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Himachal Pradesh High Court · body

2016 DIGILAW 1440 (HP)

Nand Lal v. Uttam Chand

2016-07-20

AJAY MOHAN GOEL

body2016
JUDGMENT : Ajay Mohan Goel, J. By way of this appeal, the appellant has challenged the judgment and decree dated 3.11.2004 passed by the Court of learned Presiding Officer, Fast Track Court, Mandi in Civil Appeal No. 93/1999, 62/2004 whereby the learned appellate court has set aside the judgment and decree passed by the Court of learned Sub Judge 1st Class, Court No.1, Mandi in Civil Suit No. 109/98(93) dated 17.5.1999. 2. This appeal was admitted on 22.8.2005, on the following substantial questions of law:- “1. Whether there is total misreading of documents Ext.PA, Ext.PB, Ext. PC, Ext.P1, Ext.P2, Ext.P3 and Ext.P4 on the par of the ld. first appellate court who has misinterpreted and misconstrued the documents, which has caused miscarriage and failure of justice to the appellant?” 2. Whether the document Ext. PA mutation No. 76 dated 30.7.1975 has been attested in violation of the mandatory provisions and rules of H.P. Land Reforms and Tenancy Act, which has caused great miscarriage of justice to the appellant? 3. Whether the ld. first appellate court is not right in holding that the appellant/plaintiff has to initiate proceedings of partition of the land of his share instead of placing this onus upon the defendants 1 and 2 Uttam Chand and Naginder Pal who are stranger and has purchased land from defendant No.3 Kanshi Ram? 4. Whether the judgment and decree of the ld. first appellate court is perverse because the ld. appellate court has traveled beyond the scope of record especially documentary evidence which has materially prejudiced the case of the appellant/plaintiff as there is non-application of mind by the ld. first appellate court in appreciating the revenue record? 3. However, at the stage of arguments Mr. G.R. Palsra, learned counsel for the appellant has confined his arguments to substantial question of law framed at Sr. No.2. 4. Brief facts necessary for the adjudication of this case are that plaintiff filed a suit for declaration and injunction as consequential relief on the ground that the suit land measuring 20-1-5 bighas, situated in Muhal Gadhiman/123, Pargana Sidhpur, Tehsil Chachiot, District Mandi was recorded in the ownership of defendant No.4 to the extent of 4 shares and proforma defendant No.5 and one Sawanu son of Sh. Hukamia predecessor-in-interest of plaintiff are in exclusive possession of their 1/5th share in the land and rest of the shares i.e. 3/5th shares was under the occupancy tenancy of proforma defendant No.6 to 9. It was further his case that defendant No.3 and plaintiff are occupancy tenant of 1/5th shares along with his brother Lalman proforma defendant No.7 who had succeeded the occupancy tenancy from his father Kishan son of Harji. As per the plaintiff, the predecessor-in-interest of plaintiff and proforma defendant No.5 never inducted any occupancy tenancy over the share rather both of them remained as owner in possession of their respective shares. His further case was that mutation No. 76 sanctioned on 30.7.1975 under Section 94 of the H.P. Tenancy and Land Reforms Act vide which the proprietary rights were conferred was illegal, wrong and unwarranted in the eyes of law. It was further stated that the said mutation was against procedural law and it was illegal and AC 2nd Grande had not adopted any lawful procedure while sanctioning the said mutation. Further as per the plaintiff the effect of the said illegal mutation was that the share of the plaintiff and proforma defendants were diminished which was not sustainable in the eyes of law. The case of the plaintiff was contested by defendants who, inter alia, stated that the suit in fact was not maintainable and mutation which was under challenge in the suit was attested in the year 1975 which was never challenged by the plaintiff and same cannot be challenged in a civil suit. It was also the case of the defendant that consolidation operation had taken place in the village and orders had been passed by the competent court and partition also stood affirmed and therefore also the suit was barred by limitation. 5. On the basis of pleadings of the parties the learned trial court framed the following issues:- “1. Whether mutation No. 76 dated 30.7.1975 has been wrongly sanctioned in favour of the defendants conferring the proprietary rights and has acquitted to sanction 3/5 share of the suit land, as alleged ? OPP. 2. Whether the total share of the plaintiff and proforma defendant No.7 comes to 1/5 share measuring 4-0-5 bighas as alleged ? OPP 3. Whether this Court has no jurisdiction to entertain and try the present suit? OPD. 4. Whether the suit is not maintainable in the present form? OPP. 2. Whether the total share of the plaintiff and proforma defendant No.7 comes to 1/5 share measuring 4-0-5 bighas as alleged ? OPP 3. Whether this Court has no jurisdiction to entertain and try the present suit? OPD. 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the suit is not properly valued for court fee and jurisdiction? OPD. 6. Whether the suit is barred by the principle of resjudicate? OPD. 7. Whether the suit is barred under Order 2 Rule 2 CPC? OPD. 8. Whether the sale of suit land by Sh. Kanshi Ram to defendant No.1 and 2 is wrong and illegal and not binding upon the plaintiff? OPP. 9. Whether the suit land has been partitioned during the consolidation proceedings, as alleged? OPD. 10. Relief.” 6. On the basis of material produced on record by the respective parties, the learned trial court returned the following findings on the said issues:- “Issue No.1 : Yes. Issue No.2 : Yes. Issue No.3 : No. Issue No.4 : No. Issue No.5 : No. Issue No.6 : No. Issue No.7. : No. Issue No.8 : Yes. Issue No.9 : No. Relief : The suit of the plaintiff is decreed as per operative of the judgment.” 7. Accordingly, the learned trial court decreed the suit of the plaintiff by holding that the mutation under challenge made a mention that defendants had been conferred proprietary rights and had acquired 3/5th share of the suit land which entries were clearly against the earlier revenue entries and moreover the entries made subsequently were not in accordance with the earlier revenue record and no explanation and reasoning was given as to how revenue entries stood changed automatically in Ext. PA copy of Mutation No.76 dated 30.7.1975. On these bases, the learned trial court held that the mutation conferring 3/5th share in favour of defendant was wrong, illegal and null and void. It further held that title and share of plaintiff and proforma defendants comes to 1/5th which had not been challenged at any time before any forum. The suit of the plaintiff was accordingly decreed in the following terms:- “It is ordered that the suit of the plaintiff is decreed. It is declared that Sawanu S/o Sh. It further held that title and share of plaintiff and proforma defendants comes to 1/5th which had not been challenged at any time before any forum. The suit of the plaintiff was accordingly decreed in the following terms:- “It is ordered that the suit of the plaintiff is decreed. It is declared that Sawanu S/o Sh. Hukmia and proforma defendant No.5 has not inducted any occupancy tenant over the suit land and the shares of the plaintiff and proforma defendant No.7 has wrongly diminished in the suit land which is quite illegal, wrong and defendant No.1 and 2 are restrained from causing unlawful interference over the same and it is further ordered that there is no order as to costs.” 8. Feeling aggrieved by the said judgment by the learned trial court, the defendants therein filed an appeal which was accepted by the learned appellate court vide its judgment dated 3.11.2004. The learned appellate court held that mutation No. 76 dated 30.7.1975 cannot be set aside after the period of 18 years from the date of the attestation of the mutation and because the plea of the plaintiff was found to be barred by limitation, the entries in the revenue record defining the shares of the parties to the suit land on the basis of mutation No. 76 dated 30.7.1975 cannot be held to be illegal. It further held that the findings returned by the learned trial court to the effect that shares of the plaintiff and proforma defendant No. 7 in the suit land have been wrongly diminished were erroneous and the same cannot be sustained in the eyes of law. It further held that in view of the admission of plaintiff that in consolidation operation suit land has been divided amongst various co-sharers, it could be safely held to have been established on record and therefore, no relief of injunction could have been granted in favour of the plaintiff and against defendants No.1 and 2. On these bases, the learned appellate court set aside the judgment and decree passed by the learned trial court. 9. I have heard learned counsel for the parties and also gone through the records of the case as well as judgment passed by both the learned Courts below. 10. Mr. On these bases, the learned appellate court set aside the judgment and decree passed by the learned trial court. 9. I have heard learned counsel for the parties and also gone through the records of the case as well as judgment passed by both the learned Courts below. 10. Mr. Palsra has argued that the Mutation No. 76 dated 30.7.1975 was per se bad in law and void-ab-initio because the same in fact was attested by AC 2nd Grade as was evident from a perusal of Ext. PA whereas the said officer had no authority in law to attest such mutation. Mr. Palsra has further argued that the said mutation was otherwise also not sustainable in the eyes of law as the same had been passed in the absence of either of the parties. The factum of the said mutation having been entered in the absence of either of the parties and its having been attested by AC 2nd Grade could not be denied by the learned counsel for the respondent. However, Mr. Neel Kamal Sharma, learned counsel for the respondents submitted that the suit land was not part of the land which was subject matter of mutation No. 76. 11. It has been held by this Court in Tara Chand Vs. State of Himachal Pradesh and others, 2007 (1) Latest HLJ (HP) 122 that Section 93 of the HP Tenancy and Land Reforms Act, provides therein that for the purposes of Chapter X of the said Act, the State Government shall appoint the Revenue Officer of the rank of Assistant Collector 2nd Grade. It has been further held that Section 104 of the Act read with Rule 27 to 29 deal with the conferment of the proprietary rights on the non-occupancy tenants, attestation of mutations and settlement of disputes etc. Vide notification dated 20.5.1975 all the Tehsildar have been appointed as the Land Reforms Officers and all the Land Reforms Officers are A.C. 1st Grade., Chapter–X of the Act falls within the scope and jurisdiction of the Land Reforms Officer who is also Assistant Collector 1st Grade, whether it relates to the attestation of mutation of proprietary rights or settling the disputes inter se the landlord and the tenant. Therefore, AC 2nd Grade is neither competent to attest the mutation nor settle their dispute. Therefore, AC 2nd Grade is neither competent to attest the mutation nor settle their dispute. Accordingly, this Court has held that AC 2nd Grade does not has any jurisdiction to deal with the cases of mutation. 12. It has been held by the Hon’ble Supreme Court in Ajudh Raj and others Vs. Moti, 1991(1) S.L.J. 659 that for deciding the question of limitation, if order impugned in the suit is such that it has to be set aside before any relief can be granted to the plaintiff, the provisions of Article 100 will be attracted and if no particular Article of the Limitation Act is applicable the suit must be governed by the residuary Article 113, prescribing a period of three years. It has further held that in the suit for title to an immovable property which has been the subject matter of a proceeding under a Special Act if an adverse order comes in the way of the success of the plaintiff, he must get it cleared before proceeding further. It has been further held that on the other hand if the order has been passed without jurisdiction, the same can be ignored as nullity, that is, non-existent in the eye of law and it is not necessary to set it aside; and such a suit will be covered by Article 65. 13. In my considered view there is merit in the contention raised by Mr. Palsra to the effect that Mutation No. 76 dated 30.7.1975 was per se bad in law and void-ab-initio as the same was attested by an authority who in law could not have attested the said mutation. It is apparent from the ratio of the judgments cited above that AC 2nd Grade is neither competent to attest the mutation nor settle the dispute inter se landlord and the tenant. This very important aspect of the matter has not been appreciated by the learned appellate court while reversing the judgment and decree passed by the learned trial court. As far as the factum of AC 2nd Grade not being competent to attest the mutation in issue is concerned, the same could not be disputed by the learned counsel for the respondent. However, he argued that the suit land was not part of that land which was subject matter of Mutation No. 76. As far as the factum of AC 2nd Grade not being competent to attest the mutation in issue is concerned, the same could not be disputed by the learned counsel for the respondent. However, he argued that the suit land was not part of that land which was subject matter of Mutation No. 76. On these bases, he submitted that even if this Court comes to the conclusion that Mutation No. 76 dated 30.7.1975 was bad in law and void-ab-initio even then there was no merit in the present appeal because the suit land in fact was not part of the land which was subject matter of Mutation No. 76. This contention of learned counsel for the respondent has been refuted by Mr. Palsra who has drawn the attention of this Court towards the relevant record from which it is clear that the suit land was in fact part of the land which was subject matter of Mutation No. 76. In view of my findings returned above substantial question of law as to whether document Ext. PA, Mutation No. 76, dated 30.7.1975 was attested in violation of the mandatory provisions and Rules of H.P. Land Reforms and Tenancy Act is answered accordingly in the affirmative. The learned appellate court while adjudicating upon the issue of limitation has not taken into consideration the law laid down by the Hon’ble Supreme Court in Ajudh Raj and others Vs. Moti (Supra) and therefore, the judgment and decree passed by the learned appellate court is not sustainable in law. Though other substantial questions of law on which the present appeal was admitted were not argued on behalf of the appellant, however, keeping in view the findings which have been returned by this Court on substantial question of Law No.2 and the fact that this Court has set aside the judgment and decree passed by the learned appellate court, there is no occasion now for this Court to enter upon the other substantial questions of law. Accordingly the present appeal is allowed with costs and judgment and decree passed by the learned appellate court is set aside.