IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 102 of 1998 Reserved on: 03.12.2008 Date of decision: 23.12.2008 Pirthi & another ... Appellants Versus Rattan Singh … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellants: Mr. Ajay Sharma, Advocate. For the respondent: Mr. H.K. Bhardwaj, Advocate. V.K. Ahuja, J.: This is a Regular Second Appeal under Section 100 C.P.C. filed by the appellants/defendants against the judgment and decree passed by the learned District Judge, Una, dated 2.2.1998, vide which the judgment and decree dated 5.12.1994 passed by the learned Sub Judge, Una, dismissing the suit of the plaintiff for declaration and permanent injunction was set aside by the learned first Appellate Court. Briefly stated, the facts of the case are that the respondent/plaintiff filed a suit for declaration and permanent injunction alleging that the land in suit measuring 21 Kanals 3 Marlas comprised in Khasra Nos. 306, 492, 514, 555, 854 and 1529, situate in village Badhari, was jointly owned and possessed by the plaintiff to the extent 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 of ½ share and the defendants No. 1 and 2 to the extent of ½ share. It was alleged that mutation No. 1532 regarding conferment of proprietary rights under Section 104 of the H.P. Tenancy and Land Reforms Act in the name of defendant No.1 alone is wrong and illegal and has no effect on the rights of the plaintiff. It was alleged that the land in suit was earlier in possession of Rura and Babu, predecessor- in-interests of the parties as tenant on payment of rent. The plaintiff claimed that he has succeeded to the estate of Babu, whereas the defendants alleged that the plaintiff was not son of Babu and accordingly, the mutation was sanctioned in favour of defendant No. 1 only. The plaintiff filed a suit for declaration and permanent injunction challenging the said order conferring proprietary rights upon defendant No.1 alone only. The suit was tried by the learned trial Court which concluded that the plaintiff had failed to prove that he was son of Babu and, therefore, had no right, title or interest in the estate left by the deceased Babu. However, since defendant No.1 was son of Rura and the estate involved was of his father Rura’s share and his brother Bablu and, therefore, the mutation was sanctioned in favour of defendant No. 1 only and the suit of the plaintiff was accordingly dismissed. On appeal, those findings were reversed by the learned first Appellate Court holding that the plaintiff was the son of Babu and accordingly, the findings of the learned trial Court were reversed and the suit for declaration and permanent injunction was decreed in favour of the plaintiff/respondent. Being aggrieved, the appellants/defendants have come up in appeal before this Court. 3 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 appellants/defendants were that on the same evidence, the learned trial Court had dismissed the suit of the plaintiff holding that he has failed to prove that he was son of Babu, deceased. On reappraisal of the evidence by the learned first Appellate Court on the basis of the same evidence, it was held that the plaintiff was the son of Babu and as such, he was also entitled to be conferred proprietary rights alongwith defendant No.1. Thus, it was submitted that the learned first Appellate Court had wrongly come to a conclusion holding that the plaintiff was son of deceased Babu and as such, the findings to the contrary are liable to be set aside. It was also submitted that the Civil Court had no jurisdiction to go into the question of conferment proprietary rights upon defendant No. 1 alone. On the other hand, the learned counsel for the respondent submitted that the Assistant Collector, 2nd Grade, was not competent to confer the proprietary rights upon defendant No.1 under Section 104 of the H.P. Tenancy and Land Reforms Act and, therefore, the said order conferring proprietary rights upon defendant No.1 alone was liable to be set aside. I am not inclined to refer to the evidence led on the question as to whether the plaintiff was or not the son of deceased Babu for the reasons given below since the plaint is being returned to the plaintiff for presentation again. My attention has been drawn to the Full Bench decision of this Court in Chuhniya Devi Vs. Jindu Ram, 1991(1) Sim. L.C. 223. The provisions of the H.P. Tenancy and Land Reforms Act, 1972, were 4 considered by the Full Bench of this Court in detail as well as in regard to the jurisdiction of the Civil Court to look into the question of conferment of proprietary rights. The following observations were made by the Full Bench in Para-64, which are being reproduced 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.” From a perusal of the facts of the case, it is clear that no order passed by a Revenue Officer in regard to the change of the entry in the revenue record is being challenged before the Civil Court. In Clause(a), it was specifically mentioned 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. Section 37 of the H.P. Land Revenue Act, 1954 reads as under:- “37. Determination of disputes. – (1) If during the making, revision or reparation of any record or in the course of any enquiry under this Chapter a dispute arises as to any matter of which an entry is to be made in a record or in a register of mutations, a Revenue 5 Officer may of his own motion or on the application of any party interested, but subject to the provisions of the next following section, and after such inquiry as he thinks fit, determine the entry to be made as to that matter. (2) 19 of 1970. – If in any such dispute the Revenue Officer is unable to satisfy himself as to which of the parties thereto is in possession of any property to which the dispute relates, he shall ascertain through the Gram Panchayat constituted under [the Himachal Pradesh Panchayati Raj Act, 1968] or any other agency so prescribed by the Financial Commissioner or by summary inquiry who is the person best entitled to the property, and shall by order direct that that person be put in possession thereof, and that an entry in accordance with that order be made in the record or register. (3) A direction of a Revenue Officer under sub- section(2) shall be subject to any decree or order which may be subsequently passed by any Court of competent jurisdiction.” Section 46 of the H.P. Land Revenue Act reads s under: “46. Suit for declaratory decree by persons aggrieved by an entry in a record. – If any person considers himself aggrieved as to any right of which he is in possession by an entry in a record of rights or in [a periodical] record, he may institute a suit for a declaration of his right under [Chapter VI of the Specific Relief Act, 1963]. It is clear that no such order has been passed by any Revenue Officer at the time of revision or preparation of any record and the direction of a Revenue Officer given in sub-section(2) of Section 37 shall be subject to decree or order which may be subsequently passed by a Court of competent jurisdiction. Under Section 46 of the Act, in case a person is aggrieved from any right of which he is in possession 6 by an entry in a record of rights, he may institute a suit for declaration of his right. In the present case, there was no such entry as against the plaintiff or any order passed by the Revenue Officer at the time of correction. Therefore, the observations made in (a) in Chuhniya Devi’s case (supra), were not applicable to the facts of the case. However, the Civil Court had the jurisdiction to look into the question of conferment of proprietary rights in case it was 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 and not otherwise. Thus, it is clear that ordinarily the Civil Court has no jurisdiction to consider any question connected with the conferment of proprietary rights and the jurisdiction of the Civil Court was there in case the statutory authorities had not acted in conformity with the fundamental principles of judicial procedure or where the provisions of the Act had not been complied with. A perusal of the plaint filed by the plaintiff shows that he never alleged that the statutory authorities had not acted in conformity with the fundamental principles of judicial procedure or the provisions of the Act had not been complied with. The allegations made by the plaintiff in the plaint were general in nature that the order passed by the sanctioning authority was illegal against facts, without jurisdiction and was void. It was no where alleged at any time that the order was passed by the A.C. 2nd Grade or the A.C. 1st Grade or that the A.C. 2nd Grade who passed the order was not competent to pass the said order. A finding could have been given by the learned trial Court and 7 the first Appellate Court once there were allegations made in the plaint. There was no issue framed in this regard and no finding given by the Courts below. It is for the first time before this Court that this plea has been specifically raised during the course of arguments by the learned counsel for the respondent but there are no assertions made in the plaint filed by the plaintiff/respondent. Moreover, there were no such assertions made that the fundamental principles were not complied with by the Revenue Officer since he did not hold any summary enquiry as was required in the case and did not issue any notice to the plaintiff and, therefore, the said order was being challenged. Once there were no specific allegations in regard to these facts and only on specific allegations made in this regard, the Civil Court had jurisdiction in view of the decision in Chuhniya Devi’s case, I am of the view that the plaint had to be returned to the plaintiff to file the same again making specific allegations in this regard. The decision in Shankar Vs. Smt. Rukmani and others, 2003(1) Shim. L.C. 300, relied upon by the learned counsel for the respondent/plaintiff is not attracted to the present facts since it was held that the jurisdiction of Civil Court is barred under the Act if the dispute pertaining to relationship of landlord and tenant arises during proceedings of conferment of proprietary rights upon the tenant and resumption of land by land owner. In the present case, the dispute is not inter se the land lord and tenant but in between the tenants or their successors-in-interest. The decision in Tajdin Vs. Smt. Milkho Devi and others, Latest HLJ 2005 (HP) 825, relied upon by the learned 8 counsel for the respondent, lays down that 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. In the present case, the challenge is being made to the order passed by the Land Reforms Officer being illegal and void and that challenge can be made only under the circumstances laid down in Chuhniya Devi’s case (supra). The decision in Besru Vs. Shibu, 1999(1) Shim. L.C. 343, relied upon by the learned counsel for the respondent, shows that mutation order s could not have been passed by the A.C. 2nd Grade. That question is being left open and is not being decided since there were no allegations made in the plaint. In view of the above discussion, I accordingly hold that once the challenge was not made to the order passed by the Land Reforms Officer in the manner allowed in Chuhniya Devi’s case, the plaint has to be returned to the plaintiff to file it fresh making a specific challenge. The mere fact that sufficient number of years have passed when the parties were litigating the cases does not lead to the inference that the decision in Chuhniya Devi’s case does not apply to the present facts and as such, the appeal filed by the appellants/defendants is accepted and the file shall go back to the learned trial Court who shall return the plaint to the plaintiff within a period of sixty days from today and the plaintiff shall be at liberty to file 9 the same afresh within one month in view of the decision in Chuhniya Devi’s case. ( V.K. Ahuja ), December 23, 2008 Judge (BSS)