STATE OF HIMACHAL PRADESH Vs. HARNAMA

JUDGEMENT

(1.) The Respondents-State, who succeeded before the trial Court, but lost before the First Appellate Court is the Appellant in the above second appeal. The Plaintiff in Civil Suit No. 93/1984 and the Respondent herein filed Civil Suit on the file of the Subordinate Court at Una for a declaration that he is the owner in possession of the land measuring 12 Kanals 14 Marlas as-described fully in the schedule to the plaint. The case of the Plaintiff was that the land forming a part of large extent of land comprised in Khasra No. 943 situated in village Changar has been owned by Smt. Phulmu Devi and others has been in the possession and occupation of Kirpa Ram son of Sarda as non-occupancy tenant on payment of Batai since long, that the said Kirpa Ram died in 1976 and pursuant to the Will dated 20.11.1968 executed by his predecessor-in-interest that he acquired the non-occupancy tenancy rights and with the coming into force of the H.P. Tenancy and Land Reforms Act on 3.10.1975 as also by virtue of the Will executed by his predecessor-in-interest, as also the Plaintiff became entitled to all the rights of the original land owner and consequently the revenue records showing the State of Himachal Pradesh as the owner in possession of the suit land are illegal. It was also claimed that the Plaintiff's predecesor-in-interest was in physical possession and enjoyment of the property and the mutation in the revenue records were also without any notice or opportunity to them.

(2.) The State opposed the claim of the Plaintiff by filing a written statement contending that though previously the suit land had been owned by Smt. Phulmu Devi and others and that it was in possession of Kirpa Ram son of Sarda as non-occupancy tenant inasmuch as the said item of land had been shown as surplus in the hands of the original owner and taken over under the provisions of the Himachal Pradesh Ceiling on Land Holdings Act, 1972 (hereinafter referred to as 'the Ceiling Act'), and the Rules made thereunder, and by virtue of mutation No. 491 dated 30.9.1975 the land in question stood vested with the State free from all encumbrances and including the rights, if any, of the Plaintiff as non-occupancy tenant over the suit land. It is the further plea of the State that the suit land having been in possession of the State as owner even prior to 30.10.1975 the Plaintiff has no right or locus standi to file the suit. Certain other objections, which are unnecessary for the purpose of this appeal have also been taken by the State.

(3.) Thereupon the suit was tried and the learned trial Judge by his judgment and decree dated 3.9.1988 dismissed the suit holding that in view of the possession shown to have been taken of the property and the mutation of revenue records effected prior to the date on which the provisions of Tenancy Act came into force, the Plaintiff has failed to substantive his rights claimed in the property as owner. Aggrieved the Plaintiff perused the matter on appeal before the District Court, Una. The learned First Appellate Judge chose to resppreciate the facts on record and ultimately came to the conclusion that no credence could be given to the mutation claimed to have been carried-out on 30.9.1975, that the Plaintiff or the person in the physical possession of the land could not be said to have been properly and legally dispossessed so as to attract the provisions of Section 11 of the Ceiling Act and consequently the State cannot take advantage of the provision engrafted for, the destruction of the rights of the owner and providing for vesting of the property absolutely free from all encumbrances, with the State, Hence, the learned First Appellate Judge set aside the judgment and decree of the learned trial Judge and while allowing the appeal decreed the suit, as prayed for.