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2005 DIGILAW 245 (HP)

AMAR CHAND v. THAKRI DEVI

2005-07-19

SURJIT SINGH

body2005
JUDGMENT Surjit Singh, J.—Appellant Amar Chand is aggrieved by the order dated 20th November, 1997 of learned District Judge, Una, whereby an order under Order 7 Rule 11 (d) of the Code of Civil Procedure, passed by the Sub Judge 1st Class, Amb has been set aside and the case has been remanded to that Court, for deciding the same on merits. 2. Facts relevant for the disposal of the appeal may be noticed. Thakri Devi respondent, hereinafter called the plaintiff, filed a suit for declaration that she is owner in possession of certain land and that the entries in the Jamabandi for the year 1978-79, showing the appellant, hereinafter called the defendant, as tenant are wrong and mutation No. 3897 conferring the proprietory rights of the said land upon the defendant, on the basis of the aforesaid entries in the jamabandi for the year 1978-79, is also wrong, illegal and void. It was alleged that initially, Fakir Chand, the husband of the plaintiff was in occupation of the suit land as a tenant at will. It was further alleged that after the coming into force of the H.P. Tenancy and Land Reforms Act, Fakir Chand became the owner of the land, by virtue of the provision of Section 104(4) of the H.P. Tenancy and Land Reforms Act. Said Fakir Chand died in 1982. It was alleged that on the death of Fakir Chand, plaintiff-respondent became the owner of the suit land. Further allegation of the plaintiff was that the appellant-defendant, in connivance with the revenue staff, had procured a bogus entry in the jamabandi for the year 1978-79, showing him in occupation of the suit land as tenant at will and on the basis of that entry, the revenue agency entered and attested mutation No. 3897, conferring the proprietory rights upon him. Change of entry in the Jamabandi, for the years 1978-89 and subsequent attestation of mutation, were alleged to be illegal, void, contrary to the factual position prevailing on the spot and hence, not binding upon the plaintiff-respondent. 3. The suit was contested by the appellant. He raised preliminary objection challenging the jurisdiction of the Court. Change of entry in the Jamabandi, for the years 1978-89 and subsequent attestation of mutation, were alleged to be illegal, void, contrary to the factual position prevailing on the spot and hence, not binding upon the plaintiff-respondent. 3. The suit was contested by the appellant. He raised preliminary objection challenging the jurisdiction of the Court. The learned trial Court accepted his contention and held that in view of the law laid down by a Full Bench of this Court, in Chuhniya Devi v. Jindu Ram [1991 (1) SLC 223], the question as to which the parties was in occupation of the suit land as tenant, was required to be determined, not by the Civil Court, but by the authorities constituted, for the purposes of Chapter X of the H.P. Tenancy and Land Reforms Act. 4. Appeal preferred against the said finding by the plaintiff has been accepted by the District Judge and it has been held that the Civil Court has the jurisdiction in the matter. Consequently the case has been remanded to the trial Court with the direction to decide the same on merits. It is this order of the learned District Judge, which has been assailed in the present appeal. 5. Learned Counsel representing the appellant urged that the question was required to be determined by the authorities constituted for the purposes of Chapter X of the H.P. Tenancy and Land Reforms Act. Chapter X of the Act pertains to the conferment of proprietory rights in respect of the agricultural land, upon the tenants at Will. The chapter also deals with the resumption of tenancy land by the landowner, where his holding is less than certain specified extent of area. 6. One of the question, which was referred to the Full Bench in Chuhniya Devi v. Jindu Ram etc. [1991 (1) Sim. L C. 223], was whether the Civil Court had the jurisdiction to adjudicate upon the validity or otherwise of an order of conferment of proprietory rights passed under Section 104 of the H.P. Tenancy & Land Reforms Act, 1972, which had not been assailed under the provisions of the said Act. [1991 (1) Sim. L C. 223], was whether the Civil Court had the jurisdiction to adjudicate upon the validity or otherwise of an order of conferment of proprietory rights passed under Section 104 of the H.P. Tenancy & Land Reforms Act, 1972, which had not been assailed under the provisions of the said Act. The Full Bench answered the question in the following terms:— "(b) the civil Court has no jurisdiction to go into any question connected with the conferment of proprietory rights under Section 104 of the H.P. Tenancy and Land Reforms Act, 1972, 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.” 7. While answering the aforesaid question, the Honble Full Bench made the following observations vide paras 39 & 40:— "39...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. 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 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) 8. A Division Bench of this Court in Shankar v. Smt. Rukmani and others [2003 (1) Sim. LC. 300] was called upon to examine the exact scope of the answer to the aforesaid question given by the Full Bench in Chuhniya Devis case. A Division Bench of this Court in Shankar v. Smt. Rukmani and others [2003 (1) Sim. LC. 300] was called upon to examine the exact scope of the answer to the aforesaid question given by the Full Bench in Chuhniya Devis case. The Division Bench held that the Civil Courts jurisdiction was barred only in those cases, where the question arose before the authorities constituted for the purpose of Chapter X, in the proceedings under the aforesaid Chapter. The Division Bench made the following observations:— "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 proprietor 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) 9. The dispute whether a given person is a tenant or not would arise when in the proceedings regarding resumption of land, the person cultivating the land claims that he is tenant qua that land and the owner of the land denies that claim. Such a question would be determined by the Land Reforms Officer, appointed for the purposes of Chapter X. A question which arises between two persons, each claiming to be tenant in respect of a given extent of land, as in the present case, cannot be said to be a dispute between the owner of the land and the tenant, nor has such a question any relevance to the proceedings required to be conducted under Chapter X of the Act and hence the Land Reforms Officer does not have the jurisdiction in respect of such a dispute.. To such matters, the provision of Section 112 of the Act barring the jurisdiction of the Civil Court is not attracted. 10. To such matters, the provision of Section 112 of the Act barring the jurisdiction of the Civil Court is not attracted. 10. As a result of the above discussion, no fault can be found with the impugned order of the District Judge, holding that the Civil Court has the jurisdiction in the matter. Consequently, the appeal is dismissed. Appeal dismissed.