GURDAS vs DEV RAJ deceased through Lrs Manorma

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High Court of H.P.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 420 of 2008
Reserved on: 13.7.2026
Date of Decision: 20.7.2026
Gurdass & anr. ...Appellants
Versus
Dev Raj (deceased) through LRs & anr. ...Respondents
Coram
Hon’ble Mr Justice Rakesh Kainthla , Judge.
1
Whether approved for reporting? Yes.
For the Appellants : Mr Ishan Sharma, Advocate.
Respondent No.1 stated to have expired.
For Respondent No.1(b) : Ms Radhika Gautam, Advocate,
through video-conferencing and
Mr Sahil Dixit, Advocate
(present in the Court).
For Respondent No.2 : Mr Lokender Kutlehria,
Additional Advocate General.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment
and decree dated 02.06.2008 passed by learned District Judge,
Hamirpur, H.P. (learned Appellate Court), vide which the
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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judgment and decree dated 30.9.2006, passed by learned Civil
Judge (Junior Division), Nadaun, District, Hamirpur, H.P.
(learned Trial Court) were upheld. (The parties shall hereinafter be
referred to in the same manner as they were arrayed before the
learned Trial Court for convenience) .
2. Briefly stated, the facts giving rise to the present
appeal are that the plaintiff filed a civil suit before the learned
Trial Court for seeking permanent prohibitory injunction for
restraining the defendants from interfering with bartandari
rights of the plaintiffs and other Tikadarans of Village Kohla of
Sandh Bihag grazing cattle, taking soil, sand, stones and wood,
and burying dead bodies etc. over the suit land mentioned in the
head note and para-1 of the plaint. An alternative relief for
possession was also sought in case the defendant succeeds in
taking possession of the suit land during the pendency of the
suit. It was asserted that the plaintiffs and other tikadarans of
the area have planted trees of Safeda, Tahli, Sheesham, Khair,
Shehtoot, Sarin, Mango, etc. over the suit land. The State
allotted the suit land to the defendant No. 1 contrary to the
provisions of the H.P. Village Common Land (Vesting and
Utilization) Act (HP Common Land Act). The plaintiff and other
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Tikadarans had various Bartandari rights like grazing the cattle,
taking up stones, burying the dead body, etc., over the suit land.
The plaintiffs are in possession, and they are exercising their
rights over the suit land. Defendant No.1 threatened to interfere
with the exercise of rights by the plaintiffs. Hence, the suit was
filed to seek the relief mentioned above.
3. The suit was opposed by defendant No.1 by filing a
written statement taking preliminary objection regarding lack of
maintainability, cause of action, locus standi and jurisdiction, the
suit being barred by limitation, and the suit being bad for non-
joinder of necessary parties. The contents of the plaint were
denied on the merits. It was asserted that the suit land was
allotted to defendant No. 1 in the year 1975 as per law. The
plaintiffs and other Tikadarans have no right, title or interest
over the suit land. The defendant No. 1 was cultivating the land
and had grown the trees over the suit land. The plaintiffs had no
right to the suit land. Hence, it was prayed that the suit be
dismissed.
4. The defendant No. 2 also filed a separate written
statement, taking preliminary objections regarding lack of
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maintainability, cause of action and jurisdiction, the suit being
bad for non-joinder of necessary parties and the suit being
barred by limitation. The contents of the plaint were denied on
the merits. It was asserted that the suit land has vested in the
State of H.P. under the provisions of the H.P. Common Land Act.
It was rightly allotted in favour of defendant No.1. The plaintiff
had no bartandari rights over the suit land. 1,234 kanal 03 marlas
land was kept in a reserve pool for exercising the bartandari
rights. The defendant No.1 was a landless person, and the
allotment was rightly made in his favour. Therefore, it was
prayed that the suit be dismissed.
5. A replication denying the contents of the written
statement and affirming those of the plaint was filed.
6. The learned Trial Court framed the following issues on
02.01.1997: -
1. Whether the plaintiffs are entitled to the decree of
permanent prohibitory injunction as prayed for? OPP.
2. Whether in alternative the plaintiffs are entitled to
possession of the suit land as prayed for? OPD.
3. Whether the suit is not maintainable in the present form?
OPD.
4. Whether the suit is bad for non-joinder of necessary
parties? OPD.
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5. Whether this Court has no jurisdiction to try the present
suit? OPD.
6. Whether the suit is not within time? OPD.
7. Whether the plaintiffs have no cause of action and locus
standi to file the present suit? OPD.
8. Relief.
7. The parties were called upon to produce the evidence,
and plaintiff No.1 examined himself (PW1), Kashmir Singh
(PW2), Hem Raj Gupta (PW3), Dev Raj (PW4), Bihari Lal (PW5)
and Madan Lal (PW6). The defendant No.1, examined himself
(DW1). The plaintiff examined Rajinder Kumar (PW7) and Pawan
Kumar (PW8) in rebuttal.
8. Learned Trial Court held that the land had vested in
the Gram Panchayat first and thereafter in the State of HP. 50%
of the land was kept in the reserved pool, and 50% of the land
was kept in the allottable pool. The vestment of the suit land in
the State of HP was not challenged by any person. The land was
allotted to defendant No.1 by the State under the Provisions of
the HP Common Land Act. The vestment in favour of the State
was free from all encumbrances, and the Bartandari rights, if
any, stood extinguished on the date of the vestment. The
defendant No.1 satisfied the requirements laid down under the
Act, and allotment in his favour was valid. Hence, the learned
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Trial Court answered Issue No. 6 in the affirmative, the rest of
the issues in the negative and dismissed the suit filed by the
plaintiffs.
9. Being aggrieved by the judgment and decree passed
by the learned Trial Court, the plaintiffs filed an appeal which
was decided by the learned District Judge, Hamirpur, H.P.
(learned Appellate Court). The Appellate Court concurred with
the findings recorded by the learned Trial Court that the
plaintiffs had not challenged the allotment made in favour of
defendant No. 1. Defendant No.1 fulfilled the eligibility criteria
provided under the Act, and there was no infirmity in the
allotment made in his favour. The vestment in favour of the
State was free from all encumbrances, and all Bartandari rights
would extinguish on the date of the allotment. Therefore, the
appeal was dismissed.
10. Being aggrieved by the judgment and decree passed
by the learned Courts below, the plaintiffs have filed the present
appeal, which was admitted on the following substantial
questions of law on 27.08.2008.
1. Whether vestment of suit land in the name of State of H.P.
was not in accordance with the provisions of Section 3(5)
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of H.P. Village Common Land (Vesting & Utilization) Act,
1974 and Rule 3 of the Rules framed thereunder and as
such, without notice to estate right holders, the suit land
could not have lawfully vested in favour of State Govt. as
held by this Hon’ble Court in re: Nek Ram and others
versus State of H.P. (1993) 1 Sim. L.C. 442 .
2. Whether on the basis of mere attestation of mutation in
the absence of any notice to the plaintiffs or to the estate
right holders, any valid title with respect to the suit land
was conferred on the State Govt., and the Govt. had
lawfully become the owner of the land by operation of
law?
3. Whether the respondent No.1 who during year 1975-76 was
employed in military service and thereby was not earning his
livelihood principally by manual labour on land, had no
intention to take the possession of agriculture nor was
capable of cultivating the land was not covered within the
definition of landless person or other eligible person as
defined under sub-sections ‘c’ and ‘dd’ of Section 2 of H.P.
Village Common Land (Vesting & Utilization) Act, 1974 and as
such was not eligible for allotment of suit land in terms of
Section 8(b) of the Act and as per the Scheme framed by the
State Govt.
4. What is the effect of non-following of the procedure as
prescribed per clause 5 of the Scheme for allotment of land to
eligible persons by the respondent No.2 in the case of
allotment of the suit land made in favour of
defendant/respondent No.1?
11. I have heard Mr Ishan Sharma, learned counsel for
the appellants, Ms Radhika Gautam, learned counsel for
respondents No.1(b) and Mr Lokender Kutlehria, learned
Additional Advocate General, for respondent No.2/State.
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12. Mr Ishan Sharma, learned counsel for the appellants,
submitted that the learned Courts below erred in dismissing the
suit. No notice was served upon the plaintiffs before the vestment,
and the vestment is bad. The plaintiffs are in possession, and they
are exercising their bartandari rights. Learned Courts below had
wrongly held that the bartandari rights stood extinguished on the
date of vestment in the State. The defendant No.1 was not eligible for
the allotment as he was serving as a teacher at the time of the
allotment. Therefore, he prayed that the present appeal be allowed
and the judgments and decrees passed by the landed Courts below
be set aside. He relied upon the following judgments in support of
his submission: -
(i) State of HP and another Vs. Siri Dutt (dead) by LRs & ors.
a/w connected matter (2010) 10 SCC 68;
(ii) Mangat Ram Vs. State of H.P. 1996(2) Shim.L.C. 111;
(iii) Nek Ram Vs. State of H.P. 1993 (1) Shim. L.C. 442: and
(iv) Dalip Singh & Ors Vs. State of H.P. & others 1992(1)
Shim.L.C. 320.
13. Ms Radhika Gautam, learned counsel for respondents
No.1(b), submitted that the learned Courts below have rightly
held that the suit land had vested in the State free from all
encumbrances and Bartandari rights, if any, stood extinguished.
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The plaintiff had not challenged the allotment before the
learned Trial Court or in the Memorandum of Appeal before the
learned Appellate Court. It is impermissible to challenge the
allotment before this Court. Even otherwise, the jurisdiction of
the Civil Court to challenge the vestment and the allotment is
barred under the provisions of the HP Common Land Act. The
substantial questions of law framed by the Court do not arise for
consideration in the present case. The learned Courts below have
concurrently recorded the findings of fact that the plaintiffs are
in possession, and this Court should not interfere with the
concurrent findings of fact recorded by the learned Courts
below. Therefore, she prayed that the present appeal be
dismissed. She relied upon the following judgments in support of
her submission: -
(i) Dr Mahesh Chand Sharma Vs. Raj Kumari Sharma
(1996) 8 SCC 128
(ii) Randhir Kaur vs. Prithvi Pal Singh 2019(17) SCC 71
14. Mr Lokender Kutlehria, learned Additional Advocate
General, for respondent No.2/State submitted that the plaintiffs
have not challenged the vestment and the suit was hopelessly
barred by limitation. Learned Courts below had rightly held that
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the land had vested in the State free from all encumbrances,
which means that all Bartandari rights of the plaintiffs stood
extinguished after the vestment of the suit land in favour of the
State. Therefore, he prayed that the present appeal be dismissed.
15. I have given a considerable thought to the
submissions made at the bar and have gone through the records
carefully.
Substantial Questions of Law No. 1 to 4.
16. All these substantial questions of law are
interconnected and are being taken up together for
consideration.
17. Section 10 of the H.P. Common Land Act bars the
jurisdiction of the civil court to go into the validity of the order
made by the collector or the State Government. It reads as
follows:
"10. Bar of jurisdiction - Save as otherwise expressly
provided in this Act, no order made by the Collector or the
State Government or any officer authorised by it, as the
case may be, shall be called in question by any court or
before any officer or authority."
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18. It was held by this Court in Dalip Singh Vs. State of H.P.
1992 (1) Shim. L.C. 320 that the Civil Court does not have the
jurisdiction to go into the question of the vestment in favour of
the State in view of Section 3 of the HP Common Land Act. It was
observed:-
15. The scheme of the Himachal Act, as analysed by the
Full Bench in Gram Panchayat Khunyara's. case (supra),
envisages that the enquiry contemplated by Rule 9 should
be started before action under sub-section (5) of section 3
of the Himachal Act is taken and it would be only after the
matter is finally settled through appeal or otherwise that
proceedings contemplated by the abovementioned
provisions of law with regard to taking of possession
could be undertaken because till then it would not be clear
whether a particular piece of land has or has not legally
vested in the State Government. The Full Bench also
found that the Collector was also bound to ascertain
whether a particular case falls within any of the three
exceptions enumerated in sub-section (I) of section 3 of
Himachal Act and it would be only thereafter that it could
be ascertained whether the land which is said to be
covered by the provisions of sub-section (2) of section 3
of Himachal Act and it would be only thereafter that it
could be ascertained whether the land which is said to be
covered by the provisions of sub-section (2) of section 3
legally vests in the State or not. As observed by the Full
Bench in Gram Panchavat Khunyara's case (supra) and as
is apparent from the reading of the Himachal Act, there is
an adequate remedy provided for what the Civil Courts
would normally do in suits, namely, whether particular
land has or has not vested in the State Government The
Act also provides for the remedy to carry the matter in
appeal against an order passed by the Collector. In these
circumstances, it can be said that the Himachal Act gives
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a finality to the orders passed by the Collector or the State
Government and jurisdiction of Civil Court is ousted to
entertain and decide a suit of the nature but, as observed
above, section 10 of the Himachal Act does not exclude
those cases where it is shown that provisions of a
particular Act have not been complied with or that the
Collector or the State Government has not acted in
conformity with the fundamental principles of judicial
procedure. The primary relief claimed by the plaintiffs
with regard to declaration of their rights as owners
cannot be gone into in view of the jurisdictional bar
created under section 10 of the Act for which appropriate
forum would be the Collector as observed in Gram
Panchayat Khumara's case The Civil Court's jurisdiction
to entertain and decide a suit for grant of a decree for
prohibitory injunction founded upon settled possession is
not ousted by any of the provisions of the Act.
19. It was held in State of HP vs Hakim 1995(2) Cur. L.J.
(HP) 53 that the jurisdiction of the civil court to go into the
question of cancellation of the allotment of the land is barred. It
was observed:
“13. On the basis of the aforesaid provision of law there is
absolutely no dispute between the parties that in case the
order of cancellation passed by the Commissioner in
these cases come within the purview of the Act, Rules or
Scheme framed thereunder, in that event it can be so
argued that the Civil Court shall have no jurisdiction to
call upon in question the validity/invalidity of that
order…”
20. It was held in Keshav Ram vs State of HP 2006(1) Cur.
L.J. (HP) 452 that the civil courts do not have jurisdiction to go
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into the question of the vestment of the land in favour of the
State. It was observed:
7. On the question regarding jurisdiction of the civil court,
as referred to above, the learned trial Court had held that
the civil court had no jurisdiction to decide the question
as to whether land had vested or not vested in the State of
H.P. under the provisions of the Himachal Pradesh Village
Common Lands Vesting and Utilization Act, 1974
(hereinafter called as the 1974 Act), in view of the bar
created under Section 10 of the said Act. While coming to
this conclusion, the learned trial Court had placed
reliance on the law laid down by this Court, in the cases
Dalip Singh and others v. State of H.P. and others, 1992(1)
Sim. L.C. 320 and State of Himachal Pradesh v. Babu Ram
(deceased) through his LRs. Ms Nakshatro and another,
1996(2) Sim. L.C. 175: 1996(1) Cur. L.J. (H.P.) 427 . In both
judgments, it has been held by this Court that, in view of
the provisions of Section 10 of the 1974 Act, the civil court
had no jurisdiction to entertain and decide the suit
wherein a declaration had been sought about the land
having vested in the State Government under the
provisions of the said Act. This Court in the case Bansi
Ram and others v. Govt. of H.P. and others, 1994(3) S.L.J.
2516 also took a similar view.
21. Therefore, it is not permissible for this Court to go
into the question regarding the vestment of the suit land in
favour of the State and the question of allotment in favour of
defendant No. 1, unless there is a violation of the fundamental
principles of the law or the violation of the principles of natural
justice.
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22. A perusal of the plaint filed by the plaintiffs shows
that the plaintiffs had not sought any declaration regarding the
invalidity of the vestment in favour of the State or the
cancellation of the allotment made in favour of the defendant
No. 1 on the ground that the fundamental principles of law were
not followed or the allotment was violative of the principles of
natural justice. The plea taken before this Court that no notice
was issued to the plaintiffs or other tikadarans or that the
defendant No. 1 was not eligible for allotment was never raised
before the learned Courts below. It was only mentioned in
paragraph 5 of the plaint that the vestment in the State and
allotment in favour of defendant No. 1 are bad. Learned Trial
Court specifically held in para-26 that the allotment was never
challenged by the plaintiffs and other Tikadarans of the area, the
material on record showed that the land had vested in the State
of HP free from all encumbrances, and the State had a right to
make the allotment. The plaintiffs filed an appeal in which it was
asserted in para 3 that the possession was never taken by the
State as required under Sub Sections 3 to 6 of Section 3 of the HP
Common Land Act, but the plea of the lack of notice or
ineligibility of the defendant no. 1 was not raised. Therefore,
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there is a force in the submission made by Ms Radhika Gautam,
learned counsel for respondent No.1, that the plaintiffs cannot
challenge the vestment made in favour of the State or the
subsequent allotment made by the defendant No. 2/State in
favour of defendant No.1. It was laid down by the Hon'ble
Supreme Court in Dr Mahesh Chand Sharma Vs. Raj Kumari
Sharma (1996) 8 SCC 128, that when a plea was not taken before
the learned Courts below, the same cannot be raised in the High
Court during the Regular Second Appeal. Thus, it is
impermissible for the plaintiffs to take a plea before this Court
that the vestment in favour of the State and allotment in favour
of defendant No. 1 were bad.
23. It was laid down by this Court in Nek Ram Vs. State of
H.P. 1993 (1) Shm. L.C. 442 that the vestment of the land is automatic.
It was observed:
10. It is clear from this provision that vestment of the
lands described therein is automatic and free from all
encumbrances. Sub-section (2) of section 3 creates an
exception in case of certain lands described in Clauses (a),
(b) and (c) thereof. Sub-section (3) provides for the
payment of amount to the landowners whose rights are
extinguished under sub-section (I) in accordance with
Clause (i) and (ii) thereof and where the land h not
assessed to land revenue, the amount shall be assessed as
on similar land in the estate and If not available in the
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estate, then in the adjoining estate or the estates as the
case may be. The amount realised by the Panchayat shall
form the Sabha Fund and be utilised for the purposes
mentioned in section 40 of the Himachal Pradesh
Panchayati Raj Act, 1968.
24. It was laid down by the Hon’ble Supreme Court in
State of H.P. v. Siri Dutt , (2010) 10 SCC 68 : (2010) 4 SCC (Civ) 49:
2010 SCC OnLine SC 1096   that the vestment will extinguish the
rights, title and interests of the landowners of the estate. It was
observed at page 79:
14.  Section 3 provides for the vesting of rights in certain
lands in the State Government. By virtue of non obstante
clause contained in Section 3(1), overriding effect has
been given to the provisions of that section not only qua
any other law for the time being in force, but also any
agreement, instrument, custom or usage or any decree or
order of any court or other authority and has the effect of
extinguishing all rights, title and interests including the
contingent interest of the landowners in any estate.
25. Thus, the learned Courts below had rightly held that
the bartandari rights of the plaintiffs and other tikadarans , if any,
extinguished after the allotment.
26. In the present case, both the learned Courts below
have concurrently held that the plaintiffs were not in
possession, and this finding is not shown to be perverse and is
binding upon this Court while deciding the Regular Second
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Appeal. Therefore, the plaintiffs were not even entitled to the
injunction.
27. In Mangat Ram (supra), this Court held that an
authority having the jurisdiction to grant a lease was competent
to cancel it. The question regarding the validity of the vestment
or the allotment never arose in it, and the cited judgment does
not apply to the present case.
28. Therefore, the submission of Ms. Radhika Gautam,
learned counsel for the respondent No.1(b) has to be accepted as
correct that the substantial question of law framed by the appellant
do not arise in the present case because (i) the vestment or
allotment was never challenged; and (ii) the jurisdiction of the Civil
Court to go into the question of vestment and allotment is barred
under the provisions of HP Common Land Act.
Final Order:
29. In view of the above, the present appeal fails and is
dismissed.
30. Pending application(s), if any, also stand(s) disposed
of.
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31. Records of the learned Courts below be sent down
forthwith.
(Rakesh Kainthla)
Judge
th
20 July, 2026
(Nikita)


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