State of Himachal Pradesh vs Gian Singh

Tarlok Singh Chauhan, J.—The defendant has preferred this appeal against judgment and decree dated 7.1.2002 passed by learned Additional District Judge-II, Kangra at Dharamshala in Civil Appeal No. 23-D/2001 whereby he affirmed the judgment and decree dated 2.12.2000 passed by learned Sub Judge, 1st Class-II, Dharamshala, H.P. in RBT C.S. No. 285/99/95.

The facts, in brief, may be noticed. The plaintiffs/respondents filed a suit in representative capacity for declaration to the effect that the plaintiffs being Numbardars and Zamindars of Tehsil Nurpur, Jawali, Fatehpur and Indora, District Kangra are entitled to receive Haq Chuharam/Zare Chuharam i.e. 1/4th share of the price of trees received by the defendant by sale of trees standing on the shamlat forest land of the aforesaid Tehsils and for rendition of zare Chuharam 1/4th share of plaintiffs out of the money received by defendant by sale of trees standing on shamlat forest land of all mohals and tehsils other than reserved forests during the year 1975-76 to 1993-94 and for recovery of that amount of money equal to 1/4th share of total sale proceeds and income by sale of the trees payable to the plaintiffs as Lambardars of various Mohals in aforesaid tehsils.

It was averred that Lambardars and Zamindars of Tehsil Nurpur, Jawali, Fatehpur and Indora formed an Union on 12.5.1994 for pursuing their claims regarding their rights of Haq Chauharam/Zare Chuharam in the sale price of the trees situated in shamlat areas and resolution to this effect was passed by the Union on 12.5.1994. All the Lambardars and Zamindars in the aforesaid tehsils have share in the shamlat areas of these villages and there are Government forests in the villages of Tehsil Nurpur, Jawali, Indora and Fatehpur and the Government had been selling trees from these Government Forests situated in shamlat areas since time immemorial and the Government had been paying 1/4th share of the sale price realised by the Government which is termed as Haq Chuharam or Zare Chuharam of the plaintiffs or their predecessor-in-interest in their capacity as Lambardars and Zamindars and this right of the plaintiffs has always been admitted by the Government and this is a customary right of the plaintiffs which is recorded in the Wazib-ul-Arj of the forest settlement record. Similar rights are and were available to various Zamindars and Lambardars of District Hamirpur and their rights were also upheld by the Civil Court. It was averred that after the enforcement of H.P. Village Common Lands Vesting and Utilization, Act, 1974 (for short ''Act''), the H.P. Government stopped the payment of Haq Chuharam/Zare Chuharam to the plaintiffs and this denial of the defendant to pay the Haq Chuharan/Zare Chuharan to the plaintiffs was done in view of the letter dated 13.12.1976 issued by Deputy Secretary Forest to H.P. Government with endorsement dated 10.1.1977 which is clearly against law, equity, justice and is illegal, unjust and not binding upon the plaintiffs. The plaintiffs being Lambardars and Zamindars were still discharging such duties and obligations regularly as are described in the forest manual and the defendant has no right to stop the payment of Haq Chuharam/Zare Chuharam even after the enforcement of the Act. Earlier a Civil Writ Petition for establishment of their rights to receive Haq Chuharam/Zare Chuharam was filed in the High Court by the plaintiffs alongwith other Lambardar in the year 1980 and the said petition was decided on 27.8.1992 by a Division Bench of this Court in which it was held that proper remedy for the decision of the dispute was a Civil Court and it was also held that the time spent from the year 1980 to 27.8.1992 is to be excluded u/s 14 of the Act. Thereafter legal notice was issued to the defendant and since the defendant has not admitted the case of the plaintiffs despite requests, hence the suit. The plaintiffs also filed an application under Order 1 Rule 8 CPC for permission to institute the present suit in representative capacity and the said application was decided on 12.6.1995 through which permission to institute the suit in representative capacity was granted to the plaintiffs. Thereafter the persons whose names were mentioned in the list of Lambardar of Indira, Fatehpur, Jawali and Nurpur on whose behalf the plaintiffs sought permission to institute the suit in representative capacity were served through publication for 12.8.1996 but since none of them appeared in the Court and they were proceeded against ex parte.

The defendant/appellant resisted the suit by filing written statement in which preliminary objections of territorial jurisdiction, estoppel, limitation, cause of action, barred by res judicata, valuation, want of legal notice, bad for better particulars, maintainability, misjoinder and non-joinder of necessary parties and want of permission under Order 1 Rule 8 CPC were raised. On merits, it was admitted in reply to para No. 5 of the plaint that earlier the Government had been paying 1/4th share of the sale price realised by the Government which is termed as Haq Chuharam/Zare Chuharam to the plaintiffs or their predecessor-in-interest in their capacity as Lambardars and Zamindars by also admitting that the payment of Haq Chuharam was being made prior to the enforcement of the Act. It was also alleged that the said payment was stopped by H.P. Government vide letter dated 13.12.1976 as after the commencement of the Act, the Lambardars have lost their claim over such lands. It was further alleged that after vesting the Shamlat lands in the State of H.P. the forest lands are being protected through the Departmental Range Officers, Deputy Rangers and Forest Guards who are performing the all duties and since the Lambardars do not render help in protecting the forests as such the question of payment of Haq Chuharam of Lambardars after the commencement of the aforesaid Act does not arise as after the enforcement of the Act, Lambardars never protected the forests and forest land. The rest of the averments of the plaint were denied by the defendant for want of knowledge. The cause of action set up by the plaintiff was denied.

The plaintiffs filed replication controverting the averments raised in the written statement and reasserted those made in the plaint.

On 25.2.1997, the learned trial Court framed the following issues:

Whether the plaintiffs being Lambardars and Zamindars of Tehsil Nurpur are entitled to receive Haq Chuharam/Zare Chuharam i.e. 1/4th share of the price of trees received by the defendants by sale of trees on the shamlat forest land as alleged? OPP.

Whether the plaintiffs are entitled to rendition of accounts of Zare Chuharam of all mohals of Tehsil Nurpur, Jawali, Fatehpur, Indora of District Kangra other than reserved forests w.e.f. 1975 to 1994 as alleged? OPP

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

Whether the plaintiffs are estopped from filing the suit by their act and conduct? OPD

Whether the suit is barred by limitation ?OPD

Whether the plaintiffs have no cause of action to sue? OPD

Whether the suit is barred by principles of res judicata ?OPD

Whether the suit is not properly valued for the purposes of court fees and jurisdiction? OPD

Whether no valid notice U/S. 80 CPC has been served upon the defendant? OPD

Whether the suit is bad for want of better particulars? OPD

Whether the suit is not maintainable in the present form? OPD

Whether the suit is bad for misjoinder and non-joinder of necessary parties? OPD

Whether the suit is bad for want of permission U/O 1 Rule 8 CPC as alleged? OPD

Relief.

The learned trial Court on 2.12.2000 after recording the evidence and evaluating the same the suit filed by the plaintiffs was decreed as prayed for. Aggrieved by the judgment and decree dated 2.12.2000 passed by the learned trial Court, the defendant/appellant preferred an appeal before the learned trial Court, who vide his judgment and decree dated 7.1.2002 was pleased to affirm the judgment and decree passed by the learned trial Court.

Being aggrieved and dis-satisfied with the judgments and decrees passed by the learned Courts below, the defendant/appellant has filed the present appeal before this Court. On 15.5.2002 this Court was pleased to admit the appeal on the following substantial questions of law:

Whether the Court below has jurisdiction to entertain the suit of the plaintiff in view of the bar contained under H.P. Village Common Land and Vesting and Utilization Act, 1974?

Whether the learned Court below has rightly appreciated the provision of Sections 3 and 4 of the H.P. Village Common Land and Vesting and Utilization Act, 1974?

Whether misreading of document mark "X" by the learned Court has vitiated the findings as arrived by the learned Court below?

I have heard Mr. Virender Kumar Verma, learned Additional Advocate General for the appellant and Mr. Bhupender Gupta, Senior Advocate, assisted by Mr. Ajit Pal Singh Jaswal, Advocate, for the respondents and have also gone through the records carefully.

At the outset, it was pointed out by the learned Senior Counsel appearing for the respondents that the question involved in the present appeal are no longer res-integra and have infact been considered and decided in RSA No. 47 of 1999 decided on 24.7.2001 (Coram: R.L. Khurana, J, as his lordship then was), accordingly the file of RSA No. 47 of 1999 was summoned. In that case too like in the present case the appellant had lost in both the Courts below and the appeal had been admitted on two substantial questions of law which reads as follows:

Whether the respondent/plaintiff is entitled to 1/4 share of sale proceeds of forest produce/trees when the forest land has been vested with the State Government u/s 3 of H.P. Village Common Lands (Vesting and Utilization) Act, 1974, particularly when such vestment is free from all encumbrances?

Whether both the Courts below misinterpreted the documents particularly Ex. D-2 and as such the finding of both the courts is liable to be set-aside?

A perusal of substantial questions of law No. 1 to 3 in this appeal and questions of law No. 1 and 2 in RSA No. 47 of 1999 would show that they are virtually same. This position has not even been disputed by the learned Additional Advocate General.

Notably Mark ''X'' in this case is the letter dated 31.12.1976 which was exhibited as Ex. D-2 in RSA No. 47 of 1999. In RSA No. 47 of 1999 the questions of law No. 1 and 2 were answered in the following terms:

Question No. 1:

Section 3(1) of the H.P. Village Common Lands (Vesting and Utilization) Act, 1974 (for short the Act) provides:

Vesting of rights 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, interest, if any, of the landowner 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 Re-organisation Act, 1966 (31 of 1966) except lands used or reserved for the benefit of village community including streets, lanes, playgrounds, schools, drinking wells or ponds within abadi deh or garah deh;

(b) described in the revenue records as shamilat taraf, patties, pannas and thola 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 Re-organisation Act, 1966; (31 of 1966) and

(c) described in revenue records as shamilat, shamilat deh, shamilat taraf, shamilat 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.

Relying upon the said provision, it was contended on behalf of the defendant that since all Shamlat lands stand vested in the State free from all encumbrances and all rights, title and interests of the landowners including contingent interest, if any, in such land stood extinguished, therefore, the right of the plaintiff which he was having to receive the amount as "Haq Chuharam" out of the sale proceeds of the trees also stood extinguished.

There is no merit in the contention raised on behalf of the defendant. On the facts of the case, Section 3 of the Act has no application. The right of the plaintiff of "Haq Chuharam" was recognized in the Forest Settlement Record of Kangra Valley. The relevant para of such report which is quoted in para 12 of the judgment of the learned first Appellate Court, reads:-

The Government has given a four anna share in the income from all sales of trees to the proprietors and officials of villages, but this share implies no property in the trees. It is not a Malikana, but is a grant made to secure the cooperation and assistance of the village communities in the conservancy of the forests. The grant may be increased or diminished by the Government and it shall be divided in any way Government may think proper and it may be withdrawn at any time that the assistance is not duly rendered.

A bare reading of the above para shows that such right to "Haq Chuharam" was never confined to Shamlat land. It was also in respect of sale of trees from Government land. Therefore, the vesting of land in the Government under the Act would have no effect.

No doubt, a right has been reserved by the Government to withdraw the "Haq Chuharam" at any time. Nothing has been brought on the record to show the withdrawal of such "Haq Chuharam" by the State Government.

At this stage reference may be made to Ex. D-1 and D-2, on which much reliance has been placed by the defendant. Vide Ex. D-2, which is a copy of the letter dated 31.12.1976 from Deputy Secretary (Forests) to the Government of Himachal Pradesh to the Chief Conservator of Forests, Himachal Pradesh, it was conveyed as under:-

It has come to the notice of the Government that Khewatdari share of Haq-Chuharam as assessed by the Forest Department in respect of shamlat land now vested in the Government is still being paid to the Khewatdars through the Lambardars. It is considered that with the vestment of this land in the Government, the Khewatdars cannot claim any interest over such land. It has, therefore, been decided to stop the payments of Khewatdari share of Haq Chuharam forthwith till a policy decision of the Government in the matter is taken.

[Emphasis supplied].

A bare reading of the above letter shows that payment of the amount of "Haq Chuharam" to the Khewatdars (landowners was temporarily stopped pending a policy decision to be taken by the State Government.

Vide letter dated 10.7.1981 Ex. D-1, the Deputy Secretary (Forests) had directed the release of the amount of Haq-Chuharam upto the year 1973-74 to the Khewatdars and Lambardars. There is nothing in this letter that any policy decision had been taken by the State Government to withdraw the right to receive ''Haq-Chuharam'' after 1973-74. In fact no policy decision in the matter appears to have been taken by the State Government till date since no copy of such decision has come on the record.

The plaintiff is claiming his right to receive ''Haq Chuharam'' in his capacity of being the Lambardar and not as Khewatdars. Even if it be taken that the right to receive ''Haq Chuharam'' was stopped vide Ex. D-2, such right was stopped only in respect of the Khewatdars and not in respect of Lambardars. On this ground also Ex. D-2 cannot be pressed into service as against the plaintiff.

Therefore, till the right to receive ''Haq-Chuharam'' is withdrawn by the defendant, the two courts below have rightly held the plaintiff to be entitled to his share in the amount payable as ''Haq-Chuharam''." The question is answered accordingly.

Question No. 2:

For the reasons recorded while answering question No. 1 above, it cannot be said that the document Ex. D-2 has been mis-interpreted by the two Courts below.

Since the facts and substantial questions of law in this case are same and similar to those in RSA No. 47 of 1999, therefore, on the same analogy and reasoning, the substantial questions of law No. 1 to 3 are answered in negative and against the State.

The learned Additional Advocate General has then contended that since the appeal is being decided on the basis of RSA No. 47 of 1999, therefore, the question of limitation is also required to be determined in terms of the aforesaid judgment. He strenuously argued that the suit of the plaintiffs for rendition of account in respect of the period prior to 22.6.1992 was barred by time since the suit was admittedly filed on 21.6.1995. He further contended that the two Courts below have erred in decreeing the suit for rendition of account for the period 1980-81 till 1993-94.

Even this issue is squarely covered by the judgment in RSA No. 47 of 1999 wherein a similar question arose and the same have been answered in the following manner:

In decreeing the suit for the period 1980-81 to 1987-88, the learned trial Court has relied upon the decision of this Court rendered in CWP No. 33 of 1980 on 27.8.1992. The said writ petition was filed by various persons, that is, Lambardars and Khewatdars of various Halquas and Tikas for issuance of appropriate directions to the State Government for paying their "Haq Chauharam". Such writ petition was dismissed on the ground that complicated questions of law and fact were involved which could be properly adjudicated upon by a competent court of Civil jurisdiction, wherein the parties would be having full opportunity to adduce oral as well as documentary evidence. The Division Bench of this Court while dismissing the writ petition further recorded the concession of the State Government that if a Civil Suit is filed by the petitioners in the writ petition alongwith an application u/s 14 of the Limitation Act, 1963, claiming exclusion of time, the State would not oppose such application with respect to the exclusion of time during which the writ petition remained pending in this Court.

Be it stated that the present plaintiff was not one of the petitioners in the above said writ petition. Therefore, he was not entitled to the concession made therein by the State-defendant. Secondly, the suit out of which the present appeal has arisen was filed on 11.7.1988 much before the decision in the writ petition. The two Courts below, therefore, have erred in giving the benefit of the exclusion of time to the plaintiff.

Since the plaintiff was not entitled to the benefit of concession as recorded in the decision dated 27.8.1992, his suit for rendition of account of "Haq Chuharam" for the period prior to 11.7.1985, on the face of it is barred by time. The plaintiff is entitled to rendition of account only for the period after 11.7.1985 till the date of suit. The contrary findings of the two courts below are bad and liable to be set-aside.

Here also as per doctrine of precedence, I see no reason to take a different view. Even in this case admittedly the plaintiffs were not the petitioners in CWP No. 33 of 1980 and therefore, are not entitled to concession made by the State-defendant that in the event of the suit being filed, they would not oppose the claim on the ground of limitation. Therefore, the benefit of exclusion of time cannot be extended to the plaintiffs. Since the plaintiffs were not entitled to the benefit of concession as recorded in the decision dated 27.8.1992 passed in CWP No. 33 of 1980, this suit for rendition of account of "Haq-Chuharam" for the period anterior to 22.6.1992 on the face of it was barred by time. The plaintiffs were entitled to the rendition of account only for the period after 22.6.1992 till the date of suit. The contrary findings of the two Courts below are bad and liable to be set-aside.

As a result, the present appeal is partly allowed and the judgments and decrees of the two Courts below are modified to the extent indicated above. The suit of the plaintiffs for rendition of account of ''Haq-Chuharam'' is decreed for the period 22.6.1992 till the date of suit. The parties are left to bear their own costs.