IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.282/1998 and RSA No. 283 of 1998 Decided on:2.12. 2008 RSA No. 282/1998: Ran Singh and others. …Appellants. Versus Daulat Ram and others. …Respondents RSA No. 283/1998: Ran Singh and another. …Appellants. Versus Daulat Ram and others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. no For the appellants : Mr. Dushyant Dadwal, Advocate. (in both the appeals) For the Respondents : Mr. R.K. Sharma, Sr. Addl. Advocate General with (in both the appeals) Mr. Rajinder Dogra, Addl, Advocate General and Mr. Vikas Rathore, Deputy Advocate General for respondent No.4. Rajiv Sharma, J. RSAs No. 282 and 283 of 1998: Both these Regular Second Appeals have been directed against the common judgment and decree dated 1.4.1998 passed by the learned 1 Whether the reporters of Local Papers may be allowed to see the judgment? no 2 Additional District Judge, Sirmaur District at Nahan. The Court has admitted these appeals on identical substantial questions of law. The Court had directed on 6.8.1999 to post RSA No. 283 of 1998 along with RSA No. 282 of 1998. Since same questions of law and facts are involved in both the Regular Second Appeals No. 282 and 283 of 1998, the same were taken up together for hearing and are being decided by a common judgment. However, to maintain the clarity in the facts, the facts of RSA No. 282 of 1998 are being taken into consideration. Brief facts necessary for the adjudication of these Regular Second Appeals are that the appellants-plaintiffs (hereinafter referred to as ‘the plaintiffs’ for convenience sake) claiming themselves to be the tenants in possession of the land bearing Khata Khatauni No.60/127min, Khasra No. 823/466/1 measuring 13 bighas as detailed in para 1 of the plaint filed a suit and had prayed for relief of declaration to the effect that they be declared as tenants qua the suit land on payment of rent of Rs. 2/- per annum and vesting of Shamlat land with respondent-defendant No.4 (hereinafter referred to as ‘defendant No.4’ for convenience sake) in no manner had effected the right, title and interest of the plaintiffs with consequential relief of permanent prohibitory injunction against respondents-defendants No.1 to 3 (hereinafter referred to as ‘defendants No.1 to 3 for convenience sake) from causing interference in the suit land in any manner. They had also prayed that defendant No.4 be directed to attest the mutation in favour of the plaintiffs qua the suit land and the plaintiffs be awarded damages to the tune of Rs.500/-. Their case, in nutshell, is to the effect that they were inducted as tenants qua the suit land by the-then owners/co-owners of the Shamlat land, namely, Zalam Singh, Nandru and Kundnu in the year 1968 on payment of rent of Rs. 2/- 3 per annum. They have moved an application for correction of the revenue entries qua the suit land before the Assistant Collector-IInd Grade, Renuka, which was decided on 4.1.1974. It was further contended that the predecessor-in-interest of the plaintiffs was held tenant qua the suit land on payment of rent of Rs. 2/- per annum by the Assistant Collector IInd Grade, which order was incorporated in the revenue record. Against the mutation, the predecessor-in-interest of defendants No.1 to 3 preferred an appeal before the Assistant Collector 1st Grade, Nahan and the said mutation was rejected on the ground that no opportunity was afforded to the State of Himachal Pradesh, who had become the owner of the Shamland land in view of the Himachal Pradesh Village Common Lands Vesting and Utilization Act (hereinafter referred to as ‘the Act’ for brevity sake). The case was remanded back to the Assistant Collector IInd Grade, Renuka who finally on 24.4.1991 rejected the mutation on the ground that the entire land stands vested in the State of Himachal Pradesh. Defendant No.1 to 3 filed detailed written statement to controvert the allegations of the plaintiffs qua their status being tenants in respect of the suit land. It is further stated in the written statement that the predecessor-in-interest of the plaintiffs himself was owner in village Kotian and had a share in the Shamlat land, hence, question of inducting the predecessor-in-interest of the plaintiffs being a tenant qua the suit land does not arise. It has been further submitted by defendants No.1 to 3 that the father of the plaintiffs had fraudulently got himself incorporated as a tenant qua the suit land. The question of jurisdiction of the civil court was also raised. Defendant No.4 i.e. State also filed a separate written statement. The trial court on the basis of the evidence led by the parties decreed the suit partly to the extent that the plaintiffs were held tenants in respect of the suit land and the defendants were restrained from causing 4 interference in possession of the plaintiffs by issuing a decree of permanent prohibitory injunction against them or till the plaintiffs were evicted from the suit land legally by defendant No.4. The State of Himachal Pradesh filed an appeal against the judgment and decree dated 12.5.1994 before the learned Additional District Judge, Sirmaur District at Nahan. Defendants No.1 to 3 filed Cross-objections bearing No. 17-N/13 of 1995 in the appeal. The learned Additional District Judge allowed the appeal and the cross-objections on 1.4.1998. These Regular Second Appeals have been directed against the common judgment and decree dated 1.4.1998 passed by the learned Additional District Judge. The Regular Second Appeals were admitted on the following identical substantial questions of law, as noticed above: 1. Whether learned District Judge was right in holding that the suit of the plaintiffs was barred by the provision of section 10 of the Code of Civil Procedure and the civil court had no jurisdiction to try the case? 2. Whether the learned lower appellate court was vested with powers in law to have decided the case on merits after holding that the civil court had no jurisdiction thereby pre-empting the other remedies, if any, open to the plaintiffs/appellants? 3. Whether the learned lower appellate court was right in ignoring the fact that the order of the Assistant Collector 2nd Grade passed on 27.1.1974, which had attained finality having not been challenged, the appeal of the respondents/defendants could be allowed? 4. Whether the learned lower appellate court was correct in law in holding that the suit land had vested in the State of Himachal Pradesh by virtue of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974? Mr. Dushyant Dadwal, Advocate has strenuously argued that the judgment and decree passed by the learned first appellate court is not 5 sustainable. He has also contended that once the first appellate court had come to a conclusion that the civil court had no jurisdiction, the suit was to be either dismissed or the plaint was to be returned to the plaintiffs. He further contended that the first appellate court had come to a wrong conclusion that it was not necessary to evict the plaintiffs even though the land has vested in the State of Himachal Pradesh on the basis of revenue entries dated 4.1.1974. Mr. R.K. Sharma, Senior Additional Advocate General appearing on behalf of respondent No.4 has supported the judgment and decree dated 1.4.1998. Defendants No.1 to 3 were proceeded against exparte. I have heard the learned counsel for the parties and perused the record carefully. Since all the substantial questions of law are inter-linked and inter- connected, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. It is not disputed by the parties that the suit land was Shamlat. The trial court had returned specific findings that the rejection of the mutation by the Assistant Collector IInd Grade vide order dated 24.4.1991 was perfectly legal and the plaintiffs could not claim that the mutation in their favour was rejected illegally. He has also returned a categorical finding that the plaintiffs notwithstanding their status as a tenant in respect of the suit land as such could not become owner by virtue of the Himachal Pradesh Tenancy and Land Reforms Act. The plaintiffs were recorded tenants in respect of the Shamlat land, however, the trial court came to a conclusion that since the plaintiffs had not been dispossessed under sub- clause (6) of section 3 of the Act, they will be deemed to be in possession of the suit land. 6 The plaintiffs were shown/recorded as tenants in possession over the suit land on the basis of order dated 4.1.1974 followed by mutation No. 377 dated 20.2.1976. This position was reflected in the copy of jamabandi Ex.PW-4/D and PW-4/F. The plaintiffs could not be inducted as tenants on the Shamlat land. Anchlu, the father of the plaintiffs, was co-sharer with Jalam, Nandru and Kundnu. PW-1 Ran Singh has admitted that the suit land was Shamlat and his father was one of the co-sharers in the Shamlat land. This land was never partitioned. He has also admitted that his possession was jointly recorded in the names of co-villagers. The mutation No. 377 dated 20.2.1976 on the basis of which the plaintiffs’ father was conferred the proprietary rights stood reviewed vide order dated 5.4.1991. In Ex.D-1, copy of jamabandi for the year 2000-2001 (Samvat), a big chunk of land measuring 101 bighas 6 biswas in khasra No. 466 is recorded as Shamlat Patti of Kotian village. In Ex. D-2, copy of jamabandi for the year 1955-1956, Ex.D-3 jamabandi for the year 1959-60, Ex.D-4 copy of jamabandi for the year 1964-65 and Ex.D-5 copy of jamabandi for the year 1968-69, the same position is reiterated. It was, however, in Ex.D6, copy of jamabandi for the year 1973-74 that in the portion of Khasra No. 466 measuring 13 bighas, Kundnu, Zalam and Nandnu were recorded in possession as co-proprietors and under them Anchlu, the father of the plaintiffs, was recorded as Gair Maurusi on annual rent of Rs. 2/-. These entries continued in the copy of jamabandi for the year 1983- 84 Ex.D-7, copy of copy of jamabandi for the year 1988-89, Ex.PW-4/D and copy of Khasra Girdawari Ex.PW-4/F. PW-2 Nandru, who is one of the co-proprietor of the Shamlat land, could not narrate the exact area of the Shamlat land. He could not also narrate how much area of the Shamlat was in possession of Zalam and Kundnu. He has admitted that 7 the Shamlat land was never partitioned and the same now stood vested in the State. The land was kept for common purpose i.e. Charand. The co- sharers of the Shamlat could not induct another sharer as tenant. The entire exercise has been undertaken by the plaintiffs to defeat the provisions of law. It is evident from the bare reading of section 3 of the Act that Shamlat land had vested in the State free from all encumbrances. The tenancy of the plaintiffs could not be saved on the basis of revenue entries dated 4.1.1974 though the same was ratified when the mutation was attested on 20.2.1976. Since the land stood vested in the State, there was no occasion for the induction of the plaintiffs as tenants by the co-sharers in the Shamlat land. Thus it cannot be held that the order passed by the Assistant Collector IInd Grade in the year 1974 was valid. The mutation dated 20.7.1976 entered on the basis of the order passed on 4.1.1974 stood reviewed on 24.4.1991. The findings recorded by the first appellate court that the suit land has vested in the State of Himachal Pradesh are in conformity with law. The plaintiffs had prayed that they were inducted as tenants and vesting of the Shamlat with the State will not affect their right, title and interest. In view of the contents of the plaint and the relief sought therein, it could not be held by the learned first appellate court that the civil court had no jurisdiction. It is held that the civil court had the jurisdiction to adjudicate the lis. It is well settled law by now that for deciding the jurisdiction of the court, the averments made in the plaint are material. The jurisdiction of the court depends upon the averments made by the plaintiffs in the plaint and not upon the defence taken by the defendants in the written statement. In the present case the plaintiffs had not assailed any order passed by the competent authority under the Himachal Pradesh Tenancy and Land Reforms Act. Their case was simple as discussed 8 hereinabove that the vesting of land in the State of Himachal Pradesh will not affect their rights of tenancy. It could not happen in view of the detailed observations made hereinabove. Consequently, there is no merit in these Regular Second Appeals and the same are dismissed. There will, however, be no order as to costs. 2.12. 2008 (Rajiv Sharma ), J. *awasthi*