Research › Search › Judgment

Himachal Pradesh High Court · body

2001 DIGILAW 398 (HP)

ROSHAN LAL v. KRISHAN DEV

2001-12-18

R.L.KHURANA

body2001
JUDGMENT R.L. Khurana, J. :- The present second appeal at the instant of the defendant has been directed against the judgment and decree dated 1.6.1998 of the learned District Judge, Una, affirming the judgment and decree dated 30.12.1998 of the learned Sub Judge, 1st Class, Amb. 2. The respondent before this court is the legal heir of the original plaintiff Balak Ram, who had died during the pendecy of the appeal before the first Appellate court. He is being referred to as the plaintiff hereinafter. 3. The subject matter of dispute between the parties is the land measuring 18 kanals 5 marlas comprising of khewat No.637, Khatauni No. 1188 and Khasra No. 1721 of village Nakroh, Tehsil Amb, District Una, hereinafter referred to as the land in dispute. 4. The plaintiff filed a suit seeking a declaration to the effect that he was a tenant in possession of the land in dispute and has become the owner thereof I by virtue of the H.P. Tenancy and Land Reforms Act, 1972 and the Rules I framed thereunder and that the revenue entries since Rabi 1979 in favour of the defendant showing him to be the owner and in possession of the land in dispute are wrong, illegal, null and void, and baseless having no effect on the right, title and interest of the plaintiff. As a consequential relief permanent injunction was sought for restraining the defendant from interfering in the peaceful possession of the plaintiff over the land in dispute. In the alternative possession of the land in dispute was prayed for. 5. The plaintiff pleaded that he has been coming in possession of the land in dispute as a tenant and has become the owner thereof on the coming into force of the H.P. Tenancy and Land Reforms Act, 1972. He has further pleaded that the revenue entries since Rabi 1979 have been changed in favour of the defendant behind his back and such entries are wrong, illegal, null and void and on binding on his rights. Further case of the plaintiff was that on the basis of wrong entries in his favour, the defendant had started interfering with his (Plaintiff) possession over the land in dispute. 6. Further case of the plaintiff was that on the basis of wrong entries in his favour, the defendant had started interfering with his (Plaintiff) possession over the land in dispute. 6. The defendant while resisting the suit averred that the plaintiff who was a tenant qua the land in dispute, had relinquished his tenancy much prior to the coming into force of the H.P. Tenancy and land Reforms Act, 1972 and that on 9.7.1975 he had executed a writing before the Panchayat admitting and conferring the relinquishment of tenancy rights by him in favour of the defendant. The revenue entries were changed in favour of the defendant by the revenue authorities vide order dated 13.9.1979 on the basis of the said writing and that since after the relinquishment of the tenancy rights by the plaintiffs, the defendant is coming in possession of the land in dispute as owner thereof. Objections as to maintainability of the suit, jurisdiction of the Civil Court and estoppel were also raised. 7. On .the basis of the pleadings of the parties, following issues were framed by the learned trial Court:- 1. Whether the plaintiff had relinquished his tenancy rights of the suit land in favour of the defendant as alleged? OPD 2. Whether the entries in the record of rights were changed without notice to the plaintiff as alleged? OPP 3. If issue No 2 is proved in the affirmative whether the plaintiff has become owner by operation of law ? OPP 4. Whether this court has no jurisdiction to try the suit? OPD 5. Whether the plaintiff is out of possession and as such the suit is not maintainable? OPD 6. Whether the plaintiff is estopped by his act and conduct? OPD. 7. Relief. 8. The learned trial Court found issues No.2 and 3 in favour of the plaintiff and issues No. 1 and 4 to 6 against the defendant.. Consequent upon such findings the suit of the plaintiff was decreed declaring that the plaintiff was previously a tenant in possession of the suit land and with the passage of H.P. Tenancy and Land Reforms Act, he has now become owner of the same. The revenue entries in favour of the defendant since Rabi 1979 were declared to have been unauthorisedly made. The same were as such held to be wrong and illegal. The revenue entries in favour of the defendant since Rabi 1979 were declared to have been unauthorisedly made. The same were as such held to be wrong and illegal. By way of a permanent injunction, the defendant was restrained permanently from interfering with the possession of the plaintiff over the land in dispute. 9. Feeling aggrieved by the judgment and decree dated 30.12.1988 of the learned trial Court, the defendant preferred an appeal before the learned district Judge, Una, who while disposing of 36 civil appeals by common judgment dated 31.8.1992 following the ratio laid down by a Full Bench of this Court in Chuhniya Devi v. Jindu Ram, 1991 (1) Sim. L.C. 223 came to the conclusion that civil court had no jurisdiction to go into the controversy raised in the suit. The appeal of the defendant was accordingly allowed and after setting aside the judgment and decree dated 30.12.1988 of the trial Court, the learned District Judge ordered the plaint of the suit to be returned for presentation before the competent court of law. 10. The plaintiff assailed the judgment dated 31.8.1992 of the learned District Judge, before this court by way of an appeal, being R.S.A. No.372 of 1992. A Division Bench of this Court allowed the appeal on 22.9.1997. The judgment dated 31.8.1992 was set aside and the case was remanded to the District Judge for decision afresh. It was observed by the Division Bench as under: - "In this appeal the lower appellate court has taken the view that the decision of the Full bench in Chuhniya Devi v. Jindu Ram 1991 (1) Shimla Law Cases 223 applies and consequently the Civil Court has no jurisdiction to entertain the suit. The appellate court has set aside the judgment of the trial Court and remanded the matter to the trial Court with a direction to the trial Court to return the plaint to the plaintiff for presentation of the sale in the court of competent jurisdiction. 2. It is seen from the judgment of the appellate court that the question whether the rulling of the Full Bench is applicable to the facts of the case, has not been considered at all by the appellate Judge. In such circumstances, the judgment of the appellate Judge is wholly unsustainable. 3. 2. It is seen from the judgment of the appellate court that the question whether the rulling of the Full Bench is applicable to the facts of the case, has not been considered at all by the appellate Judge. In such circumstances, the judgment of the appellate Judge is wholly unsustainable. 3. Before deciding to direct the trial Court to return the plaint the appellate Judge ought to have considered whether the case is governed by the ruling given by the Full Bench on the facts of the case. Hence the order of the appellate Judge is set-aside and the matter is remanded back to the file of the District Judge for fresh disposal in accordance with law. The District Judge will hear the parties and give his findings on the facts and decide thereafter whether on those facts the ruling of the Full Bench will apply. The appeal is disposed of accordingly. There will be no order as to costs." 11. On the matter having been so remanded, the learned District Judge vide the impugned judgment and decree dated 1.6.1998 dismissed the appeal of the defendant and affirmed the findings of the learned trial Court on all the issues. The learned District Judge came to the conclusion that the ratio laid down in Chuhniya Devi case (supra) by the Full bench of this Court had no application to the present case and that civil court had the jurisdiction to go into the controversy between the parties. Hence, the defendant is before this court by way of the present second appeal under Section 100, Code of Civil Procedure. 12. Though the present appeal was admitted for hearing by a learned District Judge of this Court on 11.11.1998 no substantial question(s) of law as envisaged under Sub-section (4) of Section 100, Code of Civil Procedure was formulated. Therefore, the learned counsel for the parties were heard if any substantial question of law arises in the present case. 13. Having heard the learned counsel for the parties, the following substantial questions of law are formulated:- 1. Whether civil court has the jurisdiction to go into the controversy raised in the suit between the parties? 2. Whether the suit of the plaintiff as laid without assailing the order dated 13.9.1978 (Ex.Dw 2/B) of the Assistant Collector II Grade, is not mainainable and with time? 3. Whether civil court has the jurisdiction to go into the controversy raised in the suit between the parties? 2. Whether the suit of the plaintiff as laid without assailing the order dated 13.9.1978 (Ex.Dw 2/B) of the Assistant Collector II Grade, is not mainainable and with time? 3. What is the effect of the failure of the plaintiff to step into the witness box in support of his case? 14. It is by now well settled that the jurisdiction as to the nature of the suit is to be determined on the basis of averments made in the plaint and not on the basis of any defence or result of the suit or on merits of the claim. It is the substance of the plaint and the true nature of object of the suit which has to be seen while determining the question as to whether the civil court has the jurisdiction or not. (See: Abdulla Bin Ali & Ors. v. Galappa & Ors., 1985 (2) SCC 54, and Gopal Chand & Ors. v. Ram Sarup, 1991 (2) Sim. L.C. 311. 15. The primary relief being claimed by the plaintiff in the present case is for a declaration to the effect that he was a tenant in possession of the land in dispute and has now become the owner thereof by virtue of H.P. Tenancy and Land Reforms Act, 1972. In this regard the averments made in paras 1 to 4 of the plaint are not-worthy. The defendant has not admitted the plaintiff to be a tenant in respect of the land in dispute. Therefore, before it can be held whether the plaintiff has become the owner of the land in dispute under Section 104, H.P. Tenancy and Land Reforms Act, 1972, or not, it has to be determined whether the plaintiff was cultivating the land in dispute as a tenant as on he date of coming into force of the said Act. 16. Therefore, before it can be held whether the plaintiff has become the owner of the land in dispute under Section 104, H.P. Tenancy and Land Reforms Act, 1972, or not, it has to be determined whether the plaintiff was cultivating the land in dispute as a tenant as on he date of coming into force of the said Act. 16. Dealing with the scope of Section 104(4) of the Act and Rule 29 of the H.P. Tenancy and Land Reforms Rules, 1975, a Full Bench of this Court in Chuhniya Devi case (supra) has held:- "True it is that Rule 29 contemplates determination of disputes of the nature contemplated by section 104 (4) of the Act on a summary inquiry on the file, yet, it cannot be over - looked that the dispute is envisaged about the question, whether a person cultivating the land of a landowner, is a tenant or not as is clear from the language in which section 104(4) is couched. The Legislature must be deemed to know its own mind when enacting a provision of this nature. It is not possible to say, as was canvassed before us by Shri B.K. Malhotra, that section 104(4) only lays down a rule of evidence when it says that the burden of proving that such a person is not a tenant of the landowner shall be on the latter whenever a dispute arises whether a person cultivating the land of a landowner is a tenant or not. It is implicit in sub-section (4) of section 104 that the Legislature envisaged that a dispute may arise whether a person cultivating the land of a landowner is a tenant or not, when proceedings were in progress under Chapter X, and provided that it shall be decided by the authorities contemplated under this Chapter who shall require the landowner to establish that a person cultivating his land is not a tenant. Any enquiry by a civil Court on the questions was barred by the Legislature by specifically providing in sections 112 and 115, both occurring in Chapter X, that the validity of any order made under the Chapter shall not be called in question in any court and that the order shall be final except as expressly provided in the Chapter. The Legislature knew its mind fully well. The Legislature knew its mind fully well. Where it wanted a dispute to be determined by the Civil Court, it provided so in Chapter X itself. One has only to look at sections 107 an,d 109 (2) not only that the Legislature ruled out any determination by a Civil Court, by necessary implication, of other matters, it expressly said so in sections 112 and 115." 17. Therefore, the primary relief of declaration claimed by the plaintiff being directly connected with the conferment of proprietory rights under Section 104, H.P. Tenancy and Land Reforms Act, 1972, in view of the ratio laid down in Chuhniya Devi case (supra) is not within the jurisdiction of the civil courts. To this extent the finings of the two courts below are bad and liable to be set aside. 18. In so far the relief of permanent injunction is concerned civil courts, have the jurisdiction to grant such a relief founded upon settled possession. It is settled law that where a person is in settled possession of the property even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner except by recourse to law. See: Dalip Singh v. State of H.P. & Ors. 1992(1) Sim. L.C. 320. 19. The next question arising for determination is whether the suit as laid by the plaintiff without assailing the order dated 13.9.1978 (Ex.DW 2/B) was not maintainable and within time. 20. The Revenue entries which were earlier in favour of the plaintiff were changed in favour of the defendants with effect from Rabi 1979 vide order Ex.DW 2/B passed by the Assistant Collector II Grade. Such order was passed under Section 37 of the H.P. Land Revenue Act 1953. The said section in so far as it is material for the purpose of the present case, reads:- "(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 provision of Section 38 of this Act and after proper enquiry, determine the entry to be made as to that matter. (2) If in any such dispute the Revenue Officer is unable to satisfy himself as to which of the parties thereto is in possession of any property to which the dispute relates, the Revenue Officer not below the rank of an Assistant Collector of the First Grade, shall ascertain through the Gram Panchayat constituted under the Himachal Pradesh Panchayat Raj Act, 1994 or any other agency, so prescribed by the State Government by holding proper enquiry in the prescribed manner as to who is the person best entitled to the property and shall by order direct, that, that the person be put in possession thereof, and that an entry in accordance with that order, be also made in the record or register. (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 the Collector in exercise of his powers as Revenue Court as an original suit. 21. Under the above provisions, the finality of the decision of the Revenue Officer is expressly made subject to a decision by the Civil Court. Section 46 of the H.P. Land Revenue Act, 1953 further provides:- "If any person considers himself aggrieved as to any right of which he is in possession by an entry in a record - of - rights or in a periodical record, he may file a suit or an application before a Revenue Court to decide the same." 22. For the purpose of it within the ambit of Section 46 (quoted above) and chapter VI of the Specific Relief Act, 1963, the plaintiff is not to assail the order/direction, if any, of the Revenue Officer passed under Section 37 of the H.P. Land Revenue Act 1953. He is only required to seek a declaration that he is in possession and the revenue entries to the contrary are wrong 23. In Babu Ram (deceased) through L.Rs. Smt. Sita Devi & Ors. v. Pohlo Ram (deceased) through L.Rs. Smt. Vidya Devi & Ors. 1991 (2) Sim. L.C. 211 the plaintiff therein had claimed a decree of declaration on the basis that he was. In Babu Ram (deceased) through L.Rs. Smt. Sita Devi & Ors. v. Pohlo Ram (deceased) through L.Rs. Smt. Vidya Devi & Ors. 1991 (2) Sim. L.C. 211 the plaintiff therein had claimed a decree of declaration on the basis that he was. in cultivating possession of the land in dispute as a tenant under the defendant and the correction made in the revenue records in Rabi 1976 showing the defendant to be in cultivating possession was factually wrong, illegal, unauthorized in effective and inoperative against his rights and on the basis of this wrong entry in the revenue records, defendant had intention to interfere with his possession, therefore, as a consequential relief a decree for permanent prohibitory injunction restraining the defendant from causing any interference was also prayed for. Though there was an order of the Revenue Officer for correction of the revenue entries in favour of the defendant, such order was no assailed as in the present case. Such a suit was held to be maintainable under Section 46 of the H.P. Land Revenue Act, 1953 as every order affecting change in the revenue records always subject to decision by a civil court. 24. In Ghulam Mohammad Khan & Ors. v. Samundar Khan & Ors. 1936 Lahore 37 dealing with a suit filed under Section 45, Punjab Revenue Act, 1887, which provision is para materia to Section 46 of the H.P. Land Revenue Act, 1953, it has been held that to such suits Article 120, Limitation Act, 1908 (corresponding to Article 113, Limitation Act, 1963) applies and the terminus a quo in such cases is when the cause of action accrues and that reading Article 120, Limitation Act, 1908 with Section 45, Punjab Land Revenue Act, 1887, the cause of action would accrue when the plaintiff feels aggrieved. 25. It has been held in Kewal Krishan Puri & Anr. v. The State of Punjab & Ors. 1977 P&H 3471 that the right to sue will accrue only where there is an unequivocal threat to infringe the right of the plaintiff. 26. Taking into consideration the averments in the plaint as to the threat to infringe the rights of the plaintiff, the suit is well within time under Article 113, Limitation Act, 1963. Question No. 3. 27. Admittedly, the plaintiff has not stepped into the witness box. His son and special attorney has appeared as PW1. 26. Taking into consideration the averments in the plaint as to the threat to infringe the rights of the plaintiff, the suit is well within time under Article 113, Limitation Act, 1963. Question No. 3. 27. Admittedly, the plaintiff has not stepped into the witness box. His son and special attorney has appeared as PW1. One of the material issue involved in the present case is whether the plaintiff had relinquished his tenancy rights in the present case and had executed an acknowledgment in this behalf on 9.7.1975. It was the plaintiff to state and rebut that he had not relinquished the tenancy and had not executed the acknowledgment dated 9.7.1975. His son and special attorney as PW 1 has not denied either the relinquishment or the acknowledgment dated 9.7.1975. He has simply pleaded ignorance to these facts. He even pleaded ignorance as to the case set up by the defendants in their written statement. On the failure of the plaintiff to step into the witness box and depose in support of his case and to subject himself to cross-examination, an adverse inference will have to be drawn against him. The appearance of special attorney cannot be treated as having appeared in the capacity of the j plaintiff. Such appearance is only as a witness in his personal capacity. (See : Gurdev Singh v. Gulaboo & Ors. 2000(3) Sim. L.C. 285; Mohinder Singh & Ors. v. Kurukshetra University & Anr. 2000f i) Sim. L.C. 246, and Har-swarup v. Ram Lok Sharma 2000(3) Sim. L.C. 160. 28. Since the plaintiff has failed to step into the witness box in support of his case, an adverse inference will have to be drawn against him and as such, he cannot be said to be in possession of the land in dispute. The findings of the two courts below, which are to the contrary, are liable to be set aside. 29. As a result, the present appeal is allowed. The judgments and decree of the two courts below are set aside and the suit of the plaintiff is dismissed. No order as to costs.