DHUNGAL v. DUSHYANT KUMRAR — 1997 DIGILAW 48 (HP)

JUDGMENT R. L. Khurana, J.:- This Regular Second Appeal had been directed f the plaintiff against the judgment and decree dated 23.1.1991 of the learned II. District Judge, Mandi affirming the judgment and decree dated 22.8 .88 of the learned Sub Judge, 3rd Class (III), Mandi. 2. The subject matter of the dispute between the parties is the land measuring 4-8-8 Bighas, comprising of khasra No. 804 of Khewat No. 14 min, Khatauni No. 26 of the Mauza Darbathu, Illaqua Balh. Tehsil Sadar, District Mandi specifically detailed in the plaint and the jamabandi for the year 1984-85 and hereinafter referred to as the land in dispute. 3. The plaintiff filed a suit for declaration and injunction is a consequential relief for restraining the defendants from interfering with his possession the land in dispute as owner thereof. It was averred that the plaintiff has coming in possession of the land in dispute as a non-occupancy tenant f aid has acquired the proprietary rights in respect thereof by virtues, of Section 104 of the H.P. Tenancy and Land Reforms Act, 1972, hereinafter referred to he Act. Sh Parma Nand, the predecessor- in-interest of the defendants applied for the resumption of the land though he was no entitled under the law ; for such resumption. The Land Reforms Officer (Tehsildar), Sadar Mandi on 28.1.1977 allowed the resumption of 1/2 share of the land in dispute to the said Parma Nand. The said order is illegal, wrong and in - operative in the eyes of law. It was further averred that under the garb of the said wrong and illegal order in their favour, the defendants have started interfering with the peaceful (possession of the plaintiff over the land in dispute. 4. The defendants while resisting the suit admitted the plaintiff to be the f non-occupancy tenant of the land in dispute. It was averred that their predecessor-in-interest Shri Parma Nand was legally and validity allowed the resumption of half share of the land in dispute and since after such resumption the parties are owners and in possession to the extent of 1/2 share each in the land in dispute. Legal objection as to jurisdiction of the court, limitation and the nit having not been properly valued for the purposes of court fee and jurisdiction were further raised. 5. Legal objection as to jurisdiction of the court, limitation and the nit having not been properly valued for the purposes of court fee and jurisdiction were further raised. 5. The learned Sub Judge came to the conclusion that the parties are owners of the land in dispute to the extent ofJ/2 share each. The plaintiff was, however, held to be in possession of the whole of the land in dispute. The learned Sub Judge further held that the civil Court had the jurisdiction. The suit was found to be within limitation and having been properly valued for the purposes of Court fee and jurisdiction. Consequent upon such findings, the suit of the plaintiff was dismissed vide judgment and decree dated 22.8.1988. 6. In the appeal carried before the Addl. District Judge, Mandi by the plaintiff, the findings of the learned trial Court were affirmed and the appeal filed by the plaintiff was dismissed vide the impugned judgment and decree dated 23.1.1991. 7. The plaintiff by way of present appeal has assailed the findings of Lie two courts below holding the parties to be the joint owners of the land in dispute to the extent of half share each. It was contended that once the two courts below had held the plaintiff to be in exclusive possession of the land in dispute, he was entitled to the grant of injunction to protect his possession by, seeking the protection of tie court. On the basis of the resumption order passed by the Land Reforms Officer in favour of the defendants, the plaintiff could not have been forcibly dispossessed therefrom. The only remedy available to the defendants was to have approached the competent authorities for the delivery of possession in their favour; It was further contended that even otherwise the order of resumption passed by the Land Reforms Officer under Sub-Section (1) of Section 104 of the Act is bad illegal, null and void. 8. On the other hand, the learned counsel for the defendants while supporting the-findings of the two courts below, have raised an objection that the civil court have no jurisdiction to go into the question involved in the present case. 9. The first question which arise for determination in the present case is whether civil court has die jurisdiction to go into the question involved in the present case. 10. 9. The first question which arise for determination in the present case is whether civil court has die jurisdiction to go into the question involved in the present case. 10. Section 104 falls under Chapter -X of the Act which deals with "acquisition of proprietary rights by tenants other than occupancy tenants. The provisions contained in Chapter-X aim at ensuring that proprietary rights in the land are with actual tiller thereof. A limited right has been conferred on the landowner to resume the lad under a non-occupancy tenant to the extent and in the manner specified under Section 104. Where a tenancy land is permitted to be resumed by the landowner for personal cultivation, all rights, title and interest of the tenant in such land stands extinguished and it shall be free from all encumbrances, if any created by the tenant thereon. Similarly, the right, title and interest in the rest of the tenancy land of the landowner would come to vest in the tenant free from all encumbrances. The landlord however, is entitled to an amount b) way of compensation for his land in respect of which the proprietary rights have vested in the tenant Section 105 and 106 of the Act deal with the assessment and payment of amount by way of compensation to the landowner by a tenant Such amount of compensation is to be assessed and determined by the land Reforms Officer after publication of a notice in the prescribed manner on a claim being filed. 11. Sub-Section (6) of Section 104 of the Act further provides that save as otherwise provided in Section 114, every decision of the Land Reforms Officer, under Section 104 shall be binding on all persons claiming an interest in holding notwithstanding the fact that any such person has not appeared or participated in the proceedings before the Land Reforms Officer or any other revenue authority. 12. 12. Section 114, of the Act provides for appeal and revision in the following terms: - "(1) Any person aggrieved by an order made by the Land Reforms Officer may within thirty days from the date of the order, prefer an appeal to the collector, in such form and manner, as may be prescribed; Provided that the Collector may entertain the appeal after the expiry of the said period of thirty days if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (2) Any person aggrieved by an order of the Collector may, within sixty days form the date of the order, prefer an appeal to the Commissioner, in such from and manner, as may be prescribed; Provided that the Commissioner may entertain the appeal after the expiry of the said period of sixty days, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (3) With respect to all matters dealt with under this Chapter, the Financial Commissioner shall have the same power to call for, examine and revile the proceedings of the Learned Reforms Officer, or the Collector or the Commissioner as provided in Section 65 of this Act." 13. Section 112 and 115 of the Act exclude the jurisdiction of the Civil Courts and any other authority. Section 112 reads, "Save as other is expressly provided in this Chapter, the validity of any proceedings or orders taken or made under this Chapter shall not be called in question in any Civil Court or before any other authority." Section 115 of the Act provides:- "Save as otherwise expressly provided in this Chapter, every order made by the Collector, Commissioner or Financial Commissioner shall be final, and no proceeding or order taken or made under this Chapter, shall be called in question by any Court or before any Officer or authority." 14. In the present case, the proprietary rights qua half share in the land in dispute stand conferred on the plaintiff. While the defendants have been allowed to resume the remaining half share in the land in dispute consequently under Section 104 of the Act, both the parties became the owners of the land in dispute to the extent of half share each. 15. While the defendants have been allowed to resume the remaining half share in the land in dispute consequently under Section 104 of the Act, both the parties became the owners of the land in dispute to the extent of half share each. 15. The plaintiff by virtue of the suit filed by him is seeking to call in question the order passed by the Land Reforms Officer allowing resumption of half share in the land in dispute in favour of the defendants and conferring the proprietary rights qua remaining half share in the land in dispute on the plaintiff. Such a suit is barred under the provisions of Section 112 of the Act. Admittedly, an appeal against the order dated 28.1.77 of the Land Reforms Officer was filed by the plaintiff before the Collector, Mandi and such appeal was dismissed on 17.3.1981. A perusal of Ext. DA further shows that after the dismissal of his appeal on 17.3.81, the plaintiff after the death of Parma Nand, the predecessor -in-interest of the defendants filed another appeal before the collector by concealing the factum of the dismissal of his earlier appeal on 17.3.1981. This second appeal was allowed by the Collector on 12.12.1984 and the case remanded to the Land Reforms Officer for disposal afresh, The defendants went up in appeal before the Divisional Commissioner wherein the order of the Collector dated 12.12 1984 passed in the second appeal was set -aside and the earlier order dismissing the plaintiffs appeal on 17.3.1981 was upheld. Resultantly, the order dated 28.1.77 passed by the Land Reforms Officer became final. 16. A Full Bench of this Court in Chuhniya Devi v. Jinda Ram, 1991(1) S.L.C. 223, has held that the civil Court has no jurisdiction to go into any question connected with the conferment of the propreitary rights under Section 104 of the Act except in a case where it is found that the statutory authorities envisaged by that Act had not acted in conformity with the fundamental principles of judicial procedure or where the provisions of the Act had not been complied with 17. There is no denying that in the present case, the proprietary rights with regard to the land in dispute stand conferred on the plaintiff under Sec. 104 of the Act to the extent of half share only. 18. There is no denying that in the present case, the proprietary rights with regard to the land in dispute stand conferred on the plaintiff under Sec. 104 of the Act to the extent of half share only. 18. No doubt accordingly to the ratio laid down by the Full Bench of this Court in Chuhniya Devis case (supra), the order of the Land Reforms Officer passed under Section 104 of the Act is open to challenge by way of a civil suit on the ground that the statutory authorities envisaged by the Act had not acted in conformity with the fundamental principles of judicial procedure or that the provisions of the Act had not been complied with. 19. The plaintiff while assailing the order of the Land Reforms Officer has nowhere averred either that the statutory authorities envisaged by the Act had not acted in conformity with the fundamental principles of the judicial procedure or that the provisions of the Act had not been complied with. The plaintiff h2s only averred in para -3 of his plaint that the order dated 28.1.77 of the Land Reforms Officer is illegal, wrong, in -operative in the eyes of law as the application was not according to law and the rules prescribed. It is not the case of the plaintiff that the Land Reforms Officer had not acted in conformity with the fundamental principles of judicial procedure or that while passing the order the provision of the Act had not been complied with. The suit as laid, on the face of it raises a question which is connected with the conferment of proprietary rights under Section 104 of the Act. Therefore, the civil Court had no jurisdiction to go into the question involved in the present case. Both the courts below, therefore, have erred in coming to the conclusion that the civil court had the jurisdiction. 20. It has been contended by the learned counsel for the plaintiff that in view of the finding that the plaintiff is in possession of the whole of the land in dispute, an injunction ought to have been granted in favour of the plaintiff, since, the plaintiff is entitled to protect his possession unless he is evicted therefrom in due course of law. It has come on the record that the plaintiff is not in exclusive possession of the land of the whole of the land in dispute. After the passing of the order of resumption, Parma Nand, the predecessor-in-interest of the defendants was placed into possession of half share of the land in dispute in June 1982. The two courts below have, therefore, erred in coming to the conclusion that the plaintiff is in exclusive possession of the land in dispute. Since the parties are in joint possession of the land in dispute to the extent of half share each, the plaintiff is not entitled to the injunction claimed by him. 21. Resultantly, the present appeal fails and the same is accordingly dismissed, with no orders as to costs.