Bal Mukand Sharma vs Divisional Forest Officer And Anr

Sandeep Sharma, J

By way of instant petition, petitioner has prayed for following reliefs:-

"a. Issue a writ of Mandamus or other appropriate writ order or directions as this Hon'ble Court deems fit restraining the respondents from taking any further coercive action against the petitioner's Seven biswas of land at village Rewari, P.O. Dulash, Teh. Ani, District Kullu (H.P.) without following the due process of law, etc keeping in view the fact that the Petitioner is in possession of the said land /property since 1952-53 and let the petitioner use the land.

b. Issue a writ of Mandamus or other appropriate writ order or directions as this Hon'ble Court deems fit restraining the respondents from dispossessing the petitioner from 7 biswas of land at village Rewari, P.O. Dulash, The. Ani, District Kullu (H.P.)."

Precisely, case of the petitioner is that he is being dispossessed from the land which he has inherited from his forefathers and is in his possession since 1952-53 by the respondents illegally without following due procedure as prescribed under law. Though reply filed by the respondents reveals that petitioner was unable to produce any documentary evidence to substantiate his claim that land in question belongs to him, rather same being forest land belongs to the department of forest, Government of Himachal Pradesh. As per respondents, petitioner was found constructing pucca house on the forest land and as such, action came to be initiated against him. Be that as it may, bare perusal of averments contained in para-6 of the reply clearly suggests that there is no case of encroachment pending against the petitioner and respondents are not using any force against him to dispossess him from the land in question, rather process has been initiated to settle the title in issue in accordance with law. Respondents in para-6 of the reply have stated that demarcation of the suit land has been carried out on 25.7.2020, wherein petitioner has been found to be in illegal possession of the disputed land. Respondents in para-8 of the reply have stated that respondents have seized 17 imported Kail planks of different sizes and plastic water tank of 200 ltr. capacity as a preventive measure to stop the construction work, but further action in the matter shall be taken in accordance with law. Since there is no pending case of the encroachment against the petitioner, he cannot be evicted from the premises in question forcibly, rather in that regard, proceedings under Section 163 of the Land Revenue Act, are required to be initiated, as has been fairly admitted by learned Deputy Advocate General.

By now it is well settled that person in possession cannot be thrown out/dispossessed without following due process as prescribed under law. In this regard, reliance is placed on judgment passed by the Hon'ble Apex Court in case titled Ravinder Kaur Grewal and Ors v. Manjit Kaur and Ors, (2019) 8 SCC 729, relevant para whereof is as under:-

"62. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years' period of adverse possession is over, even owner's right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner's title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other Articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit."

Consequently, in view of the above, present petition is allowed and respondents are restrained from taking any coercive action to dispossess the petitioner from the land in question without following due process of law. Construction material, if any, confiscated/seized by the respondents from the land in question shall be returned to the petitioner forthwith. As such, present petition is disposed of so also pending applications, if any.