Full Judgment Text
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 3751-3752 OF 2002
State of Himachal Pradesh and another ...Appellants
Versus
Shri Siri Dutt (Dead) by L.Rs. …Respondents
and others
With
CIVIL APPEAL NO. 4109 OF 2002
State of Himachal Pradesh and another ...Appellants
Versus
Shri Prem Dutt and others …Respondents
J U D G M E N T
G.S. Singhvi, J.
1. These appeals are directed against judgments dated 21.4.1997 and
20.5.1998 of the learned Single Judges of the Himachal Pradesh High Court
whereby they allowed the second appeals preferred by the plaintiffs-
2
respondents (hereinafter referred to as ‘the respondents’) and restrained the
defendants-appellants (hereinafter referred to as ‘the appellants’) from
interfering with their right, title and interest as well as possession over the
suit properties without following the procedure established by law. In his
judgment dated 21.4.1997 rendered in Second Appeal No. 98/1992, which is
under challenge in Civil Appeal No.4109 of 2002, the learned Single Judge
also made payment of compensation as a condition for taking possession of
the land.
2. We shall first notice the factual matrix of Civil Appeal Nos. 3751-
3752 of 2002.
2.1 The respondents filed Suit No.44/1 of 1987 for grant of a declaration
that they are the owners of land measuring 381 bigha 8 biswas comprised in
Khewat Khatuni No.20/56-66 (old) and Khewat Khatuni No.23/53-63 (new)
situated in Mauza Nehra Kandhol, Pargana Boachali, Tehsil and District
Solan. They pleaded that the land was in possession of their forefathers
since time immemorial and after partition, the same was in their individual
and exclusive possession. They also raised the plea of adverse possession
by asserting that their possession over the suit land was continuous, open
and uninterrupted and the same had never been used by the village
community for common purposes. They further pleaded that the land has
3
been wrongly recorded as ‘Shamlat Deh’ in the revenue record and by taking
advantage of the wrong entry, it was mutated in the name of the State and
illegally allotted to some persons. They prayed for correction of the revenue
entries, cancellation of the illegal allotments and for restraining the
appellants from interfering with their ownership and possession.
2.2 In the written statement filed on behalf of the appellants, it was
pleaded that the suit land had vested in the Government and the same is
being used by the villagers as ‘Shamlat land’. The claim of the respondents
that they are the owners in possession of the suit land since the time of their
ancestors was controverted by asserting that they do not have any right, title
or interest over it except the right of grazing etc. The respondents’ assertion
that they are in individual possession of the suit land was also denied. It was
then averred that the suit land is banzar and charad and the revenue entries
are correct. The plea of adverse possession raised by the respondents was
contested by asserting that the land was ‘shamlat’ and the same was being
used by the villagers. The allotment made in favour of landless persons was
defended by asserting that the State Government was competent to do so.
The appellants also questioned the maintainability of the suit on the ground
of non compliance of Section 80 of the Code of Civil Procedure (CPC).
4
Another plea taken by them was that the civil court does not have
jurisdiction to decide the issues raised in the suit.
2.3 On the pleadings of the parties, the trial Court framed the following
issues:
1) Whether plaintiffs from the time of forefathers are coming in
possession of the suit land as owners, as alleged? OPP.
2) Whether the suit land has never been brought in use by the
entire village for common use? OPP.
3) Whether revenue entries about the suit land are wrong, illegal?
OPP.
4) Whether the suit is not maintainable? OPP
5) Whether this Court has no jurisdiction to try the suit? OPD.
6) Whether the suit is bad for want of compliance with section 80
C.P.C.? OPD.
7) Relief.
2.4 After considering the rival pleadings and evidence, the trial Court
partly decreed the suit and restrained the appellants from interfering with the
respondents’ possession over land measuring 35.7 bighas comprised in
Khewat No.22, Khatauni Nos.54 to 62 till they were ordered to hand over
possession in accordance with Section 3(3) of the Himachal Pradesh Village
Common Lands Vesting and Utilization Act, 1974 (for short, `the Act’).
The trial Court referred to Jamabandis of the years 1943-44 (Ex.P1), 1955-
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56 (Ex.P2), 1959-60 (Ex.PB), 1967-68 (Ex.P4), 1972-73 (Ex.PC) and 1982-
83 (Ex.PD) and made the following observations:
“Vide Jamabandi for the year 1972-73 the suit land is
comprised in Khewat No.23 Khatunies Nos.53 to 63 measuring
381-8 Bighas out of which Khewat No.23 Khtauni No.53
measuring 337-6 Bighas is recorded in possession of
MAKBUZA MALIKAN under Shamlat Deh Hasab Rasad
Zhere Khewat, but there is also reference about 9 mutations
vide which Nautor were granted to different persons. Rest of
the land of Khewat No.23 Khatuni No.54 to 62 measuring 35-7
Bighas is recorded in individual possession of different persons
as co-sharers and part of the land of Khewat No.23 Khatuani
No.63 is recorded in possession of “SHARE AAM” and this
measures 8-15 Bighas.
These entries about columns of ownership and possession are
continuing since long as is apparent from Ex.P2 Jamabandi for
the year 1955-56, Ex.P1 Jamabandi for the year 1943-44, Ex.P4
Jamabandi for the year 1967-68, Ex.PB Jamabandi for the year
1959-60.
But after coming into operation of the Common Lands Act,
entries pertaining to ownership from Shamilat Deh Hasab
Rasad Zhera Khewat were changed in the name of “PRADESH
SARKAR” (State of Himachal Pradesh) and major portion of
the land 147-14 Bighas of Khewat No.41 Khewatni No.57 was
shown in the allotable Pool and Khatuni Nos.59 measuring 169-
0 Bighas was kept for common use of the land owners of the
village. The land which was shown in individual possession of
certain co-owners was continued to be shown as such and the
land earlier recorded as “SHARE AAM” was recorded in that
capacity.”
The trial Court then referred to Section 3 of the 1974 Act and held as under:
“It is, therefore, implicit that ownership in the name of State of
Himachal Pradesh qua the land in suit got changed by virtue of
Provisions of Section 3 of the Common Lands Act. Vide this
section all rights, title, and interest of any land owner in the
6
land in any estate stand extinguished free from all
encumbrances vesting such rights in the State of Himachal
Pradesh. Here such vesting of the ownership is compulsory by
the provisions of section 3 of the common Lands Act and
completely do away with possessery or Proprietary rights of
any person of such land without any encumbrances. However,
such vesting in the State of Himachal Pradesh do not come into
play if the case falls within exception of section 3(2) of
st
Common Lands Act. The suit land prior to 1 November, 1966
is comprised in Himachal Pradesh but there is no evidence that
it has been partitioned by the co-sharers through process of the
law or land owners alienated by way of Sale, gift or exchange
or they built residential house or cow shed on it. Hence
exception of section 3(2) of the Common Lands Act, is not
attracted in the present Act.
But by stroke of law right, title or interest of the land
owners i.e. plaintiffs have been effected so under Section 3(3)
of the Common Lands Act, they are entitled for amount
assessed in accordance there with and before they are directed
to deliver the possession of the land shown in their possession
are entitled to receive amount by way of compensation assessed
according to section 3(3) of the Common Lands Act.
In view of this discussion, I hold and conclude that
plaintiffs are not possessing the suit land as owners but they are
possessing certain portion of the land as recorded in their
possession as co-owners in Jamabandi for the year 1972-73 so
Issue No.1 decided against plaintiffs accordingly. The entries
about suit land have rightly been changed after coming into
operation of Common lands Act, so issue No.3 decided against
the plaintiffs, Majority of the land in suit is shown in common
use of the villages and even PW 1 Dina Nath concede that all
owners of the village are possessing the land and every person
can cut grass from any portion of the land.
Suit in entirety is not maintainable as plaintiffs are not
owners of the suit land but the suit is maintainable to the extent
of the land they are recorded in individual possession, can not
be disturbed unless they are paid amount by way of
compensation under section 3(3) of the Common Lands Act.”
(underlining is ours)
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2.5 Both, the appellants and the respondents challenged the judgment of
the trial Court by filing separate appeals. The lower appellate Court referred
to “Wazib-Ul-Arz” (Ex.P3) prepared at the time of settlement of 1910 which
depicted that proprietors of the village in the erstwhile State of Bhagat of
which the land formed part had only limited rights of grazing cattle,
collecting grass and leaves etc. over Shamilat Deh lands and no proprietor
had right to break the land and to bring it under cultivation and held that
there is presumption of truth attached to the record of rights comprising of
Jamabandis which the respondents have failed to rebut and, therefore, the
entire land must be treated as ‘Shamlat Deh’. The lower appellate Court
referred to Section 3(2) and (3) of the Act and held that suit land does not
fall in any of the exceptions enumerated in sub-section (2) and that payment
of compensation by the State was not a condition precedent for
dispossessing the respondents and, at best, they are entitled to receive
compensation. The lower appellate Court noted that the landless persons to
whom the land was allotted by the State Government were not made parties
and held that the suit was liable to be dismissed on the ground of non-joinder
of necessary parties. On the basis of these conclusions, the lower appellate
Court reversed the decree passed by the trial Court and dismissed the suit.
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2.6 The learned Single Judge did not disturb the concurrent finding of the
two courts on the issue of ownership of the suit land and vesting thereof in
the State (para 14 of the impugned judgment) but held that they cannot be
dispossessed without following due process of law. On the issue of non-
joinder of the persons to whom land had been allotted by the State
Government, the learned Single Judge observed that the concerned
authorities would look into the matter and take appropriate decision in
accordance with the law.
3. We may now briefly notice the facts of Civil Appeal No. 4109 of
2002.
3.1 Tula Ram and 96 others all residents of Village Dharat, Pargana
Sumna Basal, Tehsil and District Solan, filed Suit No.85/1 of 1985 for
declaration that they are owners in possession of land comprised in Khata
Khatauni No.42 Min/81, 82, 84 to 93 measuring 315 bighas 18 biswas
situated at Village Dharot, Pargana Sumna Basal and that mutation No. 217
of 1976 showing the State of Himachal Pradesh as owners is illegal. They
further prayed that the appellants be restrained from interfering with their
ownership and possession.
9
3.2 In the written statement filed on behalf of the appellants, the
assertions of the respondents regarding ownership and possession of the suit
land was denied and it was pleaded that with effect from the date of coming
into force of the Act, the land had vested in the State Government.
3.3 On the pleadings of the parties, the trial court framed the following
issues:
1) Whether the suit land is not a Shamilat land as alleged? OPP.
2) Whether the plaintiffs are owners and in possession of the suit
land as alleged? OPP.
3) Whether the revenue entry in favour of the Nagar Panchayat
and State of H.P. is wrong? OPD.
4) Whether the suit is barred under the provisions of H.P. Village
Commons land Act? OPD
5) Whether this Court has no jurisdiction to try the suit? OPD.
6) Whether the plaintiff is entitled to the relief of declaration and
injunction? OPD.
7) Relief.
3.4 After considering the leadings and evidence of the parties, the trial
Court negatived the respondents’ claim of ownership and declared that by
virtue of Section 3(1)(c), all the rights, title and interest of the land owners
10
stood extinguished and the land vested in the State Government. The trial
Court further held that land measuring 0-2 biswas, Khasra No. 408/186 and
0-10 biswas, Khasra No. 428/186 Khewat No.42 Min Khatauni No. 91 is not
Shamlat land because construction had been raised over it and by virtue of
Section 3(2)(c) of the Act, the same will not vest in the State Government.
Finally, the trial Court passed a decree in favour of three plaintiffs, Ram
Dutt, Jai Ram and Shiv Ram declaring them to be owners of the land
comprised in Khasra Nos.408/186 and 428/186 and restrained the appellants
from interfering with their possession. The appellants were also directed not
to dispossess the plaintiffs from the land comprised in Khewat No.42 Min
Khatuni Nos. 84 to 92 without following the procedure established by law
and without payment of compensation assessed in accordance with Section
3(3).
3.5 The cross appeals filed by the parties herein were disposed of by the
learned District Judge vide judgment dated 27.6.1991 and the decree passed
by the trial Court was reversed.
3.6 The learned Single Judge allowed the second appeal preferred by the
respondents and restored the decree passed by the trial Court.
ARGUMENTS
11
4. Since, learned counsel for the parties addressed arguments by
adverting to the pleadings of their respective clients in Suit No. 44/1 of
1987, we shall be dealing with the same keeping in view the facts set out in
paragraphs 2.1 to 2.6.
5. Learned counsel for the appellants argued that the impugned judgment
is liable to be set aside because the learned Single Judge allowed the second
appeals filed by the respondents without framing any substantial question of
law as required by Section 100 CPC. He further argued that once the
learned Single Judge held that the respondents cannot be granted declaration
that they are the owners in possession of the suit land or that the same does
not vest in the State, the injunction granted in their favour is liable to be set
aside. Learned counsel submitted that payment of compensation in terms of
Section 3(3) of the Act is not a condition precedent for taking possession of
the land which vested in the State and the only right available to the village
proprietors is to receive the amount calculated as per the formula contained
in that section. He lastly submitted that the learned Single Judge committed
serious error in recording a finding that the respondents would be deemed to
be in possession of the entire land because the same was recorded in some of
the “jamabandis” as ‘Shamlat Deh Hasab Rasad Zare Khewat’ and in the
column of possession, the words ‘Makbuja Malikan’ were used. Learned
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counsel referred to ‘Wazib-Ul-Arz’ (Exhibit P3) prepared in 1910 in respect
of the State of Bhagat in which proprietors of the village were shown to have
limited rights of grazing cattle, collecting grass and leaves but had no right
to break the land or to bring it under cultivation and the statement of PW-1,
Dina Nath that all owners of the village are possessing the land and every
person can cut grass from any portion of the land and argued that the finding
recorded by the learned Single Judge on the issue of the respondents’
possession of the entire land is perverse and is liable to be set aside.
6. Learned counsel for the respondents supported the impugned
judgment and argued that the learned Single Judge did not commit any error
by granting a declaration that the appellants cannot dispossess the
respondents except after following the procedure established by law and
giving them opportunity of hearing. Learned counsel emphasized that even
if the land is deemed to have vested in the State by operation of Section
3(1)(c) of the Act, the respondents cannot be dispossessed without
complying with the rules of natural justice engrafted in the provisions of the
Act and the Himachal Pradesh Common Lands Vesting and Utilization
Rules, 1975. Learned counsel then argued that the respondents will be
deemed to have become owners of the land by adverse possession because
they were in continuous possession for last many years without any
13
objection or obstruction. Learned counsel also referred to the additional
affidavit of Shyam Dutt Sharma and order dated 29.7.2004 passed by Sub-
Divisional Collector, Solan and argued that the respondents are entitled to
retain possession in view of the amended Section 3.
7. We have considered the respective submissions. Sections 2 (d), 3, 6
and 8 of the Act, the relevant extracts of the amendments made in 2001 and
2005 as also Rules 3, 4, 5, 6, 7 and 9 of the Rules which have bearing on the
decision of this appeal read as under:
The 1974 Act.
“2. Definitions.– In this Act, unless there is anything
repugnant in the subject or context, –
(d) “landowner” means a person having a share in the
shamilat land as recorded in the land records and includes a
panchayat.
3. Vesting of rights in the State Government.– (1)
Notwithstanding anything to the contrary contained in any
other law for the time being in force or in any agreement,
instrument, custom or usage or any decree or order of any court
or other authority all rights, title and interests including the
contingent interest, if any, of the landowner in the lands in any
estate–
(a) vested in a Panchayat under Section 4 of the
Punjab Village Common Lands (Regulation) Act,
1961 (18 of 1961) as in force in the areas added to
Himachal Pradesh under section 5 of the Punjab Re-
organisation Act, 1966 (31 of 1966) except lands used
or reserved for the benefit of village community
including streets, lanes, playgrounds, schools,
14
drinking wells or ponds within abadi deh or garah
deh,
(b) described in the revenue records as shamilat
taraf, patties, pannas and thola and not used according
to revenue records for the benefits of the village
community or a part thereof or for common purposes
of the village in the areas added to Himachal Pradesh
under section 5 of the Punjab Re-organisation Act,
1966; (31 of 1966) and
(c) described in revenue records as shamilat,
shamilat deh, shamilat taraf, shamilat chak and patti
in the areas comprised in Himachal Pradesh,
immediately before first November, 1966,
shall stand extinguished and all such rights, title and
interests shall vest in the State Government free from all
encumbrances.
(2) The provisions of sub-section (1) of this section shall not
apply to lands described in clauses (b) and (c) of that sub-
section if, before the date of commencement of this Act–
(a) partition of such lands is made by the
individual co-sharers through a process of law by a
competent court or authority.
(b) transfer of such lands is made by the landowner
by way of sale, gift or exchange,
(c) such land built upon by an inhabitant by raising
a residential house or cow-shed.
(3) The State Government shall be liable to pay, and the
landowners whose rights have been extinguished under sub-
section (1) of this section shall be entitled to receive the amount
in lieu thereof at the following rates:-
(i) for the land reserved for grazing and other
common purposes under clause (a) of sub-section (1)
15
of Section 8, five times the annual land revenue
including rates and cesses chargeable thereon; and
(ii) for the remaining land, fifteen times the annual
land revenue including rates and cesses chargeable
there:
Provided that where the land vested in the State Government
under this Act is not assessed to land revenue, the same shall be
construed to be assessed as on similar land in the estate and if
not available in the estate then in the adjoining estate or estates,
as the case may be.
(4) xxx xxx xxx
(5) The Collector may, by order in writing, at any time after
the land vests in the State Government, direct the landowners to
deliver possession thereof within 10 days from the service of
the order to such person as may be specified in the order.
(6) If the landowners refuse or fail without reasonable cause
to comply with the order made under sub-section (5), the,
Collector may take possession of the land and may for that
purpose use such force as may be necessary.”
6. Determination of amount payable to landowners .– (1)
The Collector shall cause a notice to be served in the prescribed
form and manner to the landowner, whose rights have been
extinguished under sub-section (1) of section 3, stating therein,
the area of land vested in the State Government and the amount
proposed therefore, immediately after the commencement of
this Act, calling upon him to prefer objections, if any, within 60
days from the receipt of the notice.
Provided that the Collector may entertain the objections after
the expiry of the said period of 60 days if he is satisfied that the
landowner was prevented by sufficient cause from filing the
objections within the prescribed time.
(2) The Collector after giving the landowner or landowners,
as the case may be, an opportunity of being heard and making
such inquiry as may be necessary, shall make an award
16
determining the amount payable by the State Government to the
land owners in accordance with the provisions of sub-section
(3) of section 3 and also apportion the amount thereof among
the landowners.
(3) Where the amount is payable to a minor, the Collector
may make such arrangements as may be equitable having
regard to the interest of the minor.
8. Utilisation of land vested in the State Government .–
(1) All lands vested in the State Government under this Act
shall be utilized for the following purposes:-
(a) an area not less than fifty per cent of the total area veted
in the State Government under section 3 of this Act for
grazing and other common purposes of the inhabitants of
an estate; and
(b) the remaining land -
(i) for allotment to a landless person or any other
eligible person; or
(ii) for allotment of site to a handicapped or houseless
person for the construction of a house;
under a scheme to be framed by the State Government by
notification in the Official Gazette and the allottee shall pay an
amount at the rate of forty-eight times of the land revenue and
rates and cesses chargeable on the land allotted to him under the
said scheme, either in lump sum or in six monthly instalments
not exceeding four.”
(2) The land reserved under clause (a) of sub-section (1) of
this section shall be demarcated by such Revenue Officer and in
such manner as may be prescribed.
(3) Any scheme framed by the State Government under
clause (b) of sub-section (1) of this section may provide for the
terms and conditions on which the land is to be allotted.
(4) The State Government may, by notification in the
Official Gazette, add to, amend, vary or revoke any scheme
made under this section.”
17
By the Himachal Pradesh Village Common Lands Vesting and
Utilization (Amendment) Act, 2001, which was brought into force with
effect from the date the original Act was enforced, various sections
including Section 3 were amended. Clause (d), which was added in sub-
section (2) of Section 3, reads as under:
“(d) land recorded as “shamlat tika Hasab Rasad Malguzari”
or by any such other name in the ownership column of
jamabandi and assessed to land revenue and has been
continuously recorded in cultivating possession of the Co-
th
sharers so recorded before 26 January, 1950 to the extent of
their share therein.”
By the Himachal Pradesh Village Common Lands Vesting and
Utilization (Amendment) Act, 2005, which was enforced on 8.7.2005, the
following sub-sections were added to Section 3(2):
“(2-a) The land reverted back to co-sharers under clause (d) of
sub-section (2) shall not be transferred by such co-sharers, by
way of sale, gift, mortgage or otherwise, during a period of
twenty five years from the date of mutation of such land.
(2-b) No Registrar or the Sub-Registrar, appointed under the
Registration Act, 1908, shall register any document pertaining
to transfer of such land, which is in contravention of sub-
section (2-a) and such transfer shall be void ab initio and the
land involved in such transfer, if made in contravention of sub-
section (2-a), shall vest in the State Government free from all
encumbrances.”
Rules.
3. Taking possession of the land .- (1) As soon as may be
after coming into force of the Act, the Collector, shall ask the
Tehsil Revenue Officer to send in Form `A’ details of the
18
shamlat land estate wise that has vested in the State
Government.
(2) On receipt of the details of the shamlat land under sub-
rule (1), the Collector shall proceed to take over possession of
the land under sub-sections (5) and (6) of section 3.
4. Mutation of land in favour of State Government .–
After the possession of shamlat land has been taken under the
preceding rule, the Collector shall ask the Tehsil Revenue
Officer to mutate the land in favour of the State Government.
5. Notice to be served on the landowner .– The notice to
be served on the landowner under section 6 shall be in Form
`B’ and on the basis of orders passed by the Collector under
rules 6 and 7. The notice shall be served in the manner
prescribed under the rule made under The Punjab Land
Revenue Act, 1887, for service of notice issued by the Revenue
Officers.
6. Demarcation of land under section 8.— (1) On receipt
of the information in Form `A’ the Collector shall start a file of
demarcation of land for grazing and common purposes and the
land to be earmarked for allotable pool and send the same to the
Tehsil Revenue Officer for proper demarcation of the land for
grazing and common purposes and for allotable pool. The
percentage of the land to be reserved for grazing and common
purposes shall be fixed in consultation with the estate right-
holders keeping in view the provisions of section 8. The Tehsil
Revenue Officer and the Collector shall be guided for
demarcation of shamilat land for the said purposes by the
following consideration:-
(1) total cattle population of the estate;
(2) the number of eligible persons in the estate;
(3) total acreage of existing cultivated land excluding
area under illegal possession/encoroachments;
(4) total area of charand lands;
19
(5) the land which is used for common purposes like
cattle ponds, manure pits, sand bihag, kuhis, paths and
the land recorded in the khataunis, of `Sharai-am’ and
`Rafai-am’ shall continue to be so used and reserved for
common purposes;
(6) the land on which the tree growth is thick and is
required to be maintained as forest in the public interest,
shall be excluded from the allotable pool;
(7) as far as possible the grazing areas and allotable
pool areas shall be demarcated in compact blocks
keeping the principles of consolidation of land holdings
in view; and
(8) land allotted under contracts, agreement and leases
by the Panchayats in respect of the land vested in the
State Government when cancelled under section 4 of the
Act shall form part of the allotable pool.
(2) The Tehsil Revenue Officer after a thorough survey and
inspection of the shamilat lands shall demarcate the land and
shall get the separate lists of khasra numbers that are reserved
for the common purposes and the land to be given to eligible
persons attached to the file. He shall also place on the file an
index map of the village delineating the shamilat land and
showing the demarcation of the grazing land, the land reserved
for common purposes and the land reserved for allotable pool.
The Tehsil Revenue Officer shall then submit his proposal of
demarcation to the Collector.
(3) The Collector after scrutinizing the proposal sent by the
Tehsil Revenue Officer shall fix a date for announcing his order
after giving the inhabitants of the estate concerned an
opportunity of being heard and shall pass the order regarding
the percentage of area of land reserved for grazing and common
purposes and areas reserved for the allotable pool.
(4) The Collector may amend or vary the percentage as
referred to in sub-rule (3) with previous approval of the State
Government.
20
7. Preparation of records of unmeasured shamilat land.
— In case the shamilat land in an estate is unmeasured, the
Collector shall prepare record of rights for the same in view of
the provisions of Chapter IV of the Himachal Pradesh Land
Revenue Act, 1954, or of Chapter IV of the Punjab Land
Revenue Act, 1887, as the case may be, and thereafter
demarcate the land and pass order in the manner prescribed in
rule 6.
9. Settlement of disputes .– If a dispute arises regarding
entry of the land vested in the State Government, the Collector
shall be competent to decide the same after a summary
inquiry.”
8. Section 3 provides for 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 land owners in any estate. Clause (a)
of Section 3(1) relates to the lands vested in a Panchayat under Section 4 of
the Punjab Village Common Lands (Regulation) Act, 1961 except those
used or reserved for the benefit of village community including streets,
lanes, playgrounds, schools, drinking wells or ponds within abadi deh or
garah deh. Clause (b) relates to the lands described in the revenue records
as shamilat taraf, patties, pannas and thola which is not used for the benefit
21
of the village community or a part thereof or for common purposes of the
village. Clause (c) relates to the areas which formed part of Himachal
Pradesh before 1.11.1966 and the lands described in revenue records as
shamilat, shamilat deh, shamilat taraf, shamilat chak and patti.
9. In these appeals, we are not concerned with the lands covered by
clauses (a) and (b) of Section 3(1) because the suit lands formed part of the
erstwhile State of Bhagat, which was within the territory of the State of
Himachal Pradesh immediately before 1.11.1966. In terms of Section
3(1)(c), the rights of the land owners in these lands vested in the State
Government free from all encumbrances.
10. The argument of the learned counsel for the respondents that the suit
land had not vested in the State Government was negatived not only by the
trial Court and the lower appellate Court but also by the learned Single
Judge, all of whom concurrently held that with effect from the date of
enforcement of the Act i.e., 29.8.1974 (this is the date of publication of the
Act in Himachal Pradesh Gazette after the President of India gave assent),
the land vested in the State Government and there is no reason for this Court
to interfere with that finding.
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11. It was neither the pleaded case of the respondents nor it was argued
before this Court that their case is covered by the exceptions enumerated in
clauses (b) and (c) of Section 3(2). Of course, a feeble attempt was made by
the respondents to show that since time immemorial, the suit land was in
possession of their forefathers and after partition, they were in individual
exclusive possession but no tangible evidence was produced by them either
to prove possession of their forefathers or the factum of partition and their
individual exclusive possession. Therefore, their case cannot be treated as
covered by clause (a) of Section 3(2).
12. The respondents’ claim that they had become owners of the suit land
by adverse possession is liable to be rejected because they did not adduce
any evidence to prove that they were in continuous and uninterrupted
possession for more than 30 years. This plea is also demolished by the
entries contained in the revenue records and the statement of none else than
PW-1 Dina Nath. In the Wazib-Ul-Arz (Ex.P3) prepared at the time of
settlement of 1910, it was depicted that the proprietors of the village in the
erstwhile State of Bhagat had only limited rights of grazing cattle, collecting
grass and leaves, etc. over shamilat deh land and no proprietor had right to
break the land or to bring it under cultivation. Not only this, in his
statement, PW-1 Dina Nath admitted that all owners of the village were
23
possessing the land and every person could cut grass from any portion of the
land. The entries contained in the jamabandis also do not prove open and
uninterrupted possession of the respondents over the suit land. In Khewat
No.23 Khatauni No.53 of the year 1971-73, 337.6 bighas of land was
recorded in possession of Makbuja Malikan under Shamlat Deh Hasab
Rasad Zare Khewat but there were 9 mutations in the name of different
persons. Only 37.5 bighas was recorded in individual possession of
different persons as co-sharers. 8 bighas 15 biswas of Khewat No.23
Khatauni No.53 was recorded as Share Aam. On the basis of these entries,
the respondents cannot claim that they have acquired title over the suit land
by adverse possession.
13. It appears that predecessors of the respondents had taken possession
of some portion of the suit land and got their names entered in the revenue
records but that is not sufficient for declaring them to be in exclusive
possession of separate shares in the land ignoring the entries in the `Wajib-
ul-Arz’ and the statement of PW-1 Dina Nath. Even the learned Single
Judge of the High Court did not find them to be in exclusive possession of
the suit land.
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14. The next question which needs to be addressed is whether the learned
Single Judge was right in injuncting the State from dispossessing the
respondents except after complying with the relevant statutory provisions
and the rules of natural justice. At the cost of repetition, we deem it
necessary to mention that the trial Court had found that the respondents were
in possession of 37.5 bighas only and accordingly declared that their
possession cannot be disturbed unless they are paid compensation under
Section 3(3). The lower appellate Court reversed this part of the judgment
of the trial Court and held that payment of compensation was not a condition
precedent for dispossessing the respondents. Though, the learned Single
Judge did not find any patent error in the approach adopted by the two courts
in evaluating the pleadings and analyzing the evidence of the parties, yet he
virtually reversed the finding recorded on the issue of possession simply by
observing that the land had been recorded as ‘Shamlat Deh Hasab Rasad
Zare Khewat’ and in the column of possession the expression ‘Makbuza
Malikan’ and this, in the opinion of the learned Single Judge, indicated
possession of the proprietors. The learned Single Judge then proceeded to
hold that the respondents cannot be dispossessed except after the procedure
prescribed by law. While doing so, the learned Single Judge ignored that as
early as in 1910 the land was shown to be in possession of village
proprietors and not of any individual. Therefore, the finding recorded by
25
the learned Single Judge suggesting that the respondents were in possession
of the suit land cannot but be treated as perverse.
15. The legality and correctness of the direction given by the learned
Single Judge that the respondents cannot be dispossessed except by
following the procedure prescribed by law needs to be examined in the light
of Section 3(5) and (6) of the Act read with Rules 3 to 5 of the Rules. In
terms of these provisions, the Collector is required to give notice to the land
owners to deliver possession of the land. If the noticee fails to deliver
possession, the Collector can take coercive measures for taking possession.
Therefore, the only thing which the Collector will be required to do is to
give notice to the respondents to hand over possession of the suit land to the
designated officer.
16. The question which remains to be considered is whether payment of
compensation is a condition precedent to the taking over of possession of the
land vested in the State Government under Section 3(1). A reading of the
plain language of Section 3(3) makes it clear that the State Government is
obliged to pay compensation to the land owners whose rights are
extinguished under Section 3(1), but such payment is not a condition
precedent to the taking over of possession. If the State Legislature had
26
intended that payment of compensation to the land owners must precede
taking over of possession, then an explicit provision to that effect would
have been incorporated in the Act, which has admittedly not been done.
17. In the result, the appeals are allowed, the impugned judgments are set
aside and those passed by the lower appellate Court are restored. The
competent authority shall now be free to take possession of the suit land,
which was subject matter of Suit Nos. 85/1 of 1985 and 44/1 of 1987 after
complying with the provisions of Section 3(5) and (6) of the Act read with
Rules 3 and 5 of the Rules. With a view to obviate further litigation in the
matter, we direct the State Government to pay compensation to the
respondents in accordance with Section 3(3) of the Act. This shall be done
within a period of six months from today. The parties are left to bear their
own costs.
………………………….…J.
[G.S. Singhvi]
…………………………
…..J.
[Asok Kumar Ganguly]
New Delhi
September 29, 2010.