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1969 DIGILAW 203 (DEL)

CHANAYA v. NANKA

1969-11-13

H.R.KHANNA, PRAKASH NARAIN

body1969
Prakash Narain, J. ( 1 ) THE plaintiffs-appellants were Bhentdars in possession of 3/8th share of land in Khata No. 1/26 Min. to 28 Min. comprised in 22 plots admeasuring 27 Bighas 9 Biswas in village Bated, Tehsil Arki, Mahasu District. The defendants were the owners of this land and subsequently obtained proprietary rights in respect thereof on 9-10-1967 under the provisions of section II of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, hereinafter REFERRED TO to as the Act . ( 2 ) PRIOR to the defendants acquiring the proprietary rights the plaintiffs had mortgaged their interest in the said land to the defendants for a sum of Rs. 200. 00 taken as a loan but had redeemed that mortgage and, it is contended, obtained physical possession of half the land at the time of the redemption and the other half after some months as at the time of redemption the defendants wheat crop was standing on the land and was still to be harvested. It is alleged that after the plaintiffs came into possession they were prosecuted by the defendants under section 447 of the Indian Penal Code but that prosecution resulted in the plaintiffs acquittal. About the same time the defendants moved an application to the Assistant Collector First Grade at Solan under section 62 of the said Act but that application was dismissed on 8-7-1960. The defendants went up in appeal to the Collector, Mahasu and their appeal was allowed giving them possession in terms of section 62 of the said Act. The plaintiffs in their turn then went up in appeal to the Financial Commissioner, Himachal Pradesh, but that appeal was dismissed. The defendants went up in appeal to the Collector, Mahasu and their appeal was allowed giving them possession in terms of section 62 of the said Act. The plaintiffs in their turn then went up in appeal to the Financial Commissioner, Himachal Pradesh, but that appeal was dismissed. Thereafter the plaintiffs filed the present suit and in their plaint challenged the legality and vires of the order of the Collector, Mahasu and the Financial Commissioner, Himachal Pradesh on the grounds that (1) that the petition under section 62 of the said Act moved by the defendants was not competent as there was no relationship of landlord and tenant existing between the plaintiffs and the defenadnts at the time when the petition under section 62 was moved or at any time, (2) that the revenue officers failed to comply with the provisions of the said Act in passing the impugned orders, (3) that the nature of the proceedings before the revenue officers being summary in character the plaintiffs had a right to get a declaration about their claim to the property by establishing the claim in a civil Court, (4) that as a result of the proceedings under the Himachal Pradesh Consolidation of Holdings Act in respect of the land in suit the plaintiffs had been awarded some other land in lieu of the land in suit and in the circumstances the Financial Commissioner s order cannot be operative qua the land that the plaintiffs had received in lieu of the land in suit. and (5) that the defendants cannot be regarded as persons who could rightly obtain proprietary rights in the land in suit. The defendants in their written-statement traversed the contentions of the plaintiffs and, inter alia, pleaded that the suit in the form it had been filed was not maintainable, that the suit was barred under the provi- sions of the said Act and the civil Courts had no jurisdiction to try the suit, that in fact the order of the Financial Commissioner, Hiniachal Pradesh, or the Collector, Mahasu could not be challenged in this Court and the suit was barred by time. ( 3 ) ON the pleadings of the parties the following issues were framed :- 1. Whether the defendant was in possession of the land in suit as a mortgagee and the plaintiffs got the mortgage redeemed on 28th Maghar, Samvat 2013? 2. ( 3 ) ON the pleadings of the parties the following issues were framed :- 1. Whether the defendant was in possession of the land in suit as a mortgagee and the plaintiffs got the mortgage redeemed on 28th Maghar, Samvat 2013? 2. Whether the plaintiffs were given physical possession of about half the area immediately after redemption and the possession of the remaining, half was taken over by them after the defendants wheat crop was harvested, with the consent of the defendant? 3. Whether the order dated 15-9-1959 of the Collector Mahasu and order of the Financial Commissioner dated 27-7-1964 are ultra vires, without jurisdiction and a nullity for the reasons given in para 6 of the plaint and the plaintiffs are not bound by these orders? 4. Whether this Court has no jurisdiction to hear this suit ? 5. Whether the suit is barred by time? 6. Whether the judgment dated 27-7-1964 of the Financial Commissioner is conclusive as to the matters decided therein and the same cannot be re-agitated in this Court which issues No. 1, 2 and 3 have been framed ? 7. Whether the suit in the present form does not lie ? 8. Relief. The trial Court came to the conclusion that the civil Court was not competent to try the suit and that the decisions of the revenue officers would operate as res judicata on general principles. He decided issues 3, 4, 6 and 7 in favour of the defendants and dismissed the suit. No decision was, however, given on issues land 2. ( 4 ) AGGRIEVED by the judgment and decree of the trial Court the plaintiffs appealed to the District Judge. Mahasu, who, by his judgment and decree, affirmed the order of the trial Court and dismissed the appeal. Aggrieved the plaintiffs came up in second appeal. ( 5 ) WHEN the second appeal came up for hearing before 1. D. Dua, C. J. (as he then was) he felt that the question of the competency of the civil Court to entertain the suit was of considerable importance and in that view of the matter directed that the appeal should be heard by a larger Bench. That is how the matter has been placed before us. ( 6 ) MR. D. Dua, C. J. (as he then was) he felt that the question of the competency of the civil Court to entertain the suit was of considerable importance and in that view of the matter directed that the appeal should be heard by a larger Bench. That is how the matter has been placed before us. ( 6 ) MR. Sushil Malhotra, learned counsel for the appellants, has urged that an application under section 62 of the said Act could be decided by the revenue officers named under the Act only if the relationship of landlord and tenant stood admittedand not otherwise. In other words, the contention is that the revenue officers get jurisdiction to entertain and decide an application under section 62 of the Act only if the jurisdictional fact of the relationship of landlord and tenant exists but if that jurisdictional fact is not in existence, they would have no jurisdiction to proceed on an application under section 62 and certainly cannot give a finding on the existence or non-existence of such a relationship. He further contended that the contention of the plaintiffs about the existence of the relationship of the landlord and tenant as made in the plaint may or may not be accepted ultimately after the parties have gone to trial but once this contention is raised the civil Court would have jurisdiction to adjudicate upon this issue, even if it ultimately finds that the plaintiffs contentions are without any force. Section 92 of the Act was REFERRED TO to in support of this contention in which it is provided that nothing in this Act shall affect the right of any person to establish his claim in respect of any land or part thereof by due process of law in the Court having jurisdiction and it was contended that Court REFERRED TO to in section 92 would mean the civil Court and the claim in respect of any land would mean the claim regarding the status of being a tenant or otherwise. Our attention was invited to numerous decisions of the Punjab High Court, this Court, the Court of the Judicial Commissioner, Himachal Pradesh and the Supreme Court. It is not necessary to refer to all those decisions in the view that we are going to take in this matter. We may, however, notice four decisions of the Supreme Court. Our attention was invited to numerous decisions of the Punjab High Court, this Court, the Court of the Judicial Commissioner, Himachal Pradesh and the Supreme Court. It is not necessary to refer to all those decisions in the view that we are going to take in this matter. We may, however, notice four decisions of the Supreme Court. The first one to which our attention was invited was a decision of the Supreme Court in Magiti Sasamal v. Pandab Bissoi and others (A. T. R. 1962 Supreme Court 547 ). This was a case in which section 7 (1) of the Orissa Tenants Protection Act, 1948 came up for consideration in the Supreme Court. Gajendragadkar J. (as he then was), speaking for the Court, inter alia, observed that on the construction of section 7 (1) of the Orissa Tenants Protection Act it would be unreasonable to hold that a dispute about the status of the tenant also fell within the purview of that section in asmuch as that section REFERRED TO to the tenant and the landlord as such and contemplated disputes of the specified character arising between them and so the argument that a dispute as regards the existence of the relationship of landlord and tenant falling within the ambit of the determination contemplated under section 7 (1) of that Act could not be upheld. "this rule was laid down on the basis that there existed a dispute between the parties with regard to the existence of such relationship and it was observed A that such would be the construction to be placed on the statute only if there was a dispute but where such relationship was either admitted or established in a civil Court the disputes specified by section 7 (1) of that Act would fall within the exclusive jurisdiction of the Collector. ( 7 ) THE next decision of the Supreme Court to which our attention B was invited was in Shri Raja Durga Singh of Solan v. Tholu and others (A. 1. R. 1963 Supreme Court 361), where the provisions of section 77 (3) of the Punjab Tenancy Act as applied to Himachal Pradesh came in for construction. ( 7 ) THE next decision of the Supreme Court to which our attention B was invited was in Shri Raja Durga Singh of Solan v. Tholu and others (A. 1. R. 1963 Supreme Court 361), where the provisions of section 77 (3) of the Punjab Tenancy Act as applied to Himachal Pradesh came in for construction. It was held that there was no entry or item in section 77 (3) relating to a suit by or against a person claiming to be a tenant and whose status as a tenant was not admitted by the landlord and so it would be reason- able to infer that the legislature barred only those suits from the cognizance of a civil Court where there was no dispute between the parties that a person cultivating land or who was in possession of land was a tenant. The Supreme Court in deciding this matter had approved of the earlier decisions of the Lahore High Court reported in AIR 1931 Lahore 362 and AIR 1942 Lahore D 217 (F. B. ). So here also their Lordships had proceeded on the basis that the status of a tenant as such was in dispute. ( 8 ) THE third case to which our attention was invited was the decision of the Supreme Court in Addanki Tiruvenkata Thata Desika Charyulu v. State of Andhra Pradesh and another (A. I. R. 1964 Supreme Court 807 ). In this case the provisions of the Madras Estates (Reduction of Rent) Act, 1947 had come in for consideration and the question was whether the Settlement Officer under the Act could pronounce upon the property in question being an inam village was a jurisdictional fact and, , therefore, where in proceedings before him persons appearing in opposition questioned the character of the property as not falling within the description of inam village he has of necessity to decide the issue for until he holds that this condition is satisfied he cannot enter on further inquiry contemplated by section 9 (1) of the Act. A decision by the Settlement Officer, however, may be questioned in any subsequent proceedings in the Courts of the land. A decision by the Settlement Officer, however, may be questioned in any subsequent proceedings in the Courts of the land. ( 9 ) THE fourth decision of the Supreme Court to which our attenfion was invited was in Firm Seth Radha Kishan and others v. Administrator Municipal Committee, Ladhiana (A. I. R. 1963 Supreme Court 1547) wherein Subba Rao J. (as he then was), speaking for the Court, observed that a suit in a civil Court would always lie to question the order of a Tribunal created by a statute, even if its order was, expressly or by necesary implication, made final, if the said tribunal abused its power or did not act under the Act but in violation of its provisions. ( 10 ) IT is true as has been laid down by the Privy Council in Secretary of State v. Mask and Company (67 Indian Appeals 222 ) and followed consistently by all the Courts thereafter, that the exclusion of the jurisdiction of civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied and that the Courts would bereluctant to divest the civil Courts of their jurisdiction unless so compelled to do by the provisions of any statute. All the same, the circumstances of each case have to be seen to find out whether in that particular case the plaintiff can invoke the jurisdiction of a civil Court. All the cases cited by Mr. Malhotra in favour of his contention lay down the same principle but it is also clear that if the status of the plaintiffs as tenants stood admitted or was never in issue or stood proved in some earlier proceedings then those proceedings cannot be questioned subsequently as being without jurisdiction merely because the plaintiff now chooses to assert that relationship of landlord and tenant was in dispute. Exhibit D. J. was the petition that was filed by the defendants before the Assistant Collector First Grade, Solan and the first paragraph thereof was in the following terms:- "that the petitioner occupied the land mentioned above as tenant under the respondents (landlords ). Copy of the Jamabandi and Khasra Girdawari are attached herewith. " ( 11 ) A reply on behalf of the plaintiffs was filed and copy of that reply is Exhibit D. B on the record. Copy of the Jamabandi and Khasra Girdawari are attached herewith. " ( 11 ) A reply on behalf of the plaintiffs was filed and copy of that reply is Exhibit D. B on the record. In this reply the first paragraph of the petition was admitted. Thus, the relationship of landlord and tenant being admitted the Assistant Collector certainly had jurisdiction to proceed under section 62 of the Act. The plaintiffs cannot now be allowed to prevaricate or go back on the admission of the jurisdictional fact which was never really in dispute and was in fact admitted on the ratio of Magiti Sassamal s case (A. I. R. 1962 Supreme Court 547), it follows. therefore, that the orders of the revenue officers would be intra vires their powers and if that be so, the provisions of section 110 ( 1 ) (d) of the Act would clearly be attracted and the jurisdiction of civil Courts to entertain the present suit would be barred. ( 12 ) THE view that we have taken makes it unnecessary for us to pronounce upon the larger question whether civil Courts have jurisdiction to entertain a suit where the relationship of landlord and tenant is in dispute. That will be decided in a more appropriate case for on the facts of the present case we are convinced that the decisions of the Courts below are perfectly valid and must be upheld. It is also not necessary to decide upon the submission of Mr. Chhabil Das that on similar provisions in the Rent Restriction Act the Rent Controllers have been held entitled to adjudicate upon the existence of the relationship of landlord and tenant where it is in dispute. We, accordingly, dismiss the appeal with costs.