IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 403 of 2000. Date of decision: 9.12.2010. Shamsher Singh and Ors. ….. Appellants Vs. Roshan Lal and others …. Respondents Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellants : Mr. K.D. Sood, Advocate. For the Respondents : Mr. H.K. Bhardwaj, Advocate, for respondents No.1 to 3 and 6. Mr. Ajay Kumar, Advocate, for respondent No.4. Mr. R.P. Singh, Advocate, for respondent No.5(a). Kuldip Singh, J. (Oral). This appeal has been directed against the judgment, decree dated 16.9.1999 passed by learned District Judge, Una in Civil Appeal No. 215 of 1989 affirming the judgement and decree dated 31.10.1989 of dismissal of suit passed by learned Senior Sub Judge, Una in Civil Suit No. 298 of 1986 but modifying the judgment, decree dated 31.10.1989 directing the return of plaint on the ground that civil court has no jurisdiction to try the suit. 2. The necessary facts are that the appellants had filed a suit for declaration that they are owners in possession of land Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… described in the plaint, entries of possession as tenants in the revenue papers in the names of respondents No.1 to 4 are wrong, illegal, null and void and subsequently the mutation No.1266 dated 15.6.1981 conferring ownership rights to them with respect to the suit land on the basis of said wrong entries is also wrong, illegal, null and void and ineffective as against the rights of the appellants. The order dated 14.10.1976 passed by Naib Tehsildar, Una in case No.1021/NT changing the cultivation column showing the respondents No.1 to 4 as tenants is wrong, illegal and not binding on the appellants. The consequential relief of permanent injunction was also prayed in the plaint, in the alternative, decree for possession. 3. The suit was contested by respondents No.1 to 4 by filing joint written statement in which they have taken the preliminary objections of maintainability, cause of action, locus standi and estoppel. On merits, they have denied that the appellants are owners in possession of the suit land. It has been alleged that respondents No.1 to 4 are tenants on the suit land and they have become owners thereof under H.P. Tenancy and Land Reforms Act. The mutation of conferment of proprietary rights has also been legally and validly sanctioned in their favour. The respondents No.1 to 4 have denied the rest of the case of the appellants. 4. Amar Nath predecessor-in-interest of respondent No.5(a) and Jaswant Rai also filed separate written statement, in which they have taken preliminary objections of maintainability, limitation. On merits, they have pleaded that they have no right or interest in the land in dispute though previously they and their …3… predecessor-in-interest were tenants on the suit land. They had abandoned the tenancy and respondents No.1 to 4 had entered into exclusive possession as tenants on the suit land. They have also pleaded that order passed by Tehsildar on 14.10.1976 is legal and valid. They contested the rest of the claim of the appellants and prayed for dismissal of the suit. The appellants have filed replication in which they have reiterated their stand. 5. On the pleading of the parties, the following issues were framed:- 1. Whether the plaintiffs are owners in possession of the suit land as alleged? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the plaintiffs have no cause of action ?OPD 4. Whether the plaintiffs have no locus standi to file the suit OPD 5. Whether the plaintiffs are estopped by their act and conduct from filing the suit? OPD 6. Whether the suit is not within time? OPD 7. Whether the defendants are entitled for special costs as prayed? OPD 8. Relief. 6. The issue No.1 was answered in negative, issues No.2 to 6 were answered in affirmative and issue No.7 was not pressed and the learned Senior Sub Judge dismissed the suit on 31.10.1989 which was assailed by the appellants and the learned District Judge vide judgment dated 31.8.1992 in Civil Appeal No.215 of 1989 set …4… aside the judgment, decree dated 31.10.1989 of the learned lower court, remanded the suit to the learned lower Court for returning the plaint to the appellants for presenting the same before a competent court of law. The judgment, decree dated 31.8.1992 was assailed in RSA No. 2 of 1993 which was decided by Division Bench of this Court on 22.9.1997. It has been submitted by learned counsel for the appellants that RSA No.2 of 1993 was re-heard on account of death of some of the parties and ultimately RSA No.2 of 1993 was decided on 8.6.1999 which reads as follows:- “We have heard the learned counsel for the parties and gone through the record. The suit filed by the appellants for declaration that they are the owners in possession of the land in dispute and the revenue entries showing the respondents-defendants as tenants and the mutation No.1266 dated 15.6.1981 conferring proprietary rights on them were wrong and ineffective against their rights, was dismissed by Sub Judge (1), Una on 31.10.1989. The appeal filed against the decree and judgment of the trial Court was accepted by the District Judge, Una on 31.8.1992 setting aside the decree and judgment of the trial Court and remanding the case to the trial Court for returning the plaint to the appellants for presenting the same before the competent Court of law, holding that in view of the law laid down by Full Bench of this Court in Chuhniya Devi Vs. Jindu Ram ( 1991 (1) Sim.L.C. 223), the suit filed by the appellants was not maintainable in the civil Court. The perusal of the impugned order makes it clear that the District Judge has mechanically decided the appeal on the ratio of the judgment of Full Bench in Chuhniya Devi’s case (Supra) without appreciating the facts and circumstances on record to come to the conclusion that it is applicable or not. For the same reason, this Court has already remanded other appeals arising out of the impugned order and this appeal should also meet the same fate. Therefore, the impugned order passed by the District Judge is set-aside and the matter is remanded back to the file of the District Judge, Una for fresh disposal in accordance with law. The District Judge will hear the parties and give his findings on facts …5… after seeing as to whether on those facts, the ruling of the full Bench applies or not. Parties will appear before the District Judge, on 2.8.1999. The appeal is disposed of accordingly. There is no order as to costs.” 7. The matter again came before learned District Judge who decided the appeal on 16.9.1999 and while affirming the judgment, decree of the learned trial Court ordered for return of the plaint to the appellants (plaintiffs) as the civil court has no jurisdiction to try the suit. The judgment, decree dated 16.9.1999 has been assailed in second appeal which has been admitted on following substantial question of law:- “Whether the civil court has the jurisdiction to go into the question involved in the present suit, as framed?” 8. I have heard the learned counsel for the parties and have also gone through the records. The learned counsel for the appellants has submitted that the Courts below have erred in deciding the other issues when they have recorded a finding that the civil court has no jurisdiction to try the suit. It has been submitted that once the civil court has no jurisdiction to try the suit then the courts below should not have decided the other issues. The learned counsel for the appellants has submitted that in the facts and circumstances of the case, the civil court has jurisdiction to try the suit. The learned counsel for the respondents have supported the impugned judgment, decree and have submitted that on the face of the plaint and the judgment rendered in Chuhniya Devi vs. Jindu Ram 1991 (1) SLC …6… 223, the civil court has no jurisdiction to try the suit. The learned counsel for the respondents have prayed for dismissal of the appeal. 9. The point involved in the appeal is very short. The perusal of the plaint indicates that the appellants have specifically challenged the mutation No.1266 dated 15.6.1981 conferring ownership rights in favour of respondents No.1 to 4 which has been placed on record by appellants/plaintiffs as Ex.P-6 and by defendants as Ex.D-17. The conferment of proprietary rights under Section 104 of the H.P. Tenancy and Land Reforms Act cannot be assailed in civil suit as per Chuhniya Devi supra unless the parameters laid down in Chuhniya Devi are otherwise satisfied. In the plaint there is no averment that statutory authority has not followed mandatory procedure for conferring proprietary rights while attesting mutation. In these circumstances, no fault can be found with the findings returned by the two courts below that the civil court has no jurisdiction to try the suit. Similarly the direction for return of plaint by the learned District Judge is also correct. The civil court has no jurisdiction to try the suit. In case, the appellants opt to file appropriate proceedings before statutory authority under the H.P. Tenancy and Land Reforms Act regarding their grievance then such authority shall decide the same in accordance with law un-influenced by any findings given by learned District Judge and learned Senior Sub Judge on all issues except the issue of jurisdiction. There is no merit in the appeal. The substantial question of law is decided against the appellant. 10. No other point was urged. …7… 11 As a result of above discussion, the appeal fails and is accordingly dismissed with no order as to costs. December 9, 2010 ( Kuldip Singh ), (sks) Judge.