Kamla Devi vs State of H.P.

Surjit Singh, Judge

Eviction proceedings, u/s 163 of the Himachal Pradesh Land Revenue Act, were instituted against the present petitioner, in respect of certain property, which is being recorded in the ownership and possession of the State of Himachal Pradesh since 1979-80. The proceedings were initiated in the year 2000. Order of ejectment was passed. Appeals and revisions against that order were carried upto the Financial Commissioner, by the petitioner, but without success. Petitioner then filed a suit, in the Court of Civil Judge, seeking a decree of declaration that she had become owner by adverse possession and also seeking issuance of permanent prohibitory injunction, restraining the respondent from interfering in her possession. She claimed that the suit land had been in her possession since the time of her predecessor Mohan Singh, who came to possess the property, for the first time, sometime in the year 1959-60, as per entry in the Jamabandi, which entry continued upto 1974-75.

Petitioner also filed an application, under Order 39 Rules 1 & 2 of the Code of Civil Procedure, seeking issuance of temporary injunction, restraining the respondent from disturbing her alleged possession, during the pendency of the suit. That application was dismissed by the trial Court, vide order Annexure P-2. Appeal was filed against that order before learned District Judge. That appeal has also been dismissed vide order Annexure P-1. Petitioner has challenged the orders of the trial Court as also the appellate Court, by means of the present petition, under Article 227 of the Constitution of India.

I have heard learned counsel for the parties and gone through the record.

Admittedly, Mohinder Singh, the predecessor of the present petitioner, was being shown in possession of the property, in question, in the Jamabandis upto 1974-75. However, thereafter it was the State which was being recorded as owner in possession of the suit land. Encroachment proceedings were initiated against the petitioner in the year 2000. Petitioner''s counsel submits that the fact that encroachment proceedings were taken out against the petitioner in the year 2000, suggests that she had been continuing in possession of the property since the time of her predecessor Mohinder Singh.

In view of the entries in the jamabandis for 1979-80 and 1996-97 (to which presumption of truth attaches), indicating that it is the State, which had been in possession of the suit land as owner, no weightage can be given to the submission of the learned counsel for the petitioner, at least for the purpose of deciding application, under Order 39 Rules 1 & 2 of the Code of Civil Procedure. The fact that ejectment proceedings were initiated in the year 2000, suggests that encroachment had been made in or around the year 2000. In any case, this question is required to be gone into by the trial Court, during the course of trial. Since there is no material on record, indicating that the petitioner had perfected her title by adverse possession, as claimed by her and there is an order of ejectment against her, passed in the proceedings taken out in the year 2000, no fault can be found with the orders of the two Courts below, rejecting the petition of the petitioner, for grant of temporary injunction. Therefore, the petition is dismissed.

Pending application also stands disposed of.