Subhash Sharma vs State of H.P.

Dharam Chand Chaudhary, J.—1. Challenge herein is to the judgment and decree dated 2.6.2004 passed by learned District Judge, Kangra at Dharamshala in Civil Appeal No. 105-N/XIII-2003, whereby the appeal has been dismissed and the judgment and decree passed by learned trial Court is affirmed.

The subject matter of dispute in the present lis is the land entered in Khata No. 192min, Khatauni No. 390min, Khasra No. 1211, measuring 0-29-98 Hectares, situated in Mauza Talara, Tehsil Nurpur, District Kangra, H.P. In a nut-shell, the case of the appellant-plaintiff is that the suit land is ''Shamlat''. The further case of the appellant-plaintiff is that his father deceased Mangat Ram was inducted as tenant over the suit land by Gram Panchayat, Talara on payment of rent in the form of ''Chakota'', therefore, by virtue of the operation of law i.e. H.P. Tenancy and Land Reforms Act, he acquired proprietary rights in the suit land and became owner thereof. The Collector under the Himachal Pradesh Village Common Land Vesting and Utilization Act, 1974 has, however, wrongly attested the mutation of the suit land in favour of respondent-defendant/State. The plaintiff, therefore, has been sought to be declared owner in possession of the suit land and the entries showing the defendant in possession thereof and attestation of mutation in his favour to be illegal, null and void and do not confer any right, title and interest in respect of the suit land upon him. Additionally, a decree for permanent prohibitory injunction restraining the defendant from causing any interference in the suit land or allotting the same to landless person(s) has also been sought.

In the written statement filed on behalf of the defendant-State, its response is that the suit land prior to coming into being the Act was in the ownership and possession of Gram Panchayat, Talara. The same in the year 1975 has vested in the defendant-State as per provisions contained under Section 3 of the Act. The jurisdiction of the Civil Court is barred under Section 10 of the Act. The mutation of the land is stated to be rightly attested and sanctioned in favour of the defendant-State.

On the pleadings of the parties following issues were framed:

"1. Whether the plaintiff has become the owner in possession of the suit land, under the H.P. Tenancy and Land Reforms Act, as alleged?

....OPP

If issue number 1 is proved in affirmative, whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as prayed for?

....OPP.

Whether this Court has no jurisdiction? OPD.

Whether the suit is not maintainable? OPD.

Relief."

In the suit, the parties on both sides have produced the evidence oral as well as documentary. Learned trial Court on appreciation of the evidence available on record has arrived at a conclusion that no case for grant of relief sought in the plaint is made out and has, therefore, dismissed the suit. Learned lower appellate Court in an appeal has affirmed the judgment and decree passed by the trial Court and dismissed the appeal.

The legality and validity of the judgment and decree under challenge has been assailed on the grounds inter-alia that the evidence available on record has not been appreciated in its right perspective. The evidence as has come on record by way of testimony of PW-3 Rakshpal and PW-4 Dulo Ram, the Secretary and Kanungo (Retired), respectively is stated to be ignored. The receipts Ext. P-1 and Ext. P-2 are also stated to be wrongly ignored. The inquiry envisaged under Rule 9 of the Rules framed under the Act has also not been conducted before passing the order qua vestment of the land in the defendant-State.

The appeal has been admitted on the substantial questions of law No. 2 and 3 formulated at page No. 5 of the paper book which reads as follows:

"2. When from the Panchayat record the receipts of rent Exhibit:P1 and P2 have been proved by PW3 and PW4, whether the plaintiff is required to prove the resolution of the Panchayat regarding the allotment of the land?

Whether the plaintiff is not entitled to the protection of law from the allotment of land in dispute to any other person when he is paying the rent for the same under receipts?"

Mr. R.K. Sharma, learned Senior Counsel assisted by Ms. Charu, Advocate while drawing the attention of this Court to the evidence, particularly receipts Ext. P-1 and P-2 has vehemently argued that both Courts below have erred legally and also factually while dismissing the suit. It is canvassed that no inquiry as envisaged under rule 9 of the Act has been conducted by the Collector at the time of taking a decision qua vestment of the suit land in defendant-State. The evidence as has come on record by way of own testimony of the plaintiff and that of PW-2 Niku Ram, the Vice-President of Gram Panchayat, Talara has not been taken into consideration. Therefore, according to Mr. Sharma, the judgment and decree under challenge is not legally sustainable.

On the other hand, Mr. D.S. Nainta, learned Additional Advocate General has pointed out from the record that both Courts below have not committed any illegality or irregularity while dismissing the suit, as according to Mr. Nainta, the evidence has not been misread and rather appreciated in its right perspective.

As noticed hereinabove, the legal question to be adjudicated upon in this appeal is that irrespective of the plaintiff having proved that his father was inducted as tenant with the help of documentary evidence viz. the receipts Ext. P-1 and P-2, he was still required to prove that deceased Mangat Ram was inducted as tenant by Gram Panchayat through a resolution and also that payment of rent in the form of ''Chakota'' protects the appellant-plaintiff from any action of the defendant to allot the land to any third person.

The appeal, however, has not been admitted on the question of vestment of the suit land in the defendant-State in violation of Rule 9 of the Act, therefore, the arguments addressed on behalf of plaintiff that no inquiry was conducted by the Collector under Rule 9 of the Act, are hardly of any help to the case of the appellant-plaintiff. Otherwise also, had there been any violation of the Rules or any provisions contained under the Act on the part of the Collector while taking a decision of vestment of suit land in favour of the defendant-State, the same should have been agitated before the appropriate forum under the Act itself. It is also pertinent to note that in the plaint, no pleadings that there is violation of Rule 9 of the Act find mentioned. Therefore, raising an objection in this regard in the grounds of appeal for the first time, cannot be entertained and warrant any findings and it is for this reason, no question qua this aspect has been framed at the time of admission of the appeal.

Now, if coming to the substantial questions of law, the plaintiff claims himself to be owner in possession of the suit land. He has based his claim on the receipts Ext. P-1 and P-2. The receipts on the face of it no-where suggest that the same pertains to the payment of ''Chakota'' (rent) on account of suit land being given in tenancy to his father late Sh. Mangat Ram. Ext. P-1 pertains to imposition of fine in a case on said Sh. Mangat Ram. Ext. P-2 also pertains to imposition of fine. This document, however, speaks about the fine in connection with ''Chakota'' of ''Shamlat'' land. It is, however, the suit land alone to which these documents pertain and no opinion can be formed in this regard. Learned District Judge, therefore, has rightly discarded the evidence so produced by the appellant-plaintiff. Above all, as per own admission of the plaintiff, the Gram Panchayat could have given ''Shamlat'' land on tenancy through a resolution. Such resolution has not been produced. Otherwise also, had the plaintiff been inducted as tenant in the year 1966 over the suit land, he would have shown in possession thereof in the revenue record. No such record has also been produced. True it is that order of the Settlement Officer, Ext. P-3 speaks about the old possession of the plaintiff, however, again of no help to the plaintiff''s case for the reason firstly, the Settlement Officer has refused to order the correction of revenue entries qua the suit land for the reason that the plaintiff should have filed an appeal against the vestment of the same in defendant-State and secondly, there is no record available to show that suit land was recorded in possession of the plaintiff in the shape of orchard on the spot.

Now, if coming to the documentary evidence in the form of Jamabandis and khasra girdawaris Ext. D-1 to Ext. D-9 produced by the defendant, it is the defendant-State, which has been shown to be the owner of the suit land and right holders in possession thereof. The suit land has been shown as ''Charagah Darakhtan'' and not cultivable or orchard.

On re-appraisal of the evidence available on record and also taking into consideration the rival submissions, the only conclusion, therefore, is that both Courts below have not committed any illegality or irregularity in dismissing the suit. The judgment and decree under challenge in this appeal, therefore, calls for no interference. Both substantial questions of law are answered accordingly.

In view of what has been said hereinabove, this appeal fails and the same is accordingly dismissed. No orders so as to costs.