Lalman (dead) through Kuldeep Chand vs The State of Himachal Pradesh and Others

Justice Sanjay Karol, Judge

This is the plaintiff''s Regular Second Appeal, filed u/s 100 of the Code of Civil Procedure, arising out of concurrent findings of fact recorded by the Courts below. Appeal was admitted on the following substantial question of law:

"Whether the court below have misconstrued the provisions of law particularly Rule-27-A & Rule-28 of HP Nautor Land Rules, 1968?"

Plaintiff Lalman was made grant of the suit land by the Deputy Commissioner, Bilaspur on 1st August, 1984. This was so done under the provisions of Himachal Pradesh Nautor Land Rules, 1968. The same was assailed by the contesting defendants, on the ground that they were already in possession with respect to 8 biswas of suit land and consequently no order of grant, in law, could have been passed in favour of the plaintiff. On 12th March, 1986, Divisional Commissioner set aside this order of grant. Significantly, order with respect to only 8 biswas of land was set aside but grant with respect of 2 biswas of land, out of 10 biswas, was upheld. Plaintiff assailed the order passed by the Divisional Commissioner before the Financial Commissioner, who vide order dated 17th May, 1986 dismissed the appeal, upholding the findings rendered by the Divisional Commissioner.

Not letting the matter rest there, plaintiff initiated proceedings by filing Civil Suit for declaration and permanent injunction, claiming himself to be owner in possession of the entire land so allotted to him, in terms of the grant so made by the Deputy Commissioner. The said suit was instituted on 7th November, 1986. Defendants opposed the same inter alia on the ground that they are in possession with respect to 8 biswas of land.

Based on the pleadings of the parties, following issues were framed by the trial Court:

Whether the plaintiff is owner in possession over the suit land as alleged? OPP

Whether the order dated 12.3.1986 of Divisional Commissioner and order dt. 17.5.1986 of the Financial Commissioner are wrong and illegal as alleged? OPP

Whether the plaintiff is entitled for possession if proved to be dispossessed during the pendency of the suit over the suit land as alleged? OPP

Whether the defendants are interfering over the suit land as alleged? OPP

Whether the suit is not maintainable as alleged? OPD

Whether no legal notice has been served as alleged? OPD

Whether the suit is not properly valued as alleged? OPD

Whether the plaintiff is estopped to file the suit as alleged? OPD

Whether the suit is bad for non-joinder of necessary parties as alleged? OPD

Whether the suit is barred by limitation as alleged? OPD

Whether this Court has no jurisdiction as alleged? OPD

Relief.

Suit was dismissed by Sub Judge 1st Class, Ghumarwin, District Bilaspur, in terms of judgment and decree dated 25th March, 1992, passed in Case No. 248-1 of 1986, titled as Sh. Lalman Dass versus The State of Himachal Pradesh and others. Findings of fact, judgment and decree stand affirmed by District Judge, Bilaspur, in terms of judgment and decree dated 19th June, 1999, passed in Civil Appeal No. 58 of 1992, titeld as Shri Lalman versus the State of Himachal Pradesh and others.

Having heard learned counsel for the parties and perused the record, I am of the considered view that in the instant appeal no question of law arises for consideration at all. Courts below have correctly construed the provisions of Rules 27-A and 28 of the Himachal Pradesh Nautor Land Rules, 1968, which specifically provide that an appeal, against an order of Commissioner shall lie to the Financial Commissioner.

With approval, the findings rendered by the lower Appellate Court, with regard to the correct interpretation and construction of provisions of the Rules, are extracted herein below:

In order to appreciate the arguments aforesaid of the learned advocate for the plaintiff-appellant, it is essential to reproduce the provisions of Rule 28 supra. Rule 28 ibid reads:

An appeal from the order of the S.D.O. (C) under rule 16 shall lie to the Deputy Commissioner within 60 days from the date of the order. A further appeal from the appellate order of the Deputy Commissioner shall lie to the Commissioner within 60 days from the date of the order.

In the case of original grant made by the Deputy Commissioner, an appeal from his order shall lie to the Commissioner within 60 days from the date of order and a second appeal to the Financial Commissioner within 90 days from the date of order.

Provided that no second appeal shall lie when the original order is confirmed on first appeal.

There is no dispute to the effect that the Nautor grant, in question, has been made under rule 27-A of the H.P. Nautor Land rules, 1968. Now, the question arises as to whether the provision of Rule 28 supra applies to the case in hand or not. It would be evident from the provision of Rule 28 supra that in-so-far as the first part of the said rule is concerned, the same applies only to the grants made under Rule 16 of the H.P. Nautor Land Rules. As regards the second part of Rule 28, though the learned advocate for the plaintiff-appellant has contended that this part also applies only to the grants made under Rule 16, but, for two reasons, I am of the view that this provision applies to all original grants made by the Deputy Commissioner under the H.P. Nautor Land Rules. The first reason is that it is not specifically mentioned in the H.P. Nautor Land Rules that no appeal shall lie against the order passed under Rule 27-A by the Deputy Commissioner. The second reason is that it is not mentioned in second part aforesaid of Rule 28 that it applies only to grants made under Rule 16. Apart from this, there is no separate provision for appeals in the said rules. Therefore, for the reasons, I am of the view that appeal lies to the Divisional Commissioner against the order of Deputy Commissioner passed under Rule 27-A of H.P. Nautor Land Rules and further appeal from the order of Divisional Commissioner also lies to the Financial Commissioner. As such, I am of the view that the impugned order dated 12.3.1986 passed by the Divisional Commissioner and order dated 17.5.1986 passed by the Financial Commissioner are legal and valid. Therefore, I hold that the plaintiff-appellant has failed to prove this point. Accordingly, this point is decided against the appellant.

I further find that there is no error in the order dated 12th March, 1986 passed by the Divisional Commissioner, who found the defendants to be in possession with respect to 8 biswas of land, which fact was also found to be correct by the trial Court. Consequently, the appeal being devoid of merit is dismissed.

Pending application(s), if any, also stand disposed of.