STATE OF HIMACHAL PRADESH versus TARSEM SINGH AND ORS.

Citation: [2001] SUPP. 2 S.C.R. 545 · Decided: 04-09-2001 · Supreme Court of India · Bench: V.N. KHARE · Disposal: Appeal(s) allowed
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Judgment (excerpt)

ST ATE OF HIMACHAL PRADESH 
v. 
TARSEM SINGH AND ORS. 
SEPTEMBER 4, 200 I 
(V.N. KHARE, B.N. AGRAWAL, JJ.] 
Himachal Pradesh Village Common lands Vesting and Utilization Act, 
1974. 
A 
B 
Section 3-Effect of-Village community using land for grazing-land C 
vesting in the State free from all encumbrances under Section 3-Village 
community claiming easementary right over the /and-Held, vesting of land in 
the State is without any burden or charge on the land, including that of 
easementary right-Punjab Village Common lands (Regulation) Act, 1961. 
Words & Phrases-Encumbrance-Meaning of 
Disputed pasture land was shamilat land and was being used by village 
community for grazing their catties. The said land came to be vested in Gram 
Panchayat under the Punjab Village Common Lands (Regulations) Act, 1961 
/ 
D 
but the village community continued to exercise their right of grazing and E 
other such right over the said pasture land. Thereafter, the Himachal Pradesh 
Village Common Lands Vesting and Utilization A9\ IY74 was passed and all 
rights, titles and interests in the land in any estate vested in Panehayat under 
Section 4 of the Punjab Act vested in the State free from all encumbrances 
under Section 3 of the 1974 Act. Respondents are residents of village 
community and they tiled a suit in representative capacity against appellant- F 
State for declaration that they have easementary right of grazing over the 
said land which was decreed by the trial court. Appeal preferred by appellant 
was substantially dismissed. Second appeal preferred by appellant was 
dismissed by the High Court on the ground that only interest and right in 
the land and not easementary right of grazing over the land vested in the G 
State under Section 3 of the t 97 4 Act. Hence, this appeal by the State. 
Appellant contended that under Section 3 of the 1974 Act, the 
easementary right alongwith the right in the land had been extinguished and 
came to be vested in the State free from all encumbrances. 
545 
H 
546 
SUPREME COURT REPORTS [2001) SUPP. 2 S.C.R. 
A 
Respondent contended that expressions 'right in the land' and 'right 
B 
over the land' convey different meanings and since only right in the land has 
vested in the State, there is no vesting of easementary right in the State which 
is over the land. 
Allowing the appeal, the Court 
HELD: 1.1. The word "encumbrance" means a burden or charge upon 
property or a claim or lien upon an estate or on the land. "Encumber" means 
burden of legal liability on property, and, therefore, when there is 
encumbrance on a land, it constitutes a burden on the title which diminishes 
C the value of the land. (550-E[ 
Fruit and Vegetable Merchants Union v. Delhi Improvement Trust, (1957) 
SCR 1 relied on. 
Abdul Karim Khan and Ors. v. Managing Committee, George High School, 
D AIR (1936) Allahabad 879; Rashid Allidina v. Jiwandas Khemji and Anr., AIR 
30 (1943) Calcutta 35 and Ganga Vishnu Swaika v. Machine Manufacturing Co. 
Ltd and Anr., AIR(l955) Calcutta and 503, referred to. 
E 
1.2. If the argument of the respondents that easementary right being 
over the land and the same has not vested in the State under Section 3 of the 
Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 
is accepted, the result would be that the land would carry burden or charge 
affecting possession, interests and rights in the land. Such a meaning cannot 
be given to the expression 'free from encumbrances'. When the legislature 
has used the expression 'free from encumbrances', it means the vesting of 
F land in the State is without any burden or charge on the land, including that 
of easementary right. Thus where the land vests absolutely free from all 
encumbrances not only the rights in the land vest in the State but possession 
of the land also. Under Section 3 of the 1974 Act, all rights, title and interests 
including the easementary rights stood extinguished and all such rights, title 
and interests vested in the State free from all encumbrances. [551-D-F) 
G 
Atma Ram v. State of Punjab, AIR(l959) SC 519 and Megh Raj and Anr. 
v. Allah Rakhia and Ors., AIR, 34 (1947) Privy Council 72, distinguished. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4979 of 
H 1995. 
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STATEv. TARSEMSINGH [KHARE,J.] 
547 
From the Judgment and Order dated 1.7.94 of the Himachal Pradesh A 
High Court in R.S.A. No. 244 of 1989. 
Naresh K. Sharma for the Appellant. 
Arvind Kumar, S.C. Gupta and Ms. Laxmi Ar
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