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2005 DIGILAW 112 (HP)

TAJDIN v. MILKHO DEVI

2005-04-29

DEEPAK GUPTA

body2005
JUDGMENT Deepak Gupta, J. - This judgment shall dispose of a number of appeals where the question raised is with regard to the interpretation and effect of the judgment of the Full Bench of this Court in Chuhniya Devi v. Jindu Ram, 1991(1) Sim.L.C. 223. 2. The questions, which were required to be answered by the Full Bench, were whether the Civil Court has jurisdiction in respect of an order; (a) made by the competent authority under the H.P. Land Revenue Act, 1954; and (b) of conferment of proprietary rights under Section 104 of the H.P. Tenancy and Land Reforms Act, 1972 which have not been assailed under the provisions of the said Act. 3. The Full Bench after reviewing the various decisions on the subject and the relevant provisions of the H.P. Land Revenue Act and the H.P. Tenancy and Land Reforms Act answered the questions as follows: " 64. We have attempted to do it in the present case and have come to the conclusion that the Legislature has envisaged a complete Code in the provisions of the H.P. Tenancy and Land Reforms Act, 1972, .inter alia, for effectuating its purpose of land reforms and has ruled out determination of any question connected therewith by the civil court. The Answer Our answer, therefore, is: (a) that an order made by the competent authority under the HP. Land Revenue Act, 1954, is open to challenge before a civil court to the extent that is relates to matters falling within the ambit of section 37(3) and section 46 of that Act; and (b) the civil court has no jurisdiction to go into any question connected with the conferment of proprietary rights under section 104 of the HP. Tenancy and Land Reforms Act, 1972, except in a case where it is found that the statutory authorities envisaged by the 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." 4. During the Course of judgment the Pull Bench has made various pertinent observations. Tenancy and Land Reforms Act, 1972, except in a case where it is found that the statutory authorities envisaged by the 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." 4. During the Course of judgment the Pull Bench has made various pertinent observations. In paragraphs 39 & 40 it is observed as follows: "39 It is implicit in sub-section (4) of Section 104 that the Legislature envisaged that a dispute may arise whether a post 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 on cultivating his land is not a tenant. 40. Any enquiry 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 1 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." (Emphasis supplied). 5. The second question raised before the Full Bench was specifically with regard to conferment of proprietary rights under Section 104 of the HP. Tenancy and Land Reforms Act. This is apparent from various observations made in the judgment. The Full Bench in para 44 of the judgment has observed as follows:- "44. 5. The second question raised before the Full Bench was specifically with regard to conferment of proprietary rights under Section 104 of the HP. Tenancy and Land Reforms Act. This is apparent from various observations made in the judgment. The Full Bench in para 44 of the judgment has observed as follows:- "44. 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 cold legitimately think of ruling out such a situation. It has done so by excluding the jurisdiction of the civil Court expressly in that matter." In para 45 of the judgment of the Full Bench observed as follows:- "45. Shri K.D. Sood, who also assisted the Court during the hearing, urged that where there was no dispute about the relationship of landowner and tenant, the civil court would have no jurisdiction in the matter but where there was such a dispute, the civil court would have jurisdiction to go into the matter. The reasons which we have mentioned earlier rule out acceptance of the plea that the civil Court would have jurisdiction where there is a dispute about the status of a person cultivating the land of a landowner being his tenant. The acceptance of the plea would negate the accomplishment of the object of securing to the actual tiller proprietary rights in the land under his cultivation as a measure of land reforms envisaged in the Act." 6. A similar question came to be considered by a single Judge of this Court in Babu Ram (deceased) through LRs. Smt. Sita Devi and others v. Pohlo Ram (deceased) through LRs. Smt. Vidya Devi and others, 1991(2) Sim. L.C. 211. This case was decided after the decision was rendered by the Full Bench. It appears that the decision of the Full Bench was not brought to the notice, of the Court. Smt. Sita Devi and others v. Pohlo Ram (deceased) through LRs. Smt. Vidya Devi and others, 1991(2) Sim. L.C. 211. This case was decided after the decision was rendered by the Full Bench. It appears that the decision of the Full Bench was not brought to the notice, of the Court. Relying upon a judgment of the Apex Court in Raja Durga Singh v. Tholu and others, AIR 1963 SC 361, the single Judge held as follows "8. In view of the specific pleadings and as observed by the Supreme Court in Durga Singhs case (supra), civil court undoubtedly had jurisdiction to entertain and decide the suit. Moreover, plaintiff had felt aggrieved by an entry made in the revenue records on the basis of an order passed by Revenue Officer. Section 46, of the Himachal Pradesh Land Revenue Act provides that if a person considers himself aggrieved as to any right to which he is in possession by an entry in a record of right or any periodical record, he can institute a suit for declaration of the rights under Chapter VI of the Specific Relief Act, 1963. The courts below, as such, were right in their view that Civil Court had jurisdiction to entertain and decide the suit." 7. A Division Bench in Ram Chand and others v. Jagat Ram and others, 1997(1) Sim.L.C. 164, following the judgment of the Full Bench held that since the Land Reforms Officer had sanctioned the mutation granting proprietary rights in favour of the alleged tenants behind the back of the owners on the basis of the entries existing prior to the enforcement of the Act and not at the time of sanction, the Civil Court had jurisdiction. 8. A single Judge of this Court in Shri Pritam Chand and others v. Shri Krishan Kumar and others, 1997(1) Sim. L.C. 255 was dealing with a case where a suit had been filed for declaration that the plaintiffs were entitled to v proprietary rights in their favour. The defendants did not accept the plaintiffs to be tenants on the suit land. It was held that in this situation the ratio of the Full Bench was not applicable. 9. L.C. 255 was dealing with a case where a suit had been filed for declaration that the plaintiffs were entitled to v proprietary rights in their favour. The defendants did not accept the plaintiffs to be tenants on the suit land. It was held that in this situation the ratio of the Full Bench was not applicable. 9. In Malkiat Singh and another v. Hardial Singh, 1994 (Suppl.) Sim.L.C. 77, following the judgment of the Full Bench a single Judge of this Court held that the Civil Court had no jurisdiction to go into any question connected with the conferment of proprietary rights pertaining to the land in dispute. 10. In Inder Dutt and others v. Kala and another, 1997(2) Sim.L.C. 274, it was held that the entry in the revenue records regarding the tenancy rights and the consequential proprietary rights concerned upon the judgment Debtors had been done ex parte without any inquiry whatsoever. It was held that the Decree Holders were not aware of such entries. The Court held that in such a situation, it cannot be said, by any stretch of imagination, that the Civil Court had no jurisdiction to decide the question. In fact, the proposition laid down by the Full Bench, as aforesaid, itself governed the case and the matter fell within the scope of the jurisdiction of the Civil Court, as laid down by the Full Bench. l 11. In Roshan Lal v. Krishan Dev, Latest HLJ 2002 (HP) 197 : 2002(1) Cur. L.J. (HP.) 261 a single Judge held that where primary relief of declaration claimed by the plaintiff was directly connected with the conferment of proprietary rights under the HP. Tenancy and Land Reforms Act, the Civil court had no jurisdiction. In that case the plaintiff had filed a suit seeking declaration to the effect that he was a tenant in possession of the land in dispute and had become an owner by virtue of the HP. Tenancy and Land Reforms Act. 12. A Division Bench of this Court in Shankar v. Smt. Rukmani and others, 2003(1) Shim. In that case the plaintiff had filed a suit seeking declaration to the effect that he was a tenant in possession of the land in dispute and had become an owner by virtue of the HP. Tenancy and Land Reforms Act. 12. A Division Bench of this Court in Shankar v. Smt. Rukmani and others, 2003(1) Shim. L.C. 300, considered the question with regard to the interpretation of the judgment of the Full Bench and held as follows "9: After analyzing 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” (Emphasis supplied) 13. This judgment appears to have settled all the matters about which there was some conflict with regard to the interpretation of the judgment of the Full Bench in Chuhniya Devi v. Jindu Rams case (supra). One factor which has to be kept in mind and should not be lost sight of white considering the import of the judgment of the Full Bench is that the question before the Full Bench was whether the civil court had jurisdiction in respect of an order conferring proprietary rights under Section 104 of the H.P. Tenancy and Land Reforms Act, 1972 which had not been assailed under the provisions of the said Act. The Full Bench in para 39 again made it clear that a dispute may arise where the person cultivating the land of a land owner is a tenant or not when proceedings were in progress under Chapter X. The Full Bench was dealing with the impact of the bar to the jurisdiction of the Civil Court under Sections T12 and 115 of the HP. Tenancy and Land Reforms Act both of which occur in Chapter X and it is in this context that the observations made in para 40 have to be read. Again in para 44 (quoted above) the Full Bench has clearly held that the exclusion of the jurisdiction of the Civil Court in the matter of determining the question whether a person cultivating the land of the land owner is a tenant or not for the purposes of Chapter X is both reasonable and understandable. It is thus clear that the question before the Full Bench and its answer and the various observations were confined to disputes pertaining to the relationship of landlord and tenant arising out of and during the course of proceedings of conferment of proprietary rights on the tenant and Chapter X of the H.P. Tenancy and Land Reforms Act. The observations made in Chapter 45 have to be read in this context only. 14. This has been amply clarified by the Division Bench in Shankar case (supra) wherein after analyzing the entire law and the judgment in Chuhniya Devis case (supra) the Division Bench held that if a dispute pertaining to the relationship of landlord and tenant arises during the proceedings of conferment of proprietary rights upon the tenant and the resumption of land by the land owner and the order in respect thereof has been passed by the authorities under the Act the Civil Court will have no jurisdiction except in a case where it is found that the competent authority has acted either in violation of the Rules of Natural Justice or contrary to the provisions of law laid down in the Act or the Rules. If the dispute regarding the relationship of landlord and tenant has no connection with the proceedings under Chapter X of H.P. Tenancy and Land Reforms Act the Civil Court would have jurisdiction to hear and decide this dispute. 15. I am not only bound but am in respectful agreement with the observations of the Division Bench in Shankars case quoted hereinbefore. The bar to the jurisdiction of the Civil Court under Section 112 of the Tenancy and Land Reforms Act will only apply when the validity of proceedings or order made under Chapter X are called in question in any Civil Court. The bar to the jurisdiction of the Civil Court under Section 112 of the Tenancy and Land Reforms Act will only apply when the validity of proceedings or order made under Chapter X are called in question in any Civil Court. Similarly under Section 115 of the said Act the order in appeal or revision passed by the Collector, Commission or Financial Commissioner can also not be challenged before the Civil Court unless the same is in violation of the principles of Natural Justice or is contrary to the provisions of the Rules or the Act. The foundation for this must be laid in the plaint. It is the averments made in the plaint which will show whether the Civil Court has or does not have jurisdiction for entertain the suit. 16. The appeals are taken up separately, in the light of the above discussion. FAO No. 264/1993 In this case a suit was filed for possession of the land in dispute. In para of the plaint it was averred that the defendants had illegally got the revenue entries made in their favour showing them to be tenants and the said entries are totally illegal. In written statement a plea was raised that the defendants were rightly recorded as tenants and had become owners of the suit land under the provisions of the H.P. Tenancy and Land Reforms Act. No reference was made either 1 to any proceedings or to any order under Chapter 10 of the H.P. Tenancy or Land Reforms Act. The Trial Court held that the defendants had failed to prove that they had been inducted as tenants. The suit of the plaintiffs was decreed. The lower-Appellate Court relying upon the judgment in Chuhniya Devis case held that the Civil Court had no jurisdiction to go into any question involving dispute of the landlord and tenant. The plaint was ordered to be returned to the plaintiffs for presentation before a Court of competent jurisdiction. 17. In view of the discussion made above the order of the lower Appellate Court is bound to be set-aside. Neither any proceedings nor any order passed under Chapter 10 of the H.P. Tenancy and Land Reforms Act was in question before the Court. The plaint as framed definitely showed that the Civil Court had jurisdiction to entertain the suit. 17. In view of the discussion made above the order of the lower Appellate Court is bound to be set-aside. Neither any proceedings nor any order passed under Chapter 10 of the H.P. Tenancy and Land Reforms Act was in question before the Court. The plaint as framed definitely showed that the Civil Court had jurisdiction to entertain the suit. No dispute pertaining to the relationship of landlord and tenant arising during the proceedings or out of an order of conferment of proprietary rights upon the tenant was in question before the Civil Court. Hence, the Civil Court had jurisdiction to decide the dispute. 18. Therefore, the judgment of the lower Appellate Court dated 11.6.1993 passed in Civil Appeal No. 15/13 of 1990 is set-aside with a direction to decide the appeal on merits. Since the appeal was filed in the year 1990, the lower Appellate Court is directed to dispose of the appeal on or before 30th September, 2005. Parties through their counsel are directed to appear before the Court below on 6th June, 2005. FAO No. 217 of 1994 19. In this case a suit was filed in the year 1987 by the plaintiff alleging that the defendant has forcibly occupied land as trespasser in April, 1975. In para 7 it is pleaded that the tenancy has been entered, though wrongly in favour of the defendant. It is further averred that mutation No. 2185 conferring proprietary rights on the defendant is based on wrong and illegal entries and therefore does not confer any title on the defendant. During the pendency of the suit the plaint was amended and para 7(a) was added. The said para reads as follows: "That the plaintiff are owners of the suit land and the defendant took possession illegally and forcibly in the month of April, 1975. The defendant in the active connivance with the revenue officials, got his name recorded in the revenue record as tenant. As stated above, he was never inducted as tenant. So much so, the defendant on the basis of impugned entries in the revenue record, in his favour, got the mutation of proprietary rights sanctioned in his favour in the absence, at the back, without the knowledge and consent of the plaintiff. Initially the entry of tenancy was also got recorded by the defendant in the absence, at the back, without the knowledge and consent of the plaintiff. Initially the entry of tenancy was also got recorded by the defendant in the absence, at the back, without the knowledge and consent of the plaintiff. In both the cases, the revenue officials in league with the defendant, had not acted in conformity with the fundamental principles of judicial procedure. No notice of any sort was given to the plaintiff. The procedure meant for the change of revenue entries, was also not adopted by the revenue officials. So much so, no provisions of the relevant Act had been complied with at the time of changing the entries and, also thereafter at the time of sanctioning of mutation of proprietary rights. Therefore, the impugned entries as well as the mutation are void ab initio and do not make the defendant entitle to derive any benefit." 20. The trial Court held that the plaintiff did not appear before the appropriate Officer when the proprietary rights were being conferred upon the defendant despite service. The suit of the plaintiff was dismissed. The appeal filed by the plaintiffs has been allowed on the ground that the Civil Court had no jurisdiction to decide the matter as such the judgment and decree was set aside and the plaint has been ordered to be returned to the plaintiffs for presentation to the proper court. 21. The finding of the lower appellate Court that the civil court had no jurisdiction is totally incorrect. The lower appellate Court should have first decided the question whether the proceedings regarding conferment of proprietary rights were in conformity with law and the rules of natural justice. The trial Court had given its findings in this regard. The lower appellate Court being the final court of fact was expected to consider the entire evidence and decide the question whether the tenant had acquired proprietary rights under the Tenancy and Land Reforms Act and whether this was done at the back of the plaintiffs or without following the requisite procedure. 22. The trial Court held that before conferring proprietary rights notice was given to the plaintiffs and the plaintiffs did not turn up despite notice. This finding was challenged in appeal before the lower appellate Court. The lower appellate Court without recording any finding on this question has remanded the case. This it could not have done. 22. The trial Court held that before conferring proprietary rights notice was given to the plaintiffs and the plaintiffs did not turn up despite notice. This finding was challenged in appeal before the lower appellate Court. The lower appellate Court without recording any finding on this question has remanded the case. This it could not have done. The appeal is, therefore, allowed and the case is remanded to the lower appellate Court to decide the appeal on merits. 23. Since the appeal was filed in the year 1992, the lower appellate Court is directed to dispose of the appeal on or before 30th September, 2005. Parties through their counsel are directed to appear before the appellate Court on 6th June, 2005. FAO No. 152 of1993: 24. In this case a suit was filed by the plaintiff for permanent injunction that he is owner in possession of Khasra No. 104 which was alleged to have been sold to her by defendant No. 1. In para 4 it was stated that the revenue officials as well as the District Collector has got no right to pass any order of correction when the matter for correction of revenue entries was pending before the Sub Divisional Collector. It was also averred that any order of the District Collector dated 19.5.1986 regarding revenue entry of mutation is null and void as no notice was ever issued to the plaintiff before passing such an order and no procedure was followed. The defendants did not raise any objection that they had been conferred proprietary rights. The only objection taken was that the revenue officials have jurisdiction to correct the entries made in the revenue records including the mutations. One order of the Assistant Collector, 2nd Grade, Hamirpur was placed on record as Ext. DX, in which it was held as follows: "After careful inspection of the spot and statements given by the witnesses, I come to the conclusion that the land comprised in Khasra No. 104 is under the possession of the applicant and he pays rent to the land owner. Hence it is ordered that Sh. Taj 1 Mohammed be entered as non-occupancy tenant on payment of rent." 25. The heading of this order shows that it is an application for correction of khasra girdwari in respect of khasra Nos. 104 and 129. 26. Hence it is ordered that Sh. Taj 1 Mohammed be entered as non-occupancy tenant on payment of rent." 25. The heading of this order shows that it is an application for correction of khasra girdwari in respect of khasra Nos. 104 and 129. 26. The trial Court held that since the question involved was whether the defendant was a tenant or not in view of Sections 112 and 115 of the Land Reforms Act and the judgment in Chuhniya Devis case (supra) it had no jurisdiction to decide the case and ordered the return of the plaint for presentation to the proper court. Other issues were not decided by the trial Court. 27. In appeal filed by the plaintiff, the lower appellate Court held that the jurisdiction of the Civil Court was not ousted and, therefore, remanded the case back to the trial Court to decide the same on merits. 28. Applying the law as enunciated above it is clear that in the present case no order passed by a competent authority under Chapter-X of the Tenancy and land Reforms Act was challenged. A perusal of Annexure DX shows that the said order had been passed on an, application for correction of khasra Girdawari. This clearly shows that this order was passed on proceedings taken under the H.P. Land Revenue Act. Even Chuhniya Devis judgment (supra) does not bar the jurisdiction of the Civil Court in such like cases. Therefore, the trial Court had gravely erred in ordering the return of the plaint. The judgment of the learned lower appellate Court being correct is upheld and the trial Court is directed to decide the case on merits. The parties through their learned Counsel are directed to appear before the trial Court on 6th June, 2005. Since the original suit was filed in the year 1986 the trial Court is directed to dispose of the suit on or before 30th September, 2005. FAO No. 247 of1993: 29. In this case the plaintiffs filed a suit for declaration to the effect that the plaintiffs and defendant No. 2 are owners in possession of the suit land and that the entries in the revenue record showing the defendant No. 1 as tenant in possession of the suit land are wrong and illegal. The land in question was originally owned by Kaula wd/o Kihroo. The land in question was originally owned by Kaula wd/o Kihroo. She had four daughters, namely, Jhanghru, Sahani, Kala Devi and Lachhoo. The plaintiffs were minor children of pre-deceased daughter Kala Devi. Lachhoo had married Chuhar Singh. Smt. Kaula had gifted 1/3rd share of her land to Chuhar Singh. On the death of Kaula Devi her property was inherited by the plaintiffs and the three daughters of Kaula. Jhanjru, Sahani and Chuhar Singh sold their land to defendants 3 to 6. It was alleged that the plaintiffs and defendant No. 2 Lachhoo were the owners of the remaining land. It was further alleged that defendant No. 1 during settlement operation had wrongly got his name recorded as non-occupancy tenants. The defendant No. 1 in his written statement took up the plea that in fact he was inducted as a tenant on her entire land by Kaula. He had relinquished his possession of the land sold to defendants No. 3 to 6. He claimed to have inherited the suit land from Smt. Kaula under a Will. He also claimed that he continued to be a tenant on the suit land. 30. The trial Court after recording the evidence decreed the suit in favour of the plaintiffs and the plaintiffs were held to be joint owners in possession of 1/6th share of the estate of Kaula. It also held that the revenue entries showing the defendant Piar Chand as tenant in possession of the suit land were wrong and .not binding upon the parties. 31. The lower appellate Court held that since the question of tenancy was involved the Civil Court had no jurisdiction and ordered return of the plaint for presentation to the proper court. In this case the defendant did not rely upon any proceedings or order passed under Chapter X of the HP. Tenancy and Land Reforms Act. In fact he claimd to have inherited the estate of Kaula through a Will and it was in the alternative that he had submitted that he was a tenant. Defendant No. 1 thereafter amended his written statement and took up the plea that an order of the Land Reforms Officer has been passed in his favour and therefore the Civil court had no jurisdiction. The statement of Piar Chand defendant was recorded wherein he did state that he had been given the land under the "tenancy law". Defendant No. 1 thereafter amended his written statement and took up the plea that an order of the Land Reforms Officer has been passed in his favour and therefore the Civil court had no jurisdiction. The statement of Piar Chand defendant was recorded wherein he did state that he had been given the land under the "tenancy law". According to him proceedings under the said Act were commenced before the Tehsildar and thereafter they were transferred to the Settlement officer.As per is version this case was decided in his favour but he could not produce the order passed in the case. In cross-examination he admitted that he had not filed any proceedings before the Tehsildar. The defendant had also raised the plea of adverse possession which was net pressed. 32. From the perusal of the record, I find that the defendant has not placed on record any order or copy of any proceedings under the H.P. Tenancy and Land Refoms Act. The defendant has failed to prove that the suit arises out of any proceedings or order under the H.P. Tenancy and Land Reforms Act. Therefore, the order of the lower appellate Court holding that the Civil Court has no jurisdiction and ordering the return of the plaint is apparently wrong. The judgment of the lower appellate Court is set aside and the case is remanded for its decision on merits. 33. The parties through their learned Counsel are directed to appear before the lower appellate Court on 6th June, 2005. Since the case is old one the appellate court is directed to dispose of the appeal on or before 30th September, 2005.