IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 50 of 1995. Judgment reserved on :11.5.2010 Date of decision : July 5, 2010. Khalil Mohammed and others …Appellants. Versus Hanif Bhatti and others ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Appellants : Mr. Vikram Thakur vice Mr. Vijay Thakur, Advocate. For the Respondents : Mr. Ajay Kumar , Advocate. Kuldip Singh, Judge This appeal has been directed against judgment, decree dated 6.10.1994 passed by learned District Judge, Bilaspur in Civil Appeal No. 36 of 1987 setting-aside judgment, decree dated 5.6.1986 passed by learned Sub Judge 1st Class, Ghumarwin in case No. 96/1 of 1982. The parties in the judgment are referred as plaintiffs and defendants. 2. The facts, in brief, are that Sain Ditta and Smt. Niamtu had filed a suit for declaration and permanent prohibitory injunction, in the alternative for possession in the event of dispossession of plaintiffs during the pendency of the suit. Alla Ditta, Beli Mohammad, Jalal Deen, Kasham Deen, Sher Mohammad, 1 Whether reporters of Local Papers may be allowed to see the Judgment ? 2 Mohammad Gori and Sharif Mohammad were defendants in the suit. Sain Ditta died during the pendency of the suit and his legal representatives Nizamu Deen and Sahabu Deen were brought on record. 3. The further case of the plaintiffs in the plaint was that they were entered as non-occupancy tenants over the land more specifically detailed in the plaint to the extent of 2/3rd share alongwith defendant No.1 Alla Ditta and Badra, the predecessor-in- title of defendants No. 2 to 7, who had 1/3rd share. According to the plaintiffs they had acquired proprietary rights on 2/3rd share of the suit land by virtue of the order dated 30.12.1968 of the Compensation Officer and thus they became owners of the suit land to the extent of 2/3rd share. It has also been alleged that on the basis of the order dated 24.7.1967 of the Compensation Officer and mutationproprietary rights of entire suit land, it appears, were conferred on defendants ignoring the plaintiffs. In these circumstances, the suit was filed. 4. The suit was contested by taking preliminary objections of maintainability, limitation, cause of action and jurisdiction. It has been alleged that proprietary rights have been rightly conferred on defendants by the Compensation Officer on 24.7.1967. The defendants denied the claim of the plaintiffs. In replication plaintiffs re-affirmed their stand and controverted the case set up by the defendants. On the pleadings of the parties the following issues were framed:- 1. Whether the plaintiffs have acquired proprietary rights on 2/3rd share of the suit land by virtue of the order of 3 C.O. dated 30.12.1968 and as such they are joint owners in possession of the suit land if so to what effect? OPP. 2. Whether the entries in the revenue record are wrong, as alleged? ..OPP 3. Whether the suit is not maintainable in the present form ? OPD. 4. Whether the suit is time barred ? OPD. 5. Whether the plaintiffs have no cause of action ? OPD. 6. Whether this Court has no jurisdiction to try the suit? OPD. 7. Relief. The issues No. 1 to 4 were answered in affirmative, issue No.5 decided accordingly, issue No.6 in negative and the suit was dismissed on 5.6.1986. 5. Smt. Niamtu plaintiff No.2 filed an appeal against judgment, decree dated 5.6.1986 . In the appeal Nizam Deen and Shabbu Deen legal representatives of Sain Ditta plaintiff were impleaded as proforma respondents 8, 9. The other defendants were impleaded as respondents No.1 to 7. The learned District Judge on 6.10. 1994 reversed the judgment, decree dated 5.6.1986, the findings of the learned trial Court under issues No.3 and 4 were set-aside, it was held that plaintiffs are entitled to proprietary rights of 2/3rd share in land in dispute and permanent injunction was granted in favour of the plaintiffs and against defendants No. 1 to 7 restraining them from interfering in the rights of the plaintiffs as owner in possession in any manner. 6. The defendants are now in second appeal. Alla Ditta appellant died during the pendency of second appeal and his legal 4 representatives were brought on record. Nizamu Deen and Shabbu Deen respondents also died and their legal representatives were also brought on record. The appeal has been admitted on the following substantial questions of law:- 1. Whether the proprietary rights have been conferred by the Tribunal of Competent Jurisdiction (Compensation Officer) is the second application for the same land to the same relief maintainable? 2. When the order of the Compensation Officer has become final can it be challenged before the Civil Court? 3. Whether the Civil Court has got the jurisdiction to inquire into the legality/propriety of the order of the Compensation Officer ? 4. When the order challenged was passed on 24.7.67 can the same be challenged after limitation styling to be wrong and illegal. 5. Whether the Compensation Officer had no jurisdiction to grant the proprietary rights and the order was nullity? 6. Whether the Civil Court is competent to go into the merits of the case before the Compensation Officer? 7. I have heard learned counsel for the parties and have also gone through the record. The learned counsel for the appellant has submitted that the learned District Judge has erred in reversing the judgment, decree dated 5.6.1986 passed by the learned Sub Judge. He has submitted that once the proprietary rights were conferred regarding the land in dispute the Compensation Officer had no jurisdiction to confer proprietary rights of that very land again. The order dated 24.7.1967 of the Compensation Officer had become final, the Compensation Officer has erred in conferring the proprietary rights of that very land again vide order dated 5 30.12.1968. The Civil court has no jurisdiction to enquire into the legality of order passed by the Compensation Officer on 24.7.1967. The suit is time barred. The learned counsel for the respondents has supported the impugned judgment, decree. 8. The learned Sub Judge on 5.6.1986 in fact had decided case No. 96/1 of 1982 and suit No. 173/1983 (sic suit No. 174 -1 of 1983) which were consolidated on 31.8.1985 and were dismissed. The record of Civil Suit No. 174-1 of 1983 was also called and perused. In case No. 96/1 of 1982 and suit No. 174-1 of 1983 the same land comprised in khasra No. 40 measuring 2 bighas 19 biswas was involved. Both the suits were consolidated vide order dated 31.8.1985 passed in Civil Suit No. 96/1 of 1982. The civil suit No. 174-1 of 1983 was filed by Allah Ditta, Kashim Din and Jalal Din against Sain Ditta and Niyamtu. In that suit Bali Mohd., Sher Mohd., Mohd. Gauri and Sarif Mohd. sons of Badru were impleaded as proforma respondents. Sain Ditta died and his legal representatives Nizamdin and Sahbudin were brought on record. In Civil Suit No. 174-1 of 1983 the prayer was made for declaring that plaintiffs of that suit are owners in joint possession of the suit land alongwith proforma defendants. The defendants No. 1 and 2 have no right and interest in the suit land and to get it partitioned. The consequential relief of permanent prohibitory injunction was also prayed against defendants No.1 and 2 of that suit. 9. The aforesaid substantial questions of law No. 1 to 6 are inter-connected, therefore, all of them are being considered collectively. The learned Sub Judge under issue No.1 has held that 6 plaintiffs in Civil Suit No. 96-1 of 1982 have acquired proprietary rights of 2/3rd share of the suit land by virtue of order dated 30.12.1968 of Compensation Officer and they are joint owners in possession of the suit land. It has also been held under issue No.2 that entries in the revenue record are wrong. Issue No.5 that plaintiff has no cause of action was decided against defendants, under issue No.6, it has been held that the Court has jurisdiction to try the suit. The learned Sub Judge under issue No.3 has held that suit is not maintainable and under issue No.4, it has been held that the suit is time barred. Thus, the learned Sub Judge except issues No.3 and 4 had decided all issues in favour of the plaintiffs. The Civil Suit No. 174-1 of 1983 filed by Alla Ditta etc. was dismissed. The defendants in Civil Suit No. 96-1 of 1982 did not file cross-objections in the appeal filed by Smt. Niamtu against judgment, decree dated 5.6.1986. Thus the defendants of case No. 96-1 of 1982 accepted the findings returned by the learned Sub Judge against them. Similarly, the plaintiffs in Civil Suit No. 174-1 of 1983 accepted the judgment, decree dated 5.6. 1986 by not filing any appeal against judgment, decree dated 5.6.1986. In these circumstances, limited question left for consideration is regarding the maintainability of the suit and limitation in case No. 96-1 of 1982 filed by the plaintiffs in that suit. The remaining findings in view of common judgment, decree dated 5.6.1986 in case No. 96-1 of 1982 and suit No. 174-1 of 1983 have attained finality. 10. The Compensation Officer vide order dated 30.12.1968 Ex. PE conferred proprietary rights on plaintiffs qua 2/3rd share in 7 case No. 96-1 of 1982, Ex.PB is the patta but mutation No. 192 was attested in favour of defendants regarding entire suit land presumably on the basis of order dated 24.7.1967 of the Consolidation Officer. Once the proprietary rights were conferred on plaintiffs on the basis of order dated 30.12.1968 of the Compensation Officer, then the mutation should have been attested to the extent of 2/3rd share in favour of the plaintiffs on the basis of order dated 30.12.1968. The contention of the learned counsel for the defendants that vide order dated 24.7.1967 the proprietary rights were conferred in favour of the defendants has no force. The order dated 30.12.1968 was later in time and it was to be given effect and any party aggrieved by the order dated 30.12.1968 should have challenged that order at the appropriate time. The order dated 30.12.1968 has attained finality. The Civil suit No. 174-1 of 1983 has also been dismissed. Therefore, plaintiffs in case No. 96-1 of 1982 have right qua 2/3rd share in the suit land on the basis of order of the Consolidation Officer dated 30.12.1968. The suit of the plaintiffs is for declaration, injunction and in alternative for possession is based upon title, hence maintainable and is within limitation. The learned District Judge has rightly appreciated the material on record and no fault can be found with the judgment, decree reversing the findings on issues No.3, 4 returned by the learned Sub Judge. The learned counsel for the appellants has failed to make out any case that impugned judgment, decree are based upon mis-construction, mis- interpretation of the pleadings and evidence. There is no perversity in the impugned judgment, decree. The substantial questions of law No. 1 to 6 are decided against the appellants. 8 11. No other point was urged. 12. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ), July 5, 2010. Judge. (GR)