RSA/223/1996 of STATE Vs VINOD KUMARI on 28 December 2007

1. Whether the plaintiff is owner in possession of the suit property, as alleged? OPP the suit property, as alleged? OPP

2. Whether the ejectment proceeding before A.C. 2[nd] Grade N.T.Nalagarh is illegal, null and void, as alleged? OPP 2[nd] Grade N.T.Nalagarh is illegal, null and void, as alleged? OPP

3. Whether the suit is bad for want of notice under Section 80 C.P.C.? OPD Section 80 C.P.C.? OPD

4. Whether this Court has no jurisdiction to try this suit, as alleged? OPD suit, as alleged? OPD

5. Whether the suit is not maintainable, as alleged? OPD OPD

6. Whether the plaintiff has no locus standi to file the present suit? OPD the present suit? OPD

7. Whether the suit is without cause of action? OPD 8. Whether the suit is bad for want of proper and necessary parties? OPD 8. Whether the suit is bad for want of proper and necessary parties? OPD

9. Relief.

The learned Sub Judge dismissed the suit of the respondent on 18.12.1993. The respondent filed appeal which has been allowed by learned District Judge on 11.12.1995. Hence, the State is in second appeal. The appeal has been admitted on the following substantial questions of law as per order dated 13.10.1997 and on these questions learned counsel for the parties addressed the arguments:-

i) Whether the civil Court has no jurisdiction as provided under Section 10 of the H.P. Common Land (Vesting and Utilization) Act, 1974 as the land has vested to the State free from all encumbrances?as provided under Section 10 of the H.P. Common Land (Vesting and Utilization) Act, 1974 as the land has vested to the State free from all encumbrances?

ii) Whether the jurisdiction of the civil Court is barred under Section 171 of the H.P. Land Revenue Act in case the proceeding under Section 163 of the Act are pending?barred under Section 171 of the H.P. Land Revenue Act in case the proceeding under Section 163 of the Act are pending?

6. I have heard the learned counsel for the parties and gone through the record. It has been submitted on behalf of the appellant that appellant is the owner of the land, Municipal Committee Nalagarh is in possession as per revenue record. The respondent has

encroached the land comprised in Khasra No.683 measuring 23.50 sq. meters. The respondent has purchased Khasra No.1204 min and she has encroached Khasra No.683. In order to evict her proceedings under Section 163 of the H.P. Land Revenue Act were rightly initiated but she filed the present suit. The civil Court has no jurisdiction to look into the legality of vestment under the H.P. Village Common Lands (Vesting & Utilization) Act, 1974. It has been submitted that not admitting any title of the respondent on the suit land, but if so advised, she could raise question of title in the ejectment proceedings. The respondent has no right, title or interest on the suit property. The lower appellate Court has erred in decreeing the suit of the respondent. The learned counsel for the respondent has supported the impugned judgment, decree.

SUBSTANTIAL QUESTIONS OF LAW NO.(i) & (ii):

7. The substantial questions of law No.(i) and (ii) are with respect to the jurisdiction of the Civil Court to try the suit, therefore, both of them are being disposed of collectively. The respondent has pleaded that earlier Mula Mal was owner in possession of the suit property and after him Daulat Ram and then Jaswant Singh Joga became the owners of the suit property. Ram Partap Chandel, husband of the respondent, purchased the suit property vide sale deed dated 10.7.1981. The respondent appeared as PW-1 and has stated that Mula Mal was in possession of the suit property. Mula Mal sold his ownership land to Daulat Ram and in this way Daulat Ram came in possession of the suit property. Daulat Ram sold ownership land to Joga Singh who came in possession of the suit property. Joga Singh sold his ownership land to her husband and later on that land was transferred in her name and now she is in possession thereof. On suit property none else was in possession. The ownership land is adjacent to the suit property. The statement of PW-1 is clear that ownership land / property which came to her from Mula Mal and subsequent owners is different from suit property which is adjacent to the ownership property. In the plaint the respondent has pleaded that Mula Mal was owner of property comprised in Khasra No.1195/1 which is adjacent to the suit property. The present number of Khasra No.1195/1 is Khasra No.684 as per Ext.P-3 Misal Haquiat Bandobast Jadid Up Mohal Purana Nalagarh, Tehsil Nalagarh and Khasra No.1195/1 (Khasra No.684) in Ext.P-3 is owned and possessed by the husband of the respondent. However, suit property measuring 23.50 sq. meters comprised in Khasra No.683 is owned by State of Himachal Pradesh and in possession of Municipal Committee as per Ext.P-1 Misal Haquiat Bandobast Jadid Up Mohal Purana Nalagarh, Tehsil Nalagarh. The respondent has not produced and proved any document of title in her favour of land comprised in Khasra No.683 measuring 23.50 sq. meters.

8. The respondent in Para-3 (c) of the plaint has pleaded that suit land / property never vested in the appellant at any relevant time. The learned District Judge has observed that in Misal Haquiat

Ext.P-1 a copy of which is also Ext.D-5 the change in favour of the State is unauthorized and, therefore, the ejectment proceedings against the respondent are wrong and illegal. The respondent has questioned the vestment of the suit property in the State but she has not elaborated vestment either in her pleadings or when she appeared as her own witness as PW-1. If respondent is questioning the vestment of the suit property in favour of the State under the H.P. Village Common Lands (Vesting & Utilization) Act, 1974 then to look into the validity of such vestment is beyond the jurisdiction of civil Court under Section 10 of the Act as held by this Court in Dalip Singh and others Versus State of Himachal Pradesh and dothers, 1992(1) Sim.L.C. 320. It is not the case of the respondent that provisions of said Act were not complied with or the Collector or State Government has not acted in conformity with the fundamental principles of judicial procedure at the time of vestment. This apart, the Assistant Collector 2[nd] Grade has proceeded against the respondent under Section 163 of the H.P. Land Revenue Act and copy of proceedings is Ext.D-1, the notice issued to respondent under Section 163 for eviction from the suit property is Ext.D-2 and the report of encroachment Ext.D-3. The respondent at that stage filed the present suit and one of the prayers made in the plaint is for restraining the respondent from dispossessing, interfering in any way in pursuance and under the garb of illegal and void proceedings of ejectment titled as State Versus Vinod Kumari Chandel pending before the Assistant Collector 2[nd] Grade (N.T.) Nalagarh. The Section 171 excludes the jurisdiction of Civil Courts, the relevant part of Section 171 of the H.P. Land Revenue Act is as follows:- “171. Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers.- Except as otherwise provided by this Act- (1) A Civil Court shall not have jurisdiction in any matter which the State Government or a Revenue Officer is empowered by this Act to dispose of or take cognizance of the manner in which the State Government or any Revenue Officer exercises any powers vested in it or him by or under this Act.

(2) A Civil Court shall not exercise jurisdiction over any of the following matters, namely –

(i) xxx xxx (ii) xxx xxx

Xxx xxx

xxv) any question, as to any land or any right to, or title or interest in, the land which is an encroached land or in relation to which any person claims that it has vested or is deemed to have vested in him and that he cannot be ejected therefrom under sub-section (1) of section 163; or

xxvi) the ejectment of any person under section 163 or the recovery of damages or fine payable under sub-section (1) of that section.”

There is no denial of the fact that under Section 163 of the H.P. Land Revenue Act the Revenue Officer has jurisdiction to deal with the encroachment on Government land etc. The Revenue Officer has

also jurisdiction to decide question of title under sub-sections (3) and (4) of Section 163. The jurisdiction of the Civil Court under Section 171 is barred in any matter which the State Government or the Revenue Officer is empowered under the H.P. Land Revenue Act to dispose of or take cognizance. The respondent during the pendency of the proceedings of ejectment against her under Section 163 regarding the suit property has filed the present suit and made specific prayer against the ejectment proceedings, such suit is barred under Section 171 of the H.P. Land Revenue Act. The lower appellate Court has failed to take notice of Section 171 of the H.P. Land Revenue Act. Therefore, impugned judgment and decree are not sustainable and are liable to be set aside. The substantial questions of law No.(i) and (ii) are decided accordingly against the respondent and in favour of the appellant.

9. No other point was urged.

10. The result of the above discussion, the appeal is allowed, impugned judgment and decree are set aside and suit of the respondent / plaintiff is dismissed with liberty to the appellant to proceed against the respondent / plaintiff for ejectment from suit property in accordance with law and in such proceedings respondent / plaintiff shall be entitled to take all pleas which are available to her in law. No costs.

December 28, 2007.

(soni)

( KuldipSingh ) Judge