JUDGMENT : Ajay Mohan Goel, J. By way of present appeal, the appellants have challenged the judgment and decree dated 17.12.2005 passed by the Court of learned Additional District Judge, Una in Civil Appeal No. 29/94(90) vide which, the learned appellate court has upheld the judgment and decree passed by the Court of learned Sub Judge 1st Class, Una in Civil Suit No. 87/1986, RBT-265/88. 2. This appeal was admitted on 17.12.2009, on the following substantial questions of law:- “1. Whether the Civil Court can pass the decree in which the remedy of appeal/revision is there before the revenue authorities? 2. Whether the Gift deed can be made after H.P. Tenancy and Land Reforms Act came into action? 3. Whether the learned courts below have misread and mis-appreciated the oral and documentary evidence on record and the findings recorded are perverse and liable to be set aside? 3. Brief facts necessary for the adjudication of this case are that respondent/plaintiff filed a suit for declaration to the effect that suit land measuring 5 kanals bearing khewat No. 186min, khatauni No. 263/1, khasra Nos. 21R/11/1, 1549/600 entered in jamabandi for the year 1982-83 situated in village Panoh, Tehsil and District Una was coming in possession of the plaintiff as non-occupancy tenant and he (plaintiff) had become owner thereof from the date of enforcement of H.P. Tenancy and Land Reforms Act (hereinafter to be referred as ‘the Act’). Accordingly, registered Gift Deed No. 1022 dated 24.8.1974 made by defendant No.1 in favour of defendants No. 2 to 4 regarding suit land and mutation No. 1457 dated 16.2.1975 and mutation No. 1708 dated 26.4.1982 were wrong, baseless, unauthorized and ineffective against the plaintiff. Permanent injunction as a consequential relief was also sought against defendants restraining them from interfering with the possession of the suit land of the plaintiff and from getting the suit land assumed through Land Revenue Officer. 4. The case of the plaintiff was that the suit land was coming in his possession as non-occupancy tenant under defendant No.1 and he had become owner of the same from the date of enforcement of the Act i.e. 21.2.1974. 4. The case of the plaintiff was that the suit land was coming in his possession as non-occupancy tenant under defendant No.1 and he had become owner of the same from the date of enforcement of the Act i.e. 21.2.1974. Defendant No.1 being clever person, with dishonest intention of depriving the plaintiff of his ownership over the suit land executed a ‘Sham’ and fictitious gift deed dated 24.8.1974 in favour of defendants No. 2 to 4 (his wife and sons) and mutation No. 1457 dated 16.2.1975 was entered on the basis of said ‘Sham’ Gift, which was void and ineffective. As per the plaintiff, as he had become owner of the suit land w.e.f. 21.2.1974, the defendant could not have gifted something which was not owned by him vide gift deed dated 24.8.1974. It was further his case that revenue authorities sanctioned mutation No. 1539 dated 12.2.1977 in his favour regarding conferment of the said ownership but later on revenue officials wrongly reviewed the said mutation vide subsequent mutation No. 1708 dated 26.2.1982. Plaintiff moved an application for reviewing of mutation No. 1457 but the same was rejected on 4.1.1984. It was on these bases that the plaintiff had filed the suit praying for reliefs mentioned thereunder. 5. In the written statement, the defendants denied the case of plaintiff and stated that defendant No.1 had rightly and voluntarily executed gift deed in favour of defendants No.2 to 4, as he was competent to do so and mutation in favour of the plaintiff was wrongly sanctioned which was rightly reviewed subsequently. It was also stated that plaintiff did not contest the order of revenue authority in appeal or revision which has thus attained finality. On these bases, the claim of the plaintiff was denied. 6. On the basis of pleadings of the parties, the learned trial court framed the following issues:- “1. Whether the plaintiff has been in possession of the suit land as a tenant and has become owner by operation of law? OPP. 2. Whether defendant No.1 had no right to execute the gift deed in question as alleged ? If so, its effect? OPP . 3. Whether the suit is bad for non-joinder of necessary parties? OPD. 4. Whether the court has no jurisdiction ? OPD. 4A. Whether the suit is barred by limitation ? OPD 5. Relief.” 7. OPP. 2. Whether defendant No.1 had no right to execute the gift deed in question as alleged ? If so, its effect? OPP . 3. Whether the suit is bad for non-joinder of necessary parties? OPD. 4. Whether the court has no jurisdiction ? OPD. 4A. Whether the suit is barred by limitation ? OPD 5. Relief.” 7. On the basis of material on record produced by the respective parties, the learned trial court decided the issues so framed as under:- “Issue No.1 : Yes. Issue No.2 : Yes. Issue No.3. : No. Issue No.4 : No. Issue No.4A : No. Relief : Suit decreed as per operative part of this judgment.” 8. The learned trial court on the basis of material on record held that as per copy of jamabandi for the year 1982-83 defendants No.2 to 4 were recorded to be owners of the suit land, whereas the plaintiff was recorded to be in possession as ‘tenant at will’ on payment of ‘Battai Rent’. Ext. P2 copy of jamabandi for the year 1972-73 also reflected defendant to be owner of the suit land and plaintiff to be ‘tenant at will’ on payment of ‘Battai Niswi’ and vide Red Note it was mentioned that mutation No. 1457 had been sanctioned in favour of defendants No. 2 to 4 on the basis of gift deed executed by defendant No.1. Ext. P10 was the copy of mutation No. 1539 sanctioned on 12.2.1977 as per which plaintiff was conferred the ownership rights of suit land under Section 104 of the Act. This was done on the ground that previously plaintiff was coming as non occupancy tenant under defendant No.1. Vide Ext. P11 copy of mutation No. 1708 sanctioned on 26.4.1982 ownership rights of plaintiff over the suit land were again vested in defendants No. 2 to 4. As per the learned trial court it stood proved that the suit land was owned and possessed by defendant No.1 but later on plaintiff came to be recorded in possession as ‘tenant at will’. It further held that legislature has distinguished the case of a land owner who had more than 3 acres of land and a land owner who was entitled to resume the land under Section 104 of the Act. It further held that legislature has distinguished the case of a land owner who had more than 3 acres of land and a land owner who was entitled to resume the land under Section 104 of the Act. As per the learned trial court, latter landlord was covered under Section 104 (1)(iii) whereas a land owner who was not entitled to resume the land under the provisions of the Act was covered under Section 104(3) of the Act. The learned trial court further held that the Act was published in H.P. Rajpatra on 21.2.1974 and from the said date, the right, title and interest of land owners not entitled to resume land under the provisions of the Act stood immediately extinguished and vested in the State Government and thereafter in the tenants. Ext. P8 copy of jamabandi for the year 1972-73 clearly demonstrates that defendant No.1 had more than 3 acres of land on 21.2.1974, as a result of which, he was not entitled to resume the land under the provisions of the Act and as such his right, title and interest in the suit land immediately stood extinguished on 21.2.1974 and accordingly defendant No.1 had nothing thereafter he could gift later on. On these bases, the learned trial court further held that as on the date of execution of a gift deed i.e. 24.8.1974 defendant No.1 was having no ownership rights over the suit land and as such gift deed executed by him was a void transaction and consequent mutation No. 1457 sanctioned on 16.2.1975 was also null and void having no effect in law. It also held that plaintiff being a tenant of defendant No.1 was rightly conferred ownership rights, vide mutation No. 1539 dated 12.2.1977 and subsequent mutation No. 1708 decided on 26.4.1982 was also void because defendants No.2 to 4 had got nothing from defendant No.1 by way of ‘Will’. The learned trial court also hold that keeping in view the fact that plaintiff had raised the dispute of title which could be adjudicated upon only by a Civil Court competent in this regard, therefore, the Court had jurisdiction to adjudicate upon the issue notwithstanding the provisions of Section 112 of the Act. Thus the learned trial court decreed the suit of the plaintiff. 9. Thus the learned trial court decreed the suit of the plaintiff. 9. Feeling aggrieved by the said judgment passed by the learned trial court, appeal was filed by the defendants, which was dismissed by the Court of Additional District Judge, Una vide judgment and decree dated 17.12.2005. 10. The learned appellate court held that the plaintiff had been found recorded as ‘tenant at will’ qua the suit land and defendant No.1 had executed gift deed in favour of his wife and sons and the question that arose for consideration was whether defendant No.1 was competent to execute the gift or not after coming into operation of the H.P. Tenancy and Land Reforms Act. The learned appellate court held that there was evidence on record to the effect that defendant No.1 had earlier filled LRV form to resume the land but when his application was dismissed then defendant adopted another method to defeat the rights of the plaintiff and he executed the Gift deed. On these bases, the learned appellate court held that the learned trial court had rightly appreciated the evidence and concluded in favour of the plaintiff. The learned appellate court also held that there was no illegality and infirmity with the judgment and decree passed by the learned trial court and it dismissed the appeal. 11. 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. 12. Section 112 of the HP Tenancy and Land Reforms Act provides that save as otherwise expressly provided validity of any proceeding or order taken or made under Chapter 10 of the HP Tenancy and Land Reforms Act shall not be called in question in any civil court or before any other authority. In the present case, it is an admitted fact that the plaintiff was recorded as ‘tenant at will’ on payment of rent under the defendant. Further the said defendant had more than 8 acres of land as on 21.7.1974 and thus he was not entitled to resume the land under the provisions of Section 104 (1) (i) & (ii) of the Act. Further the said defendant had more than 8 acres of land as on 21.7.1974 and thus he was not entitled to resume the land under the provisions of Section 104 (1) (i) & (ii) of the Act. It is also not a fact in issue that Section 104 (1) (iii) of the Land provides for immediate extinguishment of the rights, title and interest of the land owners who are not entitled to resume the land under the above mentioned provisions of the Act from the date so notified in this regard by the government in official gazette and the land in the tenancy vests free from all encumbrances. The date so notified by the government was 21.2.1974 meaning thereby that w.e.f. 21.2.1974 all rights, title and interests over the suit land of defendant No.1 stood extinguished and the same vested from free from all encumbrances upon the plaintiff. It is also a matter of record that defendant No.1 had filled LRV forms (Ext. P16 to P18) to resume the suit land but when his application was dismissed thereafter he gifted the suit land in favour of his wife and children. 13. In my considered view after coming into force of the provisions of Section 104(3) of the Act by the notification of the effective date in the official gazette i.e. 21.2.1974, defendant lost all rights, title and interests over the suit land. Not only this the plaintiff became owner of the suit land free from all encumbrances, therefore, the subsequent act of the defendant of transferring the suit land in favour of his wife and sons by way of a gift was void-ab-initio, as has been rightly held by both the learned courts below. Not only this, the factum of the defendant having filled LRV form to resume the land is an admission on his part that plaintiff was a tenant under him. Now in these circumstances when very genesis of the mutations which were entered in favour of defendants No.2 to 4 was void-ab-initio, the subsequent mutations so entered on the basis of the said gift also were non est. Even otherwise mutations do not confer title. Now in these circumstances when very genesis of the mutations which were entered in favour of defendants No.2 to 4 was void-ab-initio, the subsequent mutations so entered on the basis of the said gift also were non est. Even otherwise mutations do not confer title. The suit was filed by the plaintiff on the basis of his title and in this view of the matter it cannot be said that the suit filed by him was not maintainable in view of the provisions of Section 112 of the Act. 14. In Shankar Vs. Smt. Rukmani and others, 2003(1) Shim. L.C. 300 this Court has held:- “4. So far the ratio in judgment in Chuhniya v. Jindu Ram’s case (supra) is concerned, the reference before the Full Bench was whether the Civil Court has the jurisdiction in respect of order of conferment of proprietary rights under Section 104 of the H.P. Tenancy and Land Reforms Act, 1972 (hereinafter called ‘the Act’) which has been answered in the negative except in a case where it is found that the statutory authorities envisaged by the Act have not acted in conformity with the fundamental principles of judicial procedure or where the provisions of the Act have not been complied with. 5. The acquisition of proprietary rights by tenants other than nonoccupancy tenants is dealt with in Chapter X of the Act. This Chapter consists of Sections 104 to 117. Section 112 of the Act provides for bar of jurisdiction of Civil Court for calling in question the validity of any proceedings or orders taken or made under this Chapter. By providing appeal and revision against the order passed by the Land Reforms Officer under this Chapter, further bar of jurisdiction has been provided under Section 115 to call in question any order made by the Collector, Commissioner or Financial Commissioner by declaring them final. It is also observed by the Full Bench in Chuhniya Devi v. Jindu Ram’s case (supra) that from the Scheme of Chapter X it is clear that there are bound to be occasions when the dispute about the relationship of landlord and tenant would arise in the proceedings which need to be adjudicated upon by the authorities as provided therein, before conferment of proprietary rights upon a tenant or before resumption of land by the land owner. 6. 6. Referring to sub-section (4) of Section 104 and Rule 29, the Full Bench has concluded in para 39 that: “………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.” 7. It was in this context that the Full Bench further held in paragraph 40: “Any inquiry 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.” 8. While discussing the rationale for exclusion of Civil Court, the learned judges have held in paragraph 44 that: “The exclusion of the jurisdiction of the Civil Court, in the matter of determination of the question whether a person cultivating the land of a landowner is his tenant or not for purposes of Chapter X, is both reasonable and understandable. Permitting such a question to be determined by the civil court also would have introduced an element of unpredictability, spread over a long period while the matter was under adjudication before the Civil Court at the trial or an appellate stage, which could have made the effective implementation of measures of land reform aimed at by the Act, uncertain. The legislature could legitimately think of ruling out such a situation. It has done so by excluding the jurisdiction of the civil court expressly in that matter.” 9. The legislature could legitimately think of ruling out such a situation. It has done so by excluding the jurisdiction of the civil court expressly in that matter.” 9. After analyzing the judgment in Chuhniya Devi v. Jindu Ram’s 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 proprietary 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. 10. Coming to the case in hand, it is not averred by the either party that either the proceedings were initiated or the order was passed under Chapter X of the Act. Therefore, we have no hesitation to hold that the ratio of judgment in Chuhniya Devi v. Jindu Ram’s case is not applicable to the facts and circumstances of the present case and the Civil Court has the jurisdiction to decide the suit of the plaintiff.” 15. This judgment has been followed by this Court in Ramesh Kumar and others Vs. Mandir Thor (Math Thor), 2007(2) Shim. LC 422. 16. Besides this, when all rights title and interests in the suit land of defendant No.1 stood extinguished on 21.2.1974 he had no legal right to transfer the suit land in favour of defendants No.2 to 4. Gift can be made of a property which is owned by a person and when a person is not owner of a property in law, he has no right to transfer the same in favour of another person by executing a gift. Therefore, in view of what has been discussed above, in my considered opinion, it cannot be said that the learned courts below have either misread or mis-appreciated the oral and documentary evidence produced on record. Therefore, in view of what has been discussed above, in my considered opinion, it cannot be said that the learned courts below have either misread or mis-appreciated the oral and documentary evidence produced on record. Perusal of judgments and decrees passed by learned courts below demonstrate that they have minutely gone into all aspects of the matter and after appreciating both the ocular and documentary evidence produced on record, the learned trial court has decreed the suit of the plaintiff. Similarly even the learned appellate court has appreciated the evidence on record in its correct perspective and only thereafter it has upheld the findings returned by the learned trial court. Even otherwise, learned counsel for the appellant could not substantively point out as to what was that material evidence on record which was either misread or mis-appreciated by either of the learned courts below. The substantial questions of law are answered accordingly as aforesaid and keeping in view the fact that there is no merit in the present appeal, the same is dismissed with costs.