HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 108 of 2001 Reserved on: 22.3.2011 Decided on: 13.4.2011 State of Himachal Pradesh through District Collector, ……Appellant. Versus Pawan Kumar ………Respondent Coram The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the appellant: Mr.Vinod Thakur, Deputy Advocate General, and Mr.J.S. Guleria, Assistant Advocate General. For the respondent: Mr.R.K. Gautam, Senior Advocate, with Mr.Mehar Chand, Advocate. V.K. Ahuja, J.: This is a regular second appeal filed by the appellant under Section 100 of the CPC against the judgment and decree passed by the learned District Judge, Chamba, dated 22.6.2000, vide which he upheld the judgment and decree passed by the learned Sub Judge Ist Class, Dalhousie, dated 27.2.1999, decreeing the suit of the respondent as against the appellant for declaration and permanent injunction. 2. Briefly stated, the facts of the case are that the respondent, hereinafter also referred to as plaintiff, filed a suit for declaration and for permanent injunction as against the appellant, hereinafter also referred to as the defendant. It was alleged by the plaintiff that Sehdev etc. were recorded owners in possession to the extent of 2/3rd share in the land, as ______________________________________ Whether the reporters of the local newspapers may be allowed to see the judgment? Yes. - 2 - detailed in the plaint. It was alleged that the plaintiff is recorded as owner in possession of 1/3rd share of this land. It was also alleged that all the co-sharers, except the plaintiff, had appointed one Joginder Nath as General Power of Attorney and the said Power of Attorney had sold the land of all the co-sharers, except the plaintiff, vide sale deeds, dated 3.10.1994 and 5.10.1994. The plaintiff purchased the remaining 2/3rd share of other co-sharers vide sale deeds mentioned above. 3. It was further alleged that the plaintiff was recorded as owner in possession to the extent of 1/3rd share in the suit land and the suit land consisted of Barani Abbal being cultivated by all the co-sharers personally. Thus, it was alleged that the plaintiff is an agriculturist within the definition of H.P. Tenancy and Land Reforms Act, 1972, hereinafter referred to as ‘the Act’. After purchasing the land, the plaintiff approached the Patwari Halka to get the mutation entered and attested in his favour, but it was not attested by the Patwari. The plaintiff got a notice, issued by defendant No.2 i.e. the Collector, dated 26.8.1995, under Section 118 of ‘the Act’. It was alleged in the notice that defendant No.2 had asked the plaintiff to show cause as to why the suit land, including the structure and buildings, be not vested in the State Government since, as per the allegations of defendant No.2, the transactions of purchasing the suit land were violative of Section 188 of ‘the Act’. Thus, it was alleged that the notice issued by defendant No.2 is totally - 3 - wrong since there was no violation of the provisions of ‘the Act’ and the plaintiff being an agriculturist had been personally cultivating the land in question since 1991- 1992. It was further alleged by the plaintiff that he had become owner in possession of the suit land on the basis of the sale deeds dated 3.10.1994 and 5.10.1994, which were duly registered, hence the suit for declaration challenging the notice issued to the plaintiff under Section 118 of ‘the Act’ and claiming the relief of permanent injunction also as against the defendants. 4. Defendants in their written statement pleaded that the suit was not maintainable and the jurisdiction of the Civil Court was also barred under Section 171 of the Act. On merits, it was pleased that the land was sold by Shri Joginder Nath, Power of Attorney, who is the father of the plaintiff, who sold the suit land to his son. It was further pleaded that neither the plaintiff nor the holder of the General Power of Attorney was an agriculturist and the transaction in question was bad. It was also pleaded that the notice was rightly issued and as such the plaintiff is not entitled to the reliefs claimed by him. 5. On the pleadings of the parties, the following issues were framed by the learned trial Court: “1. Whether the plaintiffs are owners-in-possession of the suit property on the basis of sale deeds dated 3-10-1994 & 5-10-1994 and the defendants are interfering in the suit property as alleged? OPP - 4 - 2. Whether this court has no jurisdiction to try the present suit as alleged? OPD 3. Whether the suit is not maintainable in the present form as alleged? OPD 4. Whether the suit is not properly valued for the purpose of jurisdiction as alleged? OPD 5. Whether the suit property has vested in the State of H.P. free from all encumbrances as alleged? OPD 6. Relief.” 6. Parties led their evidence and the learned trial Court vide its impugned judgment and decree, decided issues No.1 to 5 in favour of the plaintiff and as against the defendant and consequently decreed the suit of the plaintiff in full. On appeal, those findings were affirmed by the learned District Judge, vide its impugned judgment and decree. 7. The present appeal was admitted on the following substantial questions of law: “1. Whether the Civil Court has no jurisdiction to entertain and try the suit in respect of any transactions which are violative of section 118 of the HP Tenancy and Land Reforms Act 1972 in view of bar created by Section 121-A of the Act? 2. Whether the Trial Court was not having the jurisdiction to entertain and try the suit in view of the fact that valuation of the suit was more than 5.00 lacs and the plaintiff was liable to pay advalorem court fee? 3. Whether the order passed by the Collector thereby vesting the suit land in the State of HP could be assailed in the civil court without challenging - 5 - the same before the proper forum provided for the purpose under the Act itself? 4. Whether the suit was not property valued for the purpose of court fee and jurisdiction?” 8. I have heard the learned counsel for the parties and have gone through the record of the case. 9. The submissions made by Mr.J.S. Guleria, learned Assistant Advocate General for the appellant, were that the transfer in favour of the plaintiff was bad in the eyes of law since the plaintiff was a non-agriculturist on the date of purchase of the property in question. It was also submitted that the question as to whether the plaintiff was an agriculturist or not was in the domain of the Collector, who was to decide this issue and in case the plaintiff was aggrieved by any such order passed by the Collector, the appeal lies to the Revenue Authorities. Thus, it was submitted that the Civil Court was not competent to decide this question as to whether the plaintiff was or was not an agriculturist and, therefore, the findings to the contrary are liable to be reversed and the appeal deserves to be allowed accordingly. 10. In support of his above submissions, the learned Assistant Advocate General had relied upon the following decisions. 11. The decision in State of Himachal Pradesh versus Chet Ram, 2000(3) Shim.L.C. 344, shows that the finding on the point of jurisdiction was not given by the court below - 6 - and it was observed that wrong concession is not binding on the State and the question of jurisdiction can be looked into and under Section 171(2) of the Revenue Act, the jurisdiction of the Civil Court is barred to take cognizance. 12. Reliance was also placed upon the decision in Chandrika Misir and another versus Bhaiyalal, AIR 1973 Supreme Court 2391, wherein it was held that where the court is inherently lacking in jurisdiction, the plea as to jurisdiction may be raised at any stage, even if it was not raised in trial Court. In the present case, the plea had been raised but, as submitted, had not been decided properly by the learned Appellate Court. 13. On the other hand, Mr.R.K. Gautam, learned Senior Advocate for the respondent, had submitted that the Act, as it stood on the date of purchase, did not bar the transfer by way of Will in favour of a non-agriculturist. It was also submitted that the revenue record showed that the plaintiff was a purchaser of the land and it also showed the plaintiff to be an agriculturist and as such those findings are not liable to be set aside. He had supported the impugned judgments of the courts below for the reasons recorded therein. 14. From the pleadings as also the arguments advanced during the course of hearing, the first question which arises for consideration is as to whether the sale in favour of an non-agriculturist was barred and the land in - 7 - question could be acquired by a person by way of a Will and as such the plaintiff had become owner in possession of the suit land. The plaintiff had claimed that he was an agriculturist on the basis of the Will executed in his favour of 1/3rd share in the suit land before October, 1994. Thereafter he purchased the remaining 2/3rd share vide sale deeds dated 3.10.1994 and 5.10.1994. The transfer on the basis of the Will, on which basis the plaintiff had set up his case, is that he had become an agriculturist and since he had already got the land i.e. 1/3rd share in the Khata by way of Will, he had become an agriculturist. 15. In this regard, Section 118(1) of the Act reads as follows: “118. Transfer of Land to Non-Agriculturist barred – (1) Notwithstanding anything to the contrary contained in any law, contract, agreement, custom or usage for the time being in force, but save as otherwise provided in this Chapter, no transfer of land (including sales in execution of decree of a civil court or for recovery of arrears of land revenue), by way of sale, gift, exchange, lease, mortgage with possession or creation of a tenancy shall be valid in favour of a person, who is not an agriculturist.” 16. The said Act was amended w.e.f. 4.4.1995 and it was prospective in nature and by way of amendment the word ‘Will’ was also included in Section 118(1) of the Act. The Will in the present case became operative on the death of the executant on 1.5.1992. Therefore, the provisions, as it existed, have to be read as on 1.5.1992, which showed that the transfer by way of Will in favour of a non- agriculturist was not barred. Therefore, this question is - 8 - clear that on the date of the plaintiff acquiring the title by way of Will, the amended provision barring the transfer even by way of Will had not come into effect, which came into effect from 4.4.1995. Thus, the plaintiff had become owner by way of Will on the date when the executant died but that question is not being conclusively determined in these proceedings since it was not the issue and the admitted position is that the plaintiff had already become owner before the Act was amended. This plea should have been taken by the plaintiff in the plaint before a declaration is given in this regard but admitting the factual position that he had become owner on 1.5.1992, the next question which arises for consideration is as to whether the sale in his favour can be said to be barred and he was or was not an agriculturist. 17. The order passed by the Collector dated 21.3.1997 is being challenged in the present proceedings, though the said order has not been made the basis of the suit filed by the plaintiff after amending the plaint alleging that the said order was against the provisions of law being illegal and wrong and not binding upon the rights of the plaintiff. In so far as the question is concerned that the plaintiff had become owner on the basis of the Will, there is no challenge by the defendants and according to the provisions of the Act, prima facie, the plaintiff had become owner on the basis of the Will. However, in regard to the subsequent sale deeds effected in his favour, the question arises as to whether the plaintiff was an agriculturist or not on the - 9 - date the sale deeds were executed in his favour on 3.10.1994 and 5.10.1994. The plaintiff may have become owner on the basis of the Will but that question was within the domain of the Collector to decide as to whether the plaintiff was actually cultivating the land or not. The plaintiff admittedly is a resident of Jallandhar, Punjab and simply by purchase of the land he cannot be termed as an agriculturist and the revenue entries only showed that he had become owner by way of purchase, but these did not prove that he was in fact an agriculturist also on the date of purchase. The above question as to whether the plaintiff was an agriculturist or not had to be decided by the Collector under the provisions of the said Act and that question has been decided vide his order dated 21.3.1997. There is a bar to the jurisdiction of the civil court under Section 101 of the Act, which reads as follows: “101. Bar of jurisdiction. – Save as otherwise expressly provided in this Chapter, every order made by the Collector, Commissioner or Financial Commissioner shall be final, and no proceeding or order taken or made under this Chapter, shall be called in question by any Court or before any officer or authority.” 18. It is, therefore, clear that there is a bar to the jurisdiction of the Civil Court and an order made by the Collector is appealable to the Commissioner or the Financial Commissioner and shall be final and no proceedings can be called in question by any court or before any officer or authority. The learned Appellate Court had decided this question of bar by simply observing - 10 - that it was a question of civil rights and, therefore, the jurisdiction of the Civil Court was not barred. The order in question was passed by the Collector within the provisions of the Act and the jurisdiction of the Civil Court was barred and there was a remedy of appeal to the Commissioner and the Financial Commissioner, which was required to be availed by the plaintiff, which was never availed by him as per record. Once he had remedy to file an appeal and the said order of the Collector could have been duly considered by the Revenue Appellate Authorities, that question, in view of the bar to the jurisdiction of the Civil Court, could not be decided by the Civil Court as to whether the plaintiff was or was not an agriculturist. Therefore, the findings of the learned Appellate Court in that regard are liable to be set aside and the question as to whether the plaintiff was an agriculturist or not and was actually cultivating the land or not was to be determined by the Collector, which had been determined by him and there is nothing on the record to show that the Collector had not followed the principles of natural justice in deciding the question vide his order dated 21.3.1997. That question could not have been decided by the Civil Courts and the findings of the learned trial Court and affirmed by the learned Appellate Court are liable to be set aside. 19. There is no need to discuss the oral evidence since the facts are not disputed and the question involved was legal only. - 11 - 20. The net result of the discussion is that though the plaintiff had purchased the land on the basis of the sale deeds referred to above but the question whether he was an agriculturist or not within the meaning of the Act has been decided finally by the Collector and that decision has to be given effect to and as such the findings to the contrary are liable to be set aside. Accordingly, the relief of declaration granted by the learned trial Court that the plaintiff was declared to be an agriculturist are liable to be set aside. However, the plaintiff is held to be owner in possession of the suit land on the basis of the sale deeds but the order passed by the Collector cannot be declared as illegal. The relief of permanent injunction granted is accordingly modified to this extent that the plaintiff shall not be evicted from the suit land except by due process of law. 21. In view of the above discussion, the appeal filed by the appellant is allowed. However, the parties are left to bear their own costs. April 13, 2011. (V.K. Ahuja), (tilak) Judge.