TARA DEVI Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) There is a strip of land measuring five big has and two biswas. It is not disputed that the said land is covered by Himachal Pradesh Nautor Rules, 1968 (hereinafter referred to as 'the Rule'). Rule 14 (e) provides that whenever the Collector has to settle the land covered by the Nautor rules in favour of any individual he is required to give one months notice to the villagers for filing objections. In the present case, it is not disputed that without giving one months notice to the villagers the land in dispute was settled and a patta was executed in favour of respondent No. 3. Under such circumstances, the villagers in representative capacity filed a suit for injunction before the Sub-Judge, 1st Class, kullu, inter alia, on the ground that the land is being used as a pasture land and as village pathway, that the village community holds festivals on the said land and that the same is also used for playing games and, therefore, the said land could not have been leased to respondent No. 3. The trial court was of the view that with the grant of the land in dispute as Nautor to respondent No. 3, the rights of plaintiffs have been affected materially and since no notice as required under Rule 14 (e) has been given the lease in favour of respondent No. 3 is illegal. Consequently, the suit was decreed. Respondent No. 3 preferred an appeal before the first appellate Court. The first appellate Court was of the view that breach of Rule 14 (e) would not render the lease deed void. The first appellate Court also found that it was not proved that the rights of the village community have been materially affected. Consequently, the appeal was allowed and the judgment of the trial Court was set aside. The second appellate Court affirmed the decree of the first appellate Court. It is against the said judgment, the plaintiffs- appellants are in appeal before us.

(2.) One of the arguments raised by the learned counsel for the appellants is that the question regarding validity of lease vis- a-vis Rule 14 (e) of the Rules, has not been considered by the High Court and, therefore, the case may be sent back to high Court to decide the said question. We have perused the judgment and find that the validity of lease on touchstone of Rule 14 (e) has not been considered by the High court. For the aforesaid reason, the judgment of the High Court is set aside and the case is sent back to the High Court to decide the appeal in the light of observation made hereinbefore.

(3.) The appeal is allowed. There shall be no order as to costs.