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Himachal Pradesh High Court · body

1998 DIGILAW 195 (HP)

BESRU v. SHIBU

1998-10-23

KAMLESH SHARMA

body1998
JUDGMENT Ms. Kamlesh Sharma, J.—The appellant is the plaintiff whereas the respondent is the defendant and they will be referred to as such in this judgment. It is not in dispute that one Duglu was the owner of the land in dispute and after his death the plaintiff as his sister became the owner by way of inheritance. The land in dispute has been with the defendant as a tenant from the life time of Duglu. The ownership of the plaintiff and tenancy of the defendant was also entered in the revenue record as is clear from the Jamabandi for the year 1977-78, Ex. P-3. After the coming into force of the H.P. Tenancy and Land Reforms Act (hereinafter called the Act), proprietary rights were conferred upon the defendant vide mutation dated 5.12.1980. When on the basis of this mutation, the defendant refused to pay Galla Batai in April 1986 to the plaintiff, she was compelled to file the present suit seeking declaration that this mutation is void ab initio for the reasons that it was attested at her back without giving to her an opportunity to show that during her life time proprietary rights could not be conferred upon the defendant as she was a widow, as provided under sub-section (8) of Section 104 of the Act. 2. The defendant resisted the suit and took a number of preliminary objections including that the Civil Court has no jurisdiction and the suit of the plaintiff was barred by limitation. On merits, the case of the defendant was that the plaintiff is not the widow ass after the death of her former husband, namely, Bhinku, she has married on Gurkha namely Babu Ram. The defendant had also put up the defence that at the time when the Act came into operation, Duglu was the owner and the conferment of proprietary rights was automatic on him and attestation of mutation in favour of the plaintiff on a later date would not adversely affect his rights. 3. On the pleadings of the parties, the following issues were framed: 1. Whether this Court has no jurisdiction, as alleged? OPD . 2. Whether the suit is not maintainable? OPD 3. Whether the suit is within limitation? OPD 4. Whether the plaintiff is estopped by her act and conduct from filing this suit? OPD 5. 3. On the pleadings of the parties, the following issues were framed: 1. Whether this Court has no jurisdiction, as alleged? OPD . 2. Whether the suit is not maintainable? OPD 3. Whether the suit is within limitation? OPD 4. Whether the plaintiff is estopped by her act and conduct from filing this suit? OPD 5. Whether the plaintiff is a widow and mutation No. 1949 dated 5.11.80 is wrong and liable to be cancelled? OPP 6. Relief. 4. The Trial Court decided issue No. 1 in favour of the plaintiff holding that in view of the allegations made in the plaint that the mutation in question was attested in violation of the provisions of the Act, the Civil Court has the jurisdiction and the bar under Section 112 of the Act will not come in her way. Accordingly, findings on issue No. 3 were also returned in favour of the plaintiff holding that the suit is maintainable. So far issue No. 3 pertaining to limitation is concerned, the Trial Court has held the suit as barred on the ground that mutation was attested on 5.12.1980 and the appeal against it filed by the plaintiff was rejected in the year 1982 as per the endorsement on the mutation Ex. P-2 whereas the suit was filed on 29.7.1987, much after the period of limitation. Issues No. 4 and 5 were decided in favour of the plaintiff. Though the mutation Ex. P-2 dated 5.12.1980 has been held bad by the trial court, yet, it has dismissed the suit on the ground of limitation. The reasons which weighed with the trial court for holding the mutation Ex. P-2 as bad were that it was sanctioned on the basis that Duglu was alive in the year 1974 when the Act had come into force whereas the Act had come into force in the year 1975 with the commencement of the H.P. Tenancy and Land Reforms Rules, 1975 (hereinafter called "the Rules"), as provided in Rule 27 thereof, by which time Duglu had expired and his inheritance had devolved upon the plaintiff as his legal heir, who is a widow and in view of the bar under sub-section (8) (a) of Section 104 of the Act, proprietary rights cannot be conferred during her life time. 5. The first appellate Court has affirmed the findings of the Trial Court except on the issue of jurisdiction. 5. The first appellate Court has affirmed the findings of the Trial Court except on the issue of jurisdiction. It has been held by the first appellate court that, "...In fact the plaintiff had assailed the validity of the mutation before the Collector but it was affirmed in appeal. Since nothing has been brought on record as to how that order was wrong and illegal which was passed in appeal, therefore, this matter without showing that the statutory authority has not complied with the provisions of the Act cannot be assailed before the Civil Court, on the basis of the full bench ruling of the honorable High Court of HP. (supra) therefore, I do not concur with the findings of the learned Trial Court arrived at Issue No. 1 and hold that the Civil Court has no jurisdiction to try and determine the case of this nature." The judgment referred to by the first appellate Court is in Chuhniya Devi v. Jindu Ram, 1991 (2) SLJ 1082. 6. This Court has heard the learned Counsel for the parties and gone through the record. The first appellate Court on the point of jurisdiction and both the courts below on the point of limitation have not examined the matter in the right perspective. In order to find out whether the decision of the first appellate Court that by applying the law laid down in the case of Chuhniya Devi (supra) to the facts and circumstances of this case, the Civil Court has no jurisdiction, this Court has to refer to that judgment. While answering Point No. 2 of the reference. Whether the Civil Court has jurisdiction in respect of an order of conferment of proprietary rights under Section 104 of the Act, the Full Bench has held that : "(b) the Civil Court has no jurisdiction to go into any question connected with the conferment of proprietary rights under Section 104 of the H.P. Tenancy and Land Reforms Act, 1972, 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 provision of the Act had not been complied with." 7. So far the case in hand is concerned, the allegations of the plaintiff in Para 2 of the plaint are specific that : "the A.C. 2nd Grade has sanctioned the mutation, referred to above, behind the back of the appellant (sic), without affording her due and reasonable opportunity of contesting the same, inasmuch as the learned Mutation Officer, has completely over looked and ignored the fact that proprietary rights of the lands owned by the widows, minor or physically handicapped persons etc. cannot be conferred upon the cultivating tenants. The mutation, referred to above, has been sanctioned in clear and flagrant violation of the provisions of law contained under Section 104 of the Act ibid and also in wrong exercise of the jurisdiction vested in the A.C. 2nd Grade and thus, the said mutation is wholly violative of the law and Rules and is liable to be declared as null and void ab initio having no binding effect upon the plaintiff qua her ownership rights in the suit land." 8. These allegations are not only proved by the oral evidence on record but from the mutation Ex. P-2 itself wherein it is categorically mentioned that the plaintiff was not present despite information given to her by the Lamberdar Halqua as per his statement made to the Assistant Collector 2nd Grade, who had attested the mutation which establishes that the mutation was attested behind the back of the plaintiff. Assuming that the statement of the Lamberdar Halqua was correct, it is to be examined whether oral information by the Lamberdar Halqua is the mode of service to a party to the mutation proceedings. 9. Rule 28 of the Rules provides that mutation is to be attested in the presence of the parties and Rule 29 provides that a dispute under sub-section (4) of Section 104 of the Act shall be decided by the Land Reforms Officer in his capacity as an Assistant Collector 1st Grade in accordance with the relevant provisions of the Punjab Land Revenue Act or the H.P. Land Revenue Act, as the case may be, though the inquiry held by him would be summary inquiry. In the H.P. Land Revenue Act, which applies to the present case. Sections 20 to 23 provide for summoning persons for the purpose of any business before a Revenue Officer and the mode of service of summons. In the H.P. Land Revenue Act, which applies to the present case. Sections 20 to 23 provide for summoning persons for the purpose of any business before a Revenue Officer and the mode of service of summons. Under Section 21 thereof, it is stated that summons issued by a Revenue Officer shall, if practicable, be served personally upon the person to whom it is addressed or failing him, his recognized agent, or in case it is refused by affixation on the last known address or by sending the same by registered post of proclamation, etc. etc. 10. Admittedly, in the present case no attempt was made by the Assistant Collector 2nd Grade to serve the plaintiff in accordance with law. As such, the mutation is void ab initio being violative of the principles of natural justice. It can be held so for another reason that it was not passed by the competent authority. From Rule 29 of the Rules, it is clear that only Assistant Collector of the 1st Grade was the competent Land Reforms Officer to hold inquiry under Section 104 of the Act. It is further fortified by the Notifications dated 27th/29th September, 1995 whereby all the Tehsildars in Himachal Pradesh were conferred with powers of Assistant Collector of 1st Grade for purposes of Chapter X of the Act under which Section 104, pertaining to acquisition of proprietary rights by the tenants, fails. By another Notification of the same date, Tehsildars conferred with the powers of Assistant Collector 1st Grade were appointed Land Reforms Officers for carrying out the purposes of Chapter X of the Act within their respective jurisdiction with immediate effect. So far the present case is concerned, from the perusal of mutation, it is clear that it was attested by the Assistant Collector 2nd Grade who had no jurisdiction to do so. Had the plaintiff been served in accordance with law and the competent authority held proper inquiry, the mutation conferring proprietary rights on the defendants would not have been passed in view of the Bar under sub-section (8)(a) of Section 104 of the Act. 11. Once the mutation Ex. P-2 conferring proprietary rights on the defendant is held to be void ab initio, it could be challenged in a Civil Court by the plaintiff as and when it adversely affected her rights. 11. Once the mutation Ex. P-2 conferring proprietary rights on the defendant is held to be void ab initio, it could be challenged in a Civil Court by the plaintiff as and when it adversely affected her rights. It is stated in the plaint that the plaintiff had come to know of the mutation Ex. P-2 in April 1986 when the defendant refused to give her Galla Batai on the ground that he had acquired proprietary rights where after she had filed her suit. This plea has been rejected by both the courts below on the ground that the plaintiff had filed an appeal against the mutation order, Ex. P-2, which was rejected on 24.6.1992. The basis of these findings is the note recorded by the Assistant Collector 2nd Grade on 24.10.1982 on the mutation that the order dated 5.12.1980 was upheld in Appeal No. 27 of 1980-81. Admittedly, there is no evidence on record to prove that the appeal in which the order of mutation Ex. P-2 was upheld was filed by the plaintiff. Therefore, both the courts below were not right in rejecting the case of the plaintiff that she had come to know of the order of mutation for the first time in April 1986 by presuming that she had filed the appeal. In the result, the findings of the District Judge are set aside both on the points of jurisdiction and limitation and the suit of the plaintiff is decreed in the terms prayed for in view of the concurrent findings of both the courts below that the mutation Ex. P-2 conferring proprietary rights on the defendant was bad. In the face of clear bar under sub-section (8)(a) of Section 104 of the Act during the life time of the plaintiff, who is a widow, proprietary rights cannot be conferred upon the defendant. 12. Therefore, the appeal is accepted, the impugned decree and judgment dated 22.9.1992 are set aside and the suit of the plaintiff is decreed in the terms prayed for. However, parties are left to bear their own costs. Appeal allowed.