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2016 DIGILAW 1966 (HP)

Swaran Singh v. Darshan Singh

2016-09-14

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan J. The plaintiffs are the appellants, who aggrieved by the judgment and decree passed by the learned lower Appellate Court, whereby he held the suit of the plaintiff to be not maintainable before the Civil Court and thereby reversed the findings recorded by the learned Trial Court, have filed this Regular Second Appeal questioning the said judgment and decree. 2. The bare minimal facts as necessary for adjudication of this case are that the plaintiffs/appellants (herein after referred to as the ‘plaintiffs’) filed a suit for possession of land comprised in Khata Khatauni No. 62min/160, Khasra No. 1 min measuring 3 Bighas, Khasra No. 55 min measuring 7 Bighas and Khasra No. 56 min measuring 14 Biswas, Kitas 3 total measuring 10 Bighas 14 Biswas. It was further pleaded that the revenue entries showing Darshan Singh, (now deceased) as non-occupancy tenant were wrong, illegal, void and not binding on plaintiffs and proforma defendants, as he was never inducted as non-occupancy tenant. The owners were not aware of the wrong revenue entries and only in the month of May, 1990, plaintiff No. 1 came to know about such entries, where after, he moved an application opposing the attestation of conferment of proprietary rights upon defendant No. 1. However, defendant No. 1, taking undue advantage of the wrong revenue entries dispossessed the plaintiff from the suit land in July, 1990. 3. Only defendant No. 1 contested the suit and denied that he had dispossessed the plaintiffs from the suit land in July, 1990 and asserted that he was a non-occupancy tenant over the suit land and was inducted as such by predecessor of the plaintiffs in the year 1960. He raised the objection regarding jurisdiction of the Civil Court to try the suit and further submitted that the conferment and vestment of proprietary rights is automatic under the H.P. Tenancy and Land Reforms Act, 1972. 4. The learned trial Court framed the following issues:- “1. Whether the possession of defendant No. 1 in the suit land is of tres-passer? OPP 2. If issue No. 1 is proved in affirmative, whether the entries of tenancy are illegal and fraudulent? OPP 3. Whether the plaintiffs are entitled to claim possession, as claimed? OPP 4. Whether the proper court fee has been affixed? OPP 5. Whether this court has jurisdiction? OPP 6. Whether this suit is within limitation? OPP 7. OPP 2. If issue No. 1 is proved in affirmative, whether the entries of tenancy are illegal and fraudulent? OPP 3. Whether the plaintiffs are entitled to claim possession, as claimed? OPP 4. Whether the proper court fee has been affixed? OPP 5. Whether this court has jurisdiction? OPP 6. Whether this suit is within limitation? OPP 7. Relief.” 5. After recording evidence and evaluating the same, the learned trial Court decreed the suit of the plaintiffs. However, on appeal being filed before the learned lower Appellate Court, the decree passed by learned trial Court was set aside and the case was remanded back to it for returning the plaint to the plaintiffs for presentation in a competent Court of law. 6. Aggrieved by the said findings, plaintiffs/appellants have filed the instant appeal and the same came to be admitted on 23.11.2001 on the following substantial question of law:- “Whether the Civil Court has the jurisdiction to go into the question involved in the present case between the parties?” I have heard learned counsel for the parties and gone through the records of the case. 7. At the outset, it may be observed that the jurisdiction of Civil Court cannot be readily inferred or easily excluded. While determining such jurisdiction, it is the pith and substance of the plaint’s allegations that have to be kept in mind, so also the pith and substance of the relief sought and the jurisdiction does not depend upon the defence taken by the defendant in the written statement. 8. Adverting to the facts of the case, it would be noticed that the only reason which weighed with the learned lower Appellate Court to conclude that the jurisdiction of the Civil Court was excluded is the judgment rendered by Hon’ble Full Bench of this Court in Chuhniya Devi Vs. Jindu Ram 1991 (1) Shimla Law Cases 223, as would be evident from para 9 of the judgment, which reads thus: “9. The facts of the case are not disputed that the plaintiffs and proforma-defendants No. 2 to 19 having been recorded as occupancy tenants of the suit land shall be deemed to have become its owners. However, the suit land is alleged to be admittedly in possession of the defendant No. 1. The facts of the case are not disputed that the plaintiffs and proforma-defendants No. 2 to 19 having been recorded as occupancy tenants of the suit land shall be deemed to have become its owners. However, the suit land is alleged to be admittedly in possession of the defendant No. 1. Though it is alleged in the plaint that the defendant No. 1 has dispossessed the plaintiffs and came in illegal possession of the suit land in May, 1990, but the long standing entries in the revenue records commencing from the Jambandies 1960-1961 (Ext.DW1/A) to date show the possession of the defendant No. 1 over the suit land as non-occupancy tenant on payment or rent of Rs.150/- per annum. The presumption of correctness having been attached to the entries of the revenue records he shall prima facie be deemed to be in possession of the suit land as non-occupancy tenant. However at the worst it can be taken that there is a dispute between the parties if the possession of the defendant No. 1 over the suit land has been as a non-occupancy tenant or not. But such dispute is triable by the revenue Courts under the H.P. Tenancy and Land Reforms Act. The order of the Land Reform Officer to that effect is appealable to the higher revenue courts. Even the revision and review lies to the higher Authorities. Therefore, it is not disputed that the H.P. Tenancy and Land Reforms Act is a complete Code in itself with regard to the dispute in question. Therefore, I do agree with the learned counsel for the appellant that in view of the Chuhniya Devi’s case referred to above the jurisdiction of the Civil Court in this matter is barred. This point as such is decided in favour of the appellants.” 9. To say the least, the learned lower Appellate Court has not at all applied its judicial mind and has further not even cared to have a glance, much less, read the judgment passed in Chuhniya Devi’s case (supra) or else the learned lower Appellate Court would not have passed such an order. 10. To say the least, the learned lower Appellate Court has not at all applied its judicial mind and has further not even cared to have a glance, much less, read the judgment passed in Chuhniya Devi’s case (supra) or else the learned lower Appellate Court would not have passed such an order. 10. In Chuhniya Devi’s case (supra), the Hon’ble Full Bench of this Court had categorically held that the jurisdiction of the Civil Court was barred only when both the parties admit about the status of landlord and tenant, but when there is dispute about such status, then the Civil Court alone would have the jurisdiction. This position of law has been consistently maintained by this Court and reference in this regard can conveniently be made to Babu Ram (deceased) through L.Rs. Smt. Sita Devi and others Vs. Pohlo Ram (deceased) through L.Rs. Smt. Vidya Devi and others 1991 (2) Sim. L.C. 211, wherein it has been held as under:- “6. Learned counsel for the respondents, on the other hand, urged that the status of the plaintiff was not admitted by defendant and, therefore, there was no bar for civil court to entertain and decide the suit and moreover incorrect entry had appeared in the revenue record against the plaintiff, therefore, suit for declaration in a civil court was competent and maintainable in view of section 46 of the HP Land Revenue Act. It was further contended that defendant could not be permitted to lead additional evidence merely to fill in the lacunae in the case especially when such evidence was within the knowledge of the defendant and could have been easily produced in the trial court. 7. I see much force in the arguments advanced by the learned counsel for the respondent-plaintiff. The argument of the learned counsel for the appellants that the suit is barred under Section 58 of the H.P. Tenancy and Land Reforms Act (hereinafter to be called as the Tenancy Act) is not tenable. There is no clause in section 58 of the Tenancy Act which provides for a suit by or against a person claiming himself to be a tenant and whose status as a tenant is not admitted by the land owner. The legislature barred only those suits from the cognizance of civil court where there is no dispute between the parties about the relationship of landlord and tenant. The legislature barred only those suits from the cognizance of civil court where there is no dispute between the parties about the relationship of landlord and tenant. It was a suit filed by the plaintiff claiming himself to be in possession of the property as a tenant under the defendant and defendant had not admitted the status of the plaintiff, as such, rather, it was pleaded that the plaintiff was not at all in possession. The provisions contained in the Punjab Tenancy Act, as applicable to Himachal Pradesh, which are parimateria with the provisions of section 58 of the Tenancy Act came up for consideration before the Supreme Court in Raja Durga Singh V. Tholu and others, AIR 1963 SC 361 . The Supreme Court observed init report as under: “……There is no entry or item relating to a suit by or against a person claiming to be a tenant and whose status as a tenant is not admitted by the landlord. It would, therefore, be reasonable to infer that the legislature barred only those suits form the cognizance of a civil court where there was no dispute between the parties that a person cultivating land or who was in possession of land was a tenant……” 8. In view of the specific pleadings and as observed by the Supreme Court in Durga Singh’s case (supra), Civil Court undoubtedly had jurisdiction to entertain and decide the suit. Moreover, plaintiff had felt aggrieved by an entry made in the revenue records on the basis of an order passed by Revenue Officer. Section 46 of the Himachal Pradesh Land Revenue Act provides that if a person considers himself aggrieved as to any right of which he is in possession by an entry in a record of right or any periodical record, he can institute a suit for declaration of the rights under Chapter VI of the Specific Relief Act, 1963. The courts below, as such, were right in their view that Civil Court had jurisdiction to entertain and decide the suit.” 11. On the same preposition, reliance can be placed on the judgment rendered in Birbal Vs. Udhami and others 1992 (1) Sim.L.C. 153, wherein this Court held as under:- “8. The courts below, as such, were right in their view that Civil Court had jurisdiction to entertain and decide the suit.” 11. On the same preposition, reliance can be placed on the judgment rendered in Birbal Vs. Udhami and others 1992 (1) Sim.L.C. 153, wherein this Court held as under:- “8. The close perusal of section 58 (3) of the Act shows that there is no clause therein providing for a suit by or against a person claiming himself to be a tenant and whose status as a tenant is not admitted by the land owner. The legislature barred only those suits from the cognizance of civil courts where there is no dispute between the parties about the relationship of landlord and tenant. It was a suit filed by the plaintiff claiming himself to be in possession of the property as a tenant under the defendant and defendant had not admitted the status of the plaintiff as such, rather, it was pleaded that the plaintiff was not at all in possession. The provisions contained in the Punjab Tenancy Act, as applicable to Himachal Pradesh, which are pari material with the provisions of section 58 of the Tenancy Act came up for consideration before the Supreme Court in Raja Durga Singh V. Tholu and others, AIR 1963 SC 361 . The Supreme Court observed as under: “….There is no entry or item relating to a suit by or against a person claiming to be a tenant and whose status as a tenant is not admitted by the landlord. It would, therefore, be reasonable to infer that the legislature barred only those suits from the cognizance of a civil court where there was no dispute between the parties that a person cultivating land or who was in possession of land was a tenant…..” In view of the specific pleadings and as observed by the Supreme Court in Durga Singh’s case (supra), civil court undoubtedly had jurisdiction to entertain and decide the suit. In the instant case, admittedly, both the parties are at loggerheads with respect to the status of the plaintiff. The plaintiff claims to be the owner in possession of the suit land. The point involved in the instant case is covered by the facts and circumstances of the case of Raja Durga Singh (supra). Accordingly, the point being devoid of any merit is rejected. The plaintiff claims to be the owner in possession of the suit land. The point involved in the instant case is covered by the facts and circumstances of the case of Raja Durga Singh (supra). Accordingly, the point being devoid of any merit is rejected. Even otherwise, no interference is called for in the second appeal keeping in view the peculiar facts and circumstances of the case which are covered by the observations made in V. Ramachandra Ayyar and another Vs. Ramalingam Chettiar and another, AIR 1963 SC 302 . The observations, in fact, pertain to the Regular Second appeal under section 100, C.P.C. prior to its amendment by C.P.C. (Amendment) Act, 1976. Defendant Birbal has no legs to stand up irrespective of the plea of relinquishment of tenancy land by the plaintiff in view of section 31 of the Act.” 12. Above all, the question posed for consideration is no longer resintegra in view of the judgment rendered by the Hon’ble Supreme Court in Udham Singh Vs. Ram Singh and Another (2007) 15 SCC 529, wherein it was observed as under:- “11. The observations of the High Court on the point of jurisdiction may be quoted, which read as under: “It may be very specifically pointed out here that so far as the present case is concerned, as per the allegations made in the plaint, the plaintiff filed a suit for possession against a trespasser on the basis of title. Such a suit primarily is triable by the civil court and in the present case the plaintiff has failed to prove his plea that he was the owner and the defendants were the trespassers. Suit, as discussed above, has to be disallowed. In the present case, relationship of landlord and tenant between the parties existed and stood established during the trial of the present suit. On the basis of the ratio of Chuhniya case (supra) the plaintiff otherwise has not been successful to make out a case for civil court’s interference. ON that account also, the plaintiff has not been successful.” 12. According to the own observations of the High Court on the basis of the averment made in the plaint the suit was cognizable by the civil court. The averments and prayers made in the plaint, are relevant for purpose of deciding the forum where the cause will lie. ON that account also, the plaintiff has not been successful.” 12. According to the own observations of the High Court on the basis of the averment made in the plaint the suit was cognizable by the civil court. The averments and prayers made in the plaint, are relevant for purpose of deciding the forum where the cause will lie. Looking to the plaint case, the High Court was itself of the opinion that the civil court was competent to take cognizance of the suit. But we feel that the High court went wrong while holding otherwise on the basis of the findings ultimately arrived at by the High Court on facts that the defendants were not the trespassers. The jurisdiction is not to be decided on the basis of the ultimate findings arrived at by the Court. We have already held earlier that the High Court erred in upsetting the concurrent findings of fact arrived at by the two courts of fact, namely, the trial court and first appellate court after detailed and elaborate discussion of the oral as well as documentary evidence on the record. The High court misread the documents and thereby upset the findings of courts below.” 13. In view of the aforesaid exposition of law, the findings rendered by the learned lower Appellate Court on the point of jurisdiction cannot be sustained and are liable to be set aside. The learned Lower Appellate Court has not gone into the merits of the case and therefore, it would not be advisable for this Court to go into the factual matrix of the case, lest it defeats one’s valuable right of appeal to the aggrieved party. The substantial question of law is answered accordingly and it is held that it is only the Civil Court which has the jurisdiction to entertain the instant lis. 14. Having said so, the appeal is allowed and the judgment and decree passed by the learned lower Appellate Court being not sustainable in the eyes of law is accordingly set aside, leaving the parties to bear their costs. The appeal is remanded back to the learned lower Appellate Court for decision afresh. 15. The parties through their learned counsel are directed to appeal before the learned lower Appellate Court on 3.10.2016. The appeal is remanded back to the learned lower Appellate Court for decision afresh. 15. The parties through their learned counsel are directed to appeal before the learned lower Appellate Court on 3.10.2016. As the suit in this case was filed nearly 26 years back on 24.10.1990, the learned lower Appellate Court is requested to dispose of the appeal as expeditiously as possible and in no event later than 31st December, 2016.