Sukh Dev vs State of H.P.

Rajiv Sharma, J.—These two appeals are directed against the common judgment and decree dated 8.5.2003, rendered by the learned District Judge, Bilaspur in Civil Appeal Nos. 78 of 1995 and 88 of 1995.

Key facts, necessary for the adjudication of these appeals are that the appellant-plaintiff (hereinafter referred to as the plaintiff, for the convenience sake) has filed a suit for declaration and also for permanent prohibitory injunction with the averments that he was owner-in-possession of land measuring 13 biswas comprised in Khasra No. 126/123 Khata Khatoni No. 37/37, situated in Village Kaliari, Pargana Tiun, Tehsil Ghumarwin, Distt. Bilaspur, H.P. He applied for the grant of nautor land. It was allotted to him by the Deputy Commissioner, Bilaspur, on 2.11.1977. The mutation was also attested in his favour on 29.3.1978. He cultivated the land and constructed a cowshed upon the said land. He also planted fruit bearing trees. He spent Rs. 13,000/- towards its improvement over the land.

The defendant, Sh. Gulabu Ram filed an appeal against the order dated 29.5.1974 passed by the Deputy Commissioner, whereby his application for grant of suit land was rejected by the Deputy Commissioner. The Divisional Commissioner, rejected the same on 14.9.1984. He filed the petition before the Financial Commissioner. He accepted the same on 8.3.1985. The order of the Deputy Commissioner dated 2.11.1977, whereby the land was allotted to the plaintiff, was set aside. The matter was remanded back to the Deputy Commissioner. The Deputy Commissioner passed the fresh orders on 28.3.1987. He preferred an appeal against the order dated 28.3.1987 before the Divisional Commissioner. The appeal was withdrawn on 29.1.1988.

Written Statement was filed on behalf of Gulabu. According to him, he submitted an application for the allotment of land on 14.8.1972. It was rejected by the Deputy Commissioner. His appeal before the Divisional Commissioner was also rejected. He then approached the Financial Commissioner. However, he admitted in his written statement that he had applied for 5.14 bighas of nautor land. The possession was given to him in the same year. When he came to know that the suit land has been allotted in favour of the plaintiff, he applied for the same since the land was surrounding his holding.

The defendant-State also filed the written statement. According to the written statement filed by the defendant-State, the plaintiff had dishonestly colluded with the field revenue officials to grab suit land illegally. The Patwari had prepared an extra-ordinary tatima of the suit land. The Deputy Commissioner, Bilaspur has not considered the objection raised by SDO (C), Ghumarwin.

The issues were framed by the learned Sub Judge (Ist Class) on 15.3.1991. The learned Sub Judge (Ist Class), partly decreed the suit. He passed the decree for compensation of Rs. 13,000/- in favour of the plaintiff and against the defendant-State.

The defendant-State filed Civil Appeal No. 78 of 1995 against the judgment dated 28.3.1995. The plaintiff also filed and appeal against the judgment dated 28.3.1995 bearing Civil Appeal No. 88 of 1995. The learned District Judge, Bilaspur, allowed Civil Appeal No. 78 of 1995 and Civil Appeal bearing No. 88 of 1995 filed by the plaintiff, was dismissed. Hence, these present appeals.

RSA No. 336 of 2003 preferred against Civil Appeal No. 78 of 1995 was admitted on the following substantial question of law on 22.5.2004:

"1. Whether the Collector by granting Nautor to respondent Gulaba exceeded in his jurisdiction and exercised the jurisdiction not vested in him?"

RSA No. 337 of 2003, preferred against the judgment and decree dated 8.5.2003 in Civil Appeal No. 88 of 1995 of the learned District Judge, Bilaspur, was admitted on 22.5.2004. It was ordered to be tagged with RSA No. 336 of 2003 on 22.5.2004. The Regular Second Appeal ought to have been admitted on substantial questions of law. However, now, the same would be deemed to have been admitted on the substantials question of law already framed.

I have heard the learned Advocates for the parties and Mr. Neeraj K. Sharma, learned Dy. Advocate General for the State and gone through the judgment(s) and decree(s) on record carefully.

Surprisingly, both the Courts'' below have not taken into consideration the oral evidence led by the parties. It was the duty of both the Courts'' below to go through the ocular as well as documentary evidence in depth.

The plaintiff has appeared as PW-1. According to him, the suit land measuring 13 biswas was allotted to him on 2.11.1977. He was put in possession on 29.3.1978. He has planted fruit bearing trees on the same. He has spent Rs. 14,000/- towards the development of the land. The land of the defendant adjoins the suit land. The defendant had filed an appeal before the Divisional Commissioner. He was not made party. Thereafter, he approached the Financial Commissioner. He was again not arrayed as party. He came to know about the order passed by the Financial Commissioner when the proceedings were pending before the Deputy Commissioner. The entire land was granted in favour of the objector by the Deputy Commissioner on 28.3.1987. He filed an appeal before the Divisional Commissioner. He was forced to withdraw the same. In his cross-examination, he admitted that the entire land was allotted to him. He was working as Peon in the S.D.M. Office. He applied under Rule 27-B for Nautor land. He also admitted that the Deputy Commissioner had visited the spot. He denied that he was afforded full opportunity before the Deputy Commissioner. He denied that he was present on the spot alongwith other co-villagers.

PW-2 Mani Ram, has supported the version of PW-1 Sukh Dev. According to him, the plaintiff was put in possession of the suit land 13 years back. PW-3, Salig Ram has proved Ext. PW-3/A, report. PW-4, Nand Lal has proved Ext. PW-4/A, report. PW-5, Inder Singh has proved Ext. PW-5/A, spot map.

Defendant-Gulabu has appeared as DW-2. He deposed that he applied for nautor land on 14.8.1972. On 25.3.1978, the Deputy Commissioner, rejected the same. He filed an appeal before the Divisional Commissioner, Shimla. He dismissed the same. According to him, the plaintiff was working in the Office of S.D.M. In his cross-examination, he admitted that he was allotted 5 bighas 11 biswas of nautor land in the year 1971. He also admitted that his father owned 20 bighas of land. He also admitted that he was working in the Education Department.

What emerges from the facts enumerated hereinabove, is that the plaintiff was granted Nautor land by the Deputy Commissioner on 2.11.1977. He was put in possession on 29.3.1978. The mutation was also attested on 29.3.1978. The defendant Gulabu had moved an application for the grant of nautor land but it was rejected by the Deputy Commissioner, Bilaspur on 29.5.1974. The Divisional Commissioner, as per order dated 14.9.1984, rejected the revision filed by the defendant Gulabu Ram. The Financial Commissioner allowed the petition preferred by the defendant Gulabu, against the orders passed by the Deputy Commissioner and Divisional Commissioner. The Financial Commissioner remanded the matter to the Deputy Commissioner. The Deputy Commissioner visited the spot on 23.2.1987. The Deputy Commissioner has ordered the allotment of disputed land in favour of the defendant-Gulabu on payment of usual ''nazrana''. The application of plaintiff was rejected. The learned Sub Judge (Ist Class), has not taken into consideration the land already allotted to the defendant measuring 5 bighas & 14 biswas, on 18.2.1970. He was also a government employee. His income was definitely more than the income prescribed for allotment of nautor land. Thus, the findings recorded by the learned District Judge, Bilaspur, that defendant Gulabu was not entitled to fresh allotment of Nautor land, as per order dated 28.3.1987, are upheld.

The plaintiff has admitted that he was working in the office of S.D.M. when he had applied for the allotment of nautor land. The defendant-State in its reply has categorically stated that the plaintiff has colluded with the revenue staff. His income was definitely more than the income prescribed for the allotment of nautor land. The Deputy Commissioner has visited the spot on 23.2.1987, when the matter was remanded by the Financial Commissioner on 8.3.1985. He was present on the spot alongwith the co-villagers. He has approached the Divisional Commissioner against the order dated 28.3.1987. However, in his own wisdom had withdrawn the same. Thus, it cannot be believed that the appeal has been withdrawn when the Divisional Commissioner threatened him to remove him from service. There is purpose for allotment of nautor land. The allotment of nautor land should be as per the scheme. The income criterion is also one of the relevant factors while allotting the land.

I have also gone through the order dated 25.9.1974, whereby the application of defendant-Gulabu was dismissed by the Deputy Commissioner, Bilaspur. The Tehsildar has not recommended the application for the grant of land in favour of defendant-Gulabu. The land was used for common purpose by the villagers. It also did not fall within the ambit of Section 27-B of H.P. Nautor Land Rules, 1968, as rightly observed by Deputy Commissioner, while rejecting the application on 25.9.1974. The Court has also gone through the order dated 18.2.1970 of the Revenue Assistant, Bilaspur, H.P. In this case, the Forest Department has not recommended the grant on the ground that there was large number of young trees standing on the land applied for. The gradient of the land was not suitable for agriculture purpose. However, despite that he was allotted land on 18.2.1970 measuring 5 bighas 14 biswas situated in Kh. No. 63/1 for horticulture purposes. The substantial questions of law are answered accordingly.

Consequently, there is no merit in the appeals and the same are accordingly dismissed.