Brahama Nand vs State of H.P.

Dev Darshan Sud, J.—This is the plaintiff''s second appeal against the concurrent findings of the two Courts below dismissing the suit instituted by the appellant-plaintiff herein praying for a decree of declaration that the order dated 13.7.1977 passed in Case No. 49/13 by the Collector, Shimla, Ex.DW-6/B and the order passed in appeal by the Commissioner, Shimla Division, Ex.P-7/B (Ex.DW-6/C), are without jurisdiction, illegal, void and not binding on the interests of the plaintiff-appellant.

The plaintiff pleaded that he is a permanent i.e. resident of Mauja Phayal (Dochi Nagog), Tehsil and District Shimla and is inhabitant of the said revenue estate and a co-sharer with the other "Malkan Deh" residents of village where he has been residing since the time of his birth. He claimed his own permanent ownership on land settled by him measuring 10-16 Bighas in Khasra No. 196 min, which, according to the plaintiff, was in his possession since the year 1970. The plaintiff pleaded that the action of the Gram Panchayat vide Ex.DW-6/A recording him as a lessee over the suit land is wrong.

On the pleadings of the parties, the learned trial Court settled ten issues. Three of these issues, namely, (a) whether the plaintiff was co-owner in Khasra No. 196, (b) whether this Khasra Number has been partitioned and the area measuring 10-16 Bighas fell to his share and (c) whether the order passed by the revenue official are without jurisdiction, were taken up by the trial Court for determination holding that the plaintiff was a lessee over this land and not its co-owner. Ex.PW-7/A (Ex.DW-6/B) order passed by the Collector was in accordance with law and the appellate order of the Divisional Commissioner in appeal No. 16/78 Ex.PW-7/B (Ex.DW- 6/C) was also legal. In appeal, these findings have been reaffirmed by the learned District Judge.

This appeal was admitted by this Court on the following substantial questions of law:

Whether in the facts and circumstances of the case provisions of Section 3(2)(a) of H.P. Village Common Lands Vesting and Utilisation Act, 1974 were attracted thus excluding the suit land from the operation of the act particularly when partition as per Ex.PW-7/C was reflected thus rendering Orders Ex.PW-7/A and PW-7/B illegal and void?

Whether creation of Lease under the provisions of Punjab Village Common Lands (Regulation) Act, 1961 precludes a Lessee who is a Co-sharer to effect partition with in the meaning of H.P. Village Common Lands Vesting and Utilisation Act, 1974 particularly when such lessee is also an interest holder being the resident of the estate being `Malik Deh''?

Whether the non-consideration of document of partition Ex.PW-7/C by the court below has vitiated the findings?

Whether the orders Ex.PW-7/A and PW-7/B have been passed in contravention of Section 4 of the H.P. Village Common Lands Vesting and Utilisation Act, 1974?

Question No. 3:

Learned Counsel appearing for the appellant urges that the judgment of the Courts below cannot be sustained because they ignore Ex.PW-7/C which is a document of partition. I cannot accept this contention as the document nowhere states that the land is being partitioned amongst the residents of the Village. A perusal of Ex.PW-6/A shows that the land has been given for cultivation for a period of ten years. This question is, therefore, decided against the appellant. Both Courts below having thoroughly considered the evidence, I do not find any error of law requiring adjudication by this Court.

Questions No. 1 and 2:

These questions are taken up for discussion together. There is nothing on the record to establish that the provisions of Section 3(2)(a) of the H.P. Village Common Lands Vesting and Utilization Act, 1974 are attracted which would exclude vesting of rights/land in the State Government. There is no foundation laid for this claim nor is there any foundation to establish that the Punjab Village Common Lands Vesting (Regulation) Act, 1961 exempts the appellant from the liability of ejectment. Both these questions are, therefore, decided against the appellant.

Question No. 4:

There is nothing on the record to establish that the Collector or the Commissioner has erred in passing the orders of ejectment. The order Ex.PW-7/A passed by the Collector clearly stipulates that:

In case the allottee has constructed any house/cowshed before coming into force of the Act No. 18 of ___ upon the land leased, the allottee shall not be ejected from the house/cow shet as the case may be. The land upon which the house/cow shed has been built, tatima thereof shall be prepared for regularizing the lease to that extent. The tatima as for a possible shall be prepared only in respect of the land actually coming under the building. From the remaining land the allottee shall be ejected u/s 150 of the Himachal Pradesh Land Revenue Act.

This very direction has been affirmed by the Commissioner. The learned District Judge while dismissing the appeal has also affirmed this direction in the following terms:

...However, the plaintiff has been permitted to remain in possession of the constructed structure on the suit land by the Collector. As the plaintiff has failed to prove anything on record regarding his ownership over the suit land or the infirmity in the orders passed by the Collector and Divisional Commissioner, therefore, the point is answered accordingly.

This appeal is accordingly disposed of. A direction is issued that the plaintiff-appellant shall not be dispossessed from the suit land as directed by the Collector by his order dated 13.9.1977, Ex.DW-6/B as affirmed by the learned District Judge in the order in appeal. There shall be no order as to costs.