IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 341 of 1995. Date of decision: December 21, 2010 Radha Krishan and others. ….Appellants. Versus Balak Ram and others. ….Respondents. Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 For the appellants : Mr. Romesh Verma, Advocate. For respondents : Mr. Vinay Thakur, Advocate, vice Mr. T.R. Chandel, Advocate, for respondents No.1 to 3, 5 and 7 to 9. None for other respondents. Surinder Singh, J : (Oral) 1. This second appeal was admitted on the following substantial questions of law: (i) Whether the respondents failed to plead and prove the claim of tenancy with respect to suit land, in accordance with law? (ii) Whether in the proceedings for restitution of mortgage, the plea of tenancy cannot be determined by the Civil Court? 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - (iii) Whether the stray entries in the revenue record recording suit land as per mark X and Mark Y has to take precedence over the long outstanding entries to the subsequent period onwards -1941 has to be given preference or the latest entries and prevailed over the earlier entries? (iv) Whether the findings recorded by the learned District Judge are vague and without reasoning? (v) Whether inadmissible evidence has been relied upon by the Appellate Court and no contract of tenancy was ever settled between the parties? 2. This regular second appeal has been directed against the judgment and decree passed by the learned District Judge in Civil Appeal No.67- S/13 of 1992, decided on 25.2.1995 filed by the defendants, whereby the judgment and decree passed by the learned trial Court in Civil Suit No.149/1 of1989 dated 15.10.1992 was set-aside and the suit filed by Budhi Ram, predecessor-in-interest of the appellants, hereinafter to be referred “plaintiffs” seeking declaration to the effect that the land comprised in Khasra No.151 to be called suit khasra, was mortgaged with possession with Sita Ram, the original defendant, the father of defendants No.1 to 9 and the orders for not ordering redemption passed by the learned Revenue Officer in a petition - 3 - preferred under Section 4 of the H.P. Restitution of Mortgaged Lands Act, 1976 and its confirmation in appeal and revision by the superior revenue Courts were wrong, contrary to the facts thus illegal and a consequential relief of possession by way of redemption was also prayed against the respondents/defendants. 3. The suit filed by the plaintiffs was decreed by the learned trial Court which was reversed in appeal holding the defendants as the tenant of the disputed suit khasra. 4. Facts in brief giving rise to the present appeal are summarized thus. Budhi Ram, the predecessor of the plaintiffs was the exclusive owner of the suit land comprised in Khasra No.151 measuring 3 bigha 6 biswa, situated in Chak Dakoli, Pargana Pajero, Tehsil Theog, District Shimla, H.P, which was mortgaged on 16.8.1949 with Sita Ram, predecessor-in-interest of the respondents herein for a consideration of `400/-. Its mutation was also attested on 11.5.1950 by the Assistant Collector 2nd Grade, Theog. Thereafter it was redeemed on 26.4.1954 by him and its possession was allegedly taken back. Its mutation - 4 - was accepted and attested on the same day and simultaneously it was again mortgaged with possession with Sita Ram and Lagnu for a consideration of `800/-. 5. On 13.8.1979, a petition No.8/79 was preferred by the original mortgagor Budhi Ram (deceased) for its redemption under Section 4 of the H.P. Restitution of Mortgaged Lands Act, 1976, jointly with another land comprised in Khasra No.149 before the Sub- Divisional Collector, Theog and prayed that since the mortgagors had derived benefit more than the mortgaged amount, the mortgagor was entitled to redeem it without any payment. The Sub Divisional Collector, After holding an inquiry, partly allowed the application vide his order dated 15.5.1980 only qua the land comprised in Khasra No.149, which was mortgaged on 16.8.49 for a consideration of `600/- however, declined the relief with respect to suit Khasra holding that the mortgagees were recorded in the revenue record as the tenants thereof. 6. In appeal, the Divisional Commissioner as well as Financial Commissioner affirmed the impugned order of the Sub-Divisional Collector. - 5 - 7. In the meantime, Budhi Singh , Lagnu as well as Sita Ram had died. Thus the present plaintiffs, who are the legal heirs and successors-in-interest, filed the suit against the respondents/defendants, successors of mortgagees. 8. The contention of the plaintiffs in the suit have been that neither the original mortgagee nor his successors were tenants over the suit khasra. Their entries in the revenue record are stray entries. Hence laid stress that the orders of the Revenue Courts were wrong and illegal not ordering the redemption of suit khasra. Thus, the suit was filed seeking declaration to the effect that the defendants aforesaid are not the tenants as alleged and the orders of the Collector Sub Divisional Theog, Divisional Commissioner and the Financial Commissioner are wrong, contrary to the facts, illegal and inoperative with a consequential relief of possession by way of redemption. 9. The suit was resisted and contested by defendants No.1 to 9, raising the point of limitation and jurisdiction by setting out preliminary objections. On merits, denied the ownership and possession of - 6 - the plaintiff qua the suit land. They also alleged private partition. The claim for possession, as alleged was also resisted. It was specifically averred by them that the suit Khasra was in the ownership and physical possession of “Devta Chikreshwar”. Sania and Sita Ram their predecessor-in-interest were the tenants, subsequently they acquired proprietory rights, thus creation of the mortgage had no effect to the existing tenancy rights with the predecessor-in- interest of the defendants. The earlier redemption as well as its mutation, as alleged by the plaintiff were denied and took up the point of limitation for seeking the relief of redemption. It was specifically pleaded that respondents had become owners of the suit land by efflux of time. They denied any illegality in the orders passed by the Revenue Court and prayed for dismissal of the suit. 10. In replication, the preliminary objections raised by the defendants were denied and even paras of the plaint were reiterated. 11. On the pleadings of the parties, the following issues were framed by the learned trial Court: - 7 - 1. Whether the order of Collector, Sub Division Theog and Financial Commissioner qua the restitution of mortgage to the suit land are wrong and illegal, as alleged? …OPP. 2. Whether the plaintiff is entitled for possession of the suit land by way of redemption of mortgage as alleged? …OPP. 3. Whether the suit is barred by limitation as alleged? …OPD. 4. Whether this Court has no jurisdiction to try and entertain the suit as alleged? …OPD. 5. Whether the defendants have been tenants over the suit land prior to the mortgage as alleged. If so its effect? …OPD. 6. Relief. 12. After the complete trial, the learned trial court held that the Sub-Divisional Collector wrongly came to the conclusion that the predecessor-in-interest of the defendants aforesaid was a tenant over the suit land since the year 1935-36 onwards, as recorded in the jamabandi and his status was not defined in the revenue record though he was shown in possession. Secondly, the entries reflected in mutation Ext. P5 were stray which was not corroborated by any other preceding entry in the revenue record. Thus, these were ignored on the ground that tenancy is a contract as claimed by the defendants, which fact was never established before the Collector, - 8 - therefore, the order Ex.P7 of the Collector was wrong and illegal. Consequently, the orders passed by the superior Courts were held to be wrong and illegal and the plaintiff was held to be entitled for the possession of the suit land by way of redemption of the mortgage, without making any payment since the defendants had derived the benefits from the suit land more than the mortgage amount. Learned trial Court also came to the conclusion that the suit was not barred by limitation, as alleged, because the predecessor-in-interest of plaintiff had filed an application for redemption before the Sub-Divisional Collector within limitation and also assailed the orders of the Sub Divisional Collector before the Superior Courts by filing appeal/revision. Thus, the Civil Court has jurisdiction to determine the matter qua even tenancy and no presumption could be attached to the revenue record whereby predecessor-in-interest of the defendants was shown as the tenant as such, the suit was decreed for possession qua suit Khasra and the order of the Sub- Divisional Collector and its affirmation by the Divisional Commissioner and the Financial - 9 - Commissioner Exts.P6 and P7 were declared to be wrong and illegal. 13. The defendants felt aggrieved by the impugned judgment and decree passed by the learned trial Court, as such assailed it in appeal before the learned District Judge. Learned District Judge vide his judgment and decree passed on 25.2.1995, held that the jurisdiction of the civil court was barred by virtue of Section 13 of the H.P. Restitution of Mortgaged Lands Act, 1976 taking support from the judgment of the Apex Court in Babu Ram and others versus Gram Sabha Buhavi and another [ AIR 1988 Supreme Court 1085] . It was further held that Sania and Sita Ram, mortgagees predecessor-in-interest of the defendants were already recorded as tenants prior to the mortgage under the predecessor-in-interest of the plaintiff on payment of rent ‘Basharah Parta Malkan’ as per jamabandi for the years 1935-36 Mark ‘Y’ and 1939- 40 Mark’X’, thus in case of redemption of the mortgage, the rights of the tenants would not be extinguished. In view of this situation, it was held that the orders passed by the Revenue Courts were legal - 10 - and valid, as such, the judgment and decree passed by the learned trial Court was set-aside and the suit of the plaintiffs was dismissed. 14. Feeling dissatisfied by the impugned judgment and decree of reversal, passed by the learned District Judge, the plaintiffs filed this regular second appeal under Section 100 of the Code of Civil Procedure. 15. During the pendency of the appeal appellant/plaintiffs Smt. Fuli, widow and Ablu daughter of Budhi Ram had died. Their names were deleted. The names of Kesari Devi and Bhagat Ram, defendants-respondents who had died, were ordered to be deleted. The defendants-respondents Hiru @ Hira Singh, Surat Ram and Nikka Ram had also died. Their legal representatives were also ordered to be brought on record. 16. Shri Romesh Verma, learned counsel for the plaintiffs-appellants forcefully argued that the conclusions arrived at by the first appellate Court without discussing any evidence is wrong and illegal and also that it had traveled beyond its jurisdiction by holding the defendants-respondents as the - 11 - tenants over the suit khasra, even prior to the creation of the mortgage. He further ventilated that the learned first appellate Court wrongly put the implicit reliance on the un-exhibited jamabandi Mark ‘X’ and Mark ‘Y’ which led to the wrong conclusion that the defendants were the tenants on the basis of stray entries regarding the tenancy. He also argued that the Civil Court, in the matter has no jurisdiction to declare defendants as tenant and suit of the plaintiffs was not barred by virtue of Section 13 of the Himachal Pradesh Restitution of Mortgaged Lands Act, 1976. The learned District Judge misapplied the judgment of the Supreme Court referred to above which was rendered under the Punjab Village Common Lands (Regulation) Act, 1961. Thus the appellants being mortgagors were entitled for the relief claimed. 17. Shri Vinay Thakur, learned counsel for the defendants-respondents supported the impugned judgment and decree of reversal, passed by the learned District Judge and further argued that by virtue of Section 35 of the H.P. Tenancy and Land - 12 - Reforms Act, the possession of the defendants is protected. 18. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the record. 19. There is no dispute that the predecessor-in-interest of the plaintiffs had not mortgaged the suit khasra with the predecessor-in-interest of the defendants. In fact, the predecessor-in-interest of the plaintiffs had filed a petition under Section 4 of the H.P. Restitution of Mortgaged Lands Act, 1976 before the Sub Divisional collector within time, i.e., within 30 years from the date of mortgage, for restitution of mortgage of suit khasra measuring 3-6 bighas along with another khasra No. 149. The restitution with respect to khasra No. 149 was allowed but declined qua suit khasra on the ground that the predecessor-in-interest of the plaintiffs were recorded as a tenant, under the mortgagor prior to the mortgage. 20. A challenge was made by the plaintiffs with respect to suit khasra before the Revenue Courts superior to the Sub Divisional collector but was unsuccessful in getting the relief. Hence this suit. - 13 - 21. Admittedly the predecessor-in-interest of the defendants was reflected as non-occupancy tenant qua suit khasra prior to the initial mortgage but according to the plaintiffs, the entries in revenue record are incorrect. Legally, after redemption of the first mortgage the land would revert back to same position/situation as it was before the date of mortgage and its simultaneous mortgage with possession with the mortgagee, as alleged would not change the position of mortgagees who would be again in dual position, one as mortgagee another as a tenant. When Shri Budhi Ram applied for its redemption, the entry of tenancy of the predecessor-in-interest of the defendants was in existence, thus the Sub-Divisional Collector rightly declined the relief sought. Against this background, it shall be apposite to refer Section 35 of the H.P. Tenancy and Land Reforms Act, 1974, which reads as under:- “Certain mortgagees to be deemed as tenants under the Act- (1) if land comprising the tenancy of a tenant is mortgaged to him with possession by the landowner and such land is subsequently redeemed by the landowner, the tenant shall, notwithstanding - 14 - such redemption or any other law for the time being in force, be deemed to be the tenant of the landowner in respect of such land on the same terms and conditions on which it was held by him immediately before the execution of the mortgage as if the mortgage had never been executed. (2.) Where a tenant referred to in sub-section (1) has been dispossessed by the land-owner in execution of a decree or order of redemption, he shall be entitled to be restored to his tenancy in the manner prescribed on the same terms and conditions on which it was held by him immediately before the execution of the mortgage, on an application made by him to an Assistant Collector of the first grade having jurisdiction within a period of one year from the commencement of this Act. (3) An application received under sub- section (2) shall be disposed of by the Assistant Collector of the first grade in a prescribed manner.” 22. Since the plaintiffs had filed petition for redemption of the mortgage qua the suit khasra and had admittedly deposited the amount before the Sub Divisional Collector, the mortgage is deemed to have been redeemed, but as per provisions of Section 35 aforesaid he could not have passed the orders for handing over the possession of the suit khasra to the predecessor of the plaintiffs because - 15 - of the existence of entries of tenancy of the predecessor-in-interest of the defendants in the revenue record. The Sub-Divisional Collector was also not vested with the powers of Land Reforms Officer to determine the matter between landlord and a recorded tenant, because where there is a dispute between the land lord and a tenant with respect to the tenancy, by virtue of Section 104 (4) of the H.P. Tenancy and Land Reforms Act, 1974 read with Rule 29 framed thereunder, shall be determined by the Land Reforms Officer in his capacity as an Assistant Collector of the First Grade, in view of the relevant provisions of the Punjab Land Revenue Act, 1887, or the Himachal Pradesh Land Revenue Act, 1954, as the case may be. Therefore, against the aforesaid background when the entry of the tenancy of the respondents exists in the revenue record even prior to the mortgage since the year 1935-36, such a dispute is required to be decided by the land Reforms Officers, as an Assistant Collector First Grade, as stated above. In my opinion, Civil Court has no jurisdiction to determine the matter in a civil suit where the tenancy stands recorded in the - 16 - record of rights. Consequently, the first appellate Court wrongly entered into the controversy which was within the powers of Land Reforms Officer under the Tenancy Act. 23. Also Himachal Pradesh Restitution of Mortgaged Lands Act, 1976 provides a complete machinery for its restitution and Section 13 thereof puts a bar on the Civil Court to entertain and try any claim to enforce any right under a mortgage declared extinguished under the said Act or to question the validity of any proceedings under the Act. In the instant case neither the plaintiffs have pleaded nor alleged the fundamental breach of the provisions of the said Act. Since this controversy fell within the purview of Revenue Court alone to determine the question raised in suit, the assumption of jurisdiction by the Civil Court is barred. 24. Thus for the afore-stated reasons, judgment and decree passed by the learned District Judge reversing the judgment and decree passed by the learned trial Court is partly upheld to the above extent and plaintiffs suit stands dismissed. Suit khasra No. 151 measuring 3-6 bighas situated in village Chak Dakoli, Pargana Pajero, Tehsil Theog district Shimla is deemed to have been redeemed by the - 17 - predecessor-in-interest of the plaintiffs but by virtue of Section 35 of H.P. Tenancy and Land Reforms Act, 1974, notwithstanding such redemption, the parties would revert back to the same stage as recorded in the revenue record immediately before the execution of the mortgage, as if the mortgage had never been executed. However, it is left open to the parties to approach the appropriate forum to settle the controversy with respect to status of tenancy as per the provision of the H.P. Tenancy and Land Reforms Act, 1974 and Rules framed thereunder, as stated above. In case the defendants are not held to be the tenants, the plaintiffs are at liberty to seek possession of suit khasra by making an application to the Sub Divisional Collector concerned on deposit/payment of full discharge of the mortgaged debt to the mortgagee, in accordance with Section 7 (b) H.P. Restitution of Mortgaged Lands Act, 1976 read with Rule 14 (3) - 18 - framed thereunder. The substantial questions of law are accordingly answered. 25. The appeal stands accordingly disposed of in above terms. No costs. December 21 , 2010 (Surinder Singh), (cm) Judge.