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2002 DIGILAW 239 (HP)

SHANKAR v. RUKMANI

2002-08-28

K.C.SOOD, KAMLESH SHARMA

body2002
JUDGMENT Ms. Kamlesh Sharma, J,—The appellant is the plaintiff whereas the respondents are the defendants. The original respondent No.1 Smt. Bachan Kaur has died during the pendency of this appeal and her name has been deleted from the array of respondents. The plaintiff is aggrieved by the judgment dated 1.8.1991, whereby the appeal of the defendants was allowed and the decree and judgment dated 30.12.1989 of the Sub Judge 1st Class, Nalagarh, District Solan, was set aside by holding that the Civil Court has no jurisdiction and the plaint was ordered to be returned to the% plaintiff under Order VII Rule 10 CPC for presentation before the proper Court. The Sub Judge had decreed the suit for permanent prohibitory injunction restraining the defendants from interfering in his peaceful possession over the suit land measuring 8 bighas 12 biswas, comprised in Khasra Nos. 8, 251, 291, 307 min and 308 min as entered in the jamabandi for the year 1981-82 holding him tenant thereof under the defendants Bachan Kaur and Rukmani. 2. The District Judge for holding that the Civil Court has no jurisdiction has relied upon a Full Bench judgment of this Court in Chuhniya Devi v. Jindu Ram, 1991 (1) Sim.L.C. 223. 3. After hearing the learned counsel for the parties and going through the record, we find that the District Judge has wrongly applied the ratio of judgment in Chuhniya Devi v. jindu Rams case (supra) to the facts and circumstances of the present case. From the pleadings of the parties it is clear that the plaintiff claimed himself to be in continuous possession of the suit land as tenant for the last 20 years, whereas the defendants denied his claim and asserted that they are owners in possession. Therefore, admittedly the relationship of landlord and tenant is in dispute despite the revenue entries in favour of the plaintiff and such kind of disputes are triable by the Civil Court. 4. Therefore, admittedly the relationship of landlord and tenant is in dispute despite the revenue entries in favour of the plaintiff and such kind of disputes are triable by the Civil Court. 4. So far the ratio in judgment in Chuhniya v. Jindu Rams case (supra) is concerned, the reference before the Full Bench was whether the Civil Court has the jurisdiction in respect of order of conferment of proprietary rights under Section 104 of the H.P. Tenancy and Land Reforms Act, 1972 (hereinafter called the Act) which has been answered in the negative except in a case where it is found that the statutory authorities envisaged by the Act have not acted in conformity with the fundamental principles of judicial procedure or where the provisions of the Act have not been complied with. 5. The acquisition of proprietary rights by tenants other than non-occupancy tenants is dealt with in Chapter X of the Act. This Chapter consists of Sections 104 to 117. Section 112 of the Act provides for bar of jurisdiction of Civil Court for calling in question the validity of any proceedings or orders taken or made under this Chapter. By providing appeal and revision against the order passed by the Land Reforms Officer under this Chapter, further bar of jurisdiction has been provided under Section 115 to call in question any order made by the Collector, Commissioner or Financial Commissioner by declaring them final. It is also observed by the Full Bench in Chuhniya Devi v. Jindu Rams case (supra) that from the Scheme of Chapter X it is clear that there are bound to be occasions when the dispute about the relationship of landlord and tenant would arise in the proceedings which need to be adjudicated upon by the authorities as provided therein, before conferment of proprietary rights upon a tenant or before resumption of land by the land owner. 6. 6. Referring to sub-section (4) of Section 104 and Rule 29, the Full Bench has concluded in para 39 that: "...........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." 7. It was in this context that the Full Bench further held in paragraph 40 : "Any inquiry by a Civil Court on the question 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. 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 and 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." 8. While discussing the rationale for exclusion of Civil Court, the learned Judges have held in paragraph 44 that: "The exclusion of the jurisdiction of the Civil Court, in the matter of determination of the question whether a person cultivating the land of a landowner is his tenant or not for purposes of Chapter X, is both reasonable and understandable. Permitting such a question to be determined by the civil court also would have introduced an element of unpredictability, spread over a long period while the matter was under adjudication before the Civil Court at the trial or an appellate stage, which could have made the effective implementation of measures of land reform aimed at by the Act, uncertain. The legislature could legitimately think of ruling out such a situation. It has done so by excluding the jurisdiction of the civil court expressly in that matter." 9. The legislature could legitimately think of ruling out such a situation. It has done so by excluding the jurisdiction of the civil court expressly in that matter." 9. After analysing the judgment in Chuhniya Devi v. Jindu Rams case (supra), we have no doubt that the jurisdiction of the Civil Court is barred under the Act if the dispute pertaining to the relationship of landlord and tenant arises during the proceedings of conferment of proprietary rights upon the tenant and resumption of land by the land owner and the order in respect thereof has been passed by the authorities under 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. But if the dispute of landlord and tenant arises independent of the proceedings under the Act, the Civil Court has the jurisdiction. 10. Coming to the case in hand, it is not averred by the either party that either the proceedings were initiated or the order was passed under Chapter X of the Act. Therefore, we have no hesitation to hold that the ratio of judgment in Chuhniya Devi v. Jindu Rams case is not applicable to the facts and circumstances of the present case and the Civil Court has the jurisdiction to decide the suit of the plaintiff. 11. In the result, we allow this appeal and set aside the impugned judgment dated 1.8.1991 passed by the District Judge, Solan, whereby the plaint of the plaintiff was ordered to be returned under Order 7 Rule 10 CPC for presentation to the proper Court. The case is remaded to the District Judge, Solan, for restoring the appeal to its original number and decide it on merits in accordance with law. The parties are directed to appear before the District Judge, Solan on 16.9.2002. The records be sent back immediately. Costs easy. Appeal allowed.