STATE OF H.P. Vs. PRABHU

JUDGEMENT

(1.) The instant appeal is directed against the judgment and decree, rendered on 29.10.2002, in Civil Appeal No. 64 of 1995, by the learned District Judge, Hamirpur, H.P., whereby, the learned First Appellate Court dismissed the appeal, preferred by the plaintiff/appellant.

(2.) Brief facts of the case are that the plaintiff/appellant instituted a suit for declaration on the allegations that the land, comprised in Khasra No. 245 (old Khasra No. 510) measuring 42 kanals 10 marlas was in the ownership and possession of the plaintiff-State of Himachal Pradesh, which fact is evident from the entries of copy of jamabandi for the year 1977-78 and prior to that it was shown recorded in the name of Gram Sabha. This land has now been vested in the State of H.P. free from all encumbrances under the H.P.Village Common Land (vesting and Utilisation) Act, 1974 vide mutation No. 175. Defendant No.1 obtained a decree against Gram Sabha, Dhanwan represented through defendant No.2 from the Court of Sub Judge, 1st Class, Hamirpur in Civil Suit No. 378 of 1969 decided on 31.5.1971. This decree is collusive obtained fraudulently by defendant No.1 in connivance with defendant No.2 as in the above noted suit the defendant No.2 filed written statement and contested the suit of defendant No.1. But in the meantime the learned counsel for defendant No.2 Sh. B.C.Uppal, Advocate, made statement in the Court and admitted the claim of defendant No.1. In the entries of Jamabandi for the year 1966-67 there is nothing in the revenue record to show that defendant No.1 was tenant at will under defendant No.2 and the entry qua tenancy was incorporated only in jamabandi for the year 1971-72 which shows that at the time when the aforesaid suit was filed in Court, neither defendant No.1 was tenant at will nor in hostile possession over the suit land for the last 35-36 years. Thus it is clear that the entry showing Sh.Prabhu Ram defendant No.1 as tenant at will of the suit land was recorded in jamabandi for the year 1971-72 collusively. An enquiry was also conducted by the Land Reforms Officer, Bhoranj, on 26.4.1990 and this entry showing defendant No.1 Prabhu Ram tenant at will was found to have been recorded wrongly. The collusion of defendants is also clear as they got the compromise decree dated 31.6.1971 on the basis of statements made by the learned counsel for the parties. Even the Sarpanch himself had no authority to make any statement as an application had been filed by Sh. Hari Singh and other under Order 1 Rule 10 CPC for making them party in which it was alleged that defendant No.1 had filed suit in collusion with defendant No.2. The said settlement of the defendants No. 1 and 2 was to defeat the legitimate right, title and interest of the plaintiff-State of H.P. Therefore, the judgement and decree dated 31.5.1971 passed by Sub Judge, Ist Class, Hamirpur, being collusive is null and void and inoperative against the plaintiff. The plaintiff came to know about the said collusion only on 22.11.1990 when defendant Prabhu Ram filed an appeal against the order of Assistant Collector, 1st Grade, Bhoranj, dated 26.4.1990. From the documents attached with the appeal, the plaintiff came to know that in the civil suit vide which decree was passed in favour of said Prabhu, the plaintiff-State of H.P. was not party in that suit. As such, the plaintiff filed this suit for declaration against the defendants.

(3.) The defendants/respondents contested the suit and filed written statement, thereby they took preliminary objections firstly to the effect that the suit is not within limitation, secondly that the plaintiff has no cause of action, thirdly that the plaintiff is stopped from challenging the entry of tenancy in favour of Prabhu Ram as this entry was incorporated as per order passed by the Collector himself and lastly that the suit against defendant No.2 is not maintainable as he is not Pradhan of Gram Sabha, Dhanwan. On merits, the defendants denied the allegations contained in the plaint. The defendants alleged that Prabhu Ram was tenant qua the suit land on payment of rent at the rate of Rs.10/- per annum as is evident from the entries of Jamabandi for the year 1971-72. The defendants further alleged that no doubt in the year 1973 correction was made against the entry of said Prabhu in the column of possession but it was without jurisdiction as on an appeal filed by said Prabhu before Collector the case was remanded to Assistant Collector, 1st Grade for further inquiry and fresh decision. Consequently, the Assistant Collector, Ist Grade made fresh enquiry who referred to the judgement and decree of Sub Judge, 1st Class date 31.5.1971 and also of appeal filed by Sh. Bakshi Ram etc. in the Court of learned District Judge, Hamirpur who dismissed their appeal on 25.7.1972 and Prabhu Ram was held in possession of Khasra No. 510 measuring 42 kanals 10 marlas and his entry of possession was ordered to be restored from Kharif 1973. Therefore, the plaintiff cannot take advantage of the entries of Jamabandi for the year 1977-78 which are quite wrong. After the enforcement of H.P.Tenancy and Land Reforms Act, Prabhu Ram automatically became owner qua the suit land from 3.10.1973. The judgment and decree obtained by Prabhu Ram against Gram Sabha Dhanwan is perfectly right, legal and sustainable. All the other allegations made by the plaintiffs in plaint are denied by the defendants in toto. As such, the defendants alleged that the suit of the plaintiff is not maintainable and is liable to be dismissed.