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2017 DIGILAW 520 (HP)

Munshi Ram v. Hans Raj

2017-05-15

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present regular second appeal has been maintained by the appellant/defendant (hereinafter referred to as ‘the defendant’) against the judgment dated 01.11.2004, passed by the learned District Judge, Hamirpur, District Hamirpur, H.P. in Civil Appeal No. 91 of 2002, whereby the judgment of learned Sub Judge 1st Class (II), Hamirpur, H.P., dated 29.06.2002, passed in Civil Suit No. 323 of 1997, was affirmed. 2. Tersely, the facts of the case, as per the plaintiff/respondent (hereinafter referred to as ‘the plaintiff’) are that the plaintiff maintained a suit for declaration, wherein he has sought declaration that order dated 26.05.1997, passed by the Consolidation Officer, Hamirpur, in Case No. 35 of 1997, qua the land comprised in Khata No. 107, Khatauni No. 109, Khasra No. 10, measuring 2 kanals 7 marlas, situate in Village Badohra, Mouza Badohg, Tehsil Nadaun, District Hamirpur, H.P. (hereinafter referred to as ‘the suit land’) was passed fraudulently and the same is collusive in nature. The plaintiff has further alleged that the Consolidation Officer passed the order dehors the principle of natural justice, as such the same has no binding effect. Precisely, as per the plaintiff, he is owner-in-possession of the suit land and the defendant, in connivance with the Consolidation Officer, Shri Nathu Ram, got corrected Karukans of the suit land, which as per the plaintiff, was done fraudulently and without his notice. The act of the defendant was by suppressing material fact that the mutation of correction of Karukans of the suit land stood already rejected. It is alleged that the defendant, who is a retired revenue officer, and Consolidation Officer, Shri Nathu Ram, worked together. Shri Nathu Ram, Consolidation Officer, was posted as Patwari at the relevant time and he prepared Shajra Kishtwar of Village Badehra during the consolidation operation in 1980, so he must not have decided the correction application of the suit land, especially in absence and without notice to the plaintiff. The Consolidation Officer passed the order without fixing date of inspection and he wrongly proceeded the plaintiff ex parte. Lastly, it was alleged that under the veil of that wrong and illegal order, the defendant was trying to take forcible possession of the portion of the suit land, compelling the plaintiff to approach the Court for redressal of his grievances. 3. The defendant, by way of filing written statement, resisted the suit of the plaintiff. Lastly, it was alleged that under the veil of that wrong and illegal order, the defendant was trying to take forcible possession of the portion of the suit land, compelling the plaintiff to approach the Court for redressal of his grievances. 3. The defendant, by way of filing written statement, resisted the suit of the plaintiff. The defendants raised the preliminary objections of maintainability and jurisdiction. On merits, the defendant contended that the order dated 26.05.1997 of the Consolidation Officer, cannot be challenged in the Civil Court by filing a suit and further contended that the matter is exclusively triable by the Consolidation authorities in an appeal. He has contended that the Karukans had been rightly corrected by the Consolidation Officer and defendant is already in possession of his share of the land. 4. The learned Trial Court on 24.02.1998 framed the following issues: “1. Whether the plaintiff is entitled to the decree of declaration and permanent injunction as prayed for? OPP 2. Whether the Civil Court has no jurisdiction to try the present suit? OPD 3. Whether the suit is not maintainable in the present form? OPD 4. Relief.” 5. After deciding issue No. 1 in favour of the plaintiff and issues No. 2 and 3 against the defendants, the suit of the plaintiff was decreed. Consequently, the defendant preferred an appeal before the learned First Appellate Court, which was dismissed and the judgment and decree passed by the learned Trial Court was affirmed, hence the present regular second appeal, which was admitted for hearing on 07.09.2005 on the following substantial questions of law: “1. Whether the Court below erred in holding that the Civil Court have jurisdiction to decide the dispute, involved in the suit? 2. Whether the findings of the Courts below are dehors the evidence on record? 6. I have heard the learned counsel for the appellant and the learned counsel for the respondents. 7. The learned counsel for the appellant has argued that the judgment and decree passed by the learned First Appellate Court, whereby the judgment and decree passed by the learned Trial Court was affirmed, is against the basic principles of law. He has further argued that when the jurisdiction of the Civil Courts is expressly barred, the learned Civil Court has got no jurisdiction to entertain the suit. He has further argued that when the jurisdiction of the Civil Courts is expressly barred, the learned Civil Court has got no jurisdiction to entertain the suit. Thus, the judgment and decree passed by the learned Trial Court and upheld by the learned Lower Appellate Court are required to be set aside. Conversely, the learned counsel for the respondent has argued that as per the law settled by this Hon’ble Court in Chuhniya Devi vs. Jindu Ram, 1991(1) Shimla Law Cases 223, and other pronouncements on the subject, the jurisdiction of the Civil Courts is always there, especially when the order, in question, passed by the learned authority is against the basic principles of natural justice and against the very provisions of the Act. Therefore, the decree passed by the learned Trial Court, which was affirmed by the learned Lower Appellate Court, is as per the law. He has further argued that even otherwise also the facts of the case show that there is no substantial question of law involved in the present case and thus the appeal may be dismissed. In rebuttal, the learned counsel for the appellant has vehemently argued that the appeal is required to be allowed as the learned Court below has committed a mistake of law. 8. In order appreciate the rival contention of the parties, I have gone through the records carefully. 9. At the very outset, as far as the jurisdiction of the Civil Court is concerned, there is a similar provision under The Himachal Pradesh Land Revenue Act, 1953, which excludes the jurisdiction of the Civil Courts. Section 171 of the Act specifically bars the jurisdiction of the Civil Courts for which the Revenue Officer or the State Government is empowered under the Act, but this Hon’ble High Court has settled the law on the subject in Chuhniya Devi vs. Jindu Ram, 1991(1) Shimla Law Cases 223, that if the Revenue Court has acted against the principles of natural justice or not in conformity with fundamental principles of judicial procedure or where the provisions of the Act had not been complied with, the Civil Court can look into the matter. Similar provision is there in The Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971, H.P. Holdings, wherein Section 57 debars the Civil Courts from determining any question arising out of the proceedings under that Act. Similar provision is there in The Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971, H.P. Holdings, wherein Section 57 debars the Civil Courts from determining any question arising out of the proceedings under that Act. Section 57 of the Act, for ready reference, is extracted in extenso as under: “57. Jurisdiction of Civil Court barred as regards matters arising under this Act: No person shall institute any suit or other proceedings in any Civil Court with respect to any matter arising out of the consolidation proceedings or with respect to any other matter in regard to which a suit or application can be filed under the provisions of this Act.” However, in the present case, the respondent/plaintiff was never served by the authority before making the order against him, which is clearly in violation of the principles of natural justice. Thus, after applying the ratio of Chuhniya Devi’s case (supra) and the fact that in the present case there is clear cut violation of principles of natural justice, this Court finds that in the present matter the jurisdiction of the Civil Court was always there. Similarly, in 1999(1) S.L.J 511, Shri Lajpat Rai (deceased through his L.Rs vs. Smt. Taro Devi and others, vide paras 9 and 10 it has been held as under: “9. In Srinivasan and others vs. Sri Madhyarjuneswaraswami Pattavaithalai, Tiruchirapalli District by its a Executive Officer at Pattavaithalai Devasthanam and others, 1998 (2) L.W. 189 , a Full Bench of the Madras High Court, to which I was a party also while dealing with such a special enactment as the one in force in this State and reviewing the entire up-to-date case law on the subject including the latest pronouncements of the apex Court expressed a similar view as held by the Full Bench of this Court in 1991(1) Sim. L.C. 223 that jurisdiction of the Civil Court to entertain a Civil Suit for declaration of title and injunction is neither ousted nor barred by the orders passed by the statutory authorities constituted under the special enactments”. 10. Consequently, the view taken by the Courts below that the Civil Court’s jurisdiction s not ousted in the matters of the nature and that there was no impediment to proceed with the trial of the suit and adjudicate the issues and grant relief, cannot be said to be bad in law. 10. Consequently, the view taken by the Courts below that the Civil Court’s jurisdiction s not ousted in the matters of the nature and that there was no impediment to proceed with the trial of the suit and adjudicate the issues and grant relief, cannot be said to be bad in law. On the other hand, the said view taken by the Courts below is in quite conformity with the binding legal position. The contention raised on behalf of the appellants to the contrary, therefore, fails and shall stand rejected.” 10. In another case titled Smt. Bhodi vs. Smt. Dalumbi and others, 2009 (2) Shimla Law Cases 169, vide para 5, it has been held as under: “5. On questions No. 1 and 2 the matter is no longer res-integra. This Court while dealing with the provisions of Section 57 of the Act held in Shri Lajpat Rai (Deceased) through his LRs. Smt. Maya Devi and others v. Smt. Taro Devi and others, 1991(1) S.L.J. 511 that Section 57 does not bar the jurisdiction of the Civil Court to look into the legality of the order(s) passed. This proposition of law has been re-affirmed in RSA No. 48 of 1998, titled, Sant Ram v. Sh. Tulsi (dead) through LRs. Smt. Kansu and others, decided on 20th March, 2009. There is nothing to indicate in the order that proper service was effected on the plaintiff or that she was given a chance of representation before the decision contrary to her interests was made by the Director. Even otherwise, the proviso to Section 54 of the Act clearly provides for granting an opportunity to the parties of being heard before any order is passed. These questions are, therefore, decided in favour of the appellant. I hold that it was the bounded duty of the Director to have ensured that adequate opportunity is granted to the appellant to represent her case.” The facts of the present case demonstrate that the plaintiff was condemned unheard by the Consolidation Officer, while passing order dated 26.5.1997. Manifestly, the plaintiff did not appear before the Consolidation Officer. Order dated 23.12.1996 of the Consolidation Officer reveals that both the parties were present on that date and the case was adjourned with the observations that they would be summoned for the next date. Manifestly, the plaintiff did not appear before the Consolidation Officer. Order dated 23.12.1996 of the Consolidation Officer reveals that both the parties were present on that date and the case was adjourned with the observations that they would be summoned for the next date. Order dated 30.12.1996 further reveals that the Court decided to inspect the spot and the parties were issued summonses. Subsequent order dated 14.05.1997 depicts that the case was then fixed for 26.05.1997, on which date the parties were issued summonses. On 26.05.1997 the Consolidation Officer pronounced his order in the absence of the plaintiff and he has observed that he failed to appear despite proper service. 11. In fact, no summons was issued/served to plaintiff, Hans Raj, for 26.05.1997, and this fact was rightly observed by the learned Trial Court, thus it was wrongly concluded by the Consolidation Officer that plaintiff, Hans Raj, failed to appear, despite service of summons, before his Court. Meaning thereby, the plaintiff had no knowledge of the proceedings before the learned Consolidation Officer. Apparently, the Consolidation Officer passed the order presuming that the plaintiff had been duly served, but it is emanating from the record that the plaintiff had no notice of the proceedings before the Consolidation Officer, thus the order passed by the Consolidation Officer looses its efficacy, as the same was passed without hearing the plaintiff. The plaintiff was condemned unheard, thus the principles of natural justice have been violated and the order of the Consolidation Officer is not sustainable in the eyes of law and is a nullity. In view of the Chuhniya Devi case (supra) if the Revenue Court has acted against the principles of natural justice or not in conformity with fundamental principles of judicial procedure or where the provisions of the Act have not been complied with, the Civil Court can look into the matter and in such like cases the jurisdiction of the Civil Court cannot be ousted. Moreover, plaintiff, Hans Raj, deposed that Consolidation Officer, Nathu Ram, had additional charge at Hamirpur and earlier, as Patwari, he dealt with the case and during that time the defendant was working as Kanungo. This deposition of the plaintiff goes unrebutted, as the defendant neither stepped into the witness-box nor led any evidence rebutting the deposition of the plaintiff and he preferred to close his evidence. This deposition of the plaintiff goes unrebutted, as the defendant neither stepped into the witness-box nor led any evidence rebutting the deposition of the plaintiff and he preferred to close his evidence. Thus, unrebutted testimony of the plaintiff establishes that Nathu Ram, Consolidation Officer, who at some point of time worked under the defendant as Patwari, helped the defendant by passing wrong and illegal order and condemned the plaintiff unheard. 12. At the same point of time, Section 9 C.P.C. gives power to the Courts. Section 9 C.P.C. is extracted in extensor hereinbelow: “9. Courts to try all civil suits unless barred.- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Explanation [I].- A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. [Explanation [II].- For the purpose of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place]” So, the jurisdiction of the Civil Courts is always there, in case the order passed by the authorities under the special law is in contravention to: (a) Principles of natural justice; (b) against the statute; (c) without following the procedural law; (d) issued in bad faith; and (e) against the principles of audi alteram partem. 13. The present case is squarely covered and this Court finds that the Civil Courts below have come to the right conclusion by holding that the Civil Court has jurisdiction to decide the dispute and thus substantial question of law No. 1 is answered accordingly. 14. The learned Courts below have considered the evidence in its right and true perspective and came to the conclusion after properly appreciating the evidence. Thus, substantial question of law No. 2 is answered holding that the findings of the learned Courts below are within the confines of law. 15. In view of what has been discussed hereinabove, the findings recorded by the learned Trial Court and affirmed by the learned First Appellate Court are just, reasoned and no interference is required. Thus, substantial question of law No. 2 is answered holding that the findings of the learned Courts below are within the confines of law. 15. In view of what has been discussed hereinabove, the findings recorded by the learned Trial Court and affirmed by the learned First Appellate Court are just, reasoned and no interference is required. The appeal, which sans merits, deserves dismissal and is accordingly dismissed. However, in view of peculiar facts and circumstances of the case, the parties are left to bear their own costs. 16. The appeal, so also pending miscellaneous application, if any, also stand disposed of, accordingly.