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2005 DIGILAW 138 (HP)

RAJINDER SINGH v. SHAKUNTLA DEVI

2005-05-17

DEEPAK GUPTA

body2005
JUDGMENT Deepak Gupta, J.—This appeal under Order 43 Rule l(a) of the Code of Civil Procedure Code is directed against the judgment of the District Judge, Sirmaur at Nahan in Civil Appeal No. 6-N/13 of 1994 dated 16.8.1996 whereby he has remanded the case to the trial Court for returning the plaint to the plaintiff under Order 7 Rule 10 CPC for its presentation before a competent court/office of law. 2. The facts which are necessary for disposal of the present appeal are that the original plaintiff had filed a suit for declaration that he was a non-occupancy tenant on Khasra No. 164/130 old measuring 61-2 bighas under the predecessors of some of the defendants. The holding of the landlords was assessed to land revenue exceeding Rs. 125/- and, therefore, the ownership of some of the land which was held by the tenants vested in the State of Himachal Pradesh under Section 27 of the H.P. Abolition of Big Landed Estates and Land Reforms Act, 1953 (hereinafter called as the Abolition Act). It was further the case of the plaintiff that half share of the land measuring 28-8 bighas vested in the State of Himachal Pradesh vide mutation No. 345. Later on the proprietary rights of this half share which was shown as khasra No. 165/130 were conferred upon the plaintiff vide mutation No.381 dated 21.9.1967. The remaining half share of 28.8 bighas was recorded in the ownership of defendants 1 to 3 but the plaintiffs continued to be recorded as tenant even on this land. 3. The plaintiffs case was that when the proprietary rights of half share of the land were vested in the State of Himachal Pradesh vide Mutation No. 345 a map/tatima was drawn. According to the plaintiff in this map the land which was held by the plaintiff as tenant was shown by two khasra numbers i.e. khasra No. 176/165/130 and 164/130. The mutation in respect of khasra No. 176/165/130 was entered and attested in favour of the State while the land bearing khasra No. 164/130 was entered in the ownership and cultivatory possession of defendants 1 to 5. According to the plaintiff the revenue officials in collusion with the defendants prepared the map incorrectly. The portion of the land which was under a riverbed and was shown to have vested in the State. According to the plaintiff the revenue officials in collusion with the defendants prepared the map incorrectly. The portion of the land which was under a riverbed and was shown to have vested in the State. Subsequently the land which had vested in the State was allotted to the plaintiff and the land under the riverbed was shown to have vested in him. The plaintiff claims that he was never a tenant in respect of the land which is under the riverbed. He in fact was in cultivating possession of whole of the land depicted by khasra No. 164/130 in the map drawn vide order No. 345 and a portion of the khasra No. 176/165/130 shown as khasra No. 176/165/130/1 in the tatima filed with the plaint. The land which is under the river bed is shown as khasra No. 176/165/130/2 in the said tatima. According to the plaintiff he never surrendered the possession of the land bearing khasra No, 164/130 and 176/165/130/1 both measuring 28.8 bighas and that he has always been in possession of the same. In a nutshell the case of the plaintiff was that when the map was prepared the land which was under the riverbed was wrongly shown under his cultivating possession and the land which was actually in his possession was shown to have vested in the land owners. 4. The plaintiff alleges that it was only some times January, 1990 when the bailiff came from the Court to auction the land in his possession that he came to know that the defendants were shown to be owners of the land in the revenue record and that defendant No. 3 had mortgaged the same with defendant No. 7. According to the plaintiff he was always in possession and continued to remain in possession of land measuring khasra No. 164/130 and 176/165/130/1. He also contends that after the H.P. Tenancy and Land Reforms Act came into force mutation in respect of the other half of the land was also sanctioned in his favour vide entry No.560 in the register of mutations. 5. He also contends that after the H.P. Tenancy and Land Reforms Act came into force mutation in respect of the other half of the land was also sanctioned in his favour vide entry No.560 in the register of mutations. 5. On the basis of these averments the plaintiff prayed that a declaration be granted in his favour that he is owner in possession of land bearing khasra No. 164/130 and 176/165/130/1 as shown in the tatima attached with the plaint and the map drawn with mutation No. 345 showing that khasra No. 164/130 has reverted to the land owners is wrong, illegal and does not affect his rights. 6. The defendants denied the claim of the plaintiff. The tenancy of the plaintiff was not denied. owever, they denied that he was a tenant in land comprised in khasra No. 164/130. According to the defendants the plaintiff was tenant in land comprised in khasra No. 176/165/130 and according to the defendants the correct position was reflected in mutation No. 345, 381 and 560. They denied the contention of the plaintiff that at the time of sanctioning of mutation No. 345 a wrong tatima has been prepared. It was alleged by them that the Bata river has changed course and some of the land which had fallen to the share of the plaintiff had come under the river and, therefore, he had taken up and set-up this false plea. The defendants also took up a plea that the Civil Court did not have jurisdiction to decide this suit. 7. The trial Court vide its judgment and decree dated 31.1.1992 ordered the return of the plaint on the ground that the Civil Court had no jurisdiction to entertain and decide the same. The judgment of the trial Court was based on a Full Bench judgment of this Court in Chuhniya Devi v. Jindu, 1991 (1) Sim.LC 223. The appellants filed an appeal against the said judgment and decree. This appeal being appeal No.7/N/13 of 1992 was decided by the District Judge, Sirmaur District at Nahan vide judgment dated 1.12.1992. Hie learned District Judge after going through the entire record and the pleadings came to the conclusion that the Full Bench ruling in Chuhniyas case (supra) was not at all applicable to the facts of the case. This appeal being appeal No.7/N/13 of 1992 was decided by the District Judge, Sirmaur District at Nahan vide judgment dated 1.12.1992. Hie learned District Judge after going through the entire record and the pleadings came to the conclusion that the Full Bench ruling in Chuhniyas case (supra) was not at all applicable to the facts of the case. It held that the Full Bench judgment was based on the provisions of the H.P. Tenancy and Land Reforms Act and did not relate to the Abolition Act. The District Judge held that the Civil Court had jurisdiction to entertain the dispute arising out of the order under the Land Reforms Act. Therefore, the appeal was allowed and the case was remanded to the trial Court to decide the same on merits. 8. The trial Court thereafter heard and decided the case on merits. Vide judgment dated 30th November, 1993 the trial Court partly decreed the suit in favour of the plaintiff. The plaintiff was declared to be owner in possession of 5 shares in khasra No. 176/165 measuring 28.8 bighas and in possession of the remaining one share as non-occupancy tenant. His remaining claim was rejected. 9. The plaintiff being aggrieved against the partial dismissal of his suit filed an appeal before the District Judge. The District Judge held that the Civil Court had no jurisdiction. The lower appellate Court accepted the appeal and again remanded the case back to the trial Court for returning the plaint to the plaintiff. 10. Heard learned counsel for the parties. A perusal of the impugned judgment shows that the lower Appellate Court has not even noticed or taken into consideration the earlier judgment passed by its predecessor on 1st December, 1992. Judicial propriety requires that a successor court should not ignore or overrule the judgment given by its predecessor. The judgment dated 1st December, 1992 had not been challenged by either party in appeal. This finding as to jurisdiction of the Civil Court has become final in so far as the Court of the District Judge is concerned. The successor District Judge could not have taken a different view of the matter and in my opinion on this short ground alone the appeal has to be allowed and the case remanded to the District Judge for decision of the case on merits. 11. The matter should have ended here. However, Mr. The successor District Judge could not have taken a different view of the matter and in my opinion on this short ground alone the appeal has to be allowed and the case remanded to the District Judge for decision of the case on merits. 11. The matter should have ended here. However, Mr. Kuldip Singh learned Senior Counsel appearing on behalf of some of the defendants has tried to make out a case that in fact the District Judge has not held that the Civil Court had no jurisdiction but has only decided the question that the suit is not maintainable. This would in fact amount to hair splitting. However, since this argument has been raised it must be dealt with. 12. Section 92 of the H.R Abolition of Big Landed Estates and Land Reforms Act, 1953 reads as follows : "92. Nothing in this Act shall affect the right of any person to establish his right claim in respect of any land or part thereof by due process of law in the court having jurisdiction/ 13. This clearly shows that under the said Act any person could have established his claim in respect of any land or part thereof by filing a civil suit. The jurisdiction of the Civil Court was not barred under the said Act. 14. It has been argued that since the original mistake, if any, was made by the Compensation Officer appointed under the Abolition Act the correction should have been made by him alone or his successor under the H.R Tenancy and Land Reforms Act. Reliance has been placed on the saving clause of the H.R Tenancy and Land Reforms Act, 1972 which reads as follow : “127.(1) The repeal of the enactments referred to in clauses (a) and (b) of the last preceding section shall not affect their previous operation. Reliance has been placed on the saving clause of the H.R Tenancy and Land Reforms Act, 1972 which reads as follow : “127.(1) The repeal of the enactments referred to in clauses (a) and (b) of the last preceding section shall not affect their previous operation. (2) Subject to the provisions of sub-section (1), anything done or any action taken including any appointment, delegation or transfer made, notification, proclamation, order, instruction or direction issued, authorities and powers conferred, rights acquired and liabilities incurred, rule, regulation, form or scheme framed, date, time and place appointed and other things done, under the repealed Act or law shall (a) be deemed to have been done or taken under the corresponding provisions, if any, of this Act; (b) continue in force unless and until directed otherwise or superseded by anything done or any action taken under this Act by the State Government or by other competent authority. (3) Notwithstanding the repeal of the enactments mentioned in section 126, all suits, applications or other proceedings pending disposal at the commencement of this Act, shall be disposed of in accordance with the provisions of the said Acts as if these Acts had not been repealed." 15. It has been argued on the basis of the saving clause that any action done under the Abolition Act shall be deemed to have been done under the corresponding provisions of the Tenancy and Land Reforms Act. Therefore, the submission is that the correction would have been made by the Land Reforms Officer. 16. The provisions of the two Acts were quite different. The Abolition Act only apply to big landed estates and only a portion of the land first vested in the State Government. Thereafter it was allotted in favour of the tenants. The compensation was to be assessed by the Compensation Officer. Under the Tenancy and Land Reforms Act the land vests directly in favour of the tenant. The Land Reforms Officer cannot be equated with the Compensation Officer and cannot be said to be a successor to the Compensation Officer. Under the Abolition Act an appeal from the order of the Compensation Officer lay to the District Judge and thereafter to the court of the Judicial Commissioner/High Court. Under the Tenancy and Land Reforms Act the hierarchy is totally different. Under the Abolition Act an appeal from the order of the Compensation Officer lay to the District Judge and thereafter to the court of the Judicial Commissioner/High Court. Under the Tenancy and Land Reforms Act the hierarchy is totally different. It is only the revenue officials who are competent to hear appeals against the orders of the Land Reforms Officer. 17. The moot point is that, as noticed above, there was no bar to the jurisdiction of the Civil Court under the Abolition Act. Even if a mistake had been committed by the Compensation Officer any party was free to go to Court to challenge the same. 18. A Division Bench of the Delhi High Court (Himachal Bench at Shimla) in Balak Ram v. Kanehya, 1968 Delhi Law Times, Vol-IV, 384, held that the decision of the Compensation Officer on the question whether the applicant was a tenant was not conclusive so as to exclude the jurisdiction of the Civil Court. It was also held that the land owner can establish his right in a competent Civil Court that the person claiming to be his tenant is not a tenant. 19. A Full Bench of the Delhi High Court (Himachal Bench at Shimla) in Chuhary v. Sirtu, 1968 Delhi Law Times, Vol-IV, 412, considered this question and held that a tenant dispossessed without his consent from his tenancy or part thereof could file a civil suit for possession and the same would not be barred and the Civil Court had the jurisdiction to decide the case. Similar view has been taken by a single Judge of this Court in Gulabi v. Rukmani and others, 1995 (1) Sim.L.C. 159. 20. Therefore, it is clear that the jurisdiction of the Civil Court is not barred. If a mistake was made by the Compensation Officer a party could either go to him to correct the mistake or it could file an appeal to the District Judge or it could file a civil suit. It was for the party concerned to decide which mode it adopted. The provisions of the Tenancy and Land Reforms Act barring the jurisdiction of the Civil Court cannot be applied to proceedings seeking correction of an order or proceedings or map issued under the Abolition Act. 21. It was for the party concerned to decide which mode it adopted. The provisions of the Tenancy and Land Reforms Act barring the jurisdiction of the Civil Court cannot be applied to proceedings seeking correction of an order or proceedings or map issued under the Abolition Act. 21. In view of the above discussion it is held that the judgment of the learned lower appellate Court is illegal and is accordingly set-aside. The lower appellate Court is directed to hear and decide the appeal on merits. The parties who are represented are directed through their counsel to appear before the lower appellate Court on 22.6.2005. The lower appellate Court shall issue notice only to respondent No. 3 Ajay Kumar. 22. Since the matter is an old one, the lower Appellate Court is directed to decide the case as expeditiously as possible and not later than 31st December, 2005. Appeal disposed of.