CASE NO.: Appeal (civil) 6616 of 2000 PETITIONER: Girja Kumar & Ors RESPONDENT: State of Himachal Pradesh & Anr DATE OF JUDGMENT: 31/10/2007 BENCH: Tarun Chatterjee & P. Sathasivam JUDGMENT:
JUDGMENT
P. Sathasivam, J.
1) The plaintiffs who succeeded before the
trial Court, lower appellate Court and
lost their suit before the High Court
filed the above appeal.
2) Brief facts required for the disposal
of this appeal are as follows:
According to the plaintiffs-appellants,
they were in possession of the suit land
for more than 40 years. The suit was
filed in 1989 for declaration of title on
the ground of adverse possession and for
injunction. The trial Court decreed the
suit and the appeal filed by the
defendants was dismissed by the first
appellate Court. When the second appeal
was filed before the High Court, the High
Court, after finding that there is no
evidence, remanded the matter to the trial
Court for taking further evidence. The
said order of the High Court was
challenged before this Court by way of
C.A. No. 1348 of 1999. By judgment dated
8.3.1999, this Court, after recording a
finding that the High Court was in error
and not justified in sending the matter
back to cure any lacuna in the evidence,
set aside the order, restored Second
Appeal No. 304 of 1992 to the file of the
High Court and directed it to dispose of
the same afresh on the available evidence.
3) Pursuant to the said direction, the
High Court formulated two substantial
questions of law which are as under:
1. Whether the suit was barred in view
of the provisions of Section 163(3)
of the H.P. Land Revenue Act, 1953?
2. Whether the suit of the plaintiff, in
the facts of the case that on 2nd
April, 1970, an order of ejectment
was passed ordering the ejectment of
the plaintiff under Section 163 of
the H.P. Land Revenue Act, 1954, can
be said to be within the period of
limitation?
While considering the first question, the
High Court concluded that inasmuch as an
order of ejectment of the plaintiffs from
the land in dispute under Section 163 of
the H.P. Land Revenue Act, 1953 was passed
on 2.4.1970 by the Settlement Officer, the
suit having been filed about 19 years
after such order is barred by limitation.
After arriving at such conclusion on
question No.1, the High Court, without
going into the second question or
adverting to the case of the plaintiffs
i.e., adverse possession, by order dated
04.01.2000, allowed the second appeal, set
aside the judgments and decrees passed by
the trial Court as well as by the lower
appellate Court and dismissed the suit of
the plaintiffs as being time barred.
Challenging the said order, the plaintiffs
have filed the present appeal.
4) Heard Mr. Himinder Lal, learned counsel
appearing for the appellants and Mr. Vivek
Singh Attri, learned counsel appearing for
the respondents.
5) We have already extracted the first
substantial question of law which relates
to limitation. The High Court proceeded
the said issue on the ground that though
the order of ejectment of the plaintiffs
from the land in dispute came to be passed
by the Settlement Officer on 2.4.1970
however, the plaintiffs filed the Suit No.
41 of 1989 only on 23.2.1989 before the
Senior sub-Judge, Mandi which was barred
by limitation. The High Court, in
arriving at such a conclusion, relied on
Section 163 of the H.P. Land Revenue
(Amendment) Act No.15 of 1989. Learned
counsel for the respondents herein pointed
out that the order said to have been
passed on 2.4.1970 by the Settlement
Officer was not communicated to them. It
is also their claim that they were not
issued notice or afforded an opportunity
to put forth their case before making an
entry/passing an order by the Settlement
Officer. In fact, neither before the
Courts below nor before the High Court,
the proceedings dated 2.4.1970 was
produced by the defendants. In fact,
there is no specific plea in the written
statement as to the limitation and no
issue was framed by the trial Court and no
point was determined by the lower
appellate Court. We verify the defence
stated in the written statement, issues
framed by the trial Court and the points
determined by the lower appellate Court.
There is no such plea and issue as to the
limitation. Though it would be open to
the parties to the suit to raise the plea
of limitation before the High Court as
pointed out earlier, the defendants have
not taken any effort to place the alleged
proceedings dated 2.4.1970 of the
Settlement Officer. It is not clear how
the High Court arrived at a specific
conclusion that suit filed by the
plaintiffs was barred by limitation. Even
according to the defendants, the entire
records relating to the said proceedings
were lost. We have already referred to
the fact that such issue was not raised
and argued before the Courts below. On
the other hand, the plaintiffs
concentrated that they are entitled to
decree in respect of the suit property
based on the continuous and uninterrupted
possession for over a period of 40 years,
that too, to the knowledge of the
defendants. In view of the assertion of
the plaintiffs that they were neither
heard nor afforded an opportunity in the
alleged proceedings dated 2.4.1970, the
onus is on the defendants/Department to
place those relevant record to show that
there was valid order by the competent
authority. Admittedly, such record was
not called for and no material was placed
before the Courts below including the High
Court. On the other hand, based on the
acceptable oral and documentary evidence
regarding the claim of adverse possession,
the trial Court decreed the suit which was
affirmed by the lower Court. Inasmuch as
the High Court dismissed the suit only on
the ground of limitation and not gone into
the claim of adverse possession by
plaintiffs, in view of our conclusion and
disagreement with the High Courts
decision, we have no other option except
to remand the matter once again to the
High Court for disposal of the second
appeal afresh in respect of other issue
i.e., adverse possession.
6) Under these circumstances, the judgment
and decree dated 4.1.2000 passed by the
High Court of Himachal Pradesh in R.S.A.
No. 304 of 1992 is set aside and the
matter is remitted to the High Court to
decide the issue relating to adverse
possession. However, it is made clear
that except the finding relating to
limitation, we have not expressed any
opinion on the conclusion of the courts
below relating to the other issues; hence
it is for the High Court to decide the
same on merits one way or the other with
the available materials. Inasmuch as the
plaintiffs suit is of the year 1989 and
even the RSA is of the year 1992, we
request the High Court to dispose of the
matter within a period of four months from
the date of receipt of this judgment.
7) The appeal is allowed to the extent
mentioned above. No order as to costs.