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2000 DIGILAW 91 (HP)

MUKHTIAR DEVI v. GAURAN

2000-04-26

R.L.KHURANA

body2000
JUDGMENT R.L. Khurana, J.—This regular appeal has been directed by the defendants against the judgment and decree dated 31.3.1990 of the learned District Judge, Una, affirming the judgment and decree dated 27.10.1986 of the learned Sub Judge 1st Class (1), Una. 2. The subject matter of the dispute between the parties is the land measuring 23 kanals 3 marlas comprising of Khewat No. 187 min, Khatoni No. 234 min and Khasra Nos. 17/11, 17/12, 18/16 of village Chalola, Tehsil Una, as described in the jamabandi for the year 1975-76 (Ex. P-l) and hereinafter referred to as the land in dispute. 3. The case of the plaintiffs is that they alongwith proforma defendants No. 6 and 7 (the predecessors-in-interest of the present respondents No. 16 to 31) are the owners and in possession of the land in dispute. The entries in the revenue record showing the defendants to be in possession of the land in dispute as tenants at will under them are wrong and not binding on their rights. The plaintiffs sought permanent injunction for restraining the defendants from interfering with their ownership and possession qua the land in dispute. It was pleaded that land measuring 11 kanals 18 marlas comprising of old Khata No. 71 min, Khatoni No. 739 and Khasra Nos. 1598, 1636, 1646, 1647, 1648, 1649, 1650, 1651 and 1784 as entered in the jamabandi for the year 1965-66 (Ex.P.5) was owned and possessed by the parties and one Kaka son of Amar Chand as under:— (a) Plaintiffs and proforma defendants No.5 and 6 to the extent of 1/2 share; (b) Defendants and Kaka son of Amar Chand to the extent of 1/ 2 share. 4. During the course of consolidation proceedings, the joint Khata of the parties appears to have been partitioned and separate parcels of land came to be allotted to the parties. While the plaintiffs and proforma defendants No. 5 and 6 were allotted land comprising of new Khasra Nos. 835/2, 920, 941, 942, 943, 944, 945 and 977 corresponding to old Khasra Nos. 1526 min 1651, 1649, 1648, 1646, 1647,1650,1636 and 1598, the defendants were allotted land comprising of new Khasra Nos. 17/ 11,17/12 and 18/16 corresponding to old Khasra Nos. 3170/194 min, 2424/ 195, 2476/195 min, 190 min, 216 min, 2427/195 min, 3171/194 min, 186 min,248 min, 3207/224 min, 185 min, 2529/196 min, 2526/195 min, 214 min,217 min, and 219 min. 5. 1526 min 1651, 1649, 1648, 1646, 1647,1650,1636 and 1598, the defendants were allotted land comprising of new Khasra Nos. 17/ 11,17/12 and 18/16 corresponding to old Khasra Nos. 3170/194 min, 2424/ 195, 2476/195 min, 190 min, 216 min, 2427/195 min, 3171/194 min, 186 min,248 min, 3207/224 min, 185 min, 2529/196 min, 2526/195 min, 214 min,217 min, and 219 min. 5. It further transpired that during the consolidation proceedings only, the parties effected an exchange of the lands allotted to them, respectively. As a result of such exchange, the plaintiffs and proforma defendants 5 and 6 became owners and in possession of the land comprising of new Khasra Nos. 17/11, 17/12 and 18/16, while the defendants became the owners and in possession of the land comprising of new Khasra Nos. 835/2, 920, 941, 942, 943, 944, 945 and 977. 6. After such exchange of lands between the parties, the defendants approached the consolidation authorities claiming themselves to be in possession of the land in dispute as tenants-at-will under the plaintiffs. The Director, Consolidation, on 4.11.1980 directed that the defendants be shown in the revenue records as in possession of the land in dispute as tenants-at-will under the plaintiffs. On the basis of such order, necessary entries came to be made in the revenue record on 15.1.1981. The plaintiffs have averred that the order of the Director, Consolidation, is wrong, null and void, and without jurisdiction. On the basis of such wrong orders and the subsequent change in the revenue entries, the defendants have started interfering in the possession of the plaintiffs over the land in dispute. 7. The defendants, while resisting the suit, admitted the exchange of lands between the parties. It was pleaded that the defendants since 1952 have been coming as tenants under the plaintiffs in respect of the land owned by them and that under the law they would continue to be the tenants under the plaintiffs in respect of the land allotted to them during the consolidation in lieu of the land previously held by them and in respect of which the defendants were the tenants. The revenue entries were rightly ordered to be corrected by the consolidation authorities. Legal objections as to the jurisdiction of the civil court, absence of locus standi of the plaintiffs and valuation of the suit were also raised. 8. The revenue entries were rightly ordered to be corrected by the consolidation authorities. Legal objections as to the jurisdiction of the civil court, absence of locus standi of the plaintiffs and valuation of the suit were also raised. 8. On the pleadings of the parties, following issues were framed by the learned trial court:— 1. Whether the plaintiffs and defendants No.6 & 7 are owners in possession of the suit land as alleged? OPP 2. Whether defendants No. 1 to 5 have been tenants in possession of the suit land and have now become owners as alleged? OPD 3. Whether the defendants No. 1 to 5 are estopped to take the plea of tenancy as alleged? OPP 4. Whether civil court has no jurisdiction to try the suit as alleged? OPD 5. Whether the suit is not maintainable in the present form as alleged? OPD 6. Whether the plaintiffs have no locus standi to file the suit? OPD 7. Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPP 8. Relief. 9. The learned trial court found issues No. 1 and 7 in favour of the plaintiffs and issues No. 2, 4, 5 and 6 against the defendants. Issue No. 3 was decided in favour of the defendants. Consequent upon such findings, the suit of the plaintiffs for declaration and injunction was decreed as prayed by the learned trial court, vide judgment and decree dated 27.10.1986. 10. The defendants feeling aggrieved by and being dissatisfied with the findings of the learned trial court went up in appeal before the learned District Judge. Cross-objections were preferred by the plaintiffs. Vide the impugned judgment and decree dated 31.3.1990, the appeal of the defendants as well as the cross-objections preferred by the plaintiffs were dismissed and the findings of the learned trial court on all the issued were maintained. Hence, the present appeal at the instance of the defendants. 11. The appeal was admitted for hearing by a learned single Judge of this court on 16.9.1996. However, while admitting the appeal for hearing no substantial question(s) of law was formulated as required under Section 100, Code of Civil Procedure. 12. The first substantial question of law raised by the learned counsel for the defendants is as to the jurisdiction of the civil court. However, while admitting the appeal for hearing no substantial question(s) of law was formulated as required under Section 100, Code of Civil Procedure. 12. The first substantial question of law raised by the learned counsel for the defendants is as to the jurisdiction of the civil court. According to the learned counsel for the defendants, the jurisdiction of the civil court is barred under Section 57 of the H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 (for short the Consolidation Act). Section 57 of the Consolidation Act, provides:— "No person shall institute any suit or other proceedings in any civil court with respect to any matter arising out of the consolidation proceeding or with respect to any other matter in regard to which a suit or application can be filed under the provisions of this Act." A bare perusal of the above provision shows that jurisdiction of the Civil Court is barred only when— (a) the matter arises out of consolidation proceedings; or (b) the matter is in regard to which a suit or application can be filed under the provisions of this Act. 13. None of the above two situations exists in the present case. It is the admitted case of the defendants that they have been ordered to be recorded as in possession of the land in dispute as tenants by the Director, Consolidation. It has, therefore, been contended that the matter has arisen out of consolidation proceedings. Section 15(2) of the Consolidation Act reads : "(2) Where an estate group of estates or a sub-division of an estate is under consolidations operations, the duty of maintaining the maps, field book and preparing an annual record under the Himachal Pradesh Land Revenue Act, 1954(6 of 1954) as applicable to the areas which formed part of the Himachal Pradesh immediately before the 1st day of November,1966, and the Punjab Land Revenue Act, 1887 (17 of 1887), as applicable in the areas added to Himachal Pradesh under Section 5 of the Punjab Reorganisation Act, 1966, (31 of 1966) and the rules framed thereunder^ shall stand transferred to the Settlement Officer (Consolidation), and thereupon all the powers conferred on the Collector and Assistant Collector under the said Acts and rules, shall, so long as an estate group of estates or a sub-division of an estate remains under consolidation operations, be exercised by the following officers: 1. The Director of Consolidation of Holdings ; 2. Settlement Officer (Consolidation) ; 3. Consolidation Officer ; 4. Assistant Consolidation Officer. 14. The order by the Director, Consolidation therefore, was passed in his capacity of and exercising the powers of Collector under the H.P. Land Revenue Act, 1954, under the relevant provisions of the said Act and not under the provisions of the Consolidation Act. 15. Chapter IV of the H.P. Land Revenue Act,1954, deals with "records of rights and periodical records". Section 37 falling under the said Chapter deals with determination of disputes as to an entry to be made in such record. It provides: "Determination of disputes.—(1) If during the making, revision or preparation of any record or in the course of any enquiry under this Chapter a dispute arises as to any matter of which an entry is to be made in a record or in a register of mutations, a Revenue Officer may of his own motion or on the application of any party interested, but subject to the provisions of the next following section, and after such inquiry as he thinks fit, determine the entry to be made as to that matter. (2)....................................................................................... (3) A direction of a Revenue Officer under sub-section (2) shall be subject to any decree or order which may be subsequently passed by any Court of competent jurisdiction." 16. Under the above provisions, any order passed by a Revenue Officer, has been made subject to any decree or order which may be subsequently passed by any court of competent jurisdiction. 17. Since the order of the Director, Consolidation was the one passed under Section 37 of the H.P. Land Revenue Act, 1954, the same is subject to the decision of a civil court. Therefore, it cannot be said that civil court has no jurisdiction. This question is as such answered against the defendants. 18. Admittedly, the land measuring 11 kanals 18 marlas comprising of old (pre-consolidation) Khasra Nos. 1598, 1636, 1646 to 1651 and 1784 as entered in the jamabandi for the year 1965-66 (Ex. P5) was jointly owned by the parties and one Kaka son of Amar Chand. Such land is recorded in possession of the defendants as non-occupancy tenants. 19. It is also admitted case of the parties that the joint Khata of the parties was partitioned during the consolidation and they were allotted separate parcels of land. P5) was jointly owned by the parties and one Kaka son of Amar Chand. Such land is recorded in possession of the defendants as non-occupancy tenants. 19. It is also admitted case of the parties that the joint Khata of the parties was partitioned during the consolidation and they were allotted separate parcels of land. The land detailed above was allotted to the plaintiffs, while the land in dispute was allotted to the defendants. 20. The defendants, finding the land in dispute to be not suitable to them, on 8.4.1974 made an application to the Consolidation Officer (Copy Ex. PW 5/D) praying for the allotment of the land detailed in Ex.P5 in their favour and for allotting any other land out of their khata to other co-sharers. During the consolidation proceedings, a settlement was arrived at between the parties whereby they exchanged their lands with each other. As a result of such exchange the land in dispute, which was originally allotted to the defendants, came to the plaintiffs and the land detailed in Ex. P.5, which was originally allotted to the plaintiffs, went to the defendants. Such exchange of lands between the parties was accepted and approved by the Consolidation Officer vide order dated 25.9.1974 (copy Ex. PW 5/F). Effect to such exchange was duly given by the consolidation authorities and the parties were placed into possession of such lands respectively. 21. Be it stated that during such exchange no case was set up by the defendants as to their tenancy in respect of the land detailed in Ex.P.5. Nor any reservation qua their tenancy over the land in dispute was made. As stated above during such consolidation proceedings, the parties were placed in actual possession of their respective lands. Ex. PW 8/A is the copy of warrant of possession whereby the plaintiffs were placed in possession of the land in dispute on 9.6.1975 in pursuance of the orders of the consolidation authorities. Vide order dated 4.11.1980 (Ex. P 18) the Director, Consolidation, while allowing the revision petition preferred by the defendants observed:— ".......I find that the tenancy had wrongly been deleted as observed by the learned Director, Consolidation of Holdings in his order dated 9.12.1976. As such, the revision is hereby allowed and it is directed that tenancy on Khasra Nos. 1598,1636,1646 to 1651 and 1784 old measuring 11K-18 marlas be restored." 22. As such, the revision is hereby allowed and it is directed that tenancy on Khasra Nos. 1598,1636,1646 to 1651 and 1784 old measuring 11K-18 marlas be restored." 22. What was directed vide the above quoted order, was the restoration of the revenue entries showing the defendants as tenants of the land detailed in Ex. P-5.The entries were changed on 15.1.1981 in terms of such order. 23. It is significant to note that the defendants never approached the consolidation authorities for being placed in possession of the land in dispute as tenants nor there is anything on record to show that they were infact placed in possession of the same. The plaintiffs, as pointed out above, had been placed in possession of the land in dispute as owners on 9.6.1975 much before the order dated 8.11.1980 of the Director, Consolidation. The defendant Jagdish Ram, while appearing as DW 1, has categorically admitted that the parties since after the consolidation are coming in possession of their respective lands. 24. Since the defendants, have been shown and found to be out of possession and the plaintiffs have been found to be in possession of the land in dispute, the two courts below have rightly granted the declaration and injunction in favour of the plaintiffs. The mere existence of revenue entries in favour of defendants showing them to be in possession of the land in dispute as tenants without their being actually in possession thereof would not disentitle the plaintiffs to claim the reliefs. 25. As a result, the present appeal fails and the same is accordingly dismissed, leaving the parties to bear their own costs. Appeal allowed.