Sk. Nek Ram and Others vs State of Himachal Pradesh

Bhawani Singh, J.—This appeal is directed against the judgment of District Judge, Solan, in Civil Appeal No. 4-S/13 of 1990, dated 2-1-1991 whereby the judgment of Senior Sub-Judge, Solan, in case No. 309/1 of 1986 dated 20-11-1969, has been confirmed.

Plaintiffs have filed a suit for declaration to the effect that they are joint owners of the land comprised in khewat No. 22, khatauni No. 50 to 58, Kitas 40, measuring 317-14 bighas, situated in village Shaluminna, Tehsil & District Solan, as per copy of Jamabandi for the year 1972, 73 and the land is separately possessed by the Plaintiffs at the spot as per their shares in the Khewat and mutation attested in favour of the Defendant behind the back of the Plaintiffs vide No. 288 and 289, dated 12-8-1975, is wrong, without jurisdiction and not binding on them.

The Plaintiffs have also stated that the land was never a shamlat land and could not vest in the State Government, so a decree of declaration is sought against this vestment and they also state that they have been paying the land revenue to the Defendant and the Defendant be restrained from interfering with their peaceful possession. In the alternative, it has been claimed that they have become owners of the suit land by adverse possession.

The Defendant has contested the claim of the Plaintiffs. It has been stated that the suit land had never been in the individual cultivation of the Plaintiffs It is banjar, had, (sic) etc and has rightly been vested in the Defendant and the mutation to that effect was sanctioned in an open Ajlas The suit is not maintainable nor the court has jurisdiction to try it. It has also been stated that no notice under SSO of the CPC was given to the Defendant before filing the present suit.

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

Whether the Plaintiffs are joint owners in separate and distinct possession of the suit land? OPP

Whether Mutation Nos. 288 and 289 dated 12-8-1975 showing Defendant as owner of the suit land are wrong and illegal and not binding on the Plaintiffs? OPP.

Whether legal and valid notice u/s 80, CPC has been served? OPP,

Whether this Court has no jurisdiction to try the suit? OPD.

4-A. Whether the Plaintiff has become owner of the suit land by adverse possession? OPP.

Relief.

The trial Court decided issue Nos. 1, 2 and 4-A against the Plaintiffs while issue No. 3 was decided in favour of the Plaintiffs and issue No. 4 against the Defendant. The suit was accordingly dismissed on 20-11-1989. This decision was challenged before the District Judge, however, without success, hence this appeal before this Court.

It was contended by the learned Counsel for the Plaintiffs that the revenue entries relating to this land are wrong The land has been in their possession since the time of their ancestors. It has been divided according to their respective shares. They have also constructed houses and other Structures over this land. Land revenue is being paid to the State for the lands in their possession. The revenue record describes this land as ''Shamlat Deh'' in the possession of ''Makbuje Malkan''. It is ''Gair mumkin khad, charand and path. Only a very small portion of this land has been shown under cultivation Plaintiffs have sought to prove their case through witnesses like Nek Ram (PW-1) Keshya Nand (PW-2), Jai Ram (PW-3) and Mohan Dutt (PW-4). However, their evidence is not exact nor similar. Nek Ram (PW-l) has said that in the land there are cultivated fields and fruit bearing trees. It is in their possession since the time of their ancestors. He has not said anything about the construction on it nor has he said which portion of the tend is in possession of which Plaintiff. Other witnesses have also not been able to describe the position of the land clearly. On this kind of evidence, it cannot be said that the Plaintiffs have succeeded in assailing the entries in the revenue record before the Courts below with the result that the decisions have gone against them.

However, Shri K.D. Sood, learned Counsel for the Appellants, submitted that the nature of the land is such that there is no vestment in the Defendant under the Himachal Pradesh Village Common Lands Vesting and Utilisation Act, 1974 and the Courts below have not correctly examined the matter under the provisions of this Act.

The Himachal Pradesh Village Common Lands Vesting and Utilisation Act, 1974 (hereinafter Common Lands Act) was passed with a view to provide for vesting and utilisation of village common lands in the State of Himachal Pradesh. Section 8 thereof envisages that the common lands vested in the State u/s 3 thereof should be utilised for grazing and other common purposes of the inhabitants of an estate as well as for allotment to a landless person or a person whose holding is less than one acre to make his holding one acre. Section 3 is as under:

Vesting of right in the State Government--(1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any agreement, instrument, custom or usage or any decree or order of any court or other authority, all rights, title and interests including the contingent interests, If any, of the land owner in the lands in any estate-

(a) vested in a Panchayat u/s 4 of the Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961) as in force in the areas added to Himachal Pradesh u/s 5 of the Punjab Reorganisation Act, 1966 (31 of 1966) except lands used or reserved for the benefit of village community including streets, lanes, playgrounds, schools, drinking water or ponds within abadi deh or garah deh:

(b) described in the revenue records as shamlat taraf, pattis, pannas andthola and not used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village in the areas added to Himachal Pradesh u/s 5 of the Punjab Reorganisation Act, 1966 (31 of 1966): and

(c) described in the revenue records as shamlat, shamlat deh, shamlat taraf. hamlat chak and patti in the areas comprised in Himachal Pradesh, immediately before first November, 1966;

shall stand extinguished and all such rights, title and interests shall vest in the State Government free from all encumbrances.

(2) The provisions of Sub-section (1) of this section shall not apply to lands described in Clauses (b) and (c) of that sub-section if, before the date of commencement of this Act-

(a) partition of such lands is made by the individual co-sharers through a process of law by a Competent Court or authority;

(b) transfer of such lands is made by the land owner by way of sale, gift or exchange;

(c) such land built upon by an Inhabitant by raising a residential house or cow-shed.

(3) The State Government shall be liable to pay, and the land owners whose rights have been extinguished under Sub-section (1) of this section shall be entitled to receive, the amount in lieu thereof, at the following rates-

(i) for the land reserved for grazing and other common purposes under Clause (a) of Sub-section (1) of Section 8, five times the annual land revenue including rates and cusses chargeable thereon; and

(ii) for the remaining land, fifteen times the annual land revenue including the rates and cesses chargeable thereon:

Provided that where the land vested In the State Government under this Act is not assessed to land revenue, the same shall be construed to be assessed as on similar land in the estate and if not available in the estate then in the adjoining estate or estates, as the case may be.

(4) The amount paid to a Panchayat u/s 7 shall be deemed to be the Sabha Fund and shall be utilised for such purposes as are mentioned in Section 40 of the Himachal Pradesh Panchayati Raj Act, 1968 (19 of 1970).

(5) The Collector may, by order in writing, at any time after the land vested in the State Government, direct the land owners to deliver possession thereof within 10 days from the service of the order to such person as may be specified in the order.

(6) If the land owners refuse or fail without reasonable cause to comply with the order made under Sub-section (5), the Collector may take possession of the land and may for that purpose use such force as may be necessary.

It is clear from this provision that vestment of the lands described therein is automatic and free from all encumbrances. Sub-section (2) of Section 3 creates an exception in case of certain lands described in Clauses (a), (b) and (c) thereof. Sub-section (3) provides for the payment of amount to the landowners whose rights are extinguished under Sub-section (1) in accordance with Clause (i) and (ii) thereof and where the land is not assessed to land revenue, the amount shall be assessed as on similar land in the estate and if not available in the estate, then in the adjoining estate or the estates as the case may be. The amount realised by the Panchayat shall form Sabha Fund and utilised for the purposes mentioned in Section 40 of the Himachal Psadesh Psnchayati Raj Act, 1968.

Under Sub-section (5) of Section 3, the Collector may, by an order in writing, at any time after the land vested in the State Government, direct the landowners to deliver possession thereof within 10 days from the service of the order to such person as may be specified in the order, and if the landowners refuse or fail without reasonable cause to comply with the order so made, the Collector has authority to take possession of the land by use of such force as may be necessary. The order of the Collector has been made appealable to the State Government or an officer authorised by it. The order of the Collector or the State Government or any officer authorised by the State Government has been kept beyond challenge except where it is otherwise expressly provided. Section 12 provides for procedure for all inquiries and proceedings under the Act while Section 13 empowers the State Government to make rules for carrying out the purposes of the Act.

u/s 13, the State Government has framed Rules known as the Himachal Pradesh Village Common Lands Vesting and Utilisation Rules, 1975 (hereinafter Common Land Rules). Rule 3 envisages that soon-after the commencement of the Village Common Lands Act, the Collector shall issue a notice under Sub-section (5) of Section 3 to the landowner to deliver possession of the shamlat land vested in the State Government under Sub-section (1) of the said section within 10 days from the receipt of the notice by him, and after the possession of the land is taken, mutation in favour of the State Government is to be recorded under Rule 4. The Collector shall cause a statement of such land prepared estate-wise in form ''A'' through the Tahsil Revenue Officer for the purposes of Section 8 of the Act Proviso to Sub-rule (2) of Rule 3 mentions that the allotment of land to the landless persons can be made before the completion of this form and the demarcation of the area earmarked for allotable pool after ensuring the minimum area for grazing and other common purposes of the inhabitants. Rule 9 envisages that if a dispute arises regarding entry of the land vested in the State Government, the Collector shall be competent to decide the same after a summary inquiry.

There is no evidence pointing out that the Collector has issued the notice under Sub-section (5) of Section 3 read with Rule 3. So, the Plaintiff''s filing or raising any objection to the entry of land in favour of the State did not arise. It is on account of this flaw that no order has been passed by the Collector. The Plaintiffs have a right to show that the entry of the land in favour of the State is wrong since the land is not liable to be vested or in case it is vested, they are entitled to exemption envisaged under Sub-Clause (2) of Section 3 etc. etc, See Gram Panchayat Ghaniara etc v. State Government ILR 1978 HP 225, later followed by a Single Judge in RSA No. 79/85, Dalip Singh and Ors. v. State of H.P. and Ors. connected matters.

la view of the aforesaid discussion, the appeal is allowed and the impugned judgment is set aside. The Defendant is restrained from interfering with the possession of the Plaintiffs over the suit land in any manner, otherwise than in accordance with law. The Defendant will be at liberty to initiate proceedings as contemplated under Sub-section (5) of Section 3 and serve notice thereof on the Plaintiffs who shall be at liberty to raise all such objections before the Collector which are available to them and point out whether the land has not vested and in case it is vested, whether some of it stands exempted under Sub-section (2) of Section 3. The Collector shall decide these contentions after hearing the Plaintiffs in accordance with law. Till then, relief by way of prohibitory injunction shall remain in operation.