STATE OF HIMACHAL PRADESH Vs. SANDYA DEVI

JUDGEMENT

(1.) This second appeal is directed against the judgment of learned District Judge, Una dated August 3, 2001 whereby the judgment and decree of the trial Court was set aside and the suit of the plaintiff was decreed. Plaintiff was declared to be the owner in possession of the suit land and orders passed by the Assistant Collector on July 18, 1990 were declared to be null and void. In order to appreciate the controversy, facts may be noticed thus: It appears, the Gram Panchayat was recorded as owner in possession of the land comprised in Kharsra number 542 measuring 20 Kanals 1 Maria as per jamabandi for the years 1968 -69 (Ext. Dl), 1973 -74 (Ext. D2). The land was Shamlat land and after coming into force of the Himachal Pradesh Village Common Lands (Vesting and Utilization) Act, 1974, the land vested in the State Government under the provisions of that Act. The Assistant Collector, Bangana while deciding the encroachment cases on November 18,1981, concluded that abadi land/land under cow shed etc., encroached upon by the respondent should not have vested in the State Government and he passed an order that the land in question be entered in the ownership of the respondent in the revenue record. Accordingly, mutation of part of Khasra Number 542, i.e. denoted by Khasra Number 542/1 measuring IK 12M was mutated in the name of Sandhya Devi on November 18, 1981. These orders were challenged before the Financial Commissioner (Appeals) who vide his order dated November 26, 1984 held that the orders passed by the Assistant Collector were without jurisdiction and it was the Collector who could have passed such orders and not Assistant Collector of the 1st Grade. In fact this matter was reported by the Collector to the Financial Commissioner under the Act. The Financial Commissioner accepted the revision petition directing the Collector to pass orders only in accordance with law. In the meanwhile, Khasra Number 542/1 was changed to Khasra Number 395 in the Settlement in the year 1984 -85 (Ext. D4). By mutation of 7th December, 1988, Khasra Number 542/1, new khasra number 395, was re -mutated in the ownership of the State of Himachal Pradesh (Ext. DW1/B).

(2.) Assistant Collector 1st Grade Bangana started eviction proceedings against the plaintiff under Section 163 of the H.P. Land Revenue .Act. A notice was issued or Sandhya Devi and her statement was recorded, (sic) her, later on she abstained from the proceedings and the Assistant Collector proceeded to direct the eviction of Sandhya Devi from Khasra Number 542/ 1, new Khasra Number 395 under Section 163 of the Act vide his orders dated July 18, 1990. Sandhya Devi did not challenge this order.

(3.) Sandhya Devi filed a suit on October 8, 1990 alleging that the order passed by the Assistant Collector was against the facts and law, illegal, void and in operative against the right, title and interest of the plaintiff. She prayed for a decree for declaration that she be declared in possession of the suit property and the orders passed by the Assistant Collector directing her eviction from this property were null and void. He also prayed for a permanent prohibitory injunction against the defendant from interfering with the possession of the plaintiff over the suit property.