Research › Search › Judgment

Himachal Pradesh High Court · body

2012 DIGILAW 291 (HP)

Santosh Kumari v. Rakesh Babu

2012-05-18

V.K.AHUJA

body2012
JUDGMENT : V.K. Ahuja, J. (Oral) This is a Regular Second Appeal under Section 100 C.P.C. filed by the appellant/defendants against the judgment and decree passed by the learned District Judge, Una, dated 1.2.1999, vide which he allowed the appeal filed by respondent No. 1 Rakesh Babu, hereinafter also referred to as the plaintiff, against the judgment of the learned Sub Judge 1st Class, Amb, dismissing the suit of the plaintiff. 2. Briefly stated, the facts of the case are that the plaintiff Rakesh Babu filed a suit for declaration and injunction as against Karan Dev Singh etc. defendants alleging that the suit land comprised in Khasra Nos. 3083 min and 3084 min, measuring 5 kanal 1 marla, out of total land of 10 kanal 11 marla, was in possession of the plaintiff as tenant under the owners on payment of rent and after passing of Himachal Pradesh Tenancy and Land Reforms Act, hereinafter referred to as the Act, the plaintiff had become owner in possession of the suit land. It was alleged that Onkar Singh, father of defendants No. 1 and 2 and brother of defendant No. 3, was General Attorney of one Tikka Chain Singh, one of the owners of the suit land. He, in connivance with the revenue staff, procured wrong and illegal entries in favour of defendant No. 4 in the possessory column of the suit land at the back of the plaintiff and subsequently proprietary rights were conferred upon the defendants under Section 104 of the Act vide mutation No. 4047, which is wrong and contrary to spot situation. It was alleged that the defendants were never inducted as tenants over the suit land and since the defendants were threatening to interfere in the possession of the plaintiff over the suit land, hence the suit for declaration and injunction filed by the plaintiff. 3. Defendants No. 1 and 2 pleaded that they were tenants over the suit land to the extent of share and remaining share was in possession of defendants No. 3 and 4 as tenant on payment of rent. It was further pleaded that after coming into operation of the Act, they have become owners in possession and the mutation has been sanctioned in their favour and as such the suit was not maintainable. 4. On the pleadings of the parties, the following issues were framed by the learned trial Court: 1. It was further pleaded that after coming into operation of the Act, they have become owners in possession and the mutation has been sanctioned in their favour and as such the suit was not maintainable. 4. On the pleadings of the parties, the following issues were framed by the learned trial Court: 1. Whether the plaintiff is in possession of the suit land as tenant and has become owner of the same? OPP 2. Whether the defendants No. 1 and 2 were previously the tenants of the suit land of shares along with defendants No. 3 and 4 in half share? OPD 3. Whether the suit is not maintainable? OPD 4. Whether the suit is within time? OPP 5. Whether the suit is bad for non-joinder of necessary parties? OPD 6. Whether the suit has been filed by the plaintiff in collusive with defendant No. 4? OPD 1&2. 7. Whether the plaintiff is estopped by act and conduct? OPD 8. Whether this court has no jurisdiction to try the present suit? OPD 9. Relief. 5. Parties led their evidence and the learned trial Court vide its impugned judgment decided issues No. 1 and 2 as against the plaintiff and in favour of the defendants and relying upon the judgment of Full Bench of this Court in Chuhniya Devi v. Jindu Ram, 1991 (1) Sim. L.C. 223, held that the conferment of proprietary rights could not be gone into by the civil court and proprietary rights have already been conferred upon the defendants and consequently dismissed the suit of the plaintiff. 6. On appeal by the plaintiff, the same was allowed by the learned District Judge vide his judgment and decree dated 1.2.1999 and the learned District Judge reversed the findings under Issues No. 1 and 2 and in regard to jurisdiction of the Court under Issue No. 8, distinguished the decision in Chuhniya Devis case (supra) to be not applicable to the facts of the case and consequently decreed the suit of the plaintiff. Being aggrieved, the appeal has been preferred by the defendants. 7. The present appeal was admitted by this Court on the following substantial questions of law: "1.Whether claim as set up by plaintiff was barred by limitation as held by trial Court and Ld. District Judge has acted illegally by ignoring this plea. 2. Being aggrieved, the appeal has been preferred by the defendants. 7. The present appeal was admitted by this Court on the following substantial questions of law: "1.Whether claim as set up by plaintiff was barred by limitation as held by trial Court and Ld. District Judge has acted illegally by ignoring this plea. 2. Whether the subject matter of dispute falls within exclusive jurisdiction of revenue court under HP Tenancy and Land Reforms Act. 3. Whether adverse inference was required to be drawn against respondent by failure to produce copy of order passed for correction of revenue entries dated 20.5.74 as referred in rapat-rojnamcha, exhibit P-4. 4. Whether for want of filing appeal against order of conferment of ownership rights by competent authority in favour of present appellants, the respondent is estopped to file this suit?" 8. I have heard Mr. G.D. Verma, learned Senior Advocate for the appellants and Mr. Sanjeev Kuthiala, learned counsel for respondent No. 1, and have gone through the record of the case. 9. The first question which arises for consideration is as to whether the question of conferment of proprietary rights or the entry in favour of the defendants could be looked into or not in view of the judgment of Full Bench of this court in Chuhniya Devis case (supra). A perusal of the judgment passed in Chuhniya Devis case shows that the question of jurisdiction of the civil court was considered where proprietary rights have been conferred upon a tenant and as to whether a civil court was competent to look into the question of conferment of proprietary rights or not. The question was answered by the Full Bench and the observations made in para 64 are relevant and are being 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 Himachal Pradesh 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. 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 Himachal Pradesh 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 Himachal Pradesh 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 Himachal Pradesh 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 whether the provisions of the Act had not been complied with." 10. It is clear from a perusal of the above decision that the Honble Full Bench had considered the question and had concluded that the civil court had the jurisdiction to look into the question only when there were allegations 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. No challenge was laid to the order passed by the statutory authorities conferring proprietary rights under Section 104 of the Act and these could only be challenged in case they had not acted in conformity with fundamental principles of judicial procedure or where the provisions of the Act had not been complied with. A detailed examination of the plaint clearly shows that after the passing of the judgment, the plaintiff did not withdraw the plaint or amend it or made allegations and until and unless those allegations were made that the statutory authorities had not acted in conformity with the fundamental principles of judicial procedure or the provisions of the Act had not been complied with, the civil court was not competent to look into that question. 11. 11. The learned Sub Judge in his judgment had referred to the decision in Chuhniya Devis case and had concluded that in the facts of the case, the civil court had no jurisdiction to look into that question, when, admittedly, the proprietary rights have been conferred upon the defendants as per mutation No. 4047. The plaintiff made allegations that the proprietary rights were conferred in his favour but no copy of such order was placed on record and admittedly he had also alleged that these were conferred upon the defendants, which stands substantiated from the copy of jamabandi Ext.P-3 in which a reference has been made to such conferment of proprietary rights in favour of the defendants. The learned District Judge has tried to distinguish the judgment of the Full Bench in Chunia Devis case by observing that the Revenue Officer had not cared to look into the copy of the rapat Ext. P-4, dated 26.9.1974. 12. Coming to the document in question, it has to be seen as to whether this document, which was relied upon by the learned District Judge, was proved in accordance with law or not. A perusal of the record shows that no Patwari was examined along with original rapat rojnamcha and the entry was not proved in accordance with law by summoning the Patwari along with the original rapat rojnamcha. A copy of the rapat rojnamcha is not per se admissible as in the case of copy of jamabandi and it had to be proved by examining the Patwari in Court along with the original rapat rojnamcha before the entry could be legally read in evidence. A perusal of the record of the learned trial Court shows that the plaintiffs witnesses were examined and he closed his evidence on 4.3.1991 in affirmative and submitted that only documents would be tendered in evidence. Thereafter the witnesses of the defendants were examined on 9.1.1992 and on other dates, and the defendants closed their evidence on 10.1.1992. Till that date, Ext.P-4 had not been tendered in evidence or proved by summoning the Patwari. Thereafter, after the defendants evidence had been recorded, there is a statement allegedly made by the counsel for the plaintiff vide which documents Exts. P-1 to P-5 were tendered in evidence and the evidence was closed. Till that date, Ext.P-4 had not been tendered in evidence or proved by summoning the Patwari. Thereafter, after the defendants evidence had been recorded, there is a statement allegedly made by the counsel for the plaintiff vide which documents Exts. P-1 to P-5 were tendered in evidence and the evidence was closed. These were not tendered in affirmative before the examination of the defendants witnesses, which was necessary before it could be read in evidence. Moreover, the document could not have been tendered until and unless it was proved in evidence and the document, as observed above, was not proved in accordance with law and cannot be read in evidence. 13. The learned District Judge made a reference to the rapat and the statement of the Attorney of the defendants and finally concluded that this rapat could be read in preference to the entry in favour of the plaintiff in Jamabandi for the year 1980-81 Ext.P-3. A perusal of this rapat rojnamcha clearly shows that a reference was made to the order of Tehsildar, dated 28.5.1974, on the basis of which the alleged rapat was entered by the Patwari, but the said order of the Revenue Officer, dated 28.5.1974, never saw the light of the day. There is no mention as to whether this rapat was attested by the Tehsildar or Kanungo or by Naib Tehsildar in accordance with law before it could be given effect, but this copy was wrongly relied upon by the learned District Judge to hold that the decision in Chuhniya Devis case (supra) was not applicable to the facts of the case, which findings are incorrect and not in accordance with the judgment of the Full Bench, referred to above. 14. Coming to the question as to whether the decision of the Full Bench in Chunia Devis case was not applicable or that it has been distinguished in some judgments, Mr. Sanjeev Kuthiala, learned counsel for respondent No. 1, has placed reliance upon the decision in Birbal v. Udhami and others 1992 (1) Sim. L.C. 153, wherein there is no discussion or reference to the Chuhniya Devis case. Another decision relied upon was in Jagannath v. Om Parkash, Latest HLJ 2007 (HP) 1306, wherein a learned Single Judge of this Court has made a reference to the decision in Chuhniya Devis case, but has not laid that under what circumstances, the same does not apply. Another decision relied upon was in Jagannath v. Om Parkash, Latest HLJ 2007 (HP) 1306, wherein a learned Single Judge of this Court has made a reference to the decision in Chuhniya Devis case, but has not laid that under what circumstances, the same does not apply. 15. Reliance was also placed upon the decision in Kali Ram Thakur v. Manorma Devi and others, Latest HLJ 2010 (HP) 116, passed by this Court. Observations made in para 14 are relevant and are being reproduced below: "Coming to the question that the decision in Chuhniya Devis case (supra) applies to the facts of the present case or not and as to whether the Civil Court was competent to look into this question, it has been rightly observed from the said decision that the civil Courts jurisdiction in a suit challenging the conferment of proprietary rights cannot be said to be barred once the principles of natural justice have not been followed by the Revenue Officer while conferring the proprietary rights upon the defendant. The learned trial Court had referred to a decision of this Court in Chuhniya Devis case and had observed that civil court will have the jurisdiction if the order is passed in violation of the provisions of the Act." 16. It is nowhere held by this Court that the decision in Chuhniya Devis case is not applicable and it has been held that the learned trial Court had referred to the decision of this Court in Chuhniya Devis case and had observed that the civil court has the jurisdiction if the order is passed in violation of the provisions of the Act. 17. The law has been clearly laid down in Chuhniya Devis case and until and unless there are observations that the orders were passed in violation of the provisions of the Act, the conferment of proprietary rights cannot be challenged. 18. Mr. G.D. Verma, learned Senior Advocate, for the appellants, in support of his submissions, has relied upon the decision of the Full Bench in Chuhniya Devis case (supra), wherein two situations have been laid down in which the civil court can look into that question, which have been reproduced above. 19. 18. Mr. G.D. Verma, learned Senior Advocate, for the appellants, in support of his submissions, has relied upon the decision of the Full Bench in Chuhniya Devis case (supra), wherein two situations have been laid down in which the civil court can look into that question, which have been reproduced above. 19. A careful perusal of the plaint filed in this case shows that after the decision of this case or prior to that even, the plaintiff had not made any such allegations that the statutory authorities had not acted in conformity with the fundamental principles of judicial process or the provisions of the Act had not been complied with and these are only conditions when the civil court can look into the question of conferment of proprietary rights and not otherwise. Therefore, the decision in Chuhniya Devis case applies to the facts of the present case in the absence of specific pleadings to that effect. 20. During the course of arguments, the learned counsel for the respondent has also brought to the notice of this Court that earlier, the then District Judge, vide his judgment dated 31.8.1992, in the present case as well as in other connected cases, had held that the plaints be returned to the plaintiffs for presenting them before a competent court of law. The said order was challenged before this Court and this Court vide its order dated 12.11.1997, passed in FAO No.331 of 1992, set aside the judgment of the learned District Judge and the matter was remanded back to the District Judge, Una for fresh disposal in accordance with law. 21. It was nowhere laid down that the judgment in Chuhniya Devis case does not apply to the present case. In fact, what has happened is that the then District Judge, vide his judgment, had directed in all the cases where reliance had been placed on Chuhniya Devis case (supra) that the plaint be returned to the plaintiff holding that the civil court had no jurisdiction to consider the case. In fact, what has happened is that the then District Judge, vide his judgment, had directed in all the cases where reliance had been placed on Chuhniya Devis case (supra) that the plaint be returned to the plaintiff holding that the civil court had no jurisdiction to consider the case. These findings were set aside vide which the plaintiff was directed to take back the plaint and file it afresh since, prima facie, the jurisdiction of the civil court was there and once these facts were established then the Court could look into the question whether the facts of the case were covered by the decision in Chuhniya Devis case or not and not that the plaint be returned in all such cases. 22. Apart from the above, a perusal of the plaint also shows that there was no plea of the plaintiff that Assistant Collector 2nd Grade was not competent to pass the order or he passed the order without notice to the plaintiff, but the learned District Judge has made out a case of this nature in favour of the plaintiff by observing in para 12 of the judgment that order Ext.DW-3/B had been passed at the back of the plaintiff without giving any notice to him. Therefore, the observations made by the learned District Judge in this regard are not sustainable. 23. Coming to the question that the plaintiff was not examined and adverse inference should be drawn, the learned trial Court had observed in its judgment that an adverse inference has to be drawn against the plaintiff for not appearing in the witness box, but the learned District Judge had held to the contrary without giving detailed reasoning as to how this observation made by the learned trial Court was incorrect. Therefore, findings of the learned District Judge on this point also are not sustainable. 24. Accordingly, I am of the opinion that the judgment of the Full Bench is binding and applies to the facts of the present case and that was rightly relied upon by the learned trial Court and the findings to the contrary recorded by the learned Appellate Court are not sustainable in the eye of law. 25. 24. Accordingly, I am of the opinion that the judgment of the Full Bench is binding and applies to the facts of the present case and that was rightly relied upon by the learned trial Court and the findings to the contrary recorded by the learned Appellate Court are not sustainable in the eye of law. 25. During the course of arguments, the learned counsel for the respondent has also submitted that applications, being CMP No. 1080 of 2010 under Order 41 Rule 27 and CMP No. 124 of 2011 under Order 14 Rule 5, also deserve to be allowed. 26. I have gone through the contents of CMP No. 1080 of 2010. Two certified copies of the orders passed by the revenue officers were attached, which, prima facie, do not appear to be the duly attested copies of the orders passed by the Revenue Officers. Moreover, no case is made out under the provisions of Order 41 Rule 27 CPC since the allegations made in the application do not specify the requirement that these documents were not available or not within the knowledge of the appellants and as such no case is made out for allowing the application at this belated stage. Therefore, CMP No. 1080 of 2010 is dismissed and consequently CMP No. 124 of 2011 is also dismissed. 27. In view of the above discussion, the appeal filed by the appellants is accepted, the judgment of the learned trial Court is restored and the suit of the plaintiff is dismissed. The appeal stands allowed accordingly. No costs.