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2011 DIGILAW 2416 (HP)

Brij Bihari Lal v. Sarvi Devi

2011-08-25

V.K.AHUJA

body2011
JUDGMENT : V.K. Ahuja, J. This is a Regular Second Appeal under Section 100 C.P.C., filed by the appellant against the judgment and decree of the Court of learned District Judge, Bilaspur, dated 21.9.2000, vide which he affirmed the judgment and decree passed by the learned Sub Judge, Ghumarwin, dismissing the suit of the appellant. 2. Briefly stated, the facts of the case are that the predecessor-in-interest of the appellant, namely, Chuni Lal, hereinafter referred to as the plaintiff, filed a suit for declaration and injunction as against the original respondent/defendant Gandhi, now represented by his L.Rs i.e. respondents No. 1(a) to 1(f), hereinafter referred to as the defendant. It was alleged by the plaintiff that suit land measuring 16-4 Bighas comprised in Khasra Numbers as detailed in the plaint, is owned by the plaintiff. The plaintiff purchased this land from one Smt. Har Dei vide sale deed dated 9.7.1960. It was alleged that when the plaintiff purchased the suit land from Smt. Har Dei, she was in possession of the land as owner. Thereafter in the year 1960, the plaintiff cultivated the Kharif crop in the land in suit, but had gone out of his village and the defendant cultivated the Rabi crop in the land in suit in the year 1961. It was alleged that the defendant forcibly took the land in suit in his possession and filed an application before the Compensation Officer to acquire proprietary rights representing himself as tenant. It was further alleged that the defendant acquired proprietary rights in the suit land vide order dated 27.4.1970, which was later on confirmed in appeal by the learned District Judge vide his order dated 24.9.1970. It was alleged that the defendant was never a tenant under the plaintiff, the order of Compensation Officer is against law and without jurisdiction and he had no jurisdiction to grant proprietary rights to the defendant. Thus, it was alleged that the defendant is in illegal possession of land and is entitled to pay Rs. 400/- to the plaintiff as mense profit from Rabi 1968 to 1970. 3. The defendant took up preliminary objections in regard to jurisdiction, maintainability and limitation. On merits, it was pleaded that the plaintiff was not owner of the land, but it is in the ownership of the defendant, who is in possession since time of Smt. Har Dei as he was a tenant under her. 3. The defendant took up preliminary objections in regard to jurisdiction, maintainability and limitation. On merits, it was pleaded that the plaintiff was not owner of the land, but it is in the ownership of the defendant, who is in possession since time of Smt. Har Dei as he was a tenant under her. The plaintiff was never in possession of the land in suit. The defendant acquired proprietary rights of the land in suit from the Compensation Officer, whose decision was confirmed by the learned District Judge, which is binding upon the plaintiff. 4. On the pleadings of the parties, the following issues were settled by the learned trial Court:- "1. Whether the plaintiff is the owner of the land in dispute? OPP 2. Whether the defendant forcibly occupied the land in dispute during Ravi 1961 as alleged? OPP 3. Whether the suit is within time? OPP 4. Whether the order of the Compensation Officer dated 27.4.1970 and District Judge dated 24.9.1970 are void, illegal, wrong and without jurisdiction? OPP 5. Whether the plaintiff is entitled to mense profits as claimed if so to what amount? OPP 6. Whether court has no jurisdiction to try the suit? OPD 7. Whether the suit is not in the proper form? OPD 8. Whether the suit is barred on principle of res judicata? OPD 9. Whether the suit has properly valued for the purpose of court fee and jurisdiction? OPP 10. Whether the defendant was a tenant under Smt. Har Dei if so its effect? OPD 11. Relief. " 5. On conclusion of the trial, the learned trial Court dismissed the suit of the plaintiff. An appeal was preferred by the plaintiff and the learned District Judge vide his impugned judgment and decree dismissed the appeal. 6. I have heard the learned counsel for the parties and have gone through the record of the case. 7. The submissions made by the learned counsel for the appellant were that the plaintiff purchased the land, which was duly recorded in possession of the owner and he came in possession. It was submitted that the entries were not corrected in accordance with law by the Revenue Officer and the Compensation Officer had no jurisdiction to confer proprietary rights upon the defendant and as such, the findings of both the Courts below to the contrary are liable to be set aside. It was submitted that the entries were not corrected in accordance with law by the Revenue Officer and the Compensation Officer had no jurisdiction to confer proprietary rights upon the defendant and as such, the findings of both the Courts below to the contrary are liable to be set aside. It was also submitted that the learned Appellate Court had held that there was jurisdiction of the Civil Court and no cross-objections were filed by the defendant in regard to the findings under Issue no. 6, vide which it was held that the Civil court had jurisdiction to try the suit. 8. On the other hand, learned counsel for the respondent had supported the impugned judgment for the reasons recorded therein supplementing it by the submissions that the Civil Court had no jurisdiction to consider the question as to whether the proprietary rights were wrongly conferred upon the defendant and as such, the suit was not maintainable. 9. A perusal of the record shows that the appeal in question was admitted on four substantial questions of law and as to whether the order of Compensation Officer could be limited only to the determination of the amount of compensation and not to the question of the status of the tenant. The appeal was admitted on the question as to whether the learned Appellate Court was right in relying upon the decision of this Court in Chuhniya Devi v. Jindu Ram, which findings were given by the learned District Judge in spite of the fact that no cross objections were filed against findings under Issue No.6 10. The plaintiff had proved on record the sale deed Ext. PW1/A/Ext. PA dated 9.7.1960, vide which the plaintiff had purchased the land from Smt. Har Dei. A perusal of Ext. PP, a copy of Missal Haquiat Ishtmal shows that the plaintiff is recorded as owner and the defendant is recorded in possession as a tenant. A perusal of the copy of jamabandi Ext. PR for the year 1971-72 shows that the land in suit is recorded in ownership and possession of the defendant. A perusal of copy of Khasra Girdawari Ext. PQ from Kharif 1965 to Rabi 1967 shows that the plaintiff is recorded in the column of ownership, while defendant is recorded in the column of possession as a tenant. PR for the year 1971-72 shows that the land in suit is recorded in ownership and possession of the defendant. A perusal of copy of Khasra Girdawari Ext. PQ from Kharif 1965 to Rabi 1967 shows that the plaintiff is recorded in the column of ownership, while defendant is recorded in the column of possession as a tenant. The defendant in his statement has admitted that Smt. Har Dei was the owner of the land and he was cultivating the land of Smt. Har Dei and does not claim that he was cultivating the land of the plaintiff. In 1960, he filed an application to acquire the proprietary rights and was granted the proprietary rights of the land in suit, which order was affirmed by the learned District Judge vide Ext. DA dated 24.9.1970. The revenue record as above shows that in the copy of jamabandi for the year 1971-72 Ext. PR and the Compensation Officer had to consider the copy of jamabandi, which existed at the time of conferment of the proprietary rights. 11. Learned counsel for the appellant had tried to impress upon the Court that the order of correction was not passed in accordance with law. In support, he had relied upon the decision in Amal Kumar and others v. Bhupinder Singh and others, 1976 P.L.J. 26, (Regular Second Appeal No. 540 of 1972 decided on 23.7.1973, by the Punjab and Haryana High Court), shows that a reference was made to the mode prescribed by Financial Commissioner for change of Khasra Girdawari entries and any change made in violation of instructions was held to be null and void. 12. A reference was also made to the decision in Tulsa Singh v. Agya Ram and others, AIR 1994 Himachal Pradesh 167, wherein it was observed that instructions in Land Revenue Manual not followed and concurrent finding that change in entry was wrong and illegal, were not interfered with in second appeal. 13. The main question which arises for consideration is as to whether the order passed by the Compensation Officer upon the defendant conferring the proprietary rights could be looked into by the Civil Court or not, since it relates to the jurisdiction of Civil Court and the Civil Court go into the facts of the case. 14. 13. The main question which arises for consideration is as to whether the order passed by the Compensation Officer upon the defendant conferring the proprietary rights could be looked into by the Civil Court or not, since it relates to the jurisdiction of Civil Court and the Civil Court go into the facts of the case. 14. I may make a reference to the decision also relied upon by the learned District Judge in Chuhniya Devi v. Jindu Ram, 1991 (2) S.L.J. - 1082, wherein Full Bench of this Court had held that jurisdiction of Civil Court was barred to look into the question of conferment of proprietary rights. The observations made in Para 64 are relevant and can be reproduced below:- "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 H.P. Land Revenue Act, 1954, is open to challenge before a civil court to the extent that it 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 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." 15. It is clear from the above decision that the question of proprietary rights could be looked into by the Civil Court in case there were specific allegations that 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. It is clear from the above decision that the question of proprietary rights could be looked into by the Civil Court in case there were specific allegations that 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. There were no allegations made in the plaint in this regard and though the suit was filed on 13.4.1971 and decided on 8.9.1976, appeal was filed on 26.5.1981 and decided on 21.9.2000 and by that time this judgment had already been passed by the Hon'ble Full Bench on 21.9.1990. The plaintiff could have withdrawn the suit and filed it afresh on the lines of the directions given in the above Paras under which the challenge could be led to the order of the Compensation Officer which was never done, though the parties continued to contest the suit, which was ultimately decided on 8.9.1976 and before that it must be clear to both the parties that such law has been laid down by the court. 16. Coming to the question that the learned trial Court had hold that there was jurisdiction of the Civil Court, but those findings were reversed by the learned Appellate Court though no cross objections were filed by the defendant and the substantial question of law was framed in this regard. I am of the opinion that the learned District Judge was barred right in relying upon the said decision. The jurisdiction of the Court was barred in view of the findings given by the Hon'ble Full Bench of this Court and as such, when the question pertains to the jurisdiction of the Court, it was not necessary that since no cross objections have been filed by the defendant, the judgment could not be looked into by the Appellate Court. I am in agreement with the findings recorded by the learned Appellate Court holding that in view of the findings of the Court in Chuhniya Devi's case, the jurisdiction of the Civil Court was barred. 17. Learned counsel for the respondent had tried to come out of this judgment by relying upon the decision in Balak Ram v. Kanehya, 1968 D.L.T. (Vol. 17. Learned counsel for the respondent had tried to come out of this judgment by relying upon the decision in Balak Ram v. Kanehya, 1968 D.L.T. (Vol. 4) 384, wherein it was held that the decision of Compensation Officer on the question of the applicant being a tenant is not conclusive and jurisdiction of Civil Court was not barred to decide this question. A reliance was also placed upon decision of this Court in Shri Pritam Chand and others v. Shri Krishan Kumar and others, 1997 (1) Sim. L.C. 255, wherein learned Single Judge had held that jurisdiction of the Civil Court was not barred to look into the question under Section 104 of the Himachal Pradesh Tenancy and Land Reforms Act. The view taken by the learned Single Judge is contrary to the judgment of the Full Bench, which is binding upon this Court and the learned Single Judge had made a reference to the above judgment also, but this Court is bound by the judgment of the Full Bench, which held that the jurisdiction of the Civil Court was barred. 18. In view of the above discussion, I accordingly hold that the findings recorded by the learned District Judge dismissing the appeal filed by the appellant are sustainable in then eyes of law and there is no merit in the appeal filed by the appellant, which is dismissed accordingly. Parties are however, left to bear their own costs.