SECOND APPEAL 297 of 2000 on 24 April 1977

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

RSA No. 297 of 2000

Date of Decision: 26[th] November, 2010

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Smt. Sarla Devi & others

….Appellants.

Versus

State of H.P. & others

….Respondents.

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Coram

The Hon’ble Mr. Justice Dev Darshan Sud, J.

Whether approved for reporting?[1] No

___________________________________________________________ For the Appellants: Mr. G.D. Verma, Sr. Advocate with Mr. B.C. Verma, Advocate. For Respondent No.1:

Mr. G.D. Verma, Sr. Advocate with Mr. B.C. Verma, Advocate.

Mr. P.K. Sharma, Addl. Advocate General with Ms. Shubh Mahajan, Deputy Advocate General.

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Dev Darshan Sud, J (oral).

This appeal has been preferred by the plaintiffs, who are unsuccessful in the two Courts below.

2. Shri Kali Ram, predecessor-in-interest of the plaintiffs, instituted a suit for declaration and injunction against the respondent-State on the ground that he has become owner of land comprised in Khewat No. 37 min, Khatoni No. 48, Khasra No. 573 and 574, kitas 2 measuring 21.16 bighas situated in 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes.

Chak Baroth, Parg. Dharti, Ilaqua Balson, Tehsil Theog, District Shimla. The plaintiff pleaded that he is owner in possession of the land for the last 40 years and has been wrongly recorded as Gair Mourusi. The State resisted the claim of the plaintiff. On the settled issues mainly on issue No. 1 that whether the plaintiff has become owner in possession over suit land, the trial Court decided against the plaintiff.

3. Appeal was preferred by the plaintiff in the Court of learned District Judge, who considered the arguments advanced on behalf of the District Attorney to the effect that the suit had been filed by the plaintiff-appellant solely to pre-empt the action of the State under Section 163 of the Himachal Pradesh Land Revenue Act. The learned Court also noticed that while the Tehsildar Theog rejected the plaintiff’s application for changing entries in the revenue papers in their favour,he ordered for the initiation of encroachment proceedings, but constrained/withheld his hands for the reason that a civil suit was pending. This argument was accordingly rejected. 4. On the second point formulated, as to whether the trial Court has fallen in error in holding that the plaintiff has not acquired title, the appeal was dismissed. 5. The plaintiffs are now in second appeal. This appeal was admitted on substantial question of law No.1 as formulated in appeal namely whether in view of the averments contained in para 9 of the written statement filed by the defendant/respondent No.1 to the effect that the lease was not extended in favour of the plaintiff since the year 1959 and further that the possession of the plaintiff over the suit land is that of an encroacher, the possession which is hostile, open, continuous, un-interrupted to the knowledge of the true owner over the suit land from the Khariff 1958-59 till the final disposal of the suit is duly proved on the record of the case in favour of the plaintiff?

6. Adverting to this pleading, para 9 reads:

“9. In reply to para No. 9 of the plaint it is submitted that the revenue entries in the column of rent were corrected in the year 1970-71 as the lease was not extended in favour of plaintiff since 1959, hence mutation No. 102 under section 104 Land Reforms Act was rejected on 24.4.1977 and rest of the para is denied as wrong. The capacity of the plaintiff over the suit land is that of encroacher and not of an owner as per averments made supra.”

I do not find any error in the findings of the learned Courts below. However, learned counsel appearing for the appellants submits that the possession over the suit land is with the plaintiffs which

fact is not disputed by the State. He submits that the rejection of the suit would not per se mean that the plaintiffs-appellants would have to be evicted from the suit land forthwith. He urges that the possession of the plaintiffs would be protected and that plaintiff(s) cannot be ejected from the suit land save and except in accordance with law. This is the settled law. Unless proceedings in accordance with law are initiated against the plaintiffs, they cannot be evicted/ejected from the suit land. In these circumstances, this appeal is disposed of with a direction that the appellants shall not be ejected from the suit land save and except in accordance with law. Appeal stands disposed of.

There shall be no order as to costs. All miscellaneous applications are disposed of.

November 26[th], 2010(ms)

(Dev Darshan Sud) Judge