IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.447 of 1999 Decided on : 9th March, 2009 Ashok Pal Sen and another …Appellants. Versus State of H.P. and another …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the appellant : Mr. Onkar Jairath, Advocate. For the respondents : Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, Judge( Oral ) This appeal by the plaintiff is directed against the judgment and decree dated 7.8.1999 of the first appellate Court, whereby accepting the appeal, the learned appellate Court has set aside the judgment and decree passed by the trial Court in favour of the appellant and dismissed the suit. 2. Facts may be stated thus. Appellant-plaintiff late Rani Kusum Kumari (now represented by legal representatives) filed a suit seeking declaration that she was owner in possession of 3 bighs, 2 biswas, 17 biswansis land, bearing Khasra Nos. 921, 922, 923 and 924, situate in village Jilhan, Illaqua Gumma, Sub Tehsil Padhar, District Mandi, hereinafter referred to as suit land, and that the entries showing the respondents–defendants (State of H.P and District Collector) in possession of the said property, which appeared for the first time in the Misal Hakiata, prepared during the latest settlement, were illegal, wrong and against the factual position prevailing on the Whether reporters of the local papers may be allowed to see the judgment? …2… spot. It was stated that the suit property belonged to late Raja Joginder Sen of Mandi and a mutation was attested in his favour in the year 1952. There existed a structure in the form of a rest house, a kitchen and servant quarters on the suit property, which late Raja Joginder Sen had permitted to be used by the officers of Public Works Department for their stay during their visits to that area. When a portion of the rest house building collapsed, the PWD authorities handed over the possession back to late Raja Joginder Sen. However, in Misal Hakiat, prepared at the time of latest settlement, Public Works Department was shown to be in possession of the suit land, even though the ownership was recorded in the name of late Raja Joginder Sen. Plaintiff Rani Kusum Kumari, now represented by legal representatives, inherited Raja Joginder Sen’s estate, including suit property, on his death. She came to know about the wrong entries in favour of the respondents- defendants some time in the year 1993. She made an application to the concerned Assistant Collector for correction of entries. That was dismissed in the year 1993 itself. Thereafter in the year 1994, the suit out of which this appeal has arisen, was instituted. Learned trial Court decreed the suit, holding that the plaintiff was owner in possession and the entries showing the defendants in possession were wrong and illegal. Learned District Judge accepted the appeal holding that there was no evidence indicating that possession of the suit property had been returned by the respondents-defendants to the plaintiff or her predecessor and also that Civil Court did not have jurisdiction in the matter, in view of bar contained in Section 171 of the H.P. Land Revenue Act. 3. Appeal filed by the plaintiff-appellant was admitted by this Court on the following substantial questions of law: …3… “1. Whether the Civil Court has jurisdiction to try the suit wherein declaration for setting aside the wrong and illegal revenue entries has been prayed for, if so, its effect? 2. Whether the Ld. Lower Appellate Court has misinterpreted the provisions of Section 171 of the HP Land Revenue Act and wrongly attracted the provisions for exclusion of the jurisdiction of Civil Court. 3. Whether the Ld. Lower Appellate Court has wrongly made the provision of Sections 61, 62, 63, 64 and 65 of the Evidence Act attracted in the present lis, in view of the fact that the document havae been proved in accordance with law?” 4. I have heard the learned counsel for the parties and gone through the record. 5. Substantial questions of law No. 1 and 2, reproduced hereinabove, are interlinked. It is on a reading and interpretation of the provision of Section 171 of H.P. Land Revenue Act that the learned first Appellate Court has returned the finding that Civil Court does not have the jurisdiction in the matter. The relevant portion of Section 171(2) of the said Act, relied upon by the first appellate Court, reads that Civil Court shall not exercise any jurisdiction over correction of any entry in the record-of-rights, periodical record or register of mutations. Learned first appellate Court missed to notice another provision of the Land Revenue Act, i.e. Section 46, which confers a right upon any person, who considers himself aggrieved as to any right of which he is in possession, by an entry in record of rights or periodical record to institute a suit in Civil Court to establish such a right. Section 46 has been interpreted to mean, in a number of cases, that where a person is in possession of any right, in respect of revenue paying land and there …4… appears an adverse entry in the record of rights or periodical record affecting such right, he can file a suit for declaration of such right and in the event of his succeeding, revenue officials are under obligation to correct the entries in accordance with a decree. 6. A reading of the plaint suggests that the suit filed by the appellant was in substance a suit for declaration of her right in the suit property, in terms of Section 46 of H.P. Land Revenue Act and so it could not have been said to be barred under Section 171 of the said Act. Consequently, the finding of the learned first Appellate Court that Civil Court does not have the jurisdiction in the matter is set aside. 7. As regards third substantial question of law, I am of the view that the same need not be determined by this Court, because the finding by the first appellate Court with respect to the admissibility of secondary evidence could not have been their once the said Court had given the finding that Civil Court had no jurisdiction in the matter. If Civil Court’s jurisdiction was not there, as held by the first appellate Court, it did not have the jurisdiction to comment upon admissibility of the documents. The matter requires fresh scrutiny and also I am of the view that before straightaway rejecting the secondary evidence, with the observation that no application, under Section 65 of the Evidence Act had been made, seeking permission of the Court to lead secondary evidence, an opportunity ought to have been afforded to the plaintiff- appellant to make such a prayer. 8. In view of the above findings and discussion, appeal is accepted, judgment and decree of the first appellate Court is set aside and the case is remanded to the first appellate Court to decide the same afresh, in view of the aforesaid findings and observations. This direction for decision of the case afresh, in accordance with the observations made hereinabove, will not affect the rights of the parties …5… to approach the first appellant Court for framing additional issues, if any, amendment of pleadings, making an application for permission to lead secondary evidence or to lead additional evidence etc. Parties are directed to appear in the first appellate Court on 17.4.2009. Registry is directed to ensure that the record of the case, with a copy of this judgment, reaches the first appellate Court before the aforesaid date. March 9, 2009 (ss) ( Surjit Singh ), J