IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 205 of 1996. Judgement reserved on: 9.3.2009 Date of decision: 13.3.2009. Joginder Singh ….. Appellant. Vs. Smt. Dropti Devi & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Baldev Singh, Advocate. For the Respondents : Mr. N.K. Thakur, Advocate, for respondents No. 1 (b) and 1(c). Kuldip Singh, Judge. This appeal has been directed against the judgement dated 21.3.1996 passed by learned Additional District Judge, Kangra at Dharamshala camp at Una in Civil Appeal No. 79/91 setting-aside the judgement, decree dated 2.8.1991 passed by learned Sub Judge Ist Class (I), Una with a direction to return the plaint to be presented in proper court having jurisdiction to decide the case. 2. The facts, in brief, are that appellant had filed a suit for declaration to the effect that he alongwith proforma respondent No.2 are owners in possession of the land measuring 7 Kanals 8 Marlas, khewat No. 103 min, khatauni No. 243, khasra Nos. 192, 918, 1056, Whether the reporters of the local papers may be allowed to see the Judgment? …2… 1057, 1799 vide jamabandi 1983-84, situate at village Kotla - Kalan, Tehsil and District Una. The entries of possession as tenant in revenue record in the name of Bhajna are illegal and against the rights of the appellant, consequential relief of permanent injunction was also prayed against Bhajna from interfering in the possession of appellant and respondent No. 2. In the alternative, a decree of possession of the suit land was prayed. 3. The further case of the appellant is that suit land is owned and possessed by appellant and proforma respondent No. 2. The suit land was earlier in possession of Budhu as tenant, who died issueless about twenty years ago and since then the appellant and proforma respondent No. 2 had been coming in actual physical possession of the suit land. Bhajna had no right, title or interest in the suit land. He was never inducted as tenant by the appellant nor he was admitted to be a tenant. The revenue entries showing Bhajna as tenant under appellant and proforma respondent No. 2 are wrong and illegal. 4. Bhajna contested the suit by filing a written statement. He has submitted that land under reference alongwith other land is now owned and possessed by him. The appellant and proforma respondent No. 2 have no right or interest in the suit land nor they are in possession of the same. Budhu was in possession of khasra No. 192 measuring 2 Kanals 10 Marlas, as occupancy tenant prior to Punjab Occupancy Tenant (Vesting of Proprietary Rights) Act, 1953. Khasra Nos. 918, 1056, 1057, 1799 prior to consolidation were in possession of said Budhu as non-occupancy tenant on payment of …3… rent. Budhu became owner of khasra No. 82/1 after coming into force Punjab Occupancy Tenant (Vesting of Proprietary Rights ), Act and continued in possession as non-occupancy tenant of the remaining land. Budhu adopted Bhajna as his own son vide registered adoption deed dated 30.1.1953 and mutation No. 1652 was attested. Budhu had also executed a gift deed dated 15.5.1959 regarding other property in favour of Bhajna and mutation No. 1543 was sanctioned in favour of Bhajna. On the death of Budhu in the year 1965, Bhajna succeeded to his entire tenancy as male lineal descendant and land comprised in khasra No. 82/1 (khasra No. 192 new) as adopted son. Bhajna had become owner in possession of land comprised in khasra No. 918, 1056, 1057 and 1799 by conferment of proprietary rights under the H.P. Tenancy and Land Reforms Act. Bhajna prayed for dismissal of the suit. The appellant filed replication and reiterated his stand which was taken in the plaint. The following issues were framed from the pleadings of the parties. 1. Whether the plaintiff and defendant No. 2, are owners in possession of the suit land as alleged? OPP. 2. Whether the plaintiff has no locus-standi to file the suit? OPD 3. Whether defendant No. 1 is the adopted son of Budhu and he is entitled to succeed to the tenancy right of Budhu in respect of suit land as alleged? OPD. …4… 4. Whether the defendant No. 1 has become owner by adverse possession of khasra No. 82/1, as alleged? OPD. 5. Whether the plaintiff has no cause of action? OPD. 6. Relief. Issues No. 1, 2, 3 and 5 were answered in negative and issue No. 3 in affirmative. In view of findings on issue No. 1, the trial court has held that issue No. 4 has become infructuous. The suit was dismissed on 2.8.1991. In appeal the learned lower appellate court has held that civil court has no jurisdiction to try the case, hence the judgement and decree dated 2.8.1991 passed by learned Sub Judge Ist Class, Una were set-aside and plaint was ordered to be returned for presentation in a proper court having jurisdiction to try the case, hence this appeal, which has been admitted on the following substantial questions of law:- 1. Whether the principles of Chuniya Devi vs. Jindu’s case are applicable in the present case or not? 2. Whether the Civil Court’s jurisdiction was ousted wrongly? 3. Whether by way of gift deed tenancy rights can be given to the donee? 4. Whether oral and documentary evidence was misread and misinterpreted? 5. I have heard Mr. Baldev Singh, learned counsel for the appellant and Mr. N.K.Thakur, learned counsel for respondents No. 1(b) and (c) and have gone through the record. It has been submitted …5… on behalf of the appellant that learned lower appellate court has erred in returning the findings that civil court has no jurisdiction to try the suit, the order of returning of plaint is wrong. The jurisdiction to try the suit is to be seen on the basis of averments made in the plaint and not on the basis of defence set up in the written statement. The appellant in the plaint has nowhere admitted Bhajna as tenant under him on the suit land. Chuhniya Devi vs. Jindu Ram 1991(2) SLJ 1082, has been wrongly applied by the leanred lower appellate court. The learned counsel for respondents No. 1(b) and (c) has submitted that Budhu had been continuously shown in possession of khasra No. 192 (new) as occupancy tenant and on the remaining suit land as non-occupancy tenant paying rent. Budhu died in the year 1965, he became owner of the land comprised in khasra No. 82/1 (192 new) under the Punjab Occupancy Tenant (Vesting of Proprietary Rights), Act, 1952. After the death of Budhu, he was succeeded by Bhajna being adopted son, who continued in possession of the ownership and tenancy land of Budhu. The possession of Bhajna on non- occupancy land had ripened into ownership under the H.P. Tenancy and Land Reforms Act, 1972. The learned counsel for the respondents No. 1(b) and (c) has submitted that trial court has recorded a finding that mutation of ownership has already been attested in favour of Bhajna. In brief, it has been submitted that learned lower appellate court has committed no wrong in holding that civil court has no jurisdiction to try the suit. The learned counsel for respondents No. 1 (b) and (c) has supported the impugned judgement and decree. …6… 6. Before proceeding further, it is necessary to point out some developments which took place after the filing of second appeal. In the appeal, Bhajna was impleaded as respondent No. 1 and Sansar Chand as proforma respondent. Bhajna died and his legal representatives were ordered to be brought on record vide order dated 3.6.1999 to the following effect:- 1. (a) Smt. Daropati Devi (mother | (b) Smt. Satya Devi (widow) | (c ) Sh. Rakesh Kumar (son) | of Late Shri (d) Smt. Darshana Devi (daughter) | Bhajna son of (e) Smt. Soma Devi (daughter) | Babu. In the meantime, respondent 1(a) Smt. Daropati Devi had also died. On 27.8.2008 this court granted six weeks time to the appellant to take steps for service of respondents 1(a), 1 (d) and 1(e) on payment of costs and stop order was passed. It was clarified that in case steps were not taken and cost is not paid, the appeal shall abate with respect to these respondents. As per report of the Registry, no steps have been taken in terms of order dated 27.8.2008. Therefore, the appeal against respondents No. 1 (a), 1 (d) and 1(e) stands abated in terms of order dated 27.8.2008. Substantial questions of law No. 1, 2, 3 and 4. 7. The substantial questions of law No. 1, 2, 3 and 4 are taken up together. The learned lower appellate court has held that civil court has no jurisdiction to try the suit and in taking this view learned Addl. District Judge has taken help from Chuhniya Devi’s case. In Chuhniya Devi’s, one of the points for consideration before the Full Bench was to the following effect:- …7… “ (b) Whether the civil court has jurisdiction, in respect of an order, of conferment of proprietary rights under section 104 of the H.P. Tenancy and Land Reforms Act, 1972 “ In paragraph 64 of the judgement, the Full Bench has answered the point as follows:- “(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.” 8. It is settled law that jurisdiction of the civil court is to be seen on the basis of averments made in the plaint and not on the basis of defence set up in the case. In the present case, the appellant has nowhere pleaded that Bhajna was the tenant on the suit land under him nor he has challenged any order conferring the proprietary rights in favour of Bhajna of the suit land under the H.P. Tenancy and Land Reforms Act, 1972. Bhajna had, however, taken the plea of tenancy on the suit land. On merits, whether the appellant has proved his case or Bhajna succeeded in establishing his case that has not been considered by the learned lower appellate court. The appeal has been allowed simply on the point of jurisdiction. There is no issue of jurisdiction. The learned lower appellate court has wrongly applied Chuhniya Devi’s case, which in my opinion, in the facts and circumstances of the case is not applicable in the …8… present case. In these circumstances, substantial questions of law No. 1 and 2 are decided in favour of the appellant. In view of my findings on substantial questions of law No.1 & 2, I do not think it proper to decide substantial questions of law No. 3 and 4 so that it may not prejudice the case of either side, inasmuch as, I intend to remand the matter to the learned District Judge, Una to decide the appeal afresh in accordance with law. The substantial questions of law No. 3 and 4, are therefore, disposed of accordingly. 9. No other point was urged. 10. As a result of above discussion, the appeal is allowed, the judgement and decree dated 21.3.1996 passed by learned Additional District Judge, Kangra at Dharamshala camp at Una in Civil Appeal No. 79/91, are set-aside and the case is remanded to learned District Judge, Una. The first appeal was originally filed in the year 1991 and, therefore, keeping in view the fact that the matter is very old, the learned District Judge is directed to decide the appeal on or before 31.8.2009. The parties through their counsel are directed to appear before the learned District Judge, Una on 31.3.2009. The record be returned forthwith so as to reach the trial court well before the date fixed. No costs. March 13, 2009. ( Kuldip Singh ) (Hem) Judge.