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Punjab-Haryana High Court

(O&M;) Satish Chand vs State Of Haryana on 17 September, 2014

Author: Satish Kumar Mittal

Bench: Satish Kumar Mittal

                       IN THE HIGH COURT OF PUNJAB AND HARYANA
                                      AT CHANDIGARH


                                                            RSA No.1148 of 1991

                                                            Date of Decision:-17.09.2014
                      Satish Chand
                                                                    .....Appellant

                                  Versus

                      Haryana State through Collector, Hissar.
                                                                   .....Respondent

                      CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL.

                      Present:-   Mr. Rajiv Sharma, Advocate
                                  for the appellant.

                                  Mr. Ajay Kumar Gupta, Addl. AG Haryana.

                                        ****

                      SATISH KUMAR MITTAL, J.(Oral)

This is plaintiff's Regular Second Appeal against the judgments and decree passed by both the Courts below whereby the suit of the plaintiff for permanent injunction restraining the respondents from recovering the lease amount for the years 1979-80, 1980-81 and 1981-82 in respect of the land mentioned in the plaint, has been partly decreed.

Initially the trial Court dismissed the suit of the plaintiff while recording a finding against him that he had cultivated the suit land and for that he was liable to pay the lease amount. However, the First Appellate Court has slightly modified the judgment and decree of the trial court after coming to the conclusion that on some of the land the plaintiff was proved to be not in cultivating possession. In this regard, the following finding was recorded by the First Appellate Court:

2014.09.25 13:00 I attest to the accuracy and authenticity of this document Chandigarh RSA No.1148 of 1991 -2-

''9. I have considered the submissions of both the sides. I do not agree with the learned counsel for the appellant that before recording the unauthorised cultivation of the land by the plaintiff in the revenue record the order of any authority was required. The revenue officials; who authorised to conduct khasra Girdawari on the spot, are competent to record the actual cultivation over the land inspected by them while conducting the girdawari and the person who is found in unauthorised cultivation of any land cannot say that his cultivation over the said piece of land cannot be recorded without an order of the competent authority. It is only the owner or any other person who is aggrieved by the said entry can agitate the matter but not the person who is in un-authorised occupation. However, I find merit in the arguments of the learned counsel for the appellant that from the documents Ex.D1 to Ex.D4, it cannot be said as to how much area of Killa No.1846/4 and 1841/4, was cultivated by the plaintiff unauthorisedly.

Ex.D1 is the copy of canal khasra girdawari in which the plaintiff has been recorded to be in cultivating possession in rabi 1979-80 of the land measuring 13 kanals comprised in rectangle and Killa Nos. 1846//4,5,6 and 7 but it has not been recorded as to how much area of each killa number was cultivated making a total of 13 kanals. In this document it has been further mentioned that the plaintiff cultivated Killa No.1846/3,4 and 5 in kharif 1980 and the total and of those 3 killas cultivated by the plaintiff was 6 kanals but it was not mentioned separately as to REEMA SAINI 2014.09.25 13:00 I attest to the accuracy and authenticity of this document Chandigarh RSA No.1148 of 1991 -3- how much land of killa No.4 was cultivated by the plaintiff in kharif 1980. Similarly in Rabi 1980-81 in Ex.D1 it has been mentioned that the plaintiff cultivated 17 kanals land of killa Nos. 1846//4,4 and 5 but it has not been mentioned separately as to how much of killa No.1846/4 was cultivated by the plaintiff in Rabi 1980-81.

In this document Ex.D1 in rabi 1980-81 the plaintiff has also been recorded to be in possession of land comprised in Killa No.1841//3 and 4 and the total land under his cultivation of those two killa has been recorded to be 9 kanals but it has not been mentioned separately as to how much land of killa No.1841/4 was cultivated by the plaintiff in rabi 1980-81.

In this case the defendant-State wants to recover lagan from the plaintiff with respect to the cultivation of land comprised in rectangle and Killa No.1846/4 and there is no dispute with respect to the Killa No.1846/3,5,6 and 7. Similarly, there is no dispute with respect to the rectangle and killa No.1841/3 in this case but the defendant-State wants to recover lagan from the plaintiff with respect to the cultivation of land comprised in Killa No.1841/4. However, from the entries in Ex.D1 referred to above it is not clear as to how much land of rectangle and killa No.1846/4 and 1841/4 was cultivated by the plaintiff unauthorisedly during the rabi 1979-80, kharif 1980 and Rabi 1980-1981. When actual land cultivated by the plaintiff unauthorisedly relating to Killa No.1846/4 and 1841/4 cannot be ascertained from the evidence on the record, I am REEMA SAINI 2014.09.25 13:00 I attest to the accuracy and authenticity of this document Chandigarh RSA No.1148 of 1991 -4- of the considered opinion that the defendant cannot recover any lagan or lease money from the plaintiff alleging that the plaintiff cultivated those killa numbers unauthorisedly in the years mentioned above. The findings of the learned trial Court to that effect are hereby reversed and it is held that the defendant-State cannot recover any lagan from the plaintiff with respect to the alleged unauthorised cultivation of the plaintiff over rectangle and khasra numbers 1846/4 and 1841/4 on the basis of the entries in canal khasra Girdawari Ex.D1.'' In view of the aforesaid finding the First Appellate Court partly accepted the appeal of the plaintiff in the following terms:

''In the light of above discussion, the appeal of the appellant is partly accepted. The judgement and decree dated 4.10.1988 passed by the learned trial Court are modified to the effect that the defendant-State is not competent to recover any amount in lieu of Lagan/Lease money with respect to the rectangle and Killa numbers 1846/4 and 1841/4 with respect to the cultivation in rabi 1979-80, kharif 1980 and Rabi 1980-81. Except the above modifications, the appeal of the appellant fails and is hereby dismissed. Parties are left to bear their own costs. A decree sheet be prepared and the file be consigned to the record room.'' Learned counsel for the appellant could not show any material to controvert the aforesaid finding of fact recorded by the First Appellate Court.

In view of the said finding of fact, in my view, the suit of the plaintiff has been rightly partly decreed and partly dismissed with respect to the land on which he was found to be in cultivating possession.

No substantial question of law arises in this appeal.

Dismissed.

( SATISH KUMAR MITTAL) JUDGE 17.09.2014 reema REEMA SAINI 2014.09.25 13:00 I attest to the accuracy and authenticity of this document Chandigarh