IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 405 of 1995 Date of Decision: 19.5.2008 Giano Devi(dead) LRs Ranjit Singh & ors. …Appellants Versus. Munshi Ram & anr. .. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? For the Appellant(s): Mr. Bimal Gupta, Advocate. For the Respondent(s): Mr. B.N.Sharma, Advocate. Deepak Gupta, J. (Oral). This appeal has been admitted on the following substantial question of law:- “ Whether the law laid down in Full Bench Judgment of this Court in Chuniya Devi v. Jindu, 1991(1) Sim. LC 223 is applicable in the facts and circumstances proved on record, more specifically, in the absence of any evidence in respect of mutation of conferment of proprietary rights on the respondents- defendants and the Civil Court has no jurisdiction to try the suit of the appellants- plaintiffs?” - 2 - The admitted facts are that Ganga Ram plaintiff, Munshi Ram defendant No.1 and Harnam Singh defendant No.2 are real brothers and sons of Jaishi Ram. Ganga Ram predecessor-in-interest of the present appellants filed a suit claiming that he and Harnam Singh are the joint owners of the suit land and that the entries showing Munshi Ram as tenant in possession of the land are wrong and result of fraud which had been committed by defendant No.1. I am not giving the detailed facts of the case since the only question to be decided in this case is whether the Civill court has no jurisdiction to hear the matter. This suit was contested by the defendant stating therein that defendant No.1 had been inducted as a tenant by the plaintiff and defendant No.2 and had automatically acquired proprietary rights in terms of the H.P. Tenancy and Land Reforms Act. It is further the case of defendant No.1 that the land in question came under consolidation and during consolidation proceedings entries were made in the revenue record showing the defendant No.1 to be in possession as tenant and since these entries have not been challenged no civil suit can lie. - 3 - It appears that the land was purchased by Ganga Ram and Harnam Singh in the year 1965. On 14.12.1973 their brother Munshi Ram filed an application before the Tehsildar, Hamirpur to the effect that Ganga Ram had inducted Munshi Ram as a tenant in his share of the land. The Tehsildar, Hamrpur in exercise of his powers as Assistant Collector on 13.2.1974 ordered that the share of land under the ownership of Ganga Ram respondent and Haram Singh be recorded under the Tenancy of the applicant Munshi Ram. Thereafter the land came under consolidation and during consolidation proceedings, Ganga Ram moved an application that this entry be corrected. The Consolidation Officer, allowed correction of the entry. Munshi Ram filed a revision petition and the Director, Consolidation of Holdings, held that since the order of the Tehsildar, Hamirpur dated 13.2.1974 had attained finality, the authority under the consolidation Act had no right to change the same. Ganga Ram thereafter filed the present suit. The suit of the appellant-plaintiff was decreed in his favour by the learned trial Court. The learned lower appellate court relying upon the judgment of Chuhniya Devi v. Jindu - 4 - Ram, 1991 (1) Sim. L.C. 223, came to the conclusion that the Civil Court had no jurisdiction to file the suit. This Court has considered in detail the question as to in which cases the jurisdiction of the Civil Court is barred under the provisions of Section 104 of the H.P. Tenancy and Land Reforms Act in terms of Chuhniya Devi’s case. This Court after considering the judgment of Chuhniya Devi as well as judgment of a Division Bench of this Court in Shankar v. Smt. Rukmani and others 2003 (1) Sim. LC 300, held as follows:- A Division Bench of this Court in Shankar vs. Smt.Rukmani and others, 2003 (1) Shim.L.C. 300, considered the question with regard to the interpretation of the judgment of the Full Bench and held as follows: “9.After analyzing the judgment in Chuhniya Devi vs.Jindu Ram’s case (supra), we have no doubt that the jurisdiction of the Civil Court is barred under the Act if the dispute pertaining to the relationship of landlord and tenant arises during the proceedings of conferment of proprietary rights upon the tenant and resumption of land by the land owner and the order in respect thereof has been passed by the authorities under the Act 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. But if the dispute of landlord and tenant arises independent of the proceedings under the Act, the Civil Court has the jurisdiction.”(emphasis supplied) This judgment appears to have settled all the matters about which there was some conflict with regard to the interpretation of the judgment 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 of while considering the import of the judgment 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 - 5 - 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 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 observation 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 confined to disputes pertaining to the relationship of landlord and tenant arising out of and during the course of proceedings of conferment of proprietary rights of 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. This has been amply clarified by the Division Bench in Shankar’s case (supra) wherein after analyzing the entire law of 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 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. I am not only bound but am in respectful agreement with the observations of the Division Bench in Shankar’s case quoted - 6 - hereinbefore. 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 does not have jurisdiction to entertain the suit. It is thus clear that the bar to the jurisdiction of the H.P. Tenancy and Land Reforms Act will only apply when the validity and proceedings under Chapter X of the said Act is called in question. In this case, there is no order under Chapter X of the H.P. Tenancy and Land Reforms Act which is under challenge. Therefore, the Civil Court had jurisdiction to hear the matter. The learned lower appellate court has set aside the judgment and decree of the learned trial Court on the ground that the confirmation of proprietary rights upon the contesting defendant has become final and conclusive. She held that since the confirmation of proprietary rights have become final, the order dated 23.2.1974 had become meaningless and irrelevant for the purpose of deciding the issue. There is an inherent fallacy in the reasoning given by the learned lower appellate - 7 - court. The order correcting the revenue entries was passed first. If such an order is found to be illegal and incorrect and not in accordance with the prescribed procedure and the rules of natural justice, the same can be challenged in a Civil Court. No doubt, under the H.P. Tenancy and Land Reforms Act, the confirmation of proprietary rights is automatic but in case the owner of the land challenges the entries in favour of a person alleged to be a tenant and does not challenge any order passed under Chapter X of the HP Tenancy and Land Reforms Act, the Civil Court would have jurisdiction. In this case, the order dated 23.2.1974 was also challenged on the ground that it had been passed without issuance of notice to the owner. In Chuhniya Devi’s case itself, it was recognized that even an order passed under Chapter X of the Act could be challenged on the ground that the statutory authorities under the Act had not acted in conformity with the fundamental principles of judicial procedure or under the provisions of the Act had not been complied with. Even though the order dated 23.2.1974 is not an order under Chapter X, the allegation is that it was passed in violation of the prescribed procedure - 8 - and also the principles of natural justice and, therefore, this question is to be decided first. Keeping in view the above discussion, I am of the considered view that the order of the learned lower appellate court is incorrect and is liable to be set aside. The same is accordingly set aside and the case is remanded to the learned lower appellate court who shall restore the appeal to its original number and decide the same afresh. Parties through their counsel are directed to appear before the learned lower appellate court on August 4, 2008. The learned lower appellate court shall make an endeavour to decide the appeal as early as possible and not later than 31st of December, 2008. Registry is directed to send the records of this case to the learned lower appellate court so as to reach there well before the date fixed. No costs. May 19, 2008 ( Deepak Gupta), J. s. - 9 -