PRITHVI CHAND Vs. STATE OF H.P.

JUDGEMENT

(1.) Plaintiff (appellant herein) has approached this Court against concurrent findings of Courts below whereby suit as well as appeal filed by him have been dismissed by trial Court and first Appellate Court.

(2.) The plaintiff has filed a suit for declaration that he along with proforma-defendants (respondents No. 2 and 3 herein) is owner of land comprised in Khasra No. 1403/323/419 min (old) and Khasra No. 1403/323/419 min (old) denoted by new khasra Nos. 1779 and 1780 situated in village and mauja Nirath, Tehsil Rampur Bushehr, District Shimla with consequential relief of permanent injunction restraining the defendant State of HP from interfering in possession of plaintiff and proforma-defendants in any manner. Plaintiff has set up a claim that predecessors-in-interest of plaintiff and proforma-defendants were in possession of suit land, which is now in possession of plaintiff and proforma-defendants, as non-occupancy tenants under the owner Devta Surya Narayan, Temple Surya Narayan Nirath and on enactment of H.P. Ceiling on Land Holdings Act, 1972 (hereinafter referred as Ceiling Act) ownership of land was vested from Devta Surya Narayan to State of HP vide mutation No. 1746 dated 8.6.1975. It is the case of plaintiff that possession of suit land remained with plaintiff and proforma-defendants continuously, physically, actually and without any interruption and further that like predecessors-in-interest, plaintiff and proforma-defendants are still paying money and rendering the services to the Temple Surya Narayan whenever so required by Kardars of temple, however, actually and in law they have become owners automatically by operation of H.P. Tenancy and Land Reforms Act (hereinafter to be referred as Tenancy Act) which came into force from November 1975 and thus, they are not liable, now, to pay any money to Temple Surya Narayan or render service in lieu of rent of tenancy and thus, they are also not liable to be ejected from suit land by defendant/State. However, despite that, defendant/State has initiated ejectment proceedings against plaintiff and proforma-defendants which are pending before Authorized Officer-cum-Divisional Forest Officer, Rampur Bushehr with respect to Khasra No. 1779 whereas plaintiff and proformadefendants are neither encroachers nor in unauthorized possession, but, are in authorized possession as tenants of Surya Narayan Temple Nirath and continue as such also. Claim of plaintiff is that he and proforma-defendants have become owners automatically by application of Tenancy Act of 1972.

(3.) Defendant/State has refuted the claim of plaintiff on the ground that suit land has vested in the State free, from all encumbrances, on application of Ceiling Act and the said process was completed by attestation of mutation No. 1746 on 8.6.1975 and it is contended that as a matter of fact, plaintiff and Prem Chand, predecessor-in-interest of proforma-defendants was found as encroacher over the part of suit land comprised in Khasra No. 1779 whereas remaining part of suit land comprised in Khasra No 1780 was found in illegal possession of one Sohan Lal son of Phundu Ram and separate encroachment proceedings vide Missal No. 83 dated 6.1.1990 have been initiated by competent authority against him. It is further contended that Prem Chand, predecessor-in-interest of proforma-defendants, had filed affidavit in the year 2002 admitting therein that he was an encroacher over the part of suit land comprised in Khasra No. 1779 belonging to State Government with respect to which proceedings under the Himachal Pradesh Public Premises and Land (Eviction and Rent Recovery) Act, 1971 (PP Act) have been initiated. Claim of induction of plaintiff and proforma-defendants or their predecessor-in-interest as tenant over the suit land and automatic acquisition of ownership by them by operation of Tenancy Act, either from Devta or from State, has been denied. It is further contended that there is no entry in column of cultivation, at the relevant point of time, in favour of plaintiff and proforma-defendants or their predecessors-in-interest, much less with respect to payment/receipt of rent or Lagan, as tenant. Rather, it is claimed that plaintiff and proforma-defendants have been found in illegal possession by Revenue Authorities during settlement, and, therefore, they are liable to be ejected from part of suit land in due process of law and jurisdiction of Civil Court, for initiation of proceedings under PP Act, has also been disputed by defendant/State. Claim of plaintiff regarding service of notice under Section 80 CPC has also been disputed in the written statement.