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-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 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). 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), 1955-56 (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 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 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) 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. 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. 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 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 ;