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2017 DIGILAW 503 (HP)

Ashwani Kumar v. Shamsher Singh

2017-05-11

AJAY MOHAN GOEL

body2017
Ajay Mohan Goel, J. (Oral). By way of the present appeal, appellants have challenged the judgment and decree passed by the Court of learned District Judge, Kangra at Dharamshala in Civil Appeal No. 5-K/XIII/2002 dated 14.3.2003 vide which learned appellate court while accepting the appeal filed by present respondents, set aside the judgment and decree passed by the Court of Sub Judge 1st Class (I), Kangra, District Kangra, H.P. in Civil Suit No. 160/1996 dated 3.10.2001 whereby learned trial court had decreed the suit of the appellant/plaintiff for declaration and injunction. 2. Brief facts necessary for adjudication of the present case are that a suit for declaration and injunction was filed by predecessor-in-interest of present appellant/plaintiff (hereinafter referred to as “the plaintiff”) to the effect that plaintiff was sole tenant qua suit land bearing Khata No.89min, Khatauni No.183, Khasra No.245 measuring 0-20-41 hectares situated in Mohal Balla, Mauza Matour, Tehsil and District Kangra. As per the plaintiff, defendants No.2 and 3 were the original owners of the suit land and plaintiff had become owner of the said land by operation of H.P. Tenancy and Land Reforms Act. The grievance of the plaintiff was that on an application for resumption of land, Land Reforms Officer had passed a wrong order dated 7.3.1996 whereby it had held defendant No.1 (Jai Chand) to be a co-tenant and proprietary rights stood conferred upon said defendant also along with the plaintiff. Plaintiff thus prayed for decree of injunction restraining defendant No.1 from causing any interference over the suit land or from seeking partition of the same on the basis of said wrong order passed by Land Reforms Officer. 3. The case of the plaintiff was resisted by defendant No.1 on the ground of jurisdiction, cause of action, maintainability, limitation etc. as well as on merits. According to defendant No.1 proprietary rights were rightly conferred upon him (defendant No.1) also and there was neither any infirmity nor any illegality with the order passed by Land Reforms Officer which otherwise also could not have been challenged before the Civil Court. 4. By way of replication, the plaintiff reiterated his claim. 5. On the basis of pleadings of the parties and material placed on record, the learned Trial Court framed the following issues:- “1. Whether the plaintiff is the exclusive tenant of the suit land, as alleged? OPP. 2. 4. By way of replication, the plaintiff reiterated his claim. 5. On the basis of pleadings of the parties and material placed on record, the learned Trial Court framed the following issues:- “1. Whether the plaintiff is the exclusive tenant of the suit land, as alleged? OPP. 2. Whether the order of LRO Kangra dated 7.3.1996 is illegal and liable to be set aside? OPP. 3. Whether the suit of the plaintiff is not legally and factually not maintainable in the present form? OPD. 4. Whether this court has no jurisdiction to try the present suit? OPD. 5. Whether the plaintiff has no cause of action to file the present suit? OPD. 6. Whether the defendant No.1 has got the proprietary rights of the suit land, as alleged ? OPD. 7. Whether the suit is not within time? OPD. 8. Whether the plaintiff has waived the right to file the present suit? OPD. 9. Relief.” 6. On the basis of evidence both ocular as well as documentary, 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 : No. Relief : Suit for declaration decreed vide operative portion of judgment.” 7. Learned trial court accordingly decreed the suit filed by plaintiff by declaring that the plaintiff was sole tenant of suit land and that Jai Chand original defendant No.1 had not acquired any proprietary rights by virtue of order passed by Land Reforms Officer which stands assailed in the civil suit. 8. Feeling aggrieved by the judgment and decreed so passed by learned trial court defendant therein filed an appeal. 9. In appeal, learned appellate court vide its judgment and decree dated 14.3.2003 set aside the judgment and decree so passed by learned trial court by holding that learned trial court had wrongly appreciated the evidence as well as law and in fact learned trial court had erred in passing the impugned decree in favour of the plaintiff when it stood proved on record that defendant (Jai Chand) was also co-tenant with plaintiff in the suit land and Land Reforms Officer had rightly conferred the proprietary rights qua the suit land upon the plaintiff and defendant No.1 jointly. 10. 10. Besides this, it was also held by learned appellate court that the suit so filed by plaintiff was not maintainable as the orders passed by Land Reforms Officer could not have been assailed by plaintiff by way of a civil suit in view of law laid down by this Court in Maj. Sudhir Sewal and others Vs. Madan Kishore and others, 1998 (1) S.L.J. 138, Jankan Devi Vs. Smt. Leelan Devi, 2000(2) S.L.J. 1194 (HP) and Full Bench of this Court in Chuhniya Devi Vs. Jindu Ram, 1991(1) Sim.L.C. 223. It was further held by learned appellate court that civil court had no jurisdiction to go into any question connected with the conferment of proprietary rights under Section 104 of H.P. Tenancy and Land Reforms Act except in a case where statutory authorities did not act in confirmity with fundamental principles and in the case in hand plaintiff had failed to demonstrate that statutory authorities had not acted in accordance with fundamental principles. On these bases learned appellate court while accepting the appeal so filed by defendants, set aside the judgment and decree passed by learned trial court. 11. Feeling aggrieved by the judgment and decree passed by learned appellate court, appellants have filed this appeal. 12. The present appeal was admitted by this Court on 5.5.2004 on the following substantial question of law: - “2 Whether the learned District Judge has decided the matter on merits wrongly when he has held that the Court has got no jurisdiction to try the matter and as such, the judgment is against the settled law specially against the judgment of our own Hon’ble High Court titled: Surtu and others Vs. Smt. Durga Wati and others, RSA No. 40 of 2002, passed on 24.4.2002 ? 13. During the course of arguments no grievance has been raised by learned counsel for the appellants qua the adjudication made by learned appellate court on this aspect of the matter that a civil court had 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 except in a case where statutory authorities did not act in confirmity with fundamental principles. The grievance which has been raised by learned counsel for the appellant qua the judgment and decree under challenge is that when learned appellate court had come to the conclusion that the order passed by Land Reforms Officer under Section 104 was not assailable by way of filing civil suit, the learned appellate court should have stopped there and could not have had made any further adjudication on the merits of the case. 14. Mr. Ashwani K. Sharma learned Senior Counsel appearing for the respondents on the other hand stated that primarily learned appellate court has set aside the judgment and decree passed by learned trial court on the ground that the order of Land Reforms Officer was not assailable by way of filing a suit and any further observation made by learned appellate court was otherwise also having no effect because the fact of the matter remained that the parties by virtue of the judgment and decree passed by learned appellate court were relegated back to the position as if no civil suit was ever filed. On these bases Mr. Sharma stated that there was no merit in the appeal and the same be dismissed. 15. I have heard learned counsel for the parties and have also gone through the records of the case as well as judgments passed by both the courts below. 16. In my considered view there is considerable force and the contention of learned counsel for the appellant that when once learned appellate court had come to the conclusion that the suit filed before learned trial court was not maintainable as the impugned order passed by Land Reforms Officer could not have been challenged by way of filing a civil suit then the learned appellate court should not have had made any further adjudication on the merits of the case. 17. In a lis there are two aspects of the matter involved; (a) maintainability (b) justiciability. A Court ventures on the justiciability of a matter only if it comes to the conclusion that the lis before it is maintainable. In case a Court comes to the conclusion that the lis before it is not maintainable then there is no occasion for that Court to go into the justiciability of the said matter. A Court ventures on the justiciability of a matter only if it comes to the conclusion that the lis before it is maintainable. In case a Court comes to the conclusion that the lis before it is not maintainable then there is no occasion for that Court to go into the justiciability of the said matter. This salutary principle has been overlooked by learned appellate court in the judgment under challenge while on one hand holding that the civil suit filed by plaintiff was not maintainable before the learned civil court and on the other hand venturing into further returning findings on the merits of the case. This in my considered view was not permissible when learned appellate court had come to the conclusion that the civil suit per se filed was not maintainable. The learned appellate court after setting aside the judgment and decree so passed by learned trial court on the ground of maintainability should not have had ventured upon to determine the findings on merits of the case. 18. In this view of the matter, this appeal is partly allowed. Judgment and decree passed by learned appellate court to the effect that conferment of proprietary rights under Section 104 of H.P. Tenancy and Land Reforms Act 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 except in a case where statutory authorities did not act in confirmity with fundamental principles is upheld. However, the findings on merits also thereafter returned by learned appellate court vide its judgment dated 14.3.2003 in Civil Appeal No. 5-K/XIII/2002 are set aside. Substantial question of law is answered accordingly. Appeal is partly allowed in the above terms. No order as to costs. Pending miscellaneous application also stands disposed of. Learned trial court is directed to return the original plaint to the plaintiffs so that plaintiffs can agitate their rights before the appropriate forum.