MOHINI RAM Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) By way of this Regular Second Appeal, the appellant/plaintiff has prayed for setting aside of judgment and decree dated 05.02.2019, passed by the Court of learned Civil Judge, Court No. 2, Nalagarh, District Solan, H.P. in Civil Suit No. 102/1 of 2013, titled as Mohani Ram Vs. State of Himachal Pradesh and another, vide which, the suit for declaration with consequential relief of permanent prohibitory injunction filed by the appellant/plaintiff stood dismissed by the learned Court below as well as for setting aside of judgment and decree dated 13.12.2019, passed by the Court of learned Additional District Judge, Nalagarh, District Solan, H.P. in Civil Appeal No. 59-NL/13 of 2019, titled as Mohani Ram Vs. State of Himachal Pradesh and another, vide which, the appeal preferred by the present appellant against the judgment and decree passed by the learned Trial Court, stood dismissed.

(2.) Brief facts necessary for the adjudication of the present appeal are that the appellant-plaintiff (hereinafter referred to as "the plaintiff") filed a suit for declaration with consequential relief of permanent prohibitory injunction, on the pleadings that he was a permanent resident, proprietor and Khewatdar of Village Musselwal, Tehsil Nalagarh, District Solan, H.P. The suit land comprised in Khasra No. 235/92/1, Khata Khatauni No. 215/224, situated in Village Musselwal, Pargana Nalagarh, Tehsil Nalagarh, District Solan was in possession of his predecessor-in-title, who had raised construction of a residential house and Khokha (small shop) etc. over the same on 10.04.1963. Part of the suit land was also used as a Courtyard and the plaintiff through his predecessor-in-title was coming in peaceful, continuous and uninterrupted possession of the same, over which, a residential house, Courtyard as well as a Khokha (small shop) were now existing. The house was renovated and reconstructed from time to time. Shamlat land before coming into force of the H. P. Village Common Lands (Vesting & Utilization) Act, 1974 (hereinafter referred to as "the 1974 Act) was in possession of the proprietors of Village Musselwal, including the suit land, which was part of the State of Punjab before the year 1966. Constructed Shamlat land stood saved from vesting in the Gram Panchayat under the provisions of the above Act. It was mandatory for the statutory authorities under the aforesaid Act to make inquiry regarding the vesting of Shamlat land in the Gram Panchayats. In the present case, no such inquiry was ever made. The authorities had failed to comply with the mandatory provisions of the Statute to initiate inquiry regarding vestment of suit land and in this background, the proceedings, which stood initiated against the plaintiff of ejectment under the provisions of Section 163 of the Himachal Pradesh Land Revenue Act, 1954 were bad, so also was the warrant of possession issued against him. The ejectment order passed by the Assistant Collector, 1st Grade, Nalagarh, H.P. in case No. 44/12, titled as State Vs. Mohani Ram and warrant of possession issued by the revenue officer/officials in the said case were wrong, illegal, null and void and also inoperative and ineffective, being without jurisdiction. According to the plaintiff, as the statutory authorities had failed to comply with the mandatory provisions of law, therefore, the Civil Court was having powers to look into the legality of the order passed by the revenue authorities and in this background, suit stood filed praying for a decree of declaration with consequential relief of permanent prohibitory injunction qua the suit land against the defendants.

(3.) The suit was contested by the defendants, inter alia, on the ground that the plaintiff had not substantiated the averments made in the plaint with any documentary proof qua his being proprietor and Khewatdar upon the suit land, as contended by the plaintiff. It was further pleaded by the defendants that the plaintiff was an encroacher over the suit land and was earlier dispossessed from the same vide Rapat No. 732, dated 24.07.2010. Patwari concerned again reported on 29.05.2012 regarding the encroachment made by the plaintiff on the Government land, comprised in Khasra No. 235/92/1, measuring 1-0 Marla by constructing a Khokha on the same and Assistant Collector, 2nd Grade, Nalagarh initiated the encroachment proceedings against the plaintiff on the basis of the said report of the Patwari. The proceedings were decided after complying with the principles of natural justice and ejectment orders were passed by the Assistant Collector, 2nd Grade on 30.10.2012 against the plaintiff. According to the defendants, the status of the plaintiff was that of an encroacher upon the suit land and he had no right and title over the same and had no locus to maintain the suit. The land in question was in exclusive ownership of the State of Himachal Pradesh under the provisions of the Himachal Pradesh Village Common Lands (Vesting and Utilization) Act, 1974 and prior to vestment in the State of Himachal Pradesh, was owned and possessed by the Gram Panchayat at the relevant time. Plaintiff had encroached upon the Government land and now wanted to usurp the same, though he was a stranger qua the same. The suit land stood encroached upon by the plaintiff in the year 2010 by constructing a Khokha and again in the year 2012, post his ejectment in the earlier case in the year 2010.