STATE Vs. SADH RAM

JUDGEMENT

(1.) This first appeal has been brought by defendant the Union of India from the judgment dated 30th June, 1970 of the Senior Sub-Judge. Mahasu, wherein the suit of the plaintiffs Sadh Bam and four others for a declaration as to their right of ownership for trees growing over 92.4 bigha area comprising in six Khasra numbers, situate in village Deha, Pargana Shilla, Tehsil Theog. is decreed.

(2.) The plaintiffs' case before the learned Senior Sub-Judge was. that they were tenants of the disputed land of which the proprietary rights had vested in the State Government under Section 27 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act. 1953 (hereinafter to be referred as the Abolition Act. 1953). Under Sub-section (4) of Section 27. the right, title and interest of the land-owner, namely, the State Government, were to be transferred to the tenants who cultivated the land. The plaintiffs claim to be such tenants and therefore applied to the Compensation Officer for transfer of right, title and interest of the land-owner- By his order dated 3rd October. 1969, the Compensation Officer, before whom the proceedings lay for transfer of proprietary rights, granted the prayer of the plaintiffs, but. in his order, specifically mentioned that the trees growing over such land would not be transferred and remain the property of the Government Subsequently mutation entries were made in favour of the plaintiff- respondents. They were also granted a certificate of ownership in form 'K' under Rule 16 of the Rules framed under the Abolition Act. 1953. According to the plaintiff-respondents, they were in possession over the land and were even appropriating the trees but the officers of the Forest Department of the Government intervened and did not permit them to interfere with the trees which, according to them, belong to the Government for which specific mention was made in the order of the Compensation Officer. In this manner, the plaintiff- respondents were interfered in their possession over trees and they brought the suit for the relief of declaration that they were owners of such trees on the basis of the order of the Compensation Officer dated 13th March. 1967 as well as on the basis of the ownership certificate granted to them thereafter. The plaintiff- respondents further prayed that the defendant-appellant be held not to possess any right to interfere with the unfettered use and enjoyment of trees by the plaintiffs. The defendant-appellant contested the suit, inter alia, on the two preliminary objections, namely limitation and maintainability of the suit for a mere declaration when court-fee was not paid for the relief of injunction which was put in the plaint under guards ed language so as to give it a colour of declaration. The learned Senior Sub-Judge found these preliminary objections in favour of the plaintiff-respondents. It was held that the order of the Compensation Officer did not stand in the way of the plaintiffs and they could ignore it. As such, according to the trial Court, Article 100 of the Limitation Act did not apply. The case, rather, fell under Article 113 and. as stated by the learned trial Judge, six years' period of limitation was available. As such it was held that the suit was within tune. As to the objection regarding court-fee and jurisdiction, the learned trial Judge held that the suit was maintainable barely for the relief of declaration.

(3.) The defendant-appellant has come up before us in first appeal, and the learned Advocate-General has canvassed that the suit was clearly time-barred as it fell within the ambit of Article 100 and the plaintiffs could not do without getting rid of the order of the Compensation Officer dated 13th March, 1967 for which the limitation was one year. The learned Advocate-General has further contended, that the plaintiffs had already asked the relief of injunction in the plaint although they worded that relief in a manner so that it looked as if a declaration was sought for, although its substance is nothing less than an injunction prayed against the defendant.