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1990 DIGILAW 109 (HP)

MOTI v. AJUDH RAJ

1990-10-12

DEVINDER GUPTA

body1990
JUDGMENT Devinder Gupta, J.—This is a Regular Second appeal filed by the defendant-appellant against the judgment and decree passed by Additional District Judge, Kangra at Dharamsala on June 28, 1979, affirming the judgment and decree passed on August 9, 1978 by the Sub-Judge First Class, Dalhousie, decreeing the suit of the plaintiffs-respondents: Plaintiff Shyam Sunder, predecessor of the present respondents, claimed a decree for declaration that he being a cultivating tenant under the State with respect to the land measuring 2 Bighas 5 Biswas comprised in Khasra No. 661 and 666/1 situate at Bhanota, Tehsil and District Chamba and Moti appellant having no right, title and interest therein the order passed by the Compensation Officer, Chamba, on December 3, 1968 (wrongly mentioned as May 6, 1969 in the plaint), conferring proprietory rights upon him on the basis of which mutation No. 316 dated May 11, 1969, was attested, was unjust and illegal be declared to be ineffective and inoperative upon his rights being the result of mis-statement on the part of Moti and he be declared entitled to acquire proprietary rights on payment of compensation. 2. By way of consequential relief, a decree for possession of the suit land was also prayed on the basis that the suit land was in his cultivating possession. Moti-defendant and Buta were engaged as labourers to cultivate the same as per the agreement dated September 6, 1966 and Moti was never inducted as a tenant on this land by him. By way of consequential relief, a decree for possession of the suit land was also prayed on the basis that the suit land was in his cultivating possession. Moti-defendant and Buta were engaged as labourers to cultivate the same as per the agreement dated September 6, 1966 and Moti was never inducted as a tenant on this land by him. It was further averred that Moti wrongly by claiming himself to be a tenant cultivating the land had acquired proprietory rights under section 27 (4) of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1954 (hereinafter to be referred as the Act) on the basis of the order passed by the Compensation Officer, Chamba, in consequence whereof mutation of conferment of proprietory rights was attested on May 11, 1969, and as there was no relation of landlord and tenant between him and Moti and be being in cultivating possession was entitled to be conferred with proprietory rights under section 27 (4) of the Act and since the same had not been conferred upon him, despite reminders and service of a notice dated April 27, 1969 under section 80 of the Code of Civil Procedure, he was entitled for grant of a decree for declaration and as the defendant was in illegal possession, therefore, he was also entitled for grant of a decree for possession. . 3. The suit was resisted by Moti defendant-appellant by claiming himself to be in cultivating possession of the land and further pleaded that proprietory rights were rightly conferred upon him by the Compensation Officer in exercise of his jurisdiction under the provisions of the Act and as the suit was not filed within a period of one year from the date of order, therefore, the same was barred by limitation. During the pendency of the suit, the plaintiff died and the present respondents, who are his legal representatives, were brought on record. The trial court decreed the suit and the lower appellate court affirmed the judgment and decree of the trial court. 4. The appellant has challenged the judgments and decrees of the courts below in the present appeal. Arguments in the appeal were heard and judgment was reserved. The trial court decreed the suit and the lower appellate court affirmed the judgment and decree of the trial court. 4. The appellant has challenged the judgments and decrees of the courts below in the present appeal. Arguments in the appeal were heard and judgment was reserved. When the appeal was posted for pronouncement of judgment and before it could be pronounced on September 6, 1990, a request was made on behalf of the learned Counsel for the respondents that further submissions on behalf of the respondents were to be made. The judgment was not announced and the case was posted for September 14, 1990. No further submission were made by the learned Counsel for the respondents but written arguments were filed. I have considered the arguments of the learned Counsel for the appellant, the submissions made on behalf of the respondents and the written arguments submitted on their behalf. The only point urged on behalf of the appellant before me, which was also urged before the courts below, was that as the Compensation Officer had conferred proprietory rights under the provisions of section 27 (4) of the Act upon him on the basis of an order made on December 3, 1968, which was an order passed by an officer of the State having jurisdiction to do so, the suit instituted after a lapse of more than three years on . May 8, 1972, claiming a decree for declaration which had the effect of setting aside the order of conferment of proprietory rights was not within the period of limitation. 5. The argument was repelled on behalf of the respondents by urging that the suit in substance was for recovery of possession and even if there was a claim for declaration or any other relief with regard to cancellation of the order of the Compensation Officer, the suit was covered by Articles 64 and 6 of the Limitation Act, 1963, under which the period of limitation was twelve years and as such the suit was within the period of limitation. It was further urged that as Moti was not a tenant and as entries in the revenue records, on the basis of which order of conferment of proprietory rights was passed, were factually incorrect, therefore, the Compensation Officer had no jurisdiction to pass any order. It was further urged that as Moti was not a tenant and as entries in the revenue records, on the basis of which order of conferment of proprietory rights was passed, were factually incorrect, therefore, the Compensation Officer had no jurisdiction to pass any order. The order as such being void conferred no rights upon Moti, therefore, the plaintiff rightly claimed a decree on the v strength of his title within the period of limitation. The further contention of the learned Counsel for the respondents was that even if proprietory rights had not been conferred upon him by the Compensation Officer, even then by virtue of the provisions of section 104 of the Himachal Pradesh Tenancy and Land Reforms Act. 1972 (briefly the Tenancy Act), the respondents, the legal representatives of original plaintiff, became auto matically the owners of the land. It was next urged that section 104 of the Act relates only to the orders passed under Chapter VIII of the Act whereas the impugned order was passed by the Compensation Officer under section ^7(4) of the Act, which is contained in Chapter III and no appeal etc. is provided against the said order. The only provision for appeal in Chapter 111 is in section 12 (2), which provides for filing of an appeal against the orders passed under section 11 of the Act, therefore by virtue of provisions contained in section 92, suit for declaration in a civil court was competent. 6. Ex. D. A. is the copy of the order passed by the Compensation Officer, Chamba, in case No. 629 on December 3. 1968. From the copy of the order, it is evident that proceedings under section 27 (4) of the Act were pending, before the Compensation Officer and after going through the records and considering the pleas which had been raised by Shyam Sunder predecessor of the respondents, Moti was found to be a tenant in cultivating possession upon the land and entitled for the conferment of proprietary rights. Accordingly, the Compensation Officer on December 3, b68, made an order conferring the said rights upon him. Ex. Accordingly, the Compensation Officer on December 3, b68, made an order conferring the said rights upon him. Ex. D-3 is another order dated May 27, 1969 of the Compensation Officer on the same file by which the Compensation Officer rejected the prayer of Shyam Sunder for conferment of proprietory rights upon him under section 27 (4) of the Act on the ground that such rights had already been conferred upon Moti. Ex. PT is the copy of mutation No. 316 entered on the basis of communication dated May 6, 1969, received from the Compensation Officer, which was attested on May 11, 1969 giving effect to the order dated December 29 1968 con ferring proprietory rights upon Moti. The order pf Compensation Officer was not challenged by Shyam Sunder by filing an appeal under section 104 of the Act. The order was challenged by filing the suit, out of which this appeal has arisen. The decree prayed for in the suit had the effect of setting aside the order passed by the Compensation Officer. The Compensation Officer, while exercising jurisdiction under the Act, had power either to confer the rights or to refuse the same. Article 100 of the Limitation Act prescribes one year period for filing a suit for setting aside the order passed by an officer of the Govt. from the date of passing of such order. As the order was passed on December 3, 1968, the subsequent date, namely, May 27, 1969, when the application of the plaintiff was rejected by the Compensation Officer will not give any fresh cause of action nor will extend the period of limitation. Even the date of attestation of mutation will not be the starting point of limitation as there cannot be accrual of cause of action from the date of attestation of mutation for the simple reason that mutation per se has no effect on the title of a person. The suit, which was filed on May 8, 1972, cannot be said to be filed within the period of limitation. The suit, which was filed on May 8, 1972, cannot be said to be filed within the period of limitation. The question of limitation in filing the suit challenging the orders of Compensation Officer was examined by a Division Bench of this Court in State v. Sadh Ram (ILR 1973 HP 235) and it was of the view that the validity of the order passed by the Compensation Officer in exercise of his jurisdiction under section 2 7 (-) of the Act, if not challenged within a period of one year cannot be questioned thereafter. 7. The arguments of the learned Counsel for the respondents to the effect that the suit in substance was for grant of decree for possession against the appellant having nor right to the land was governed by Article 64 or 65 of the Limitation Act has no substance. In order to obtain a decree for possession, it was obligatory for the plaintiff to get rid of the order passed by an officer of the government, namely, the Compensation Officer, which stood in his way. Merely because the plaintiff had taken the protection of drafting the plaint in such a manner so that only decree for declaration was sought will not preclude the court from examining the real substance of the plaint. In fact, plaintiff wanted to get rid of the order made by the Compensation Officer, who was an officer of the Government and who had jurisdiction to confer proprietary rights upon the persons found to be in cultivating possession of the land. Article 100 of the Limitation Act was applicable and the suit being one to set aside the order of Compensation Officer. In order to determine the real character of the suit and find out the appropriate article applicable, it is necessary to look not merely to the form of relief claimed but to all the facts and circumstances admitted or proved in the case. The question in each case is what, in substance, the plaintiff claims and what are the actual facts on which it is based. In a suit for possession, based on title, it is for the plaintiff to prove that he has a subsisting title to the property on the date of the suit. The question in each case is what, in substance, the plaintiff claims and what are the actual facts on which it is based. In a suit for possession, based on title, it is for the plaintiff to prove that he has a subsisting title to the property on the date of the suit. It will be profitable to take support to this view from a decision of the Full Bench of the Lahore Court in Gangu and others v. Maharaj Chand and others, (AIR 1934 Lahore 384), wherein it was observed that: "If it is necessary for a plaintiff to get rid of an order made by an officer of the Government which stands in his way before he can obtain in certain relief and in order to obtain that relief he does not expressly ask for the setting aside of the order but merely for a declaratory decree still the suit should be deemed to be one to set aside an order falling within the ambit of Article 14." This view was also followed in Sadh’s case (supra) by observing as under: "in the case before us, the plaintiffs have taken the precaution of drafting their relief in a manner so that a declaration is sought for, but in fact they want to get rid of that order made by the Compensation Officer. As such, in our opinion, Article 100 of the Limitation Act was applicable and the suit being one to set aside the order of the Compensation Officer, the limitation within which such suit could be brought was one year from the date of the order. The suit having been filed beyond the period of limitation was clearly time-barred." 8. Even for the sake of arguments it be presumed that Article 100 of the Limitation Act will not govern the suit of the nature, even in that case, Article 113 will apply. The plaintiff claimed a decree for declaring him to be entitled to acquire proprietory rights under section 27 (4) of the Act on the ground that he was a tenant cultivating the land as on January 26, 1955 and the order passed by the Compensation Officer conferring such rights on Moti was illegal, void and without jurisdiction. Without granting a decree for declaration, declaring the status of the plaintiff, it was not permissible for the Courts below to have granted a decree for possession. Without granting a decree for declaration, declaring the status of the plaintiff, it was not permissible for the Courts below to have granted a decree for possession. Article 65 of the Limitation Act covers such of the suits of possession where decree is claimed on the basis of title and Article 64 covers such of the suits in which possession is claimed on the ground of illegal dispossession. As a consequence of the order of the Compensation Officer, title in the land stood vested in the appellant, who admittedly was in possession of the property. The plaintiff had the knowledge of conferment of such rights upon the appellant as on May 27, 1969, the Compensation Officer in his proceedings rejected his prayer for conferring such rights on him on the ground that such rights had already been conferred on Moti appellant. Merely because a longer period of limitation is provided for filing a suit for recovery of possession under Articles 64 and 65 of the Limitation Act, the suit of the plaintiff cannot be said to be within the period of limitation. Inasmuch as declaration of title is involved for which a shorter period of limitation is provided under Article 113 of the Limitation Act. 9. The arguments of the learned Counsel for the respondents that the appellant was not a tenant in cultivating possession as on January 26, 1955, and the Compensation Officer could not have passed the order conferring the proprietory rights, has no force in view of the aforementioned discussion and the law laid down in Sadhs case (supra), validity of the order could have been challenged in a suit for grant of a decree for declaration within a period of three years on the ground that the Compensation Officer who passed the order lacked inherent jurisdiction in the sense that it could not have seized of the case because the subject matter was wholly foreign to his jurisdiction or on the ground which could have the effect of rendering the Compensation Officer entirely lacking in jurisdiction in respect of the subject matter of the case before him. It is not disputed that the Compensation Officer bad jurisdiction to confer the proprietory rights. Whether the rights were conferred rightly or wrongly, it was still within his jurisdiction to do so. The order could have been challenged by filing appeal under section 104 of the Act. It is not disputed that the Compensation Officer bad jurisdiction to confer the proprietory rights. Whether the rights were conferred rightly or wrongly, it was still within his jurisdiction to do so. The order could have been challenged by filing appeal under section 104 of the Act. Reference to orders made in section 104 is not confined to the orders passed by the Compensation Officer in Chapter VIII alone but to all the orders passed by him. The provision is a general provision governing all the chapters and makes reference to any of the orders passed by the Compensation Officer. The order passed by the Compensation Officer cannot be said to be void as name of the appellant was found recorded in revenue records as a tenant and the order was based upon material available on the file of the Compensation Officer. Merely because the order is erroneous, the same cannot be termed to be void or without jurisdiction. As such, limitation for filing such a suit to challenge this order was one year. 10. On the applicability of the provisions of the Tenancy Act that the respondents have become automatically owners of the land, as argued by their Counsel, has no force that the argument is negatived on the ground that as on the date when the Tenancy Act came into force, the respondents were not recorded as tenants on the land and the rights already stood vested in the appellant by virtue of the order of the Compensation Officer, 11. In view of the above, the suit of the plaintiff which was filed beyond the period of limitation was liable to be dismissed. Consequently the judgment decree of the Courts below are liable to be set aside. 12. The result is that the appeal succeeds and is allowed. The suit of the plaintiff is dismissed. The judgments and decrees of the Courts below are set aside. The parties will suffer their respective costs. Appeal allowed.