Himachal Pradesh High Court
State Of H.P. & Ors vs Shri Roshan Lal & Anr on 27 December, 2016
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No. 343 of 2008 along with CMP No. 5004 of 2016.
.
Reserved On: 15.12.2016.
Decided on: 27.12.2016.
State of H.P. & ors. ......Appellants.
Versus
Shri Roshan Lal & anr. .......Respondents.
of
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
Whether approved for reporting? Yes
For the appellant(s):
For the respondents:
rt Mr. Neeraj K. Sharma, Dy. Advocate General.
Mr. B.P. Sharma, Sr. Advocate with M/S Ravinder
Thakur and Arun Kumar, Advocates for respondents
No. 1 & 2.
Mr. Jeevesh Sharma, Advocate, for the
applicant/proposed respondent.
----------------------------------------------------------------------------------------------
Justice Dharam Chand Chaudhary, J.
Defendants (State of Himachal Pradesh) are in second appeal before this Court. The challenge herein is to the judgment and decree dated 28.3.2008, passed by learned Addl. District Judge, Solan in Civil Appeal No. 35-S/13 of 2007, whereby learned lower appellate Court, on reversal of the judgment and decree passed by the trial Court has decreed the suit and thereby the respondents (hereinafter referred to as the plaintiffs) have been declared owners-in-possession of the land measuring 1 bigha 10 biswas, situated at Village Sihardi Chamara, Tehsil Kasauli, Distt. Solan, H.P. and the defendants have also been ordered to be restrained from causing any interference or ejecting the plaintiffs from the suit land in any manner whatsoever.
::: Downloaded on - 15/04/2017 21:49:39 :::HCHP 22. The bone of contention in the present lis is a piece of land .
measuring 1-10 bighas situated at Village Sihardi, popularly known as Sihardi Chamara, Tehsil Kasauli, Distt. Solan, H.P (Bangala colony), allegedly government forest 161, forest No. 143/143, bearing Kh. No. 1/26.
The plaintiffs claim themselves to be owners-in-possession of the suit land.
They, therefore, had sought declaration to this effect. Additionally also they of had sought decree for permanent prohibitory injunction restraining thereby the defendants from causing interference in the suit land in any manner rt whatsoever.
3. The suit was sought to be decreed on the grounds, inter alia, that they are bonafide residents of Village Sihardi since the time of their forefathers Sownu Ram and Barfu etc. They have constructed their houses adjoining to the land in dispute which allegedly was developed and made cultivable by them. The suit land allegedly being part of Village Sihardi was recorded in the ownership and possession of one Tulsia son of Dhungal.
Barfu, the father of the plaintiffs had purchased the same from its previous owner for a sum of Rs. 99/- by way of sale deed Ext. PW-4/A.
4. The revenue record of the suit land has not been produced nor is there any mention of Khata Khatoni or Khasra No. thereof given in the plaint. An effort has rather been made to identify the same by way of boundaries i.e. abutted by road on one side, charand and nullah on the other side, charand and Jhugies of Bengalas on third side whereas main nullah in northern side. The so called owner aforesaid Tulsia allegedly ::: Downloaded on - 15/04/2017 21:49:39 :::HCHP 3 executed the sale deed Ext. PW-4/A on 16.7.1992 in the name of Barfu their .
predecessor in interest.
5. The suit land previously was in the ownership and possession of Sh. Barfu, their father and on his death, it is they who are in exclusive, continuous and open possession of the suit land without any obstruction from any quarter. The ration cards, voter list etc. were also pressed into of service. As per further case of the plaintiffs, the area where suit land is situated was previously in Bhoj Dharampur, Mauja Sihardi, however, the rt plaintiffs now allegedly came to know that the area has now been transferred to the forest department without their knowledge and notice and also the knowledge and notice of other residents/occupants of that area.
The suit land, though is stated to be shown to be that of forest department in the revenue record, however, this fact was never brought either to the notice of the plaintiffs, residents of the village or Panchayat concerned. The same, as such, has been claimed to be wrong, illegal, null and void. The land was stated to be neither 'shamlat' nor government land. The same rather was assessed to land revenue which according to the plaintiffs was being received by Daulat Ram Lambardar till the year 1954.
6. It is claimed by the plaintiffs that in the year 1993 and 1995, notices were issued and eviction proceedings initiated against them, however, in reply thereto they had submitted the copy of sale deed Ext. PW-
4/A and also receipts of land revenue. Their impression was that the said notices were discharged and the eviction proceedings proposed to be initiated against them dropped. However, to their utter surprise, they ::: Downloaded on - 15/04/2017 21:49:39 :::HCHP 4 received another notice dated 18.9.2002 whereby they were called upon to .
vacate the suit land by 18.10.2002. The notice dated 18.9.2002 served upon them is stated to be illegal, null and void and not binding on them qua their rights title or interest over the suit land. According to them, their residential houses and cow-sheds exist over the suit land for a period of over 40 years. They being in continuous, uninterrupted, open and exclusive of possession of the suit land have become owners thereof by way of adverse possession. rt
7. The defendants, when put to notice had contested the suit. In preliminary, questions of maintainability, jurisdiction of the Civil Court and no cause of action in favour of the plaintiffs to file the suit were raised and the suit was claimed to be bad on account of suppression of material facts from the Court. On merits, it was denied that the plaintiffs have developed the suit land and made it cultivable. They were never in possession thereof and as such, there is no question of their having acquired title in the land in question by way of adverse possession. The plaintiffs have allegedly encroached upon the forest land in DPF 143/143, Sihardi forest (old number), D-161 Sihardi (new number) which falls under Dharampur range of Solan Forest Division. The proceedings against the plaintiffs were initiated before Collector-cum-DFO, Solan under H.P. Public Premises and Land (Eviction and Rent Recovery) Act, 1971. They were ordered to be evicted from the suit land by the Authorized Officer. In an appeal, they preferred, learned Commissioner (Revenue) has affirmed the order passed by the Authorized Officer and dismissed the appeal. The record allegedly ::: Downloaded on - 15/04/2017 21:49:39 :::HCHP 5 makes it crystal clear that the suit land is forest land. Survey sheet Ext.
.
DW-2/A has been pressed into service in this regard. While admitting that notice was served upon the plaintiffs in the year 1993, it is denied that in reply thereto they had submitted copy of sale deed and receipts of land revenue they paid to Lambardar. No such record was ever produced before Assistant Collector, 2nd Grade/ Collector-cum-DFO, Solan. The notice dated of 18.9.2002 served upon the plaintiffs has been claimed to be legal and valid and also binding upon them. The order passed by the Authorized Officer rt and affirmed by learned appellate Authority amply demonstrates that the plaintiffs had encroached upon the suit land. It is also denied that the suit land comes under the purview of State Policy framed qua regularization of the encroachments over government land made prior to the year 2000. The suit land cannot be regularized being forest land. Since the suit land belongs to the forest department, therefore, it is claimed that there is no question of acquisition thereof by way of purchase.
8. On such pleadings of the parties, the following issues were framed:
"1. Whether the plaintiffs are owners-in-possession of the suit land, as alleged?
OPP.
2. Whether the notice dt. 18.9.2002 is illegal, null & void, as alleged?
OPP.
3. Whether this Court has no jurisdiction to entertain, try and decide the suit, as alleged?
OPD.
4. Whether the suit is not maintainable in the present form?::: Downloaded on - 15/04/2017 21:49:39 :::HCHP 6
OPD.
.
5. Whether the suit has not been properly valued for the purpose of court-fee & jurisdiction?
OPD.
6. Relief."
9. Learned trial Judge, on appreciation of the evidence comprising oral as well as documentary, while answering issue No. 1 has concluded of that the plaintiffs cannot be said to have acquired title in the suit land by way of sale deed Ext. PW-4/A as they failed to prove that the transferor of rt the suit land aforesaid Tulsia had title therein. Learned trial Judge had also concluded that the identity of the suit land without Khata Khatoni or Khasra No. is not at all legally proved on record. The suit land could have not been identified by its boundaries by any stretch of imagination. While holding that notice dated 18.9.2002 is neither illegal nor null and void, issue No. 2 was also answered in negative i.e. against the plaintiffs. The jurisdiction of the Civil Court was also held to be barred under Section 15 of the H.P. Public Premises and Land (Eviction and Rent Recovery) Act, 1971 and issue No. 3 was answered in favour of the defendants and against the plaintiffs. Issues No. 4 & 5, however, were answered against the defendants as learned trial Court has held that the suit was maintainable and also valued properly for the purposes of court-fee and jurisdiction. As a result of findings on issues No. 1 to 3, suit, however, was dismissed.
10. The plaintiffs have assailed the judgment and decree passed by the trial Court before learned lower appellate Court. The appeal preferred by ::: Downloaded on - 15/04/2017 21:49:40 :::HCHP 7 them has been allowed and on reversal of the judgment and decree passed .
by the trial Court, the suit is decreed.
11. The legality and validity of the impugned judgment has been questioned on the grounds, inter alia, that learned lower appellate Court has erroneously decided the entire matter by placing reliance on Ext. PW-4/A, the so called sale deed whereby Barfu, the predecessor-in-interest of the of plaintiffs had allegedly acquired the suit land. The orders passed by Authorized Officer Ext. DA and by the appellate Authority Ext. DB were rt erroneously ignored. No evidence was available on record to show that Tulsia had valid title qua the suit land. Therefore, the sale deed Ext. PW-
4/A could not have been relied upon because as per the settled law, a person having no title in any property cannot transfer the same by way of sale in favour of another person. The plea of adverse possession raised by the plaintiffs was also not at all proved. The plaintiffs, therefore, miserably failed to prove that they had acquired title in the suit land by way of adverse possession for the reason that the land in dispute is forest land and there is no question of transfer of the same in favour of Barfu, their predecessor-in-
interest. The jurisdiction of Civil Court allegedly was barred under Section 15 of the H.P. Public Premises and Land (Eviction and Rent Recovery) Act, 1971 which part of the defendants' case is also stated to be not appreciated in its right perspective.
12. The appeal has been admitted on the following substantial question of law:
::: Downloaded on - 15/04/2017 21:49:40 :::HCHP 8"1. Whether the findings of Appellate Authority are based upon mis-appreciation of pleadings and evidence especially .
exhibit DA and DB?"
13. Mr. B.P. Sharma, learned Sr. Advocate assisted by Mr. Ravinder Thakur, Advocate, has strenuously contended that the findings of fact recorded by learned lower appellate Court on re-appraisal of the entire of evidence available on record normally cannot be interfered with in a regular second appeal. It has been urged that the defendants have miserably failed rt to prove that the suit land is forest land and has been encroached upon by the plaintiffs. It has also been pointed out that the same rather has been acquired by their predecessor-in-interest, Barfu from its previous owner Tulsia. The plaintiffs have proved this part of their case with the help of jamabandi(s) Ext. PA to PC and also the sale deed Ext. PW-4/A. The receipts qua payment of land revenue have also been produced in evidence to show that the revenue qua the suit land used to be paid to Sh. Daulat Ram Lambardar. It is for this reason, the ejectment proceedings previously initiated vide notices served in the year 1993 and 1995, were dropped by the defendants on perusal of the documents, more particularly, the sale deed Ext. PW-4/A and the rent receipts. Mr. Sharma, has also pointed out that jurisdiction of the Civil Court under Section 15 of the H.P. Public Premises and Land (Eviction and Rent Recovery) Act, 1971 is also not barred. It has thus been urged hat learned lower appellate Court has rightly reversed the judgment and decree passed by the trial Court and decreed the suit.
According to Mr. Sharma, learned Senior Advocate, Krishan Kumar-
::: Downloaded on - 15/04/2017 21:49:40 :::HCHP 9applicant in CMP No. 5004 of 2016 is though nephew of the plaintiffs, .
however, his father deceased Jeet Ram had neither contested the eviction proceedings nor joined them as one of the plaintiffs in the suit and on the other hand by way of family arrangement Annexure R-1B to the reply, the property left behind by their predecessor-in-interest Sh. Barfu stands partitioned, therefore, Krishan Lal applicant is not entitled to claim share in of the land in dispute.
14. On the other hand, Mr. Neeraj Sharma, learned Dy. Advocate rt General, while drawing the attention of this Court to the orders of eviction Ext. DA and DB produced in evidence has argued that the suit land is forest land and being encroached upon by the plaintiffs and others unauthorizedly, they have rightly been ejected in accordance with law therefrom. According to Mr. Sharma, the land encroached upon by the plaintiffs is that very land they acquired by way of Ext. PW-4/A, no cogent and reliable evidence is forthcoming and mere mention of boundaries and dimension of the land in this document it cannot be said that the land viz the subject matter of eviction proceedings is the same land they purchased from Tulsia. In the absence of survey mark, khata khatoni number and khasra number, it cannot be said that the land from which the plaintiffs have been sought to be evicted is the same land which their predecessor-in-
interest had acquired by way of sale. On the other hand the defendants have proved that the land the plaintiffs have encroached upon is a demarcated protected forest 143/143 bearing Kh. No. 1/26 as per entries in missal haquiat for the year 1993-94 referred to in the order Ext. DB passed ::: Downloaded on - 15/04/2017 21:49:40 :::HCHP 10 by learned Commissioner (Revenue), H.P. It was not the case of the plaintiffs .
in the ejectment proceedings that this land was acquired by them from Tulsia by sale deed Ext. PW-4/A. The plea of adverse possession cannot also be raised by the plaintiffs. It is also urged that the jamabandi(s) Ext.
PA to PC relied upon by the plaintiffs nowhere suggest that the same pertain to the suit land. Merely that the name of Tulsia finds mention therein, being of one of the co-owners in possession of the land reflected in these documents, should not be taken to arrive at a conclusion that the land in dispute is rt part of that land reflected in these documents and none else. It has, therefore been urged that learned trial Court has rightly dismissed the suit for the relief of declaration sought by the plaintiffs and that learned lower appellate Court has went wrong and also erred in law while decreeing the suit on reversal of the judgment and decree passed by the trial Court.
15. Sh. Jeevesh Sharma, Advocate appearing on behalf of Krishan Kumar, proposed applicant-respondent in CMP No. 5004 of 2016 aforesaid has urged that the applicant being the nephew of the plaintiffs is also entitled to inherit the suit land, however, they did not disclose the institution of the suit/appeal qua which he only came to know recently in the month of March, 2016.
16. The pivotal point around which the controversy revolves is also whether the plaintiffs have successfully pleaded and proved that the suit land qua which eviction proceedings were initiated against them by the defendants is the same land which was acquired by their father late Sh.
Barfu from Tulsia or not. The oral evidence produced on both sides is ::: Downloaded on - 15/04/2017 21:49:40 :::HCHP 11 equally balanced because while as per the version of the plaintiffs' .
witnesses, it is that very land which has been acquired by deceased Barfu from Tulsia from where their eviction has been ordered the subject matter of dispute in the present lis, the oral evidence as has come on record by way of testimonies of DW-1 Kaka Ram and DW-2 Hitender Sharma reveal that the same is forest land and reflected as such in red lines in the survey sheet of of DPF 143/143 Ext. DW-2/A.
17. Above all, there can only be valid transfer of immovable property rt if the vendor has right, title or interest therein. The essential ingredients of sale are; i) existence of at least one seller and one buyer; ii) the price or sale consideration as agreed upon; and iii) both parties must be competent to enter into the contract of sale. In the case in hand, even if it is believed that Ext. PW-4/A pertains to the land in dispute, seller and buyer were there and the sale consideration also finds mention therein, however, nothing suggestive that Tulsia had right, title or interest in the suit land and as such was competent to transfer the same in favour of Barfu has come on record.
Otherwise also, sale of immovable property, the ownership whereof is intended to be transferred by the vendor in favour of the vendee on receipt of sale consideration can only be inferred if the vendor is proved to be owner thereof. Therefore, when it is not proved that Tulsia was owner of the land in dispute, how there can be valid transfer thereof in favour of Barfu.
18. A Coordinate Bench of this Court in Amar Chand vs. Madan Lal, AIR 2008 (NOC) 1648 (H.P), has held as follows:
::: Downloaded on - 15/04/2017 21:49:40 :::HCHP 12"In order to construe a sale the parties must intend to transfer the ownership of the property and they must also intend that .
the price would be paid either before or after the sale.
S. 54 of the Act clearly stipulates that sale is a transfer of ownership in exchange of price paid or promised or part paid or part was executed. It was the case of the defendant vendee that a sum of Rs. 24,000/- was paid and then only the sale deed was of got executed. The defendant and the plaintiff were not relatives or otherwise close to each other nor the defendant was in a position to exercise confidence or had control over him. They rt were having no dealings in the past. Therefore, there was no occasion for the plaintiff vendor to have believed the defendant and executed the sale without receiving even a single penny. The sale deed, as was a registered document."
19. The plea of the plaintiffs that they are owners-in-possession of the suit land and hence entries showing the same to be forest land have been made behind their back and without holding any enquiry is also without any substance for the reason that they have not produced any revenue record pertaining to the suit land. The entries in the jamabandi(s) Ext. PA to PC pressed into service are nowhere suggestive of that the same pertains to the land in dispute alone and none else. Therefore, the question of change of revenue entries qua the suit land behind their back and without holding any enquiry does not arise at all. Being so, the judgment of a Coordinate Bench of this Court in Kanshi Ram vs. Nikka Ram, 1987 Sim. L.C. 306, is not at all attracted in the instant case.
20. Now, if coming to the documentary evidence, sale deed Ext. PW-
4/A and the entries in the jamabandi(s) Ext. PA to PC have been heavily ::: Downloaded on - 15/04/2017 21:49:40 :::HCHP 13 relied upon to show that the land in dispute is the same which was .
purchased by Barfu from Tulsia. The sale deed Ext. PW-4/A is dated 16.7.1952. The jamabandi Ext. PA is for the year 1955-56. This document does not contain not only khewat and khatoni number of the land reflected therein but also its khasra number. It is not understandable as to why khewat/khatoni number and khasra number were not reflected in the sale of deed, had the land in dispute been part of the land reflected in these documents and purchased from Tulsia.
rt Mr. B.P. Sharma, Sr. Advocate, during the course of arguments has failed to connect the land in dispute with the sale deed Ext. PW-4/A and also being the part of land reflected in jamabandi(s) Ext. PA to PC.
21. True it is that in the sale-deed Ext. PW-4/A, an effort has been made to identify the suit land by its boundaries i.e. abutting by road on one side, charand and nullah/ghasni on the other side, charand and Jhugis (sheds) of Bangalas on third side and in the north nullah but in vain for the reason that it is not possible to believe that such boundaries by which the land so purchased by deceased Barfu was identified in the year 1952 still exists on the spot and that too after the expiry of a period over 64 years.
Therefore, the evidence to prove the identity of the land in dispute by way of boundary marks, as mentioned in the sale deed, is nothing else but is absurd and also baseless. Above all, if it is believed to be true that the jamabandi(s) relied upon pertain to the suit land, it is not understandable as to what prevented deceased Tulsia and for that matter Barfu to get khewat khatoni number and khasra number reflected in the sale deed Ext. PW-4/A. ::: Downloaded on - 15/04/2017 21:49:40 :::HCHP 14
22. Mr. B.P. Sharma, learned arguing counsel on behalf of the .
plaintiffs in order to buttress the arguments that the description given in the conveyance deed is sufficient to identify the land sold has placed reliance on Division Bench judgment of Madras High Court in Rajagopala Ayyar and anr. vs. Avadai Velar and ors. AIR 1961 Madras 251. With due regard to the ratio of this judgment, the same is distinguishable on facts for the of reason that in that case the recitals in the conveyance deed qua the land sold was given measuring 2-12-9 out of 16 shares in Innan Mannangadu rt village. The land was purchased in auction and delivery of possession made to the vendee was given on the spot. Not only this but the land, subject matter of dispute in that suit was 1/3rd share of one of the defendants in that suit which was subject matter of release deed executed by the said defendant in favour of defendants No. 1 & 2 therein and the identity thereof described in the release deed also. Otherwise also, that was a case where the registration of the sale deed was challenged for want of identity of the land sold. The facts of this case, however, are contrary to the case decided by a Division Bench of the Madras High Court (supra).
23. Similar is the ratio of the judgment of the Apex Court in P. Udayani Devi vs. V.V. Rajeshwara Prasad Rao and anr., AIR 1995 SC 1357, relied upon by Mr. Sharma, which is also not applicable in the given facts and circumstances of this case for the reason that in that case, the subject matter of dispute was terraced house, namely, "Chandrika Nilayam"
S.S. No. 67, new No. 21-6 East Godavari District Rajahmundry Taluk, ::: Downloaded on - 15/04/2017 21:49:40 :::HCHP 15 Gandhi-nagaram, Block No. II, Rajahmundry. Additionally the boundaries .
of the said house in that case were as under:
"East: House of M.V.Reddy
South: Main Road
West: Park
North: House of Mullapudi Satyanarana"
24. Not only this, but that house was also sold in an open auction of after due identification thereof on the spot. This, however, is not the position in the case in hand. Therefore, the law cited is also of no help to
25. rt the case of the plaintiffs.
The rent receipts Mark PY, PY-1, PZ, PZ-1, PXX and PXX-1, though not exhibited documents, however, otherwise also are not suggestive of that the same pertains to the payment of land revenue qua the suit land alone and no other land.
26. Now, if coming to the evidence produced by the defendants, the same is in the form of order of eviction passed by Collector-cum-DFO, Solan Ext. DA and the order passed by learned Commissioner (Revenue), H.P. Ext.
DB and also the survey sheet which pertains to DPF 143/143 Ext. DW-2/A. Nothing has come in the order of the Collector that the plaintiffs had assailed ejectment proceedings initiated against them on the ground of the land in dispute acquired by their predecessor-in-interest from Tulsia. The order of the learned Commissioner (Revenue) reveals that the land in dispute was shown as forest land and in the possession of department of forest in the missal haquiat for the year 1993-94. Though the missal haquiat has not been produced in evidence by the defendants, however, it ::: Downloaded on - 15/04/2017 21:49:40 :::HCHP 16 was for the plaintiffs to have produced such evidence in rebuttal to the .
evidence produced by the defendants. In the survey sheet, Sihardi Protected Forest/143 is encircled as red. This document has been relied upon by the Collector and also learned Commissioner (Revenue). The grouse of the plaintiffs that these documents are not enough to show that the suit land is part of Demarcated Protected Forest also seems to be not justifiable for the of reason that they themselves have failed to prove with the help of cogent and reliable evidence that the suit land is not part of Demarcated Forest and rt rather was the property of Tulsia. Above all, the trial Court, no doubt, has dismissed the suit qua the relief of declaration they sought, however, the suit land has been held to be in their possession. Not only this, but as per the judgment and decree passed by learned trial Court, it has been left open to the defendants not to evict the plaintiffs from the suit land, save and except by due process of law. Meaning thereby that the defendants in case have to seek the eviction of the plaintiffs, they are required to file a separate suit for possession of the suit land. The defendants have not assailed the judgment and decree so passed by the trial Court, which as such, has attained finality against them. Therefore, the suit, if any, filed by the defendants for eviction of the plaintiffs from the suit land and possession thereof, the plaintiffs shall have an opportunity to prove otherwise that the land in dispute is not forest land. However, in the present suit, they cannot be held to be owners-in-possession of the suit land for want of cogent and reliable evidence.::: Downloaded on - 15/04/2017 21:49:40 :::HCHP 17
27. As regards, the plaintiffs having acquired title in the suit land .
by way of adverse possession as pleaded in the plaint, the plea of adverse possession is not available to the plaintiffs for the reason that as per the law laid down by the Apex Court in Gurdwara Sahib Vs. Gram Panchayat Village Sirthala, (2014) 1 SCC 669, such plea can be used in defence i.e. by the defendants and not as a sword by the plaintiffs. Therefore, the plea of of adverse possession is also not available to the plaintiffs.
28. Now, if coming to the question of jurisdiction of the Civil Court, rt the law is no more res-integra because a Division Bench of this Court in Chamaru Ram vs. the Addl. Commissioner (Appeals) and ors., 2002 (1) Shim. L.C. 373, while interpreting Section 15 of the H.P. Public Premises and Land (Eviction and Rent Recovery) Act, 1971, has held as under:
"5. After giving our best consideration to the respective contentions of the learned Counsel for the parties, we are of the view that the authorities below acting under the provisions of Sections 4(1) and 5 of the Act have no jurisdiction to determine the question of title when it is seriously in dispute between the parties and it is to be decided by the Civil Court. Sections 4(1) and 5 of the Act provide for summary eviction of a person who is in unauthorized occupation of the public premises. In the absence of machinery provided under the Act for adjudication of question of title, the jurisdiction of Civil Court cannot be barred. Almost similar provision was under consideration of the Supreme Court in State of Rajasthan v. Harphool Singh (dead) through his LRs., (2000) 5 SCC 652, and the learned Judges have held as under:-
"11. The learned Counsel for the appellant strongly relied upon Section 22 and Section 25 of the Act to contend that the order passed by the ADM in exercise of his powers under Section 22 of the Act has become final and the jurisdiction of the Civil Court stands ousted in respect of such matters by virtue of Section 25 and therefore the suit could not have been entertained at all by the Civil Court. Section 25 of the Act stipulates that a Civil Court shall not have jurisdiction in any matter which the Collector is empowered by that Act to dispose of and shall not take cognizance of the manner in which the State Government or Collector or any officer exercises any power vested in it or in him ::: Downloaded on - 15/04/2017 21:49:40 :::HCHP 18 by or under the said Act. Section 22 provides for a summary eviction of any person who .
occupies or continues to occupy any land in a colony to which he has no right or title or without lawful authority by treating such person as a trespasser in the manner and after following the procedure prescribed therefor. Reliance has been placed by the respondents on the decisions reported in Abdul Waheed Khan v. Bhazvani, AIR 1966 SC 1718 :
(1966) 3 SCR 617 and Firm of Illuri Subbayya Chetty and Sons v.
State of A.P., AIR 1964 SC 322 : (1964) 1 SCR 752, to substantiate their, claim that the bar of suit will not be attracted in a case of this nature. In our view, the principles laid down in Abdul Waheed Khan of case while considering a provision like the one before us, that the bar is with reference to any matter which a Revenue Officer is empowered by the Act to determine and the question of title is foreign to the scope of proceedings under the Act, would apply to this case also with all force, that is on the provisions of Section 25 of the Act as it stands. rt Even that apart in State of T.N. v. Ramalinga Samigal Madam, (1985) 4 SCC 10 : AIR 1986 SC 794, this Court, after adverting in Dhulabhai v. State of M.P., AIR 1969 SC 78 : (1968) SCR 662, held that questions relating to disputed claims of parties for title to an immovable property could be decided only by the competent Civil Court and that in the absence of a machinery in the special enactment to determine disputes relating to title between two rival claimants, the jurisdiction of the civil Court cannot be said to have been ousted. In the case on hand, a citizen is asserting a claim of acquisition of title by adverse possession in derogation of the rights and interests of the State in the property in question. In our view, determination of such claims are not only outside the purview of Section 22 which only provides for a summary mode of eviction but in respect of such disputes relating to title to immovable property the jurisdiction of ordinary civil courts to adjudicate them cannot be said to have been ousted. The powers and procedure under Section 22 of the Act, in our view, are no substitute for the civil court's jurisdiction and powers to try and adjudicate disputes of title relating to immovable property/' (Emphasis supplied)
6. On the similar lines is the judgment of our Court in Kaka Ram alias. Ram Lai v. The Financial Commissioner, H.P. and others, ILR 1984 H.R 8. .
7. Therefore, relying upon the ratio of the judgment of the Supreme Court in State of Rajasthan v. Harphool Singh (dead) through his LRs. (supra) and of this Court in Kaka Ram alias Ram. Lai v. The Financial Commissioner and others (supra), we have no hesitation to hold that the bar laid down under Section 15 of the Act cannot deprive the petitioner of his right to claim title of the premises in dispute by filing civil suit in the Civil Court because the powers and procedure under Sections 4(1) and 5 of the Act are no substitute for the Civil Court's jurisdictional powers to try and adjudicate disputes of title relating to immovable property.
::: Downloaded on - 15/04/2017 21:49:40 :::HCHP 1929. Therefore, the Civil Court has jurisdiction to try and entertain .
the civil suit involving title of the suit land raised by the person who is alleged to have encroached upon the government land.
30. In view of the discussion hereinabove, it would not be improper to conclude that learned lower appellate Court has misread and mis-
interpreted not only the pleadings of the parties but also the evidence of available on record and as a result thereof recorded wrong findings. There is no force in the submissions made by Mr. Sharma, learned arguing counsel rt that the findings of facts recorded by learned lower appellate Court on appraisal of the evidence available on record cannot be interfered with in the second appeal for the reason that this Court in Sher Mangat Ram vs. Krishna Devi and ors., 2013 (3) Shim. L.C. 1507, has held that misreading, mis-appreciation and mis-construction of pleadings as well as evidence available on record if found to have resulted in miscarriage of justice to either party to a lis and resulted in recording wrong findings, the judgment and decree vitiates and as such the High Court can interfere even with the findings of facts also recorded by lower Court. The present, as such, is a case where misreading, misconstruction and mis-appreciation of the evidence as well as pleadings of the parties by learned lower appellate Court has vitiated the findings and thereby rendered the judgment and decree under challenge legally and factually unsustainable. The same, as such, deserves to be quashed and set aside and the judgment and decree passed by learned trial Court affirmed. Since the suit land is not proved to be ::: Downloaded on - 15/04/2017 21:49:40 :::HCHP 20 purchased by the predecessor-in-interest of plaintiffs and by that of the .
applicant in CMP No. 5004 of 2016, therefore, there is no question of inheritance thereof by the applicant in the application. It is, however, the plaintiffs who have been held to be in possession of the suit land and as per the findings recorded hereinabove, the defendant-State if so advised is at liberty to seek decree of possession thereof in accordance with law. Shri of Krishan Kumar the applicant in CMP No. 5004 of 2016 therefor need not to be impleaded as party in the present appeal.
rt
31. In view of what has been said hereinabove, this appeal succeeds and the same is accordingly allowed. Consequently, the judgment and decree passed by learned lower appellate Court in Civil Appeal No. 35-S/13 of 2007 is hereby quashed and set aside and that of learned trial Court in Civil Suit No. 270/1 of 2002, affirmed. No order so as to costs. With the above observations, CMP No. 5004 of 2016 also stands dismissed.
December 27, 2016, ( Dharam Chand Chaudhary ),
(karan-) Judge.
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