State of H.P. & ANR
Vs. Siri Dutt( Dead) by LRS. & Ors.  INSC 810 (29 September 2010)
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
G.S. Singhvi, J.
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.
shall first notice the factual matrix of Civil Appeal Nos. 3751- 3752 of 2002.
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
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.
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
6) Whether the suit
is bad for want of compliance with section 80 C.P.C.? OPD.
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- 5 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:
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
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:
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 Common Lands Act. The suit land prior to 1st 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
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."
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.
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.
may now briefly notice the facts of Civil Appeal No. 4109 of 2002.
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.
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.
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.
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).
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
learned Single Judge allowed the second appeal preferred by the respondents and
restored the decree passed by the trial Court.
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
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 12 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.
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.
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.
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
(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.
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
(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- sharers so
recorded before 26th 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
"(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,
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
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
(4) total area of
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
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.
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
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.
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.
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
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).
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.
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.
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.
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.
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
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.
[Asok Kumar Ganguly]