State of Himachal Pradesh vs Ruldu Ram L.Rs.

Surinder Singh, J.—The present Regular Second Appeal was admitted by this Court on 3.11.2000 on the following substantial question of law:

Whether the suit of the plaintiff was within limitation?

Whether the Civil Court has jurisdiction to entertain and try the suit?

In view of the admission of the plaintiff that he has been dispossessed from the suit land, whether the suit for injunction was maintainable in respect of the suit land?

That the misreading of documentary as well as oral evidence itself amounts to substantial questions of law?

State has lost before both the Courts below.

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

Respondent No. 1 Ruldu Ram (since deceased) hereinafter referred to as "the plaintiff" had filed a suit against the State and also the President of the Gram Panchayat for declaring the order of Deputy Commissioner qua setting aside the order of Sub Divisional Collector whereby the suit land measuring 1 bigha 2 biswas allotted to him was cancelled. The case of the plaintiff had been that since 1979 he was in possession of the suit land. He being landless, reclaimed it and spent a considerable amount and raised an orchard. On 2.2.1982 Patwari Halqua filed a case for encroachment against him and the Assistant Collector passed order of ejectment on 4.3.1983 which was challenged in appeal before the Sub Divisional Collector by the plaintiff. While disposing of the appeal, finding plaintiff an eligible person, vide order dated 21.9.1985 made grant of suit land under the Special Nautor Scheme 1975 known as "HP Grant of Nautor Land to Landless and other Eligible persons Scheme 1975" He also paid najrana, and remained in peaceful possession for two years. Thereafter defendant No. 2 President of the Panchayat challenged it in revision petition before the Deputy Commissioner, who vide order dated 18.11.1988 cancelled the grant which has been challenged in suit being illegal and void and without jurisdiction and of no consequence upon his rights and also sought injunction from dispossessing him from the suit land. He also filed application u/s 80(2) of the CPC seeking permission of the Court to issue injunction without serving statutory notice which was allowed.

Defendants in their written statements defended the impugned order of the Deputy Commissioner on the ground that the suit land was required for the play ground for the school and plaintiff was resident of Mandi. He was not covered under the Scheme aforesaid and also took up the preliminary objections of estoppel, non-joinder of necessary parties, no cause of action, jurisdiction of the Civil Court to determine the suit and locus standi of the plaintiff to file the suit.

Issues No. 1 and 2 were decided in favour of the plaintiff as such the suit of the plaintiff was decreed which was challenged by the State in appeal before the learned District Judge. The learned District Judge framed following points for its determination:-

(i) Whether the suit of the plaintiff is barred by limitation and such a plea can be raised in the appeal for the first time?

(ii) Whether the Civil Court''s jurisdiction to try the suit is barred, as alleged?

(iii) Whether the learned trial Court has fallen in error in holding that the order dated 18.11.1988 of the Deputy Commissioner regarding cancellation of the grant of suit land in favour of the plaintiff is illegal and without jurisdiction?

(iv) Whether the trial Court did not give sufficient opportunity to the appellant to produce its evidence?

All the points were answered in negative and the State appeal was dismissed. While dealing with point No. 1, the first appellate Court did not find that the suit was barred by limitation. While answering point No. 3 the learned first appellate Court held that the Deputy Commissioner did not have the jurisdiction to exercise revisional jurisdiction and to cancel the allotment. The order of grant can only be cancelled in exercise of the revisional powers if it is found that person to whom the land has been granted was not entitled or eligible for allotment or the allotment was wrong on any other ground. Further, the impugned order was wrong and illegal therefore, Civil Court has jurisdiction.

The plaintiff is in fact a resident of District Mandi and Para 5 of the Scheme provides that any person ordinarily residing in any revenue estate of the State of Himachal Pradesh, who is landless, within the meaning of Para-2 (a) of the Scheme, is eligible for grant of nautor land under the Scheme. Plaintiff stated that he is residing in the revenue estate in which the suit land is situated since 1972. PW3 and PW4 supported his version which was not challenged by the defendants, thus it cannot be said that he was not ordinarily residing in the revenue estate at the time when the grant was made in his favour. While examining the contention raised that the grant was wrong and illegal, the learned first appellate Court took into consideration Para 9 (a) of the Scheme whereby the grant can only be revoked if it is found that the person in whose favour it was made, was not entitled or eligible for allotment or the allotment was wrong on any other ground. But there was nothing on record showing that the grant made in favour of the plaintiff was wrong on any other ground.

Further, as per the Scheme, a grant can be said to be wrong on the ground other than ineligibility of the grantee only if he does not conform to the provisions of the Scheme. The Scheme provides that the piece of land cannot be granted to the eligible or entitled persons, on which more than 40 trees of valuable species are grown, which is not the case of the plaintiff. The only ground is that the suit land was earmarked for play ground for which the money was sanctioned, is not a ground which falls within the ambit of the Scheme for its cancellation. It was rightly held that the grant can only be declared wrong within the meaning of Para 9 (a) of the Scheme if the allotment is shown to be violative or contrary to the provisions of the Scheme. Since there are concurrent findings of facts I do not find any mis-appreciation and misinterpretation of oral as well as documentary evidence on record. The stand of the plaintiff is quite consistent that he has been in possession of the suit land that is why proceedings against him were initiated u/s 163 by the Revenue Authorities and Sub Divisional Collector had accepted his plea being a landless person and set aside the impugned order of ejectment and the grant was made in his favour which was challenged before the Deputy Commissioner by defendant No. 2. Since the impugned order of Deputy Commissioner is wrong and illegal therefore, Civil Court has jurisdiction to try and entertain the suit and the plaintiff had been in possession of the suit land. Therefore, it was recurring cause of action. The question of limitation does not arise at all also for the reason that impugned order is wrong and illegal. For the afore-stated reasons, the State appeal fails and is accordingly dismissed. The substantial questions of law are accordingly answered.