DWARKI DEVI Vs. H.P.HOUSING BOARD

JUDGEMENT

(1.) This revision petition under Section 115 of the code of Civil Procedure (hereafter referred to as the Code), is directed against the order dated 4th September, 1999, passed by the learned District Judge, Solan, in Civil Misc. Appeal No. 17 -S/14 of 1999 affirming the order passed by the learned Sub Judge, 1st Class, Kandaghat in CM. A. No. 72 -S/6 of 1998 filed in civil suit No.35 -S/1 of 1998 on 19th May, 1999, whereby the application of the plaintiff - petitioners (hereafter referred to as plaintiffs), under order 39 Rules 1 and 2 of the code, praying for restraining the defendant - respondent (hereafter referred to as defendant) from interfering in and dispossessing the applicants from the land comprised in Khasra No.47/2/1 measuring 17 biswas situated at Mauza Gumma, Pargana Baghet, Tehsil Kasauli, District Solan, Himachal Pradesh, has been dismissed.

(2.) The brief facts leading to the presentation of the present revision petition are that the plaintiffs have instituted a suit for declaration that they are the joint owners in possession of the suit land and the order dated 20th May, 1998 passed by the Commissioner, Shimla Division, directing the ejectment of the plaintiffs from the suit land under the provisions of H.P. Public Premises (Eviction and Rent Recovery) Act, 1971 (hereafter to be referred to as the Act), is illegal, unauthorised, void and without jurisdiction and not binding on the plaintiffs and, for injunction restraining the defendant from interfering with the suit land and from dispossessing the plaintiffs therefrom on the basis of the said order.

(3.) The case of the plaintiffs, as made out in the plaint, is that initially khasra No.47 measured 20 -06 Bighas and the plaintiffs had 1/2 share therein and the remaining 1/2 share was owned by one Shiv Dayal. Out of this land, one Biswa was acquired by Punjab State Electricity Board, which was specified as Khasra No. 47/1. The remaining land was specified as Khasra No. 47/2 measuring 20 -5 bighas. Since the land was to be acquired by the defendant for establishing a township, a Notification dated 24th July, 1970 was issued under Section 4 of the Land Acquisition Act for acquisition of land situated in different villages, including the land in suit. The plaintiffs had two houses on the land owned and possessed by them. When the land was acquired pursuant to the aforesaid Notification, one of their houses was acquired alongwith other land specified as Khasra No.47/2 but a parcel of land measuring 17 biswas specified as khasra No. 47/2/1, on which the house of the plaintiffs was standing, was not acquired. The acquired area specified as khasra No. 47/2/2 is only 19 -8 bighas. The Land Acquisition Officer, Solan, passed a Supplementary Award on 25th June, 1976 in respect of the house standing on the acquired land which was an old structure and the said award mentions 17 Biswas of land (Khasra No.47/1) as having been acquired wrongly whereas the said 17 biswas of land whereon the hosue of the plaintiffs is standing, remained in the possession. The defendant initiated proceedings under the Act, seeking the ejectment of the plaintiffs from the land specified as Khasra No.47/2/1 alongwith the house standing thereon and recovery of damages. These proceedings terminated in favour of the plaintiffs. The defendant, however, preferred an appeal before the Divisional Commissioner, Shimla and finally, the order of ejectment had been passed, which is illegal, perverse and erroneous. The plaintiffs approached the High Court against the said order of ejectment by filing C.W.P.No. 431 of 1998. (The said writ petition was dismissed by the High Court with liberty reserved to the plaintiffs to avail any other alternate remedy for the redressal of their grievance). Hence the suit.