Himachal Pradesh High Court
State Of Himachal Pradesh And Another vs Gian Chand And Others on 14 December, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.: 16 of 2008 Reserved on: 17.11.2016 .
Decided on: 14.12.2016
State of Himachal Pradesh and another ....Appellants.
Versus
Gian Chand and others ... Respondents.
of
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 No rt For the appellants. : Mr. Vikram Thakur and Ms. Parul Negi, Dy. Advocate Generals.
For the respondents : Mr. Tara Singh Chauhan, Advocate. Ajay Mohan Goel, Judge By way of this appeal, the appellants have challenged the judgment and decree passed by the Court of learned Additional District Judge, Fast Track Court, Una, in Civil Appeal No. 52/2K RBT 86/04/2000, dated 31.08.2007, vide which, learned Appellate Court while accepting the appeal filed by the present respondents, set aside the judgment and decree passed by the Court of learned Senior Sub Judge, Una, in Civil Suit No. 273 of 1991 dated 14.02.2000, whereby learned trial Court had dismissed the suit for declaration filed by the respondents/plaintiffs.
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:44:18 :::HCHP 22. Brief facts necessary for the adjudication of this case are that respondents/plaintiffs (hereinafter referred to as 'plaintiffs') filed .
a suit for declaration to the effect that land measuring 13 Kanals 12 Marlas bearing Khewat No. 12 min. Khatauni No. 12 min. Khasra Nos. 33 (0-10), 63 (11-10) and 66 (1-12), situated in village Kusiala, Tehsil Bangana, District Una, (HP) (hereinafter referred to as 'suit of land'), which previously was in possession of the ancestors of the plaintiffs and defendant No. 4 as non occupancy tenants under the rt land owners on payment of rent, had subsequently devolved upon them and they were coming in cultivable possession of the suit land earlier as non-occupancy tenants on payment of rent to land owners and thereafter as owners of the same after conferment of proprietary rights upon them under H.P. Tenancy and Land Reforms Act and Rules framed thereunder and that the defendants No. 1 to 3 had no right, title or interest over the suit land and order passed by Assistant Collector, 2nd Grade dated 06.06.1991, vide which, mutation No. 568 was attested in favour of defendants No. 1 to 3 qua the suit land was wrong, void, illegal and ineffective, against the rights of plaintiffs and defendants No. 4. Plaintiffs also prayed for consequential relief of injunction restraining defendants No. 1 to 3 from interfering in any manner in the peaceful possession of the plaintiffs and defendant No. ::: Downloaded on - 15/04/2017 21:44:18 :::HCHP 3 4 and from dispossessing them from the suit land or changing the nature of the suit land or cutting or removing trees standing thereupon.
.
It was also prayed that if the tenancy of the plaintiffs was not proved then they had perfected their title over the suit land by way of adverse possession.
3. By way of written statement filed to the plaint, of defendants No. 1 and 2 contested the suit on the ground that suit land alongwith other land, total measuring 13.99 acres, situated in village rt Kusiala was acquired by the Department of Fisheries, Government of Punjab in the year 1961 and Land Acquisition Collector, Bhakra Nangal Project, Ambala City, announced the award of the same on 13.01.1961 alongwith supplementary award dated 14.02.1961. It was further the case of the defendants-State that vide mutation No. 355 of 26.04.1961, suit land alongwith other land measuring 147 Kanals, 3 Marlas was transferred in the name of Provincial Government and thereafter same came in the possession of State Government through Fisheries Department and that on the re-organization of erstwhile Punjab State, this land came under the possession of Himachal Pradesh Government through Fisheries Department of Government of Himachal Pradesh, however, inadvertently, revenue staff could not incorporate the mutation No. 355 dated 26.04.1961 in the relevant ::: Downloaded on - 15/04/2017 21:44:18 :::HCHP 4 jamabandis and name of erstwhile owners and possession of the plaintiffs prevailed thereon which was contrary to the factual position .
and was merely a paper entry. On these bases, mutation No. 568, dated 06.06.1991 was attested in favour of State of Himachal Pradesh through Fisheries Department. The factum of the plaintiffs having preferred their title by way of adverse possession was also disputed in of the written statement.
4. On the basis of pleadings of the parties, learned trial rt Court framed the following issues.
"1.Whether the suit land is exclusively owned and possessed by the plaintiffs and defendant No. 4 according to their shares as alleged? OPP.
2. Whether the order of A.C. 2nd grade dated 6.6.1991 entering and attesting the mutation No. 568 in respect of the suit land in favour of defendants No. 1 to 3 is wrong and void as alleged? OPP
3. Whether the plaintiffs are entitled for the relief of permanent injunction as alleged? OPP.
4. Whether the plaintiffs have no cause of action and the suit is not maintainable? OPD.
5. Whether this court has no jurisdiction to try the suit?
OPD.
6. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? OPD.
7. Whether the suit is bad for want of notice under section 80 C.P.C. as alleged OPD.
8. Whether the suit is bad for non-joinder and mis-joinder of parties as alleged? OPD.
9. Relief."::: Downloaded on - 15/04/2017 21:44:18 :::HCHP 5
5. On the basis of evidence led by the parties both ocular as well as documentary in support of their respective cases, the issues so .
framed were answered by the learned trial Court as under.
"Issue No.1 : No.
Issue No. 2 : No.
Issue No. 3 : No.
Issue No. 4 : Yes.
Issue No. 5 : No.
of
Issue No. 6 : No.
Issue No. 7 : No.
Issue No. 8 : No.
Issue No. 9 (Relief) : The suit is dismissed with costs
as per operative part of the
6.
rt Judgment."
Vide its judgment and decree dated 14.02.2000, learned trial Court dismissed the suit filed by the plaintiffs. While arriving at the said conclusion, it was held by the learned trial Court that plaintiffs were claiming to be owners in possession of the suit land on the basis of tenancy and adverse possession, however, plaintiffs had not placed on record any rent receipt regarding payment of rent to the land owners. Learned trial Court further held that plaintiffs did not raise any objection when suit land was acquired and they also kept silent for about 30 years and after the lapse of 30 years, the plaintiffs had come with the plea that they were coming in possession of the suit land on the basis of entries in the revenue record. It was also held by the learned trial Court that due to the error of the revenue department ::: Downloaded on - 15/04/2017 21:44:18 :::HCHP 6 after the sanction of mutation, the entries were not incorporated in the jamabandis and as a result, wrong entries continued in the revenue .
record although the possession of the suit land was handed over to Punjab Fishery Department and said Department constructed buildings and fish tanks over the suit land for fish breeding in the Govind Sagar reservoir. Learned trial Court also held that it was clear of that after re-organization of Punjab State, suit land came under Fishery Department of Himachal Pradesh Government and there was rt correspondence regarding transfer of Kusiala farm to Fishery Department of Govt. of Himachal Pradesh. Learned trial Court also held that it was clear that after the error of revenue entries in the jamabandis was detected, the same was thereafter corrected vide mutation No 10, dated 6.6.1991 and rapat No. 215, dated 3.7.1991 was made in the rojnamcha. Learned trial Court also held that plaintiffs had not examined any revenue expert to show that they were in possession of the suit land and that there were no fish tanks or buildings of the defendants over the suit land nor plaintiffs were able to prove that they alongwith defendant No. 4 were in exclusive possession of the suit land. Learned trial Court further held that as plaintiffs were neither owners nor in possession of the suit land and entries existing in their favour were on account of error of revenue ::: Downloaded on - 15/04/2017 21:44:18 :::HCHP 7 staff, they could not take benefit of same. On these bases, learned trial Court dismissed the suit of the plaintiffs.
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7. In appeal, learned Appellate Court reversed the judgment and decree so passed by the learned trial Court. While reversing the findings returned by the learned trial Court, it was held by the learned Appellate Court that from the very beginning, the case of the plaintiffs of was that they were coming in possession of the suit land as tenants since the time of their ancestors on payment of rent to the land rt owners. Learned Appellate Court held that this fact had been deposed by the plaintiff very clearly in his statement as well as other witnesses of the plaintiffs i.e. PW2 and PW3. Learned Appellate Court also held that all these witnesses deposed in one voice that suit land was earlier owned by Raja Mohinder Pal and the plaintiffs/their ancestors were paying rent to him and neither they were dispossessed from the suit land by the defendants nor the defendants ever came in possession over the suit land and mutation under challenge had been sanctioned in favour of defendants at the back of plaintiffs. Learned Appellate Court further held that this fact was corroborated by plaintiffs through Ext. P-1, which was copy of jamabandi for the year 1987-88, in which plaintiffs were reflected as owners in possession of the suit land.
Learned Appellate Court further held that remarks column of said ::: Downloaded on - 15/04/2017 21:44:18 :::HCHP 8 jamabandi showed that vide mutation No. 531, the ownership rights of suit land were conferred in favour of the plaintiffs on the basis of their .
tenancy under the provisions of H.P. Tenancy and Land Reforms Act.
Learned Appellate Court further held that there was another note in the remarks column regarding mutation No. 568 dated 6.6.1991, vide which suit land was ordered to be transferred in favour of State of of H.P. through Fishery Department. It further held that Ext. P-2 was the copy of Misal Hakiyat Istemal in which same entries existed showing rt plaintiffs as owners in possession of the suit land and in remarks column there was note regarding sanctioning of mutation No. 531 in their favour. Learned Appellate Court also held that even Ext. P-3, copy of jamabandi for the year 1982-83, reflected that suit land was shown in the ownership of the State of H.P. but possession thereof was with the plaintiffs as non-occupancy tenants and that rent was being paid by the tenants to its owner. Learned Appellate Court also took note of the fact that there was a note in the remarks column of said jamabandi regarding sanctioning of mutation No 531, vide which ownership rights were conferred upon the plaintiffs on 15.10.1986 under the provisions of H.P. Tenancy and Land Reforms Act. Learned Appellate Court after appreciating said evidence on record held that there was no record to show that defendants had ever challenged the ::: Downloaded on - 15/04/2017 21:44:18 :::HCHP 9 said mutation regarding conferment of proprietary rights of the suit land in favour of plaintiffs and this being so, the order of conferment .
of proprietary rights had become final on account of which plaintiffs were shown as owners in possession in the latest revenue record, as was reflected in copy of jamabandi for the year 1987-88, Ext. P-1.
Learned Appellate Court also held that Ext. P-10 demonstrated that at of the time of sanctioning of mutation No. 568, dated 6.6.1991 by Assistant Collector, 2nd Grade in favour of defendants, plaintiffs were rt not present nor there was anything on record to show that before sanctioning this mutation, any notice or opportunity of being heard was given to the plaintiffs. It further held that when vide mutation No. 531, dated 15.10.1986, plaintiffs had already conferred proprietary rights over the suit land and the same was not challenged before a superior Revenue Officer under the provisions of law, the said proprietary rights in favour of plaintiffs could not have been reviewed in a perfunctory and slip shod manner as appeared to have been done.
Learned Appellate Court further held that by sanctioning mutation No. 568, dated 6.6.1991, Assistant Collector, 2nd Grade had virtually set aside mutation No. 531, dated 15.10.1986, which was sanctioned under the provisions of H.P. Tenancy and Land Reforms Act. Learned Appellate Court also disagreed with the findings of the learned trial ::: Downloaded on - 15/04/2017 21:44:18 :::HCHP 10 Court that plaintiffs were not been able to prove the relationship of landlord and tenant. It held that the said finding was not legally .
sustainable because when entry of tenancy is recorded which was also showing payment of rent by the tenants, then the tenants were not required to produce the rent receipt to establish their tenancy. Learned Appellate Court further held that aggrieved party was always at liberty of to approach the Land Reforms Officer for correction of the entries regarding tenancy rights if the entry of tenancy was not entered in the rt revenue record in accordance with law. It was also held by the learned Appellate Court that there was nothing on record to demonstrate that plaintiffs were having knowledge regarding acquisition of the land by the Government in the year 1961 or qua mutation No 568, dated 6.6.1991 being entered in favour of defendants/State. Learned Appellate Court took note of the fact that vide mutation No. 568, the Assistant Collector 2nd Grade had only changed the entry of ownership in favour of the defendants from the plaintiffs but there was nothing on record to demonstrate that with the change of this entry there was any change in the possession of the land at the spot. It was held by the learned Appellate Court that the said mutation had no effect on the rights, title and interests of the plaintiffs as it was settled principle of law that mutation was always recorded only for fiscal ::: Downloaded on - 15/04/2017 21:44:18 :::HCHP 11 purpose. On these bases, it was held by the learned Appellate Court that mutation No. 568, dated 6.6.1991 was null and void qua the suit .
land as Assistant Collector, 2nd Grade had no jurisdiction to divest the plaintiffs of the proprietary rights qua the suit land which were already conferred upon them by the Land Reforms Officer vide mutation No. 531, dated 15.10.1986. Learned Appellate Court further of held that in case defendant-State was aggrieved by entry showing plaintiffs owners in possession of the suit land, then the right course rt for them was to approach the Land Reforms Officer. On these bases, learned Appellate Court allowed the appeal filed by the plaintiffs and reversed the judgment and decree passed by the learned trial Court.
8. Feeling aggrieved by the said judgment and decree passed by learned Appellate Court, State has filed this appeal, which was admitted on 25.02.2008, on the following substantial questions of law.
"1. Whether civil court can exercise the jurisdiction to entertain the civil suit, where there is special bar in the stature which itself is the complete code for filing the appeal, review and revision?
2. Whether the judgment and decree under challenge and so passed by the Ld. Court below is based on the misreading the oral as well as documentary evidence lead by the parties?::: Downloaded on - 15/04/2017 21:44:18 :::HCHP 12
3. Whether a person having no status of tenants can get a decree of injunction against a true owner more so when the property in dispute stood acquired .
for public purpose?
4. Whether the judgment and decree under challenge is vitiated as the court below errored in appreciating the provisions of law applicable and the piece of evidence by way of documents since the documents so produced by the appellants have not been of appreciated rather the same were misread?"
9. I have heard the Mr. Vikram Thakur, learned Deputy Advocate General and Mr. Tara Singh Chauhan, learned counsel for rt the respondents and also gone through the records of the case as well as the judgments passed by both the learned Courts below.
10. Before the learned trial Court, there was a specific issue framed i.e. Issue No. 5 whether Civil Court was having jurisdiction to try the suit or not. Learned trial Court while otherwise dismissing the suit of the plaintiffs held that onus to prove this issue was upon the defendants, however, defendants had not led any evidence on the issue nor any arguments were addressed on the same. On this count, this issue was decided by the learned trial Court against the defendants.
Findings so returned by the learned trial Court were not assailed by the defendants i.e. the present appellants.
::: Downloaded on - 15/04/2017 21:44:18 :::HCHP 1311. A perusal of the records of the case demonstrates that in the jamabandi for the year 1987-88, which is on record as Ext. P-1, .
plaintiffs were reflected as owners in possession of the suit land and it was mentioned in the remarks column of the said jamabandi that vide mutation No. 531, ownership rights of the suit land stood conferred upon the plaintiffs on the basis of their tenancy under the provisions of of H.P. Tenancy and Land Reforms Act. There is another note in this jamabandi in the remarks column to the effect that vide mutation No. rt 568, dated 06.06.1991, suit land stand transferred from Punjab Fisheries Department to H.P. Government.
12. Ext. P-2, which is Missal Hakiat Istemal for the year 1987-88 of village Kusiala, Tehsil Bangana, District Una, also reflects that vide mutation No. 531 ownership rights were conferred upon the plaintiffs who were non-occupancy tenants.
13. Ext. P-3, which is the copy of jamabandi for the year 1982-83, reflected the Government of Himachal Pradesh in the ownership of suit land and plaintiffs in possession thereof and in the remarks column, it was mentioned that proprietary rights stand conferred upon the plaintiffs vide mutation No. 531, dated 15.10.1986.
::: Downloaded on - 15/04/2017 21:44:18 :::HCHP 1414. It is apparent from the abovementioned three documents that all these three documents categorically reflected that vide .
mutation No. 531, dated 15.10.1986, proprietary rights were conferred upon the plaintiffs by virtue of operation of law in consonance with the provisions of H.P. Tenancy and Land Reforms Act and Rules framed thereunder.
of
15. Therefore, it was incumbent for the appellants-State to have had demonstrated from the record that the said mutation which rt was attested in favour of plaintiffs was ordered to be set aside by competent revenue authority as per law by following the procedure prescribed in the relevant statute and it is only thereafter that mutation No. 568, dated 06.06.1991 was attested in favour of Government of Himachal Pradesh.
16. However, appellants/defendants have miserably failed to demonstrate this. There is no evidence placed on record by the appellants/defendants from which it could be inferred that there was an order passed by a competent authority holding mutation attested in favour of plaintiffs to be bad and the same to be substituted by entry of mutation in favour of State of Himachal Pradesh through Fisheries Department. Thus, it cannot be said that the conclusion arrived at in this regard by the learned Appellate Court is either a result of ::: Downloaded on - 15/04/2017 21:44:18 :::HCHP 15 misreading of oral or documentary evidence on record or a result of error in appreciating the provisions of applicable laws. In fact, during .
the course of arguments, learned Deputy Advocate General could not point out as to which particular provision of law had either been misread or mis-appreciated by the learned Appellate Court. Not only this, learned Deputy Advocate General also could not point out any of evidence on record from which it could be inferred that mutation No. 568, dated 06.06.1991 was entered in favour of respondents-State rt after following the procedure laid down in law and after hearing plaintiff. In these circumstances, no infirmity can be attributed to the findings so arrived at by the learned Appellate Court.
17. The contention of the appellants that learned Appellate Court could not have granted injunction against a true owner when the property stood acquired for the public purpose also is without any merit because primarily what has been held by the learned Appellate Court is that the subsequent mutation which had been entered into in favour of appellants/defendants was not sustainable in the eyes of law as there was nothing on record to demonstrate that with the change of said entry there was change in possession on the spot and further the said mutation had no effect on the rights, title and interests of the plaintiffs because neither this mutation was attested by a competent ::: Downloaded on - 15/04/2017 21:44:18 :::HCHP 16 authority nor the same was otherwise entered into after associating or hearing the plaintiffs, as was borne out from Ext. P-10 vide which .
mutation was entered in favour of appellants/defendants. A perusal of the judgment passed by the learned Appellate Court further demonstrates that it has been held by the learned Appellate Court that in case State of Himachal Pradesh is aggrieved by entry reflecting of plaintiffs as owners in possession over the suit land, then the right course for them is to approach the Land Reforms Officer. Therefore, it rt is not as if by virtue of adjudication by the learned Appellate Court, finality has been attached to the status of plaintiffs over the suit land as learned Appellate Court has held that the State Government is at liberty to approach the competent authority under the competent law for the redressal of its grievance. In this view of the matter, the findings returned by the learned Appellate Court do not call for any interference. Substantial questions of law are answered accordingly.
18. In view of the discussion above, as there is no merit in the present appeal, the same is dismissed accordingly. No order as to costs. Pending miscellaneous application(s), if any, also stands disposed of.
(Ajay Mohan Goel) Judge 14th December, 2016.
(narender) ::: Downloaded on - 15/04/2017 21:44:18 :::HCHP 17 .
of rt ::: Downloaded on - 15/04/2017 21:44:18 :::HCHP