Himachal Pradesh High Court
Keshav Ram And Ors. vs State Of H.P. And Ors. on 8 November, 2005
Equivalent citations: 2006(1)SHIMLC180
Author: V.M. Jain
Bench: V.M. Jain
JUDGMENT V.M. Jain, J.
1. This Regular Second Appeal has been filed by the plaintiffs-appellants against the judgments and decrees of the Courts below, whereby the suit filed by the plaintiffs was dismissed by the trial Court and the appeal filed by them was also dismissed by the learned Additional District Judge.
2. The facts which are relevant for the decision of the present appeal are that plaintiffs Keshav Ram etc. had filed a suit for declaration and permanent prohibitory injunction against defendants State of H.P. etc. with the allegations that they were owners in possession of the suit land, whereas the defendants had no right, title or interest therein. It was alleged that the suit land was recorded as 'Shamlat Deh' in possession of the villagers in the revenue records. It was alleged that on coming into force of the Punjab Village Common Land (Regulation) Act, 1961, the land was mutated in the name of the Gram Panchayat. It was alleged that however, at the time of the coming into force of the said Act, the land already stood partitioned between the co-sharers and as such, the same would not vest in the Gram Panchayat. It was alleged that on 12.11.1974 the Collector passed an order and its copy was served upon the plaintiffs. It was alleged that the said order passed by the Collector was illegal and without jurisdiction. It was alleged that the plaintiffs filed an appeal before the Commissioner against the said order of the Collector, but the same was dismissed in the year 1980 and against the said order a revision petition was filed before the Financial Commissioner and the said revision petition remained pending and in February, 1997 when the plaintiffs moved an application for hearing of the revision petition, they were informed that the revision petition had already been dismissed ex parte. It was alleged that the various orders passed by the Collector, Commissioner and Financial Commissioner were illegal and void.
3. The said suit was contested by the defendants by filing the written statement admitting therein that the land in question was earlier recorded as shamlat deh in the revenue records. However, it was denied that the land was partitioned between the villagers. It was alleged that the mutation in favour of the Gram Panchayat was perfectly legal and valid and the various orders passed by the Collector, Commissioner and Financial Commissioner were also legal and valid. It was alleged that since the plaintiffs were in unauthorized and illegal possession of the suit and, the revenue authorities had rightly initiated proceedings under Section 163 of the Himachal Pradesh Land Revenue Act against them. The plea regarding jurisdiction of the civil Court and various other pleas were also taken by way of preliminary objections.
4. After hearing both sides and perusing the records, the learned trial Court dismissed the suit of the plaintiffs, holding that the question with regard to the plaintiffs being owners in possession of the suit property cannot be gone into by the civil Court and the jurisdiction of the civil Court was barred on this question. It was further held that the order passed by the Collector could not be declared illegal and void since the copies of the said orders had not been produced on the record and only the copy of the order passed by the Financial Commissioner was produced on the record. It was further held that in the absence of the orders, it could not be said that the orders passed by the revenue authorities were illegal and void. It was further held that even though the jurisdiction of the civil Court to grant injunction was not barred yet no case was made out for granting the relief of injunction in favour of the plaintiffs since the plaintiffs had no cause of action for filing the present suit, seeking injunction. Resultantly, the suit was dismissed. The appeal filed by the plaintiffs was also dismissed by the learned Additional District Judge on merits, upholding the finding of the trial Court, except the findings of the trial Court regarding jurisdiction of the civil Court and it was held that in fact the civil Court had the jurisdiction to entertain and decide the present suit. However, as referred to above, on merits the appeal was dismissed. Aggrieved against the dismissal of the appeal the plaintiffs appellants filed the present regular second appeal in this Court.
5. When the appeal came up for hearing before me on 10.10.2005, it was put to the learned Counsel for the plaintiffs-appellants as to how the civil Court had the jurisdiction to entertain and decide the present suit, since prima facie I was of the opinion that the finding of the learned Additional District Judge regarding jurisdiction of the civil Court was not correct. Resultantly, the learned Counsel for the plaintiffs-appellants was called upon to support the finding of the learned Additional District Judge in this regard. On his request the case was adjourned for today. Today the learned Counsel for the plaintiffs-appellants has come prepared on the question regarding jurisdiction of the civil Court as also on merits of the appeal.
6. I have heard the learned Counsel for the parties and gone through the records carefully.
7. On the question regarding jurisdiction of the civil Court, as referred to above, the learned trial Court had held that the civil Court had no jurisdiction to decide the question as to whether land had vested or not vested in the State of H.P. under the provisions of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 (hereinafter called as the 1974 Act), in view of the bar created under Section 10 of the said Act. While coming to this conclusion the learned trial Court had placed reliance on the law laid down by this Court, in the cases Dalip Singh and Ors. v. State of H.P. and Ors. 1992(1) Sim.LC. 320 and State of Himachal Pradesh v. Babu Ram (deceased) through his Lrs. Ms. Nakshatro and Anr. 1996(2) Sim.L.C. 175. In both the judgments it has been held by this Court that in view of the provisions of Section 10 of the 1974 Act, the civil Court had no jurisdiction to entertain and decide the suit wherein declaration had been sought about the land having vested in the State Government under the provisions of the said Act. This Court in the case Bansi Ram and Ors. v. Government of H.P. and Ors. 1994 (3) S.LJ. 2516, also took similar view,
8. When the appeal came up for hearing before the learned Additional District Judge, the law laid down by this Court in 1994(3) S.LJ. 2516 (supra) was noticed by the learned Additional District Judge, as would be clear from para 20 of the judgment passed by the learned Additional District Judge. However, without giving any reason as to why the law laid down by this Court in the said authority and in the other two authorities relied upon by the learned trial Court was not being followed by him, the learned Additional District Judge proceeded to refer to the two judgments of this Court passed in RSA No. 125 of 1989 and RSA No. 55 of 1990, in which this Court and recorded findings that the plaintiffs were in possession of the suit land as owners and the 'vestment' was wrong and illegal and thus made it evident that the civil Court had the jurisdiction to try and decide the suit. Resultantly, it was held that the civil Court had the jurisdiction to try and decide the present suit. The learned Counsel appearing for the plaintiffs-appellants, besides the aforesaid judgments of this Court has referred to another judgment passed by this Court in RSA No. 513 of 1990. I have summoned the files of all the three appeals i.e. RSA No. 125 of 1989, RSA No. 55 of 1990 and RSA No. 513 of 1990 for perusal. In RSA No. 125 of 1989 titled State of H.P. v. Beli Ram and Ors., decided on May 7, 1997, the question as to whether the civil Court had the jurisdiction or not was neither considered nor decided by this Court and as such, the law laid down by this Court in the aforesaid judgment passed in RSA No. 125 of 1989 cannot be made the basis for holding that the civil Court had the jurisdiction to entertain and try the present suit. In fact the said judgment shall be deemed to have been decided per incuriam and it cannot be said on the basis of this judgment that the civil Court had the jurisdiction to entertain and try the suit of this nature. RSA No. 55 of 1990 titled State of H.P. v. Surwan Singh, was decided by this Court on 17.11.1994 along with 65 other appeals and the judgment has been passed in the main appeal bearing RSA No. 21 of 1990 titled State of H.P. v. Hakim. In those cases it was held by this Court that the order of cancellation passed by the Commissioner was without jurisdiction and was inconsistent with the provisions of the Act and the Rules/Scheme framed thereunder and as such the civil Court had the jurisdiction to grant declaration and it could not be said that the jurisdiction of the civil Court was barred under Section 10 of the Act. In my opinion, the law laid down by this Court in these judgments also would have no application to the facts of the present case, inasmuch as, it was not the finding of the trial Court or of the lower appellate Court that the orders passed by the Collector, Commissioner and the Financial Commissioner were without jurisdiction and/or were inconsistent with the provisions of the Act and the rules/ scheme framed thereunder and as such it could not be held that the civil Court had the jurisdiction to entertain and decide the present suit. In RSA No. 513 of 1990, Besru v. State of H.P. and Ors., decided on 16.12.1997, again the question regarding jurisdiction of the civil Court was not considered by this Court while deciding the appeal and as such on the basis of the said judgment it could not be said that the civil Court had the jurisdiction to entertain and decide the present suit, inasmuch as, no such law was laid down by this Court in the said judgment. Infact, the said judgment shall be deemed to have been decided per incuriam and the plaintiff-appellants cannot take benefit of the same.
9. On the other hand, as referred to above, in 1992(1) Sim.L.C. 320 (supra), 1996(2) Sim.L.C. 175 (supra) and 1994(3) S.L.J. 2516 (supra) it had been held by this Court that the orders passed by the Collector etc. cannot be called in question in any Court etc. as provided under Section 10 of the 1974 Act. In this view of the matter, the civil Court would have no jurisdiction to go into the question about the legality of the orders passed by the Collector etc. under the provisions of 1974 Act except where the orders passed by the Collector etc. are without jurisdiction. However, the civil Court would certainly have the jurisdiction with regard to injunction in appropriate cases.
10. In view of the detailed discussion above, in my opinion, the learned Additional District Judge had erred in law in holding that the civil Court had the jurisdiction to try and decide the present suit and also to examine the legality of the 'vestment'. This is especially so that not only the trial Court but also the lower appellate Court had come to a categorical finding that the plaintiffs-appellants had failed to show that the orders passed by the Collector etc. were illegal and void. Accordingly, the finding recorded by the learned Additional District Judge in favour of the plaintiffs appellants that the civil Court had the jurisdiction to try and decide the present suit is hereby reversed and it is held that the civil Court had no jurisdiction to try and decide the present suit, with regard to the prayer for declaration, unless the plaintiffs-appellants are able to show that the orders passed by the Collector etc. were illegal and void.
11. Coming on merits, both the Courts below found it a fact that the plaintiffs appellants had failed to show that the entries in the revenue records in favour of the Gram Panchayat and subsequently in favour of the State of Himachal Pradesh were illegal or that the suit land had not vested in the Gram Panchayat and/or the State of Himachal Pradesh under the provisions of the Punjab Village Common Lands (Regulation) Act, 1961 or under the provisions of the 1974 Act referred to above. This is especially so when the plaintiff-appellants had even failed to produce the copies of the orders passed by the Collector and Commissioner on the record. Only on the basis of the orders passed by the Financial Commissioner dismissing the revision petition of the plaintiffs-appellants, in my opinion, it could not be said that the orders passed by the Collector and the Commissioner were illegal and void or that the order passed by the Financial Commissioner was also bad in law. In my opinion, both the Courts below had rightly found that in the absence of the orders of the Collector or the Commissioner having been produced in the Court, it could not be said that the orders passed by the Collector, Commissioner and the Financial Commissioner were illegal and void or that the same were without jurisdiction. I am further of the opinion that in case the plaintiffs-appellants failed to prove that the orders passed by the revenue officers were illegal and void and were without jurisdiction, the civil Court would not have jurisdiction to entertain and decide the present suit with regard to the relief of declaration. Resultantly, I uphold the findings of the Courts below in this regard.
12. With regard to the decree for injunction, suffice it to say that on the facts and circumstances of the present case, the plaintiffs-appellants were not entitled to the decree for injunction and both the Courts below had rightly declined to grant decree for injunction in favour of the plaintiffs-appellants. The learned Additional District Judge after considering the entire evidence found that the possession of the plaintiffs over the suit land was as an encroacher and that proceedings for the ejectment of the plaintiffs from the suit land had already been initiated and moreover the plaintiffs were not being dispossessed wrongfully from the suit land and as such the plaintiffs were not entitled to the relief of injunction. In my opinion the view taken by the learned Additional District Judge in this regard is perfectly legal and valid and no fault could be found with the same. Proceedings under Section 163 of the Himachal Pradesh Land Revenue Act were initiated against the plaintiffs for their ejectment from the suit land, by the Collector and as such, it would be clear that the plaintiffs were being dispossessed from the suit land in accordance with law. That being so, in my opinion, the plaintiffs-appellants were not entitled to any injunction and both the Courts below had rightly declined to grant decree for injunction in favour of the plaintiffs-appellants and no fault could be found with the same.
13. The learned Counsel appearing for the plaintiffs-appellants during the course of arguments also submitted before me that the plaintiffs appellants had filed an application under Order 41 Rule 27 CPC for producing additional evidence before the lower appellate Court and the lower appellate Court had dismissed the said application vide order dated 29.7.2005 and the said order was produced before me for perusal. After going through the said order dated 29.7.2005 passed by the learned Additional District Judge, dismissing the application for additional evidence, in my opinion, no fault could be found with the same. The learned Additional District Judge found that the documents which the plaintiffs-appellants wanted to produce by way of additional evidence were available with the plaintiffs-appellants and nothing had come on the record as to why these documents were not produced by the plaintiffs-appellants before the trial Court when the parties had led oral and documentary evidence in support of their case. It was found that in the absence of any such material on the record to show as to why these documents were not produced earlier during trial, no case was made out for permitting the plaintiffs-appellants to produce the same on record by way of additional evidence. As referred to above, the view taken by the learned Additional District Judge is perfectly in accordance with law and no fault could be found with the same.
In view of the detailed discussion above, in my opinion, there is no merit in this appeal, especially when no question of law much less a substantial question of law arises for determination in this appeal. Hence the present appeal is dismissed.