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2004 DIGILAW 77 (HP)

SAIRU RAM v. PREM CHAND

2004-04-22

R.L.KHURANA

body2004
JUDGMENT : R.L. Khurana, J (Oral):- The present second appeal at the instance of the defendant has been directed against the judgment and decree dated 13.10.2003 of the learned District Judge, Kangra at Dharmsala, setting aside the judgment and decree dated 19.1.2002 of the learned Sub Judge 1st Class, Baijnath. 2. The parties are real brothers. The subject matter of the dispute between them is the land measuring 0-10-23 Hects. comprising of Khata No.212, Khatauni No. 396 and Khasra Nos. 1108 and 1109 of Mohal Dhared, Mauza Road, Tehsil Baijnath, District Kangra (hereinafter referred to as the land in dispute). 3. The respondents, hereinafter referred to as the plaintiffs, filed a suit for declaration that the parties are co-owners and in joint possession of the land in dispute having succeeded to the same after the death of their father Dhani Ram. It was averred that the defendant during the course of settlement operations in connivance with the revenue field staff behind the back of the plaintiffs wrongly got himself recorded as in possession of the land in dispute as non-occupancy tenant. On the basis of such wrong revenue entries the defendant had also obtained the proprietary rights qua the whole of the land in dispute. It was further averred that the defendant on the basis of the wrong revenue entries has started interfering with the denying the ownership and possession of the plaintiffs. It was thus claimed that the wrong revenue entries and mutation No. 259 dated 27.2.1969 conferring proprietary rights on the defendant has no effect on the rights and title of the plaintiffs being illegal, wrong, null and void. As a consequential relief, injunction was claimed for restraining the defendant from interfering with the ownership and possession of the plaintiffs qua the land in dispute. 4. The defendant while resisting the suit averred that he was inducted as a tenant over the land in dispute by his deceased father and has now acquired proprietary rights under Section 104 (3), HP. Tenancy and Land Reforms Act (for short: the Act). Objections were raised as to maintainability of the suit, limitation and absence of cause of action. 5. The defendant while resisting the suit averred that he was inducted as a tenant over the land in dispute by his deceased father and has now acquired proprietary rights under Section 104 (3), HP. Tenancy and Land Reforms Act (for short: the Act). Objections were raised as to maintainability of the suit, limitation and absence of cause of action. 5. The learned trial Court on the basis of the evidence led by the parties vide judgment and decree dated 19.1.2002 though held that the defendant is not the tenant and that the revenue entries showing him to be in possession of the land in dispute are wrong and consequently the mutation No. 259 was also wrong and illegal, proceeded to non-suit the plaintiffs on the ground that the suit was barred by time, estoppel and that the suit was not maintainable. 6. In appeal preferred by the plaintiffs against the judgment and decree of the learned trial court, the learned District Judge accepted the findings of the learned trial court holding the defendant to be not in possession as tenant that the revenue entries in favour of the defendant and the mutation of proprietary rights are bad. The learned District Judge, however, did not agree with the findings of the learned trial court holding the suit to be barred by time, not maintainable and barred by estoppels. Consequently after setting aside such findings decreed the suit of the plaintiffs for declaration and injunction. Hence the present appeal by the defendant. 7. The learned counsel for the defendant has contended that the following two substantial questions of law arises in the present case, namely: (i) Whether the suit of the plaintiff was within time? And (ii) Whether Civil Court has the jurisdiction to go into the question (s) involved in the present case. 8. In so far as the first question of limitation sought to be raised is concerned, it was contended by the learned counsel for the defendant that since the order of mutation dated 27.2.1989 was being assailed, the case falls under Art. 100 of the Limitation Act, 1963 which provides period of limitation of one year. According to the learned counsel, the suit having been filed about eleven years after the date of the order sought to be assailed, on the face of it, was hopelessly barred by time. 9. According to the learned counsel, the suit having been filed about eleven years after the date of the order sought to be assailed, on the face of it, was hopelessly barred by time. 9. 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 and under a non-occupancy tenant to the extent and in the manner specified under Section 104. Where a tenancy land in permitted to be resumed by the landowner for personal cultivation, all rights, title and interest of the tenant in such land stands extinguished and ft 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 the all encumbrances. The landowner, however, is entitled to an amount by way of compensation for his land in respect of which the proprietary rights has vested in the tenant. Sections 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. 10. The scheme of Chapter-X of the Act makes it clear that there are bound to be the cases where the landowner may come forward with the plea that the person recorded as in cultivating possession of the land, is not a tenant. In such cases, the person who is recorded as in cultivating possession of the land, is likely to contest the claim of the landowner by asserting that he is in occupation of the land as a tenant. If such a dispute arises, the same has to be determined by the Land Reforms Officer under Sub-Section (4) of Section 104 of the Act. If such a dispute arises, the same has to be determined by the Land Reforms Officer under Sub-Section (4) of Section 104 of the Act. The relevant provisions read:- "Whenever a dispute arises whether a person cultivating the land of landowner, is a tenant or not, the burden of proving that such a person is not a tenant of the landowner shall be on the latter." 11. Rule 27 of the HP. Tenancy and Land Reforms Rules, 1975 hereinafter referred to as the Rules, prescribes the procedure for conferment of proprietary rights on tenants covered by Sub-Section (3) of Section 104 of the Act, Rule 29, Provides for the determination of disputes under Sub-Section (4) of the Section 104 of the Act. It reads: “If there is a dispute regarding the entries of the land records the Land Reforms Officer, in his capacity as an Assistant Collector of the First Grade, shall decide the dispute under Sub-Section (4) of Section 104 in accordance with the relevant provision of the Punjab Land Revenue Act, 1887, or the Himachal Pradesh Land Revenue Act, 1954, as the case may be. The disputes of such cases will be determined on a summary inquiry on the files. (17 of 1887 and 6 of 1954). Where a tenancy is in part of a field number, tatima shajras of that part will be prepared." 12. 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 a holding notwithstanding the fact that any such person has not appeared or participated in the proceedings before the Land Reform officer or any other Revenue authority. 13. 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 fom 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 from the date of the order, prefer an appeal to the Commissioner, in such form 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 revise the proceedings of the Land Reforms Officer, or the Collector or the Commissioner as provided in Section 65 of this Act. 14. Section 112 and 115 of the Act exclude the jurisdiction of the Civil Courts and nay other authority. Section 112 reads:- " Save as otherwise 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." 15. 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." 16. Thus, under the scheme of Chapter-X of the Act read with the relevant rules, an inquiry has to be conducted by the competent authority before conferring proprietary rights on a tenant in respect of the land under this tenancy and after holding such an inquiry, an order has to be passed by the competent authority either conferring or declining to confer proprietary rights. 17. It is significant to note that an order passed by the competent authority under Section 104 of the Act is appealable under Section 114 of the Act and such appeal lies before the Collector. 18. It is well settled that when an order is appealable, it must be reasoned order so that the appellate-authority can appreciate the reasoning. A non-speaking order, being violative of principles of natural justice, is void ab initio. 19. Besides, the order of mutation has not been passed by a competent authority. Ex. D1 is the copy of mutation. 18. It is well settled that when an order is appealable, it must be reasoned order so that the appellate-authority can appreciate the reasoning. A non-speaking order, being violative of principles of natural justice, is void ab initio. 19. Besides, the order of mutation has not been passed by a competent authority. Ex. D1 is the copy of mutation. A perusal of the same shows that the same has been passed by Assistant Collector II Grade. Under Rule 29 of the HP. Tenancy and Land Reforms Rules, 1975, it is only an Assistant Collector 1st Grade who is competent to confer proprietary rights and sanction the mutation. The order of mutation, therefore, has been passed by an authority having no jurisdiction. 20. The Honble Supreme Court in Ajudh Raj and others V. Moti [AIR 1991 SC 1600] has held: "The principle for deciding the question of limitation in a suit filed after an adverse order under a Special Act is well settled. If the order impugned in the suit is such that it has to be set aside before any relief can be granted to the plaintiff the provisions of Article 100 will be attracted and if no particular Article of the Limitation Act is applicable the suit must be governed by the residuary Article 113, proscribing a period of three years. Therefore, in a suit for title to an immovable property which has been the subject matter of a proceeding under a Special Act if an adverse order comes in the way of the success of the plaintiff, he must get it cleared before proceeding further. On the other hand if the order has been passed without jurisdiction, the same can be ignored as nullity, that it, non-existent in the eye of law and it is not necessary to set it aside; and such a suit will be covered by Article 65." 21. This Court also in Maj Sudhir Sewal and others V. Madan Kishore and others [(1998 (1) Sim. L.J 138], Atma Ram (deceased) through his L.Rs Roop Ram and others V. Lachmi [1998 (1) Sim LC 190] and in Shri Ujall Sukh V. Shri Mansua & Ors [Latest HLJ 2003 (1) H.P. 135] has held that if the impugned order is such that it has to be set aside before any relief can be granted, the provisions of Art. 100, Limitation Act, 1963 would be attracted. If, however, the order had been passed without jurisdiction, the same can be ignored as nullity and it is not necessary to get it set aside, fn such a case Art. 100 would not apply but the case would be governed by residuary Art. 113 if no other Article of the Limitation Act is shown to be applicable. 22. It was next contended on behalf of the defendant that even if Art. 113 is applied, the suit having been filed beyond three years of the order of mutation would be barred by time. 23. There is no merit in the contention, it is well settled that mutation does not confer title. A cause of action would accrue to the plaintiffs only when there is an invasion of or a threat to his rights and title. The order of mutation, even otherwise, having been passed by an authority having no jurisdiction was nullity and capable of being ignored. 24. In Ghulam Mohammad Khan and others Vs. Samundar Khan and others [1936 Lahore 37] dealing with a suit filed under Section 45, Punjab Revenue Act, 1887, which provision is para material to Section 46 of the HP. 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 Purl and another vs. The State of Punjab and others [1977 P&H 347] 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. 27. In view of the settled position of law, the substantial question of law as to limitation sought to be raised does not arise in the present case. 28. Next comes the question of jurisdiction. 27. In view of the settled position of law, the substantial question of law as to limitation sought to be raised does not arise in the present case. 28. Next comes the question of jurisdiction. It be 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 and object of the suit which has to be seen while determining the questions as to whether the Civil Court has the jurisdiction or not [See: Abdula Bin All and others V. Galappa and others (1985) 2 SCC 54 and Gopal Chand and others V. Ram Sarup (1991 (2) Sim. L.C. 311]. 29. The primary relief claimed in the present case by the plaintiffs is declaration to the effect that they are the owners and in possession of the land in dispute and that the revenue entries in favour of the defendant showing him to be in possession as a non-occupancy tenant are wrong and not binding on their rights. 30. Admittedly, the earlier revenue entries were in favour of the predecessor-in-interest of the parties and thereafter during the course of settlement proceedings the entries came to be changed in favour of the defendant purportedly in exercise of the powers under Section 37 of the HP. Land Revenue Act, 1953. The said section, as then in force, in so far as it is material for the purpose of present case reads: "(1) If during the making, revision of preparation of any record or in the course of any enquiry under this Chapter a dispute arises as to any matter of which an ent«y 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 Section 38 of this Act and after proper inquiry, determine the entry to be made as to that matter. (2) if in any such dispute 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 Panchayati Raj Act, 1994 or any other agency, so prescribed by the State Government by holding proper inquiry 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 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 Officer as an original suit" 31. 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 HP. Land Revenue Act, 1953, as then in force, 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." 32. For the purpose of a suit 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. 33. In Babu Ram (deceased) though L.Rs Smt Site Devi and others vs. Pohlo Ram (deceased) through L.Rs Smt. Vidya Devi and others [1991 (2) Sim. He is only required to seek a declaration that he is in possession and the revenue entries to the contrary are wrong. 33. In Babu Ram (deceased) though L.Rs Smt Site Devi and others vs. Pohlo Ram (deceased) through L.Rs Smt. Vidya Devi and others [1991 (2) Sim. L.C. 211] the plaintiff therein had claimed a decree for 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, ineffective 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 not assailed as in the present case. Such a suit was held to maintainable under Section 46 of the H.P. Land Revenue Act, 1953 as every order affecting change in the revenue records is always subject to decision by a Civil Court. 34. Similar view was taken by this Court in Roshan Lal V. Krishan Dev [Latest HLJ 2002(1) (HP) 197]. 35. For (tie self same reasons, once a suit is held to be maintainable before a Civil Court under Section 46 of the H.P. Land Revenue Act, 1953, the Civil Court has the jurisdiction to go into the questions involved in the present case. For coming to the conclusion whether the revenue entries in favour of the defendant are correct or not, the court has to go into the question if the defendant is in possession and if so, in what capacity. 36. For the foregoing reasons, the substantial questions of law sought to be raised in the present case do not arise. 37. No other questions of law muchless a substantial questions of law arises in the present case. 38. Resultantly, the present appeal is dismissed leaving the parties to bear their own costs.