STATE OF H.P. Vs. HUKAM CHAND

JUDGEMENT

(1.) This second appeal by the first defendant, namely, the State of Himachal Pradesh is against the order of remand passed by the District Court, Una, directing the trial court to consider and dispose of the suit on merits. The trial court dismissed the suit on its finding that the land involved had vested in the State Government under the Himachal Pradesh Village Common Lands Vesting and Utilisation Act, 1974 (for short the Act), the plaintiff was evicted as per orders passed by the Collector and the suit is barred under section 10 of the Act. The lower appellate court has reversed the decision of the trial court as in its view the question whether the land involved in the suit has vested in the Government under section 3 of the Act or not is properly a question to be adjudicated by the civil court and its jurisdiction is not ousted under section 10 of the Act.

(2.) The vesting under section 3 of the Act relates to the classes of lands enumerated in clauses (a), (b) and (c). It is the common case of both the parties that the land involved in the suit is described in the revenue records as shamilat -deh. According to the learned Counsel for the plaintiff -respondent, the suit land does not fall under any of the categories of lands enumerated under section 3 of the Act. Learned Counsel points out that one of the prayers made in the plaint is for a declaration that the plaintiff is in cultivating possession of the land under its owners for the past several years. Section 4 of the Punjab Village Common Lands (Regulation) Act, 1961, referred to in clause (a) of section 3 (1) of the Act specifically excludes from vesting the rights of persons in cultivating possession of Shamilat -deh for more than 12 years without payment of rent or by payment of charges not exceeding land revenue and cesses payable on that. It is the contention of the plaintiff -respondent that he will come under this exclusion carried over and incorporated in the Act. The Act does not provide for a machinery for adjudication of the question whether any particular land has vested in the Government or not and in the absence of any such machinery that question is open for adjudication by the civil court. The exclusion of jurisdiction under section 10 of the Act relates to orders passed by the Collector, the State Government or any officer authorised by it. If, as contended by the plaintiff -respondent, the land has not vested in the Government, the eviction of the plaintiff under "section 5 of the Act, will be totally without jurisdiction and the bar under section 10 of the Act does not extent to orders passed without jurisdiction.

(3.) For the aforesaid reason, I affirm the judgment under appeal and dismiss the second appeal. The parties will suffer their respective costs.