State of H.P. and Another vs Ashok Kumar and Others

Surjit Singh, J.—This Regular Second Appeal was admitted on the following substantial questions of law:

Whether the suit for vacant possession of land and building has been property stamped with ad-valorem court fee and was maintainable on Court fee of Rs. 3/ - only?

Whether the judgment of the lower appellate Court can be sustained when it ignores the longstanding entries in the revenue record in favour of the State and the evidence on the record showing that the land was donated to the State in the year 1917 for the purpose of construction of a hospital?

Appeal is directed against the judgment and decree dated 2nd December, 2004 of learned District Judge, whereby, accepting the appeal of respondents Ashok Kumar and others (hereinafter called plaintiffs-respondents), judgment and decree dated 31st March, 2004 of the learned trial Court dismissing the suit were set aside and the suit of the plaintiffs-respondents was decreed.

Plaintiffs-respondents filed a suit for possession of land measuring 467 square metres, bearing Khasra Nos. 672, 674 and 1937, situate in Mauza Rey, Tehsil Fatehpur, District Kangra, hereinafter referred to as suit land, claiming that they were owners in possession of the suit land, but the defendants in connivance with the settlement staff got the entries changed in their favour, in the revenue record prepared in the year 1985-86 and on the strength of those entries dispossessed them in the year 1988.

Suit was contested by the defendants-appellants and it was alleged that the suit land alongwith some other land had been gifted to the District Board by Rai Bahadur Raghunath Singh, in the year 1917, for constructing a hospital and ever since there has been a hospital building on the spot.

Trial Court held that the suit land had been in possession of the defendants-appellants since 1917 and that it had been gifted to the District Board by Rai Bahadur Raghunath Singh, for establishing a hospital. Consequently, the suit was dismissed. Learned District Judge reversed the finding of the trial Court. It has been observed by the learned District Judge that the land that was gifted by Rai Bahadur Raghunath Singh, for setting up a hospital, was different from the suit land and that this fact was demonstrated from a scrutiny of entries in the revenue papers.

I have gone through the record and heard the learned Assistant Advocate General. Nobody has put in appearance on behalf of the respondents.

Case of the plaintiffs-respondents, as stated in the plaint, is that it is for the first time that entries, in respect of the suit land, came to be recorded in favour of the defendants-appellants, in the year 1985-86, when settlement took place in the village and that these entries were made in connivance with the settlement staff. Learned District Judge has upheld the plea that the entries in favour of the defendants-appellants appeared, for the first time, in the year 1985-86. This view of the learned District Judge is not correct.

Suit land was initially described by Khasra Nos. 844/823 min, measuring 19 biswas and 844/823 min, measuring 5 biswas, per entries in the Misl Hakiat for the year 1972, copy Ex. D-9. It was assigned new Khasra Nos. 571 and 574 in Misl Hakiat Ex. D-9. Thereafter, another settlement took place in the year 1985-86. On the conclusion of that settlement, suit land, which was assigned Khasra Nos. 571 and 574 in the settlement of 1972, was assigned the present Khasra Numbers, i.e. 672, 674 and 1937. In the Misl Hakiat for the year 1972, copy Ex. D-9, land bearing Khasra Nos. 571 and 574 or the suit land, which was assigned Khasra Nos. 672, 674 and 1937 during settlement of 1985-86, was recorded in possession of District Board or the predecessor of the defendants-appellants. Entries in Ex. D-9 give a lie to the plea that the suit land was recorded in possession of the defendants-appellants, for the first time, in the year 1985-86.

In view of the abovestated position, substantial question of law No. 2 is answered in favour of the defendants-appellants.

As regards substantial question of law No. 1, decree for possession has been sought by the plaintiffs-respondents, in respect of the vacant site, after demolition of the structure of the hospital standing thereon. Land is assessed to revenue, as per entries in the Misl Hakiat Ex. D-15 for the year 1985-86. Therefore, valuation is not required to be done advolarem. Substantial question of law stands answered accordingly.

In view of the above discussion and answers to the substantial questions of law, appeal is accepted, impugned judgment and decree of the first appellate Court are set aside and those of the trial Court restored.

Appeal stands disposed of accordingly.