IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.417 of 1998 Date of decision : May 24, 2010 Smt. Gulabi Devi (Dead) Through LRs and others …Appellants. Versus Bhagi Rath and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. K.D. Sood, with Mr. Sanjeev Sood, Advocate. For the Respondents : Mr. Ankush Dass Sood & Ms Shweta Julka, Advocates. Surjit Singh, J (Oral) This Regular Second Appeal is directed against the judgment and decree dated 28th August, 1998, whereby accepting the appeal against the judgment and decree dated 14th August, 1986 of learned trial Court, the District Judge has set aside the judgment and decree of the trial Court and dismissed the suit filed by plaintiffs-appellants. 2. Predecessors of the present appellants-plaintiffs and defendants-respondents were joint owners of the suit land. Defendants were recorded in possession of the entire suit land, partly on account of their being co-sharers and partly on account of their being tenants under the other co- sharers. These entries were made in the Jamabandi for the year 1929-30, for the first time, and continued. After the Whether reporters of the local papers may be allowed to see the judgment? …2… coming into force of the H.P. Tenancy and Land Reforms Act, mutation of conferment of proprietary rights was attested in favour of the defendants, without issuing a notice to the plaintiffs. Plaintiffs allege that they came to know about the entries, showing the defendants as owners of the suit land as also the mutation regarding conferment of proprietary rights, only when the defendants started claiming that they had the right to cultivate the suit land and to mow the grass growing on uncultivated part of the land. They then filed an application for correction of entries before the Assistant Collector, under the provisions of Land Revenue Act. That application was dismissed, vide order dated 23rd August, 1984, copy Ex. P-1. Plaintiffs then filed a suit, seeking declaration that they were owners in possession of the suit land, to the extent of their share and also prayed for issuance of permanent prohibitory injunction. In the alternative, they prayed for passing a decree of joint possession in their favour. 3. Defendants contested the suit. They pleaded that they had been cultivating the share of the plaintiffs and other co-sharers, as tenants, for the last more than 50-60 years and had been sharing the produce of the land, by way of rent, with the plaintiffs and other co-sharers. 4. Trial Court framed various issues based on the pleadings of the parties. It came to the conclusion that defendants-respondents were earlier in occupation of the …3… suit land as tenants qua the shares of the plaintiffs and that with the coming into force of H.P. Tenancy and Land Reforms Act they had become the owners of plaintiffs’ share. Consequently, the suit was decreed. 5. Appeal was filed against the judgment and decree of the trial Court. Learned District Judge vide judgment dated 30th November, 1991 held that the Civil Court did not have the jurisdiction in the matter and trial Court was directed to return the plaint to the plaintiffs. 6. Regular Second Appeal was filed in this Court, challenging the aforesaid judgment dated 30th November, 1991 of the learned District Judge. This Court set aside the judgment of the learned District Judge, on the ground that the District Judge had not examined the matter to see whether ratio of Chuhniya Devi versus Jindu Ram, 1991(1) SLC 223 was applicable to the facts of the case and simply held that Civil Court’s jurisdiction was barred, in view of the aforesaid judgment rendered by a Full Bench. Consequently, the matter was remanded to the District Judge and he was directed to decide the same afresh. 7. Learned District Judge, vide impugned judgment, held that the order of conferment of proprietary rights having been passed, without issuing notice to the plaintiffs-appellants, was bad, because of non-observance of principles of natural justice and after giving this finding, learned District Judge analyzed the evidence and concluded …4… that entries showing the defendants-respondents, as tenants, were correct. Consequently, the suit was dismissed. 8. The present appeal was admitted on the following substantial questions of law: “1. Whether in view of the admitted position that the parties were co-sharers and joint owners of the land, as is evident from the jamabandi entries from 1910 onwards Ex. P-2 and the fact that no order showing the reason for change of entry and non- payment of rent, raise a presumption that the defendants were not tenant and the plaintiffs were entitled to the relief claimed? 2. Whether the subsequent entries were conventional and did raise presumption of truth which in any event stood rebutted and the court below has mis-construed Ex. P-3 (D-6), P-4(D-5), P-7 (D-3) and P-3 (D- 6) and the inference of tenancy drawn is not sustainable and the judgment of the District Judge is liable to be set aside?” 9. I have heard the learned counsel for the parties and gone through the record. 10. Even though issue of jurisdiction had not been raised, specifically, by the defendants-respondents, in the written statement, but the issue of jurisdiction being one between the plaintiff and the Court, it can always be looked into, because a forum dealing with an issue, question or a matter, with respect to which it does not have the jurisdiction, its verdict is nonest. 11. In my considered view, when the District Judge came to the conclusion that the order of conferment of …5… proprietary rights was bad, on account of non-observance of principles of natural justice, because of the plaintiffs- appellants having not been issued a notice of the mutation of conferment of proprietary rights, he himself should not have proceeded to decide the question whether the entries in the revenue papers, reflecting the defendants- respondents as tenants were correct or not. This aspect of the matter was required to be adjudicated, not by a Civil Court but by the Land Reforms Officer, in his capacity as Assistant Collector of the First Grade, in view of the provision of Rule 29 of the H.P. Tenancy and Land Reforms Rules, read with Section 104(4) of the Land Reforms Act. 12. When a Civil Court sets aside an order of a Tribunal or an Authority vested with the jurisdiction of passing such an order, on the ground that such Tribunal/ Authority did not observe principles of natural justice or some other provisions of the law, vesting the power of adjudication in it, that does not, by itself, vest the Civil Court with the jurisdiction to decide such a question. The right course, in such a situation, should be to direct the Tribunal or Authority, vested with such jurisdiction, to decide the matter according to law. The reason is that when the Legislature, in its wisdom, provides for a special forum for determination of certain question, it thinks such forum to be better equipped to decide that question than the Civil Courts. Providing of a special forum presupposes …6… that such forum has better mechanism to resolve the kind of questions provided for to be determined/adjudicated upon by it. 13. In view of the abovestated position, appeal is accepted, judgment and decree of the first Appellate Court dated 28th August, 1998 as also the judgment and decree of the trial Court are set aside and a decree to the following effect is passed: The Land Reforms Officer, who sanctioned mutation order dated 17th October, 1977, copy Ex. P-9, shall decide the matter afresh, after affording an opportunity of being heard to both the parties and in case the plaintiffs-appellants (joint land owners) appear before him and raise a dispute regarding tenancy, he shall determine such a question, while acting as Assistant Collector 1st Grade, in accordance with the provision of Rule 29 of the H.P. Tenancy and Land Reforms Rules, read with Section 104(4) of the Land Reforms Act, before passing any order on mutation entry. Appeal stands disposed of. May 24, 2010(sd) ( Surjit Singh ), J