Roop Kumari @ Kaushalya And Others vs State Of H.P

Satyen Vaidya, J

By way of instant petition, the petitioners have assailed order dated 08.09.2022, passed by learned District Judge, Solan in Civil Miscellaneous Appeal No.4-S/14 of 2022, whereby order dated 18.02.2022 passed by learned Senior Civil Judge, Kasauli, District Solan in CMA No.187/6 of 2020 in Civil Suit No.160/1 of 2020 has been affirmed and the application of the petitioners under order 39 rules 1 and 2 of the Code of Civil Procedure has been dismissed.

The petitioners are plaintiffs in Civil Suit No.160/1 of 2020 pending on the files of learned Senior Civil Judge, Kasauli, District Solan. Parties hereinafter shall be referred to by same status as they hold before the learned trial Court.

The plaintiffs have filed civil suit number 160/1 of 2020 seeking declaration that they are owners-in-possession of land comprised in Khata No.33, Khatauni No.43 min, Khasra No.433, measuring 158 Sq. meters in Mauja Nauti, Tehsil Kasauli, District Solan along with structure thereon (for short the, “Suit Property”). Mutation No.157 dated 07.03.1957 attested in favour of Nagar Panchayat and Mutation No.190 dated 08.07.1975 attested in favour of defendant are wrong, illegal, null and void and without jurisdiction. The entries in records of rights showing the defendant to be owner-in-possession of suit land are also wrong, illegal, null and void. Challenge has also been laid to order dated 08.03.2016, passed by Assistant Collector, 1st Grade (settlement), Kasauli in Case No.8/13 of 2015 ; order dated 10.06.2016 passed by Assistant Settlement Officer Solan in Appeal No.11 of 2016; order dated 30.05.2017 passed by learned Divisional Commissioner, Shimla in Revision Petition No.482/2016 and order dated 01.02.2020, passed by Financial Commissioner (Appeals) Himachal Pradesh in Revision Petition No.89 of 2019. A decree for permanent prohibitory injunction has also been prayed for to restrain the defendant from dispossessing the plaintiffs from the suit land on the basis of order dated 08.03.2016 passed by Assistant Collector 1st Grade (Settlement), Kasauli. In the alternative, it has been prayed that in case the defendant succeeds in demolishing or damaging the structure and dispossessing the plaintiffs forcibly and illegally, in that event, decree for mandatory injunction be also passed restoring the suit property to its original condition.

The case, as set up by the plaintiffs, is that the suit property and the other additional land measuring 174-10 bighas was ‘Shamlat Deh’ of the proprietors and it was in their possession as per revenue record for the year 1909-10. Kali Ram, the predecessor-in-interest of plaintiffs, had developed suit property in January 1950 by raising construction of a house and a cowshed. The said property remained in continuous possession of Kali Ram till his death and thereafter his son Mast Ram came to possess it. Mast Ram got electricity connection installed in the suit property in 1987. After the death of Mast Ram, the plaintiffs became owners-in-possession of the suit property and are in peaceful possession thereof.

The plaintiffs have alleged that the suit property was wrongly vested in the Nagar Panchayat under the Punjab Village Common Land (Regulation) Act, 1961 (for short, “the Punjab Act”) and subsequently in the State of Himachal Pradesh under the Himachal Pradesh Village Common Lands (Vesting and Utilization) Act, 1974 (for short, “the Himachal Act”). It is alleged that the suit land was recorded as ‘Hasab Rasad Jare Khewat’ and the predecessor-in-interest of plaintiffs had been paying land revenue for the same.

The plaintiffs have also challenged the legality of order of eviction passed by Assistant Collector 1st Grade (Settlement), Kasauli in proceedings under Section 163 of Himachal Pradesh Land Revenue Act as also the orders passed in appeal and revision by the Appellate and Revisional Authorities under the said Act. The plaintiffs have alleged that they had raised two prominent issues before the Assistant Collector 1st Grade (Settlement), Kasauli with respect to their title over the suit land including assertion of title by way of adverse possession, but the Assistant Collector 1st Grade (Settlement), Kasauli had failed to exercise jurisdiction vested in him under the H.P. Land Revenue Act. He had omitted to consider the existence of jurisdictional facts necessitating conversion into a Civil Court. This, according to the plaintiffs, is a serious breach of the principles of natural justice and fundamental rules of judicial procedure.

The defendant by way of written statement has raised various legal objections viz estoppel, limitation, cause of action, bar under Section 41(b) of Specific Relief Act and Section 171 of H.P. Land Revenue Act. On merits, the vestment of suit land in Nagar Panchayat under the Punjab Act and in the defendant under the Himachal Act has been sought to be defended being in accordance with law. It has been alleged that the plaintiffs or their predecessors had no right in any part of the suit land. The order passed by Assistant Collector 1st Grade (Settlement), Kasauli is also being defended. According to the defendant, the plaintiffs have been found as encroachers on the suit land and the order of eviction has been passed against them in accordance with law.

The plaintiffs also filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure along with the suit, and sought interim injunction restrain the defendant from dispossessing the plaintiffs from the suit property till final disposal of the suit.

The defendant contested the said application by filing reply.

Learned trial Court dismissed the application for interim injunction filed by the plaintiffs vide order dated 18.02.2022 by relying upon the entries in ‘Jambandis’ for the years 2002-03 and 2017-18 wherein the nature of the suit property was recorded as ‘Charand’. Learned trial Court held that since the presumption of truth was attached to the entries in records of rights, the plea of plaintiffs qua the possession on the suit property could not be entertained.

Further, learned trial Court also held that the order passed by Assistant Collector 1st Grade (Settlement), Kasauli in proceedings under Section 163 of H.P. Land Revenue Act as upheld by the appellate and revisional authorities, was in accordance with law as all the pleas raised by the plaintiffs had been considered and decided. In addition, the objection as to exclusion of jurisdiction of Civil Court in terms of Section 10 of Himachal Act and Section 171 of H.P. Land Revenue Act has also been upheld.

Lastly, learned trial Court formed an opinion on the basis of photographs of the suit property placed on record and observed that the building shown therein did not appear to be old.

The order passed by learned trial Court was assailed by the plaintiffs before learned District Judge, Solan by filing an appeal under Section 43(1)(r) of the Code. Learned District Judge has dismissed the appeal of the plaintiffs vide impugned order by holding that the plaintiffs have not been able to make out a prima facie case of violations of the Punjab Act and the Himachal Act. Learned District Judge has also disbelieved the plea of plaintiffs with respect to possession over suit property by placing reliance on the entries in the records of rights.

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

Learned District Judge has found it inappropriate to adjudicate upon the issue of jurisdiction of Civil Court at the initial stage of the suit. The finding to this effect cannot be faulted for the reason that issue in this behalf will involve mixed questions of facts and law. Even otherwise, order dated 08.03.2016, passed by the Assistant Collector 1st Grade (Settlement), Kasauli does not reveal the consideration of the pleas as raised by the plaintiffs. Reply filed by the plaintiffs to the show cause notice issued by Assistant Collector 1st Grade (Settlement), Kasauli clearly reveals that plaintiffs had set up title of the suit property in themselves. According to defendants the suit property was exempted from vestment under the Himachal Act and in alternative they had perfected the title by way of adverse possession.

Noticeably, in paragraph-2 of the written statement on merits, the defendant has clearly averred that the plaintiffs have encroached upon the suit land by making unauthorized construction. Even in eviction proceedings under Section 163 of the H.P. Land Revenue Act against the plaintiffs, it was not in dispute that the suit land had the structure thereon.

Thus, the question is whether such structure was in existence prior to vestment of the suit property under Punjab Act or Himachal Act?

Both learned Courts have placed reliance on the entries in the records of rights to hold that no construction was recorded therein and hence in view of presumption of truth attached to said entries, the plaintiffs were not entitled to the relief.

In my considered view, learned trial Court as also learned appellate Court have erred in denying the relief of interim injunction to plaintiffs solely and primarily on the basis of entries in records of rights. The records of rights are maintained to reveal updated factual position qua the title, possession and nature etc. of the land. The admitted position is that the house of plaintiffs exists on the suit property. This fact itself was sufficient to infer that whatever was recorded in the records of rights was not wholly correct. The entries in the records of rights carry presumption of truth, which is a rebuttable. The onus to rebut such presumption is on the plaintiffs for which the plaintiffs shall have due opportunity during the course of trial of suit.

Further, learned District Judge while discussing the provisions of Punjab and Himachal Acts had taken notice of the fact that there were certain categories of lands which were exempted from vestment under both the Acts. Under Section 3(2)(c) of Himachal Act, there is an exemption from vestment of the land in the State, if construction of residential house was there before vestment. The question whether house of the plaintiffs stood constructed before the vestment can be decided on the basis of evidence that shall be led by the parties in the suit. Merely on the basis of revenue entries or the photographs, the age of the building could not be ascertained. The defendant had also not placed on record any material to show that the house of the plaintiffs on the suit land was constructed after coming into force of Himachal Act.

Thus, the impugned orders need interference as these are found lacking in consideration of relevant parameters. The fact that the house of the plaintiffs exists on the suit land and there being no conclusive material on record to show that it was constructed after the vestment of the suit property in the State was sufficient to hold existence of prima facie case in favour of the plaintiffs. Without affording the plaintiffs to prove their stand, denial the interim injunction would mean that plaintiffs would be open to dispossession from their house which eventually face the demolition. Thus, balance of convenience is also in favour of the plaintiffs. Further, in case they are divested from residential property during the pendency of suit, it will not be possible to compensate plaintiffs in terms of money. On the other hand, in case the plaintiffs are not able to prove their case, they can still be dispossessed from the suit property and further the defendant can be compensated by awarding damages against plaintiffs.

In light of above discussion, the petition is allowed. Order dated 08.09.2022, passed by learned District Judge, Solan in Civil Miscellaneous Appeal No.4-S/14 of 2022 and order dated 18.02.2022 passed by learned Senior Civil Judge, Kasauli, District Solan in CMA No.187/6 of 2020 in Civil Suit No.160/1 of 2020 are set aside. The application of the plaintiffs under Order 39 Rules 1 and 2 of the Code is allowed to the extent that the defendant will not dispossess the plaintiffs from house and kitchen standing constructed in Khasra No.433 (suit land) till the pendency of the suit subject to the condition that the plaintiffs shall furnish a security bond in the sum of Rs.5,00,000/- to the satisfaction of learned trial Court, within a period of eight weeks from the date of passing of this judgment, for securing the right of defendant to be suitably compensated in the event of suit of plaintiff being dismissed.

The petition is accordingly disposed of along with pending application(s), if any.