall follow the same procedure as is applicable to the trial of an original suit by a civil Court, and he shall record a judgment and decree containing the particulars required by the Code of Civil Procedure, 1908 to be specified therein.
(5) An appeal from the decree of the Revenue Officer made under sub-Section (4) shall lie to the District Judge as if that decree were a decree of a Subordinate Judge in an original suit.
(6) A further appeal from the appellate decree of a District Judge upon an appeal under Sub-section (5), shall lie to the High Court only if the High Court is satisfied that a substantial question of law is involved, and (7) No suit or other legal proceeding shall lie against the Revenue Officer or any person acting under this section in respect of anything in good faith done or purported to have been done under the provisions thereof or the rules made thereunder.
Explanation-- For the purposes of this section, any person who holds land under a lease granted by the Government for a fixed term and continues to be in possession of the land beyond the expiry of the period of lease shall be deemed to be an encroacher unless such person gets the lease extended or renewed".
14. It is clear on the bare perusal of the provisions of Section 163 ibid that where Government land or land which has been reserved for the site of a village or for the common purpose of the co-sharers therein has been encroached upon by any co-sharer or any other person for any purpose including construction of a building or other structure thereon then he will be liable to be ejected therefrom in accordance with the provisions of the said section. The surplus area of a person which vests in the State Government under the provisions of Himachal Pradesh Ceiling on Land Holdings Act, 1972 shall by virtue of the provisions of Section 11 of the said Act be deemed to have been acquired by the State Government for a public purpose and all rights and interests including the contingent interest, if any, recognised by any by-law, custom or usage for the time being in force of all persons in such area shall stand extinguished and such right, title and interest shall vest in the State Government free from any encumbrance. Section 12 of the H.P. Ceiling on Land Holdings Act further authorises the Collector to direct the person in possession of such area, by order in writing, to deliver possession thereof within 10 days of the service of the order on him to such person as may be specified in the order. Evidently, these provisions will apply to a case where a person had been and is in possession of the surplus area immediately before the vesting of the land in the State Government. These provisions, however, shall have no application to a case where a person enters upon the land which has already vested in the State Government.
15. In the instant case the plaintiffs did lead evidence to prove that they have been in possession of the suit land since a period even prior to the year 1952. However, the evidence led by them to prove such possession has rightly been disbelieved by the learned District Judge.
16. In the plaint, vide para 2, the plaintiffs averred that they were inducted as tenants over the suit land on payment of cash rent prior to 1952 by the then owner Rai Samitra Chand. However, instead of supporting this plea the PWs. produced by the plaintiffs have partially contradicted it. It is stated by PW-3 Amar Singh, one of the plaintiffs, that the rent was paid by them partly in kind (Batai) and partly as 'Chakota' (Cash). According to PW-4 Babu Ram the rent payable by the plaintiffs was in kind (Gala Batai) for the cultivated land and in cash for the grass land. PW-7 Sher Bahadur, admittedly the successor of Rai Samitra Chand states that the rent was charged in kind (Batai). Thus, there is a partial variance in the pleading and the evidence about the nature of the rent paid by the plaintiffs which render their version that they were tenants on payment of rent to Rai Samitra Chand as unbelievable, what again falsify the case of the plaintiffs is the statement of PW-3 Amar Singh who states that receipts were given to them which he still claims to be in possession but none has been produced whereas PW-4 Babu Ram states that receipts about payment of rent were not obtained. PW-7 Sher Bahadur states that receipts about 'gala batai' were issued by his father. Thus, these statements are also contradictory of each other and in case had there been any receipt or receipts of the payment of rent in possession of PW-3 Amar Singh as claimed by him he ought to have produced such receipts in evidence and the failure to do so leads to the only inference that there are no such receipts.
17. It is the admitted case in the plaint that the land in suit vested in the State under the provisions of the H.P. Ceiling on Land Holdings Act. However, in his statement PW-3 Amar Singh has denied the vesting of the suit land in the State because of its having been declared surplus area. To the same effect are the statements of PW-4 Babu Ram and PW-7 Sher Bahadur. Thus, the statements made by these witnesses give the impression that the witnesses are stating about a land other than the land in suit which admittedly stood vested in the State after the coming into force of the H.P. Ceiling on Land Holdings Act, 1972.
18. It is the case of the plaintiffs, as per the averments in the plaint, that they were inducted as tenants over the suit land even prior to the year 1952 by the then owner Rai Samitra Chand on payment of rent in cash. Regarding the condition of payment of rent the evidence led by the plaintiffs have already been found discrepant, unreliable and untrustworthy as stated here-in-above. To prove creation of tenancy by said Rai Samitra Chand in favour of the plaintiffs they have produced in evidence a copy of the statement of said Rai Samitra Chand Ex.P-6. In the said statement it is clearly admitted that the suit land was earlier owned by said Rai Samitra Chand but has been declared as surplus. It has further been stated that the plaintiffs have constructed structures on Khasra Nos. 1337, 1338, 1339 and Khasra No. 1340 has been brought under cultivation by the plaintiffs about 40 years before, that is, sometime in the year 1939. Primarily this statement does not reveal in any manner that the suit land was given to the plaintiffs by said Rai Samitra Chand for cultivation as tenants as claimed by the plaintiffs. Thus, this statement does not prove creation of any tenancy in favour of the plaintiffs in the suit land by the then owner. Secondly, this statement was made on Decembers, 1979, when the suit land has been declared as surplus area and right, title and interest of Rai Samitra Chand in its has come to an end. Therefore, for this reason also this statement cannot be relied even about the taking over of the possession by the plaintiffs 40 years before making of this statement, that is, sometime in the year 1939 which is not so even as per the plaintiffs who claims to have been inducted as tenants sometime in the year 1952. No doubt the plaintiffs filed an application for correction of the entries in the revenue papers regarding their alleged possession thereon but this application was also filed after the suit land has vested in the State. There is no explanation whatsoever as to why a simitar application was not filed by the plaintiffs immediately after they allegedly came to possess the suit land as is now claimed by them. A perusal of the eviction order Ex.D-1 reveals that during the course of the proceedings for eviction of the plaintiffs from the suit land the stand taken for them is that the suit land was purchased by the plaintiffs from Rai Samitra Chand and even mutation as per the sale had been attested in 'their favour. It was further alleged that the purchased land situate somewhere else and due to misunderstanding about the location of the land the plaintiffs took the suit land as the purchased land and that they wanted to apply for getting the land in suit in exchange in lieu of the land so purchased by them from Rai Samitra Chand. It is only thereafter that the plea about the creation of tenancy in their favour by the earlier owner has been taken. These contradictory stands taken by the plaintiffs also suggest that they had not been in possession of the suit land as claimed by them.
19. It appears that after the suit land had vested in the State Government, the plaintiffs in collusion with Rai Samitra Chand took possession thereof on different dates. This conclusion is clearly deducible from the documentary evidence on record. Copy of Jamabandi for the years 1944-45 Ex.D-2 shows the suit land as 'charland' in the ownership and possession of Rai Samitra Chand. Copy of Jamabandi for the years 1953-54 Ex.D-3 shows the suit land as 'Gair Mumkin Ban' in the ownership and possession of said Samitra Chand. Copy of Jamabandi for the years 1967-68 Ex.D-4 shows the suit land as 'Ban/ charland' in the ownership and possession of Rai Samitra Chand. Same are the entries in the Jamabandi for the years 1972-73, Ex.D-5. In the remarks column of the Jamabandi for the year 1972-73 Ex.D-5 a note has been appended that vide Mutation No. 1871 the ownership of the suit property stood transferred from the name of Rai Samitra Chand in the name of the State. Thus, till the vesting of the suit land in the name of the State Government there is no entry in the revenue records, as discussed here-in-above, showing that the suit land or any part thereof was cultivable or any construction (abadi) had been raised thereon. On the contrary this land had constantly been shown as 'Gair Mumkin Ban/charland'. In the copy of Jambandi for the years 1977-78 Ex.D-6 the suit land is shown in the ownership and possession of the State of Himachal Pradesh but the nature of the land Khasra No. 1338 which was earlier 'gair mumkin ban' had been for the first time shown as 'gair mumkin abadi'. Thus, what can be concluded on the basis of this entry is that sometimes after the year 1972-73 and the vesting of the suit land in the State Government some construction was raised on Khasra No. 1338. The remaining land in suit, however, continued to be 'banzar kadim charand'. It is evident from the entries in the copies of khasra girdawari Ex.D-7 that land Khasra No. 1337 continued to be 'banzar kadim charand' till October, 1982 and during the khasra girdawari for ravi (April, 1983) one kanal of this khasra number has been shown as abadi and rest of it is again shown as 'banzar kadim' which entries continued up to the year 1985. It is thus evident that a part of khasra number 1337 which was 'banzar kadim charand' was built upon to the extent of one kanal after October, 1982. Similarly land Khasra No. 1339 continued to be shown as 'banzar kadim' up to October, 1982. Thereafter, a part of it is shown to have been brought under cultivation in April, 1983 and thereafter it continues to be 'banzar kadim' till Kharif 1984 when on a part of it i.e. an area of two kanals abadi has been shown. Thus, this abadi (construction) in view of the said entries appears to have come into being sometime after April, 1984. Khasra No. 1340 vide entries in the copy of jamabandi Ex.D-7 continues to be shown as 'charand' till the last entry of Kharif 1985 in this document.
20. It appears from a combined reading of the copies of khatauni istemal of the concerned mauza Exts. D-7 and D-8 that these khataunies were prepared sometime in the years 1983-84. The copy of khatauni Ex. D-7 shows 'gair mumkin abadi' on one kanal of the land Khasra No. 1337 whereas the remaining five kanals of land is shown as 'banzar kadim'. Regarding land Khasra No. 1338 the entries are 'gair mumkin abadi' on an area of 17 marlas and remaining one kanal three marlas are shown as 'varani'. Similarly, Khasra No. 1339 is 'gair mumkin abadi' to the extent of three kanal 17 marlas and the remaining portion thereof is shown as 'varani' to the extent of 13 marlas. Land Khasra No. 1340 as a whole is shown as 'banzar kadim'. Thus, from a reading of the aforesaid entries what becomes clear is that sometimes in the year 1977-78 after the vesting of the suit land in the State the plaintiffs started encroaching upon the suit land by constructing structure thereon at different times and by breaking up certain parts of the suit land at different times.
21. The above discussion leads me to the conclusion that the plaintiffs were not in po ssession of the suit land in any capacity whatsoever at the time when the suit land was declared surplus area and vested as such in the State Government. Therefore, the provisions of Section 12 of the H.P. Ceiling on Land Holdings Act will not be applicable in the present case to dispossess the plaintiffs from the suit land but having encroached upon the suit land after it stood vested in the State Government they could be lawfully evicted/ ejected from the suit land under the provisions of Section 163 of the H.P. Land Revenue Act.
22. As a result the order of Assistant Collector, IInd Grade, directing eviction of the plaintiffs-appellants from the suit land in exercise of the powers under Section 163 of the H.P. Land Revenue Act cannot be said to be illegal and void.
23. Therefore, the appeal being devoid of any merit and substance is dismissed. Costs of the appeal on parties.