HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA No.: 232 of 1997. With Cross Objections No.: 262 of 1997 Reserved on: 17.9.2009 Decided on: 3.11.2009 Kali Ram Thakur ………Appellant/defendant. Versus Manorma Devi and others ………Respondents/plaintiffs. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the appellant: Mr.Romesh Verma, Advocate. For the respondents: Mr.Ajay Kumar, Advocate. V.K. Ahuja, J.: This judgment shall dispose of the regular second appeal filed by the appellant/defendant under Section 96 of the Code of Civil Procedure read with Section 20 of the Himachal Pradesh Courts Act, 1976, against the judgment and decree passed by the learned District Judge, Shimla, dated 23.6.1997, vide which the suit for declaration and for possession in the alternative, filed by the respondents as plaintiffs was decreed as against the appellant. This judgment shall also dispose of the cross objections filed by the respondent/plaintiffs ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - for the grant of decree for a sum of Rs.90,000/- on account of mesne profit with future mesne profits at the rate of Rs.30,000/- per annum from the date of suit till the date of handing over the possession of the suit property to the respondent/plaintiffs. Briefly stated the facts of the case, as alleged by the plaintiffs, are that the land in suit belonged to Ishwar Dass, now deceased, and the plaintiffs are the legal heirs of the deceased Ishwar Dass. They claimed that the entries in the revenue record showing the defendant as owner in possession are wrong, illegal, void and they filed the suit for possession also as well as for recovery of Rs.90,000/- on account of mesne profits. It was alleged that the said Ishwar Dass purchased the suit land on 28.7.1966 vide registered sale deed for a sum of Rs.3,500/-. The mutation was also attested in favour of said Ishwar Dass on 3.6.1967. The said Ishwar Dass died on 19.5.1981. It was alleged that the property was being looked after by the defendant because of good relations with the previous owner for management of the orchard since the said Ishwar Dass fell ill and could not personally look after the property. It was alleged that the defendant had refused to admit the claim of the plaintiffs and when the plaintiffs went to take the possession, they learnt that mutation had been attested on 23.9.1980 in favour of the defendant conferring proprietary rights upon him which had been attested by the Assistant Collector 2nd Grade, who had - 3 - no jurisdiction to attest the mutation under the provisions of the Act. It was also pleaded that the said Ishwar Dass, who was alive at the time of mutation, was never notified about the mutation and the plaintiffs have also claimed that they are entitled to mesne profits at the rate of Rs.30,000/- per year and accordingly had also filed the suit for recovery of Rs.90,000/- as mesne profits. The defendant admitted that the suit property had been purchased by late Ishwar Dass for a sum of Rs.3,500/- through Sumer Chand, a close friend of Ishwar Dass. It was alleged that the land was entrusted to the defendant by late Ishwar Dass and Sumer Chand as a tenant and defendant raised an orchard. It was denied that the defendant had brotherly relations with Ishwar Dass. It was further pleaded that the defendant moved an application to the Assistant Collector 2nd Grade for correction of the revenue entries, who entered the defendant as a tenant and the defendant was conferred with the proprietary rights under the provisions of the H.P. Tenancy and Land Reforms Act. On the pleadings of the parties, following issues were settled by the learned trial Court: 1. Whether the suit is within limitation? OPP 2. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD 3. Whether the jurisdiction of civil court to entertain this suit is barred? OPD 4. Whether the defendant had been non occupancy tenant of the suit land since 1968, as alleged? OPD - 4 - 5. Whether the defendant has acquired proprietary rights in respect of the suit land under Section 104 of the H.P. Tenancy and Land Reforms Act? OPD 6. Whether the plaintiffs are estopped from filing the present suit by their acts, deeds, conduct and acquiescence, as alleged? OPD 7. Whether the plaintiffs are entitled to possession of the suit land? OPP 8. Whether the plaintiffs are entitled to mesne profits/damages to the tune of Rs.90,000/- or any other amount from the defendant as alleged? OPP 9. Relief. The parties led evidence and the learned trial Court vide its impugned judgment decided issues No.1 to 7 in favour of the plaintiffs and as against the defendant and consequently decreed the suit for declaration and possession. Issue No.8 was decided against the plaintiffs and he was held not entitled to any mesne profits. I have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the appellant were that the suit filed by the respondents was beyond limitation. It was also submitted that there was a dispute in between the landlord and tenant and, therefore, there was no jurisdiction of the civil court. In regard to the order passed by the Assistant Collector 2nd Grade, it was submitted that the conferment of proprietary rights was automatic on passing of the H.P. Tenancy and Land Reforms Act and, therefore, it is - 5 - immaterial if the order was passed by the Assistant Collector 2nd Grade or the Assistant Collector 1st Grade. It was further submitted that since there was a dispute in regard to the question of landlord and tenant, there was no jurisdiction of the civil court. To substantiate his submissions, the learned counsel for the appellant had placed reliance upon the decision in Chuhniya Devi versus Jindu Ram, 1991 (1) Shim.L.C. 223, which decision has also been referred to by the learned trial Court. It was held in that case that the H.P. Tenancy and Land Reforms Act, 1972 is a complete code for effectuating its purpose of land reforms and there can be no determination of any question connected therewith by the civil court. The answer was given by the Full Bench as under: “(a) that an order made by the competent authority under the H.P. Land Revenue Act, 1954, is open to challenge before a civil court to the extent that it relates to matters falling within the ambit of section 37(3) and section 46 of that Act; and (b) the 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, 1972, except in a case where it is found that the statutory authorities envisaged by that Act had not acted in conformity with the fundamental principles of judicial procedure or where the provisions of the Act had not been complied with.” Reliance was also placed by the learned counsel for the appellant upon the decision in Bishan Singh - 6 - versus Swantantar Devi and others, Latest HLJ 2007 (HP) 9, which judgment was passed by this Court, in which it was held that since the dispute between the parties relates to conferment of proprietary rights, the civil court has no jurisdiction, in view of the decision in Chuhniya Devi’s case (supra). Another decision relied upon was in Mehar Chand and others versus Rakesh and others, Latest HLJ 2006 (HP) 1378, wherein the question involved was different since the non-occupancy tenant had executed Will in favour of the petitioner. The courts below passed judgment that since proprietary rights have not been granted, therefore, execution of the will was illegal. It was held by the Hon’ble Chief Justice of this Court in the said case that the conferment of proprietary rights was automatic under Section 104(3) and the mutation attested, thus, based upon this Will, it was held to be legal in all respects. The question raised therein is not directly attracted to the present facts. On the other hand, the submissions made by the learned counsel for the respondents were that no notice was issued to the previous owner. There was nothing in column of rent as to what rent was being paid and the defendant was entered only as Kabaz but cannot be termed as tenant by any stretch of imagination. It was also submitted that the defendant has not disputed the fact that the previous owner was the predecessor-in-interest of the - 7 - plaintiffs, who became owner on the basis of the sale deed effected in his favour. It was also submitted that there was no reliable evidence as to who inducted the defendant as tenant and when, and keeping in view the admissions made by the defendant himself, the findings recorded by the learned trial Court are liable to be affirmed. It was also submitted that the learned trial Court has rightly concluded that the Assistant Collector 2nd Grade was not competent to grant proprietary rights and since the order passed by the Assistant Collector 2nd Grade, if any, without notice to the previous owner was illegal and void and as such was not binding upon the plaintiffs and no proprietary rights could be conferred upon the defendant. To substantiate his submissions, the learned counsel for the respondents had relied upon decision in Ajudh Raj and others versus Moti, AIR 1991 Suprerme Court 1600, wherein it was held that in case the order is passed without jurisdiction, the same can be ignored as nullity i.e. non-existent in the eye of law and it is not necessary to set it aside and such a suit will be covered by Article 65, which provided for limitation of 12 years. It was held that the suit was not barred by shorter periods of limitation, either under Article 100 or Article 113. On appraisal of the judgment passed by the learned trial Court, it is clear that the previous owner i.e. Ishwar Dass had purchased the suit land in the - 8 - year 1967 for a sum of Rs.3500/- and the fact that he had purchased it and had become owner thereof was not denied by the defendant in his written statement. It has also been observed by the learned trial Court that mutation was also sanctioned after the said sale deed in favour of the previous owner. Once the defendant had applied for correction of the entry, it was necessary for him to have proved that the said order was passed legally and according to the principles of natural justice, a notice was required to be issued to the previous owner before any correction was made. However, it is on the record, as observed by the learned trial Court, that no notice was served upon the previous owner and there is nothing to show that any notice was issued to Ishwar Dass at any stage of the proceedings. The said order was passed in favour of the defendant and it was for him to have proved on record that the said order was legal and binding upon the plaintiffs in which he had failed since the learned trial Court had observed that the copy was never placed on the record by the defendant and when the pontiffs sought permission by filing an application, he strongly opposed the said application. Therefore, the court summoned the record and made the observations. Coming to the question that the conferment of the proprietary rights was automatic, it could have been so once there was an entry in the jamabandi in favour of a tenant on the appointed day and the - 9 - defendant has failed to prove that in the jamabandi, entry existed in his favour on the appointed day. The learned trial Court has clearly observed that there was no entry in favour of the defendant in the jamabandi for the year 1975- 76 and, therefore, the correction has been ordered thereafter in the year 1977 by the Assistant Collector, without any notice to the previous owner. It has also been clearly observed by the learned trial Court that the order was passed by the Assistant Collector 2nd Grade and after referring to the provisions of the H.P. Tenancy and Land Reforms Act, it has been rightly concluded that the Assistant Collector 2nd Grade was not competent to pass such an order. I have no reason to disagree with the findings recorded by the learned trial Court in this regard. Coming to the question that the decision in Chuhniya Devi’s case (supra) applies to the facts of the present case or not and as to whether the Civil Court was competent to look into this question, it has been rightly observed from the said decision that the civil Court’s jurisdiction in a suit challenging the conferment of proprietary rights cannot be said to be barred once the principles of natural justice have not been followed by the Revenue Officer while conferring the proprietary rights upon the defendant. The learned trial Court had referred to a decision of this Court in Chuhniya Devi’s case and had observed that civil court will have the jurisdiction if the order is passed in violation of the provisions of the Act. - 10 - I may make a reference to a latest decision of our High Court in Krishan Chand and others versus Jeet Ram and another, Latest HLJ 2009 (HP) 978, wherein similar observations have been made by a learned Single Judge that when the proceedings for conferment of proprietary rights have been conducted by the Assistant Collector 2nd Grade, no power has been given to him and proceedings are void ab initio and no right passed in favour of the alleged tenant. It was clearly held that the civil court has the jurisdiction to adjudicate the matter when the very basis of the tenancy has been challenged. This decision clearly applies to the present facts and since the order of correction and conferment of proprietary rights had been passed by the Assistant Collector 2nd Grade without jurisdiction and without notice to the previous owner, it could be said to be void ab initio and cannot be given effect to. It was for the defendant to have proved that the said order was passed legally or that the Assistant Collector 2nd Grade was competent to pass such order in which he has failed miserably. Coming to the plea of limitation, a perusal of the decision in Ajudh Raj’s case (supra) clearly shows that in case the order is ab initio, the period of limitation prescribed of one year or three years does not apply and the suit can be filed within a period of 12 years by the plaintiffs. Thus, the suit having been filed accordingly and the question having been decided by the - 11 - learned trial Court rightly does not call for an interference by this Court and those findings that the suit was well within limitation are also liable to be affirmed. No other point was urged. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed. However, there are no orders as to costs. Cross Objections No.262 of 1997: The cross objections have been filed by the respondent/plaintiffs against the findings recorded by the learned trial Court, vide which their claim for Rs.90,000/- on account of mesne profits, was rejected by the leaned trial Court. The cross objectors have also claimed Rs.30,000/- per annum as mesne profits from the date of suit till the date of handing over the possession of the suit property. Since no arguments were advanced as to how and on what grounds the cross objections deserve to be allowed, therefore, the same are dismissed accordingly. November 3, 2009. (V.K. Ahuja), (TILAK) Judge.