IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No.: 104 of 2007 Date of decision : 1.11.2010 Mandir Thakur Dawara …Appellant Versus Jaswant Singh and others …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 No. For the Appellant: Mr. Bhupender Gupta, Sr. Advocate with Mr. Janesh Gupta, Advocate. For the respondents No.1 & 2 : Mr. Peeyush Verma, Advocate. Deepak Gupta, J. (oral) 1. The short question which arises in this appeal is whether the Civil Court had jurisdiction to entertain the suit or not. 2. The facts necessary for disposal of this case are that the appellant here-in-after referred to as the plaintiff filed a suit claiming that the plaintiff never inducted the defendants as tenants on the suit land and the revenue entries showing the defendant to be in possession as tenants are illegal and fictitious. The plaintiff also laid challenge to the mutation No. 4647 dated 5.5.1983 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes. 2 whereby the proprietary rights were conferred upon the defendants. The learned trial Court dismissed the suit of the plaintiff. Appeal was filed by the plaintiff and the learned lower Appellate Court relying upon the judgement of this Court in Chuhniya Devi vs. Jindu Ram, 1991(1) Sim.L.C. 223 held that the Civil Court had no jurisdiction to decide the case and returned the plaint. 3. This Court in Tajdin vs. Milkho Devi and others, Latest HLJ 2005(HP) 825 held as follows:- “13. This judgement appears to have settled all the matters about which there was some conflict with regard to the interpretation of the judgement of the Full Bench in Chuhniya Devi vs. Jindu Ram’s case (supra). One factor which has to be kept in mind and should not be lost sight to while considering the import of the judgement of the Full Bench is that the question before the Full Bench was whether the Civil Court had jurisdiction in respect of an order conferring proprietary rights under Section 104 of the H.P.Tenancy and Land Reforms Act, 1972 which had not been assailed under the provisions of the said Act. The Full Bench in para 39 again made it clear that a dispute may arise where the person cultivating the 3 land of a land owner is a tenant or not, when proceedings were in progress under Chapter-X the Full Bench was dealing with the impact of the bar to the jurisdiction of the Civil Court under Sections 112 and 115 of the H.P.Tenancy and Land Reforms Act both of which occur in Chapter X and it is in this context that the observations made in para 40 have to be read. Again in para 44 (quoted above) the Full Bench has clearly held that the exclusion of the jurisdiction of the Civil Court in the matter of determining the question whether a person cultivating the land of the land owner is a tenant or not for the purposes of Chapter X is both reasonable and understandable. It is thus clear that the question before the Full Bench and its answer and the various observations were confirmed to disputes pertaining to the relationship of landlord and tenant arising out of and during the course of proceedings of conferment of proprietary rights on the tenant under Chapter X of the H.P. Tenancy and Land Reforms Act. The observations made in Chapter 45 have to be read in this context only. 14. This has been amply clarified by the Division Bench in Shankar’s (supra) wherein after analyzing the entire law and the judgment in Chuhniya Devi’s case (supra) the Division Bench held that if a dispute pertaining to the relationship of landlord and tenant arises during the proceedings of conferment of proprietary rights upon 4 the tenant and the resumption of land by the land owner and the order in respect thereof has been passed by the authorities under the Act the Civil Court will have no jurisdiction except in a case where it is found that the competent authority has acted either in violation of the Rules of Natural Justice or contrary to the provisions of law laid down in the Act or the Rules. If the dispute regarding the relationship of landlord and tenant has no connection with the proceedings under Chapter-X of H.P. Tenancy and Land Reforms Act the Civil Court would have jurisdiction to hear and decide this dispute. 15. I am not only bound, but am in respectful agreement with the observations of the Division Bench in Shankar’s case quoted hereinabove. The bar to the jurisdiction of the Civil Court under Section 112 of the Tenancy and Land Reforms Act will only apply when the validity of proceedings or order made under Chapter-X are called in question in any Civil Court. Similarly under Section 115 of the said Act the order in appeal or revision passed by the Collector, Commission or Financial Commissioner can also not be challenged before the Civil Court unless the same is in violation of the principles of Natural Justice or is contrary to the provisions of the Rules or the Act. The foundation for this must be laid in the plaint. It is the averments made in the plaint which will show whether the Civil Court has or 5 does not have jurisdiction to entertain the suit.” 4. This Court in no uncertain terms held that the jurisdiction of the Civil Court would only be barred if challenge was laid to an order passed under the H.P.Tenancy and Land Reforms Act conferring tenancy rights upon the tenant. It was further held that even such an order could be challenged if it was challenged on the ground that the authority passing such an order had no jurisdiction to pass such an order or that the order has been passed in violation of the rules of natural justice. 5. Admittedly, in the present case, the order on the basis of which mutation was sanctioned was passed by the Assistant Collector 2nd Grade. This order led to the mutation being sanctioned. This Court in Tara Chand vs. State of Himachal Pradesh and others, Latest HLJ 2007(HP) 122 considered the question whether an Assistant Collector 2nd Grade was competent to pass such an order. This Court held that it is only the 6 Assistant Collector 1st Grade who could confer proprietary rights under Section 104 of the H.P.Tenancy and Land Reforms Act and the Assistant Collector 2nd Grade had no jurisdiction to pass such an order. 6. Shri Peeyush Verma, learned counsel for the respondents states that this Court in Tajdin’s case has laid down that the averments should be made in the plaint as to whether the Court has jurisdiction to decide the suit or not. He submits that no such averment has been made in the plaint. To some extent the argument of Shri Peeyush Verma is correct because the plaint out of which the present appeal arises basically challenge was only laid to the mutation No.4647 dated 5.5.1983 and the grounds alleged are that it is made on the basis of wrong, false and illegal entries of possession in the name of the tenants. 7. The defendants filed written statement and relied upon the order of the Collector 2nd Grade as well as the order of the Appellate 7 Authority. In the replication it was clearly stated that the alleged order of the Collector is wrong and without jurisdiction. This replication is a part of the pleadings and since the defence with regard to the Collector’s order was taken in the written statement and in the replication it was clearly stated that the order of the Collector is without jurisdiction this question had to be decided by the Court before coming to the finding as to whether the Civil Court had the jurisdiction or not. In view of the law laid down in Tara Chand’s case supra there can be no manner of doubt that the Assistant Collector 2nd Grade had no jurisdiction. Therefore, his order is without jurisdiction. The question as to whether the defendants were tenants or not was a question which the Civil Court had jurisdiction to decide. 8. In view of the above discussion, the order of the learned lower Appellate Court directing return of the plaint is set-aside and the matter is remitted to the learned Appellate 8 Court to decide the case on merits. The parties through their counsel are directed to appear before the learned District Judge, Una on 7th December, 2010. The Registry is directed to ensure that the record of the case is returned so as to reach the District Judge well before the said date. No costs. 1st November, 2010 ( Deepak Gupta ) ™ Judge.