Gurdas Vs Dev Raj deceased through Lrs Manorma

¶1

2026:HHC:29466

¶2

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

¶3

RSA No. 420 of 2008 Reserved on: 13.7.2026 Date of Decision: 20.7.2026

¶4

Gurdass & anr. ...Appellants

¶5

Versus

¶6

Dev Raj (deceased) through LRs & anr. ...Respondents

¶7

Coram

¶8

Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ Yes. For the Appellants : Mr Ishan Sharma, Advocate. Respondent No.1 stated to have expired. For Respondent No.1(b) : Ms Radhika Gautam, Advocate, through video-conferencing and Mr Sahil Dixit, Advocate (present in the Court). For Respondent No.2 : Mr Lokender Kutlehria, Additional Advocate General.

¶9

Rakesh Kainthla, Judge

¶10

The present appeal is directed against the judgment

¶11

and decree dated 02.06.2008 passed by learned District Judge,

¶12

Hamirpur, H.P. (learned Appellate Court), vide which the

¶13

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

1

2

2026:HHC:29466

judgment and decree dated 30.9.2006, passed by learned Civil Judge (Junior Division), Nadaun, District, Hamirpur, H.P. (learned Trial Court) were upheld. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience) .

¶18

Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court for seeking permanent prohibitory injunction for restraining the defendants from interfering with bartandari rights of the plaintiffs and other Tikadarans of Village Kohla of Sandh Bihag grazing cattle, taking soil, sand, stones and wood, and burying dead bodies etc. over the suit land mentioned in the head note and para-1 of the plaint. An alternative relief for possession was also sought in case the defendant succeeds in taking possession of the suit land during the pendency of the suit. It was asserted that the plaintiffs and other tikadarans of the area have planted trees of Safeda, Tahli, Sheesham, Khair, Shehtoot, Sarin, Mango, etc. over the suit land. The State allotted the suit land to the defendant No. 1 contrary to the provisions of the H.P. Village Common Land (Vesting and Utilization) Act (HP Common Land Act). The plaintiff and other

¶19

3

¶20

2026:HHC:29466

¶21

Tikadarans had various Bartandari rights like grazing the cattle, taking up stones, burying the dead body, etc., over the suit land. The plaintiffs are in possession, and they are exercising their rights over the suit land. Defendant No.1 threatened to interfere with the exercise of rights by the plaintiffs. Hence, the suit was filed to seek the relief mentioned above.

¶22

The suit was opposed by defendant No.1 by filing a written statement taking preliminary objection regarding lack of maintainability, cause of action, locus standi and jurisdiction, the suit being barred by limitation, and the suit being bad for nonjoinder of necessary parties. The contents of the plaint were denied on the merits. It was asserted that the suit land was allotted to defendant No. 1 in the year 1975 as per law. The plaintiffs and other Tikadarans have no right, title or interest over the suit land. The defendant No. 1 was cultivating the land and had grown the trees over the suit land. The plaintiffs had no right to the suit land. Hence, it was prayed that the suit be dismissed.

¶23

The defendant No. 2 also filed a separate written statement, taking preliminary objections regarding lack of

¶24

4

¶25

2026:HHC:29466

¶26

maintainability, cause of action and jurisdiction, the suit being bad for non-joinder of necessary parties and the suit being barred by limitation. The contents of the plaint were denied on the merits. It was asserted that the suit land has vested in the State of H.P. under the provisions of the H.P. Common Land Act. It was rightly allotted in favour of defendant No.1. The plaintiff had no bartandari rights over the suit land. 1,234 kanal 03 marlas land was kept in a reserve pool for exercising the bartandari rights. The defendant No.1 was a landless person, and the allotment was rightly made in his favour. Therefore, it was prayed that the suit be dismissed.

¶27

A replication denying the contents of the written statement and affirming those of the plaint was filed.

¶28

The learned Trial Court framed the following issues on

¶29

02.01.1997: -

¶30

Whether the plaintiffs are entitled to the decree of permanent prohibitory injunction as prayed for? OPP.

¶31

Whether in alternative the plaintiffs are entitled to possession of the suit land as prayed for? OPD.

¶32

Whether the suit is not maintainable in the present form? OPD.

¶33

Whether the suit is bad for non-joinder of necessary parties? OPD.

¶34

5

¶35

2026:HHC:29466

¶36

Whether this Court has no jurisdiction to try the present suit? OPD.

¶37

Whether the suit is not within time? OPD.

¶38

Whether the plaintiffs have no cause of action and locus standi to file the present suit? OPD.

¶39

Relief.

¶40

The parties were called upon to produce the evidence, and plaintiff No.1 examined himself (PW1), Kashmir Singh (PW2), Hem Raj Gupta (PW3), Dev Raj (PW4), Bihari Lal (PW5) and Madan Lal (PW6). The defendant No.1, examined himself (DW1). The plaintiff examined Rajinder Kumar (PW7) and Pawan Kumar (PW8) in rebuttal.

¶41

Learned Trial Court held that the land had vested in the Gram Panchayat first and thereafter in the State of HP. 50% of the land was kept in the reserved pool, and 50% of the land was kept in the allottable pool. The vestment of the suit land in the State of HP was not challenged by any person. The land was allotted to defendant No.1 by the State under the Provisions of the HP Common Land Act. The vestment in favour of the State was free from all encumbrances, and the Bartandari rights, if any, stood extinguished on the date of the vestment. The defendant No.1 satisfied the requirements laid down under the Act, and allotment in his favour was valid. Hence, the learned

¶42

6

¶43

2026:HHC:29466

¶44

Trial Court answered Issue No. 6 in the affirmative, the rest of the issues in the negative and dismissed the suit filed by the plaintiffs.

¶45

Being aggrieved by the judgment and decree passed by the learned Trial Court, the plaintiffs filed an appeal which was decided by the learned District Judge, Hamirpur, H.P. (learned Appellate Court). The Appellate Court concurred with the findings recorded by the learned Trial Court that the plaintiffs had not challenged the allotment made in favour of defendant No. 1. Defendant No.1 fulfilled the eligibility criteria provided under the Act, and there was no infirmity in the allotment made in his favour. The vestment in favour of the State was free from all encumbrances, and all Bartandari rights would extinguish on the date of the allotment. Therefore, the appeal was dismissed.

¶46

Being aggrieved by the judgment and decree passed by the learned Courts below, the plaintiffs have filed the present appeal, which was admitted on the following substantial questions of law on 27.08.2008.

¶47

Whether vestment of suit land in the name of State of H.P. was not in accordance with the provisions of Section 3(5)

¶48

7

¶49

2026:HHC:29466

¶50

of H.P. Village Common Land (Vesting & Utilization) Act, 1974 and Rule 3 of the Rules framed thereunder and as such, without notice to estate right holders, the suit land could not have lawfully vested in favour of State Govt. as held by this Hon’ble Court in re: Nek Ram and others versus State of H.P. (1993) 1 Sim. L.C. 442 .

¶51

Whether on the basis of mere attestation of mutation in the absence of any notice to the plaintiffs or to the estate right holders, any valid title with respect to the suit land was conferred on the State Govt., and the Govt. had lawfully become the owner of the land by operation of law?

¶52

Whether the respondent No.1 who during year 1975-76 was employed in military service and thereby was not earning his livelihood principally by manual labour on land, had no intention to take the possession of agriculture nor was capable of cultivating the land was not covered within the definition of landless person or other eligible person as defined under sub-sections ‘c’ and ‘dd’ of Section 2 of H.P. Village Common Land (Vesting & Utilization) Act, 1974 and as such was not eligible for allotment of suit land in terms of Section 8(b) of the Act and as per the Scheme framed by the State Govt.

¶53

What is the effect of non-following of the procedure as prescribed per clause 5 of the Scheme for allotment of land to eligible persons by the respondent No.2 in the case of allotment of the suit land made in favour of defendant/respondent No.1?

¶54

I have heard Mr Ishan Sharma, learned counsel for

¶55

the appellants, Ms Radhika Gautam, learned counsel for respondents No.1(b) and Mr Lokender Kutlehria, learned Additional Advocate General, for respondent No.2/State.

¶56

8

¶57

2026:HHC:29466

¶58

Mr Ishan Sharma, learned counsel for the appellants,

¶59

submitted that the learned Courts below erred in dismissing the suit. No notice was served upon the plaintiffs before the vestment, and the vestment is bad. The plaintiffs are in possession, and they are exercising their bartandari rights. Learned Courts below had wrongly held that the bartandari rights stood extinguished on the date of vestment in the State. The defendant No.1 was not eligible for the allotment as he was serving as a teacher at the time of the allotment. Therefore, he prayed that the present appeal be allowed and the judgments and decrees passed by the landed Courts below be set aside. He relied upon the following judgments in support of his submission: -

¶60

(i) State of HP and another Vs. Siri Dutt (dead) by LRs & ors. a/w connected matter (2010) 10 SCC 68;

¶61

(ii) Mangat Ram Vs. State of H.P. 1996(2) Shim.L.C. 111;

¶62

(iii) Nek Ram Vs. State of H.P. 1993 (1) Shim. L.C. 442: and

¶63

(iv) Dalip Singh & Ors Vs. State of H.P. & others 1992(1) Shim.L.C. 320.

¶64

Ms Radhika Gautam, learned counsel for respondents No.1(b), submitted that the learned Courts below have rightly held that the suit land had vested in the State free from all encumbrances and Bartandari rights, if any, stood extinguished.

¶65

9

¶66

2026:HHC:29466

¶67

The plaintiff had not challenged the allotment before the learned Trial Court or in the Memorandum of Appeal before the learned Appellate Court. It is impermissible to challenge the allotment before this Court. Even otherwise, the jurisdiction of the Civil Court to challenge the vestment and the allotment is barred under the provisions of the HP Common Land Act. The substantial questions of law framed by the Court do not arise for consideration in the present case. The learned Courts below have concurrently recorded the findings of fact that the plaintiffs are in possession, and this Court should not interfere with the concurrent findings of fact recorded by the learned Courts below. Therefore, she prayed that the present appeal be dismissed. She relied upon the following judgments in support of her submission: -

¶68

(i) Dr Mahesh Chand Sharma Vs. Raj Kumari Sharma (1996) 8 SCC 128

¶69

(ii) Randhir Kaur vs. Prithvi Pal Singh 2019(17) SCC 71

¶70

Mr Lokender Kutlehria, learned Additional Advocate General, for respondent No.2/State submitted that the plaintiffs have not challenged the vestment and the suit was hopelessly barred by limitation. Learned Courts below had rightly held that

¶71

10

¶72

2026:HHC:29466

¶73

the land had vested in the State free from all encumbrances, which means that all Bartandari rights of the plaintiffs stood extinguished after the vestment of the suit land in favour of the State. Therefore, he prayed that the present appeal be dismissed.

¶74

I have given a considerable thought to the submissions made at the bar and have gone through the records carefully.

¶75

Substantial Questions of Law No. 1 to 4.

¶76

All these substantial questions of law are interconnected and are being taken up together for consideration.

¶77

Section 10 of the H.P. Common Land Act bars the jurisdiction of the civil court to go into the validity of the order made by the collector or the State Government. It reads as follows:

¶78

"10. Bar of jurisdiction - Save as otherwise expressly provided in this Act, no order made by the Collector or the State Government or any officer authorised by it, as the case may be, shall be called in question by any court or before any officer or authority."

¶79

11

¶80

2026:HHC:29466

¶81

It was held by this Court in Dalip Singh Vs. State of H.P.

¶82

1992 (1) Shim. L.C. 320 that the Civil Court does not have the

¶83

jurisdiction to go into the question of the vestment in favour of the State in view of Section 3 of the HP Common Land Act. It was observed:-

¶84

The scheme of the Himachal Act, as analysed by the Full Bench in Gram Panchayat Khunyara's. case (supra), envisages that the enquiry contemplated by Rule 9 should be started before action under sub-section (5) of section 3 of the Himachal Act is taken and it would be only after the matter is finally settled through appeal or otherwise that proceedings contemplated by the abovementioned provisions of law with regard to taking of possession could be undertaken because till then it would not be clear whether a particular piece of land has or has not legally vested in the State Government. The Full Bench also found that the Collector was also bound to ascertain whether a particular case falls within any of the three exceptions enumerated in sub-section (I) of section 3 of Himachal Act and it would be only thereafter that it could be ascertained whether the land which is said to be covered by the provisions of sub-section (2) of section 3 of Himachal Act and it would be only thereafter that it could be ascertained whether the land which is said to be covered by the provisions of sub-section (2) of section 3 legally vests in the State or not. As observed by the Full Bench in Gram Panchavat Khunyara's case (supra) and as is apparent from the reading of the Himachal Act, there is an adequate remedy provided for what the Civil Courts would normally do in suits, namely, whether particular land has or has not vested in the State Government The Act also provides for the remedy to carry the matter in appeal against an order passed by the Collector. In these circumstances, it can be said that the Himachal Act gives

¶85

12

¶86

2026:HHC:29466

¶87

a finality to the orders passed by the Collector or the State Government and jurisdiction of Civil Court is ousted to entertain and decide a suit of the nature but, as observed above, section 10 of the Himachal Act does not exclude those cases where it is shown that provisions of a particular Act have not been complied with or that the Collector or the State Government has not acted in conformity with the fundamental principles of judicial procedure. The primary relief claimed by the plaintiffs with regard to declaration of their rights as owners cannot be gone into in view of the jurisdictional bar created under section 10 of the Act for which appropriate forum would be the Collector as observed in Gram Panchayat Khumara's case The Civil Court's jurisdiction to entertain and decide a suit for grant of a decree for prohibitory injunction founded upon settled possession is not ousted by any of the provisions of the Act.

¶88

It was held in State of HP vs Hakim 1995(2) Cur. L.J. (HP) 53 that the jurisdiction of the civil court to go into the question of cancellation of the allotment of the land is barred. It was observed:

¶89

“13. On the basis of the aforesaid provision of law there is absolutely no dispute between the parties that in case the order of cancellation passed by the Commissioner in these cases come within the purview of the Act, Rules or Scheme framed thereunder, in that event it can be so argued that the Civil Court shall have no jurisdiction to call upon in question the validity/invalidity of that order…”

¶90

It was held in Keshav Ram vs State of HP 2006(1) Cur.

¶91

L.J. (HP) 452 that the civil courts do not have jurisdiction to go

¶92

13

¶93

2026:HHC:29466

¶94

into the question of the vestment of the land in favour of the

¶95

State. It was observed:

¶96

On the question regarding jurisdiction of the civil court, as referred to above, the learned trial Court had held that the civil court had no jurisdiction to decide the question as to whether land had vested or not vested in the State of H.P. under the provisions of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 (hereinafter called as the 1974 Act), in view of the bar created under Section 10 of the said Act. While coming to this conclusion, the learned trial Court had placed reliance on the law laid down by this Court, in the cases Dalip Singh and others v. State of H.P. and others, 1992(1) Sim. L.C. 320 and State of Himachal Pradesh v. Babu Ram (deceased) through his LRs. Ms Nakshatro and another, 1996(2) Sim. L.C. 175: 1996(1) Cur. L.J. (H.P.) 427 . In both judgments, it has been held by this Court that, in view of the provisions of Section 10 of the 1974 Act, the civil court had no jurisdiction to entertain and decide the suit wherein a declaration had been sought about the land having vested in the State Government under the provisions of the said Act. This Court in the case Bansi Ram and others v. Govt. of H.P. and others, 1994(3) S.L.J. 2516 also took a similar view.

¶97

Therefore, it is not permissible for this Court to go

¶98

into the question regarding the vestment of the suit land in favour of the State and the question of allotment in favour of defendant No. 1, unless there is a violation of the fundamental principles of the law or the violation of the principles of natural justice.

¶99

14

¶100

2026:HHC:29466

¶101

A perusal of the plaint filed by the plaintiffs shows that the plaintiffs had not sought any declaration regarding the invalidity of the vestment in favour of the State or the cancellation of the allotment made in favour of the defendant No. 1 on the ground that the fundamental principles of law were not followed or the allotment was violative of the principles of natural justice. The plea taken before this Court that no notice was issued to the plaintiffs or other tikadarans or that the defendant No. 1 was not eligible for allotment was never raised before the learned Courts below. It was only mentioned in paragraph 5 of the plaint that the vestment in the State and allotment in favour of defendant No. 1 are bad. Learned Trial Court specifically held in para-26 that the allotment was never challenged by the plaintiffs and other Tikadarans of the area, the material on record showed that the land had vested in the State of HP free from all encumbrances, and the State had a right to make the allotment. The plaintiffs filed an appeal in which it was asserted in para 3 that the possession was never taken by the State as required under Sub Sections 3 to 6 of Section 3 of the HP Common Land Act, but the plea of the lack of notice or ineligibility of the defendant no. 1 was not raised. Therefore,

¶102

15

¶103

2026:HHC:29466

¶104

there is a force in the submission made by Ms Radhika Gautam, learned counsel for respondent No.1, that the plaintiffs cannot challenge the vestment made in favour of the State or the subsequent allotment made by the defendant No. 2/State in favour of defendant No.1. It was laid down by the Hon'ble Supreme Court in Dr Mahesh Chand Sharma Vs. Raj Kumari Sharma (1996) 8 SCC 128, that when a plea was not taken before the learned Courts below, the same cannot be raised in the High Court during the Regular Second Appeal. Thus, it is impermissible for the plaintiffs to take a plea before this Court that the vestment in favour of the State and allotment in favour of defendant No. 1 were bad.

¶105

It was laid down by this Court in Nek Ram Vs. State of H.P. 1993 (1) Shm. L.C. 442 that the vestment of the land is automatic. It was observed:

¶106

It is clear from this provision that vestment of the lands described therein is automatic and free from all encumbrances. Sub-section (2) of section 3 creates an exception in case of certain lands described in Clauses (a), (b) and (c) thereof. Sub-section (3) provides for the payment of amount to the landowners whose rights are extinguished under sub-section (I) in accordance with Clause (i) and (ii) thereof and where the land h not assessed to land revenue, the amount shall be assessed as on similar land in the estate and If not available in the

¶107

16

¶108

2026:HHC:29466

¶109

estate, then in the adjoining estate or the estates as the case may be. The amount realised by the Panchayat shall form the Sabha Fund and be utilised for the purposes mentioned in section 40 of the Himachal Pradesh Panchayati Raj Act, 1968.

¶110

It was laid down by the Hon’ble Supreme Court in

¶111

State of H.P. v. Siri Dutt , (2010) 10 SCC 68 : (2010) 4 SCC (Civ) 49: 2010 SCC OnLine SC 1096 that the vestment will extinguish the rights, title and interests of the landowners of the estate. It was observed at page 79:

¶112

14. Section 3 provides for the 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 landowners in any estate.

¶113

Thus, the learned Courts below had rightly held that

¶114

the bartandari rights of the plaintiffs and other tikadarans , if any, extinguished after the allotment.

¶115

In the present case, both the learned Courts below have concurrently held that the plaintiffs were not in possession, and this finding is not shown to be perverse and is binding upon this Court while deciding the Regular Second

¶116

17

¶117

2026:HHC:29466

¶118

Appeal. Therefore, the plaintiffs were not even entitled to the injunction.

¶119

In Mangat Ram (supra), this Court held that an authority having the jurisdiction to grant a lease was competent to cancel it. The question regarding the validity of the vestment or the allotment never arose in it, and the cited judgment does not apply to the present case.

¶120

Therefore, the submission of Ms. Radhika Gautam, learned counsel for the respondent No.1(b) has to be accepted as correct that the substantial question of law framed by the appellant do not arise in the present case because (i) the vestment or allotment was never challenged; and (ii) the jurisdiction of the Civil Court to go into the question of vestment and allotment is barred under the provisions of HP Common Land Act.

¶121

Final Order:

¶122