RATNA DEVI VERMA Vs. STATE OF H.P.

JUDGEMENT

(1.) This is a Regular Second Appeal under Section 100 C.P.C. filed by the appellant against the judgment and decree of the Court of learned District Judge, Solan, dated 28.10.1998, whereby the appeal filed by the appellant against the judgment and decree of the Court of learned Senior Sub Judge, Solan, dismissing the suit of the plaintiff, was also dismissed.

(2.) Briefly stated, the facts of the case are that the appellant hereinafter referred to as the plaintiff filed a suit for declaration as against the respondents hereinafter referred to as the defendants. It was alleged by the plaintiff that the land measuring 982 square yards comprised in Khasra No. 76/2/1 is a part of the land comprised in Khasra No. 76, situated at Dhar -Ki -Ber was purchased by the plaintiff for a consideration of ˜ 4000/ - from one Smt. Kanta Sharma and the plaintiff was put in actual physical possession of the same on the spot by the seller. It was alleged that the sale was oral. The plaintiff further alleged that previous owner Smt. Kanta Sharma had disclosed at the time of sale that she had purchased the land in question from one Surjan Singh for a valuable consideration and Surjan Singh had purchased the same from Pandit Devi Datt. It was further alleged that the sale in all cases were oral and was by delivery of possession by showing the boundaries on the spot. It was also alleged that the land is situated on the boundaries of village Dhar -Ki -Ber and village Bathol. The plaintiff alleged that in the month of January, 1983, she started developing the land by cutting and digging the same and levelled the same for the purposes of raising construction. The plaintiff constructed a double storeyed pucca house consisting of four rooms in the ground floor, two residential sets of two rooms each in the first floor by spending more than ˜ 70,000/ -. The adjoining land was also said to be part of land comprised in Khasra No. 76 of village Dhar -Ki -Ber. It was further alleged that the construction work of the house of plaintiff was completed by end of July, 1983. In the month of August, 1983, the plaintiff received a notice from the Assistant Collector 1st Grade, Kasauli, wherein it was alleged that the plaintiff had constructed pucca two storeyed house, which is part of the land comprised in Khasra No. 228/89 of village Bathol, which is a government land and the plaintiff had encroached upon the government land.

(3.) It was further alleged that in pursuance of the notice, the plaintiff put appearance before the Assistant Collector 1st Grade, Kasauli and orally stated about the sale from one Smt. Kanta Sharma and that the land is situated at village Dhar -Ki -Ber and she has not encroached upon any government land at village Bathol. The plaintiff alleged that she was ill and could not ascertain the date from the Court of Assistant Collector 1st Grade, Kasauli and in the month of April, 1984, she learnt that she had been proceeded against ex parte on 27.2.1984 and an order of eviction has been passed against her. The plaintiff filed an appeal before the Sub Divisional Collector. The Collector got demarcated the land from a Revenue Officer, who recommended that the land be given to the plaintiff under the government policy for regularization of encroachments, but the Collector without considering the report and request of the plaintiff in this regard dismissed the appeal of the appellant. The plaintiff approached the Divisional Commissioner, Shimla and Financial Commissioner, Himachal Pradesh, but the revision petitions were dismissed by them. A review petition was filed before the Financial Commissioner, who appointed one Shri I.S. Chandel as Local Commissioner, to demarcate the land who submitted his report to the Financial Commissioner that the land shown as Khasra No. 228/89/6 measuring 9 Biswas and Khasra No. 228/89/ 5 measuring 4 Biswas is in possession of the plaintiff, who has constructed two storeyed pucca house and a septic tank. The plaintiff did not admit the said report and filed objections before the Financial Commissioner in regard to the report that the boundaries of two villages were not fixed according to the settlement record. The demarcation was carried out by the Local Commissioner with the help of Latha of village Bathol and not with the help of settlement record of both the villages. The Financial Commissioner sent file to the Deputy Commissioner, Solan, for consideration of the matter for grant of land under the new policy of the Government for regularization of the encroachments. The Deputy Commissioner called a report from the Assistant Collector 1st Grade, Kasauli and without affording any opportunity to the plaintiff rejected the request of the plaintiff for regularization on market price. It was alleged that the plaintiff was an absolute owner of the said land, yet to avoid unnecessary litigation, she was ready to accept the State of Himachal Pradesh as owner of the land and get the same on market price. During the pendency of the case, a mutation was also attested in favour of one Raj Ballabh etc. showing them to be owners in equal shares along with State of Himachal Pradesh. Hence, the suit for declaration challenging the order of eviction passed by the Assistant Collector 1st Grade, Kasauli, and the order passed by the Financial Commissioner rejecting the case of the plaintiff.