IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 24/2011 Reserved on: 9.8.2011 Decided on:9.9.2011 ___________________________________________________ Janam Singh and another. …Appellants. Versus Puran …Respondent Hem Singh and others. …Proforma Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the appellants : Mr. Anand Sharma, Advocate with Mr. Jagan Nath, Advocate. For the Respondents : Mr. R.K. Gautam, Sr. Advocate with Ms. Archana Dutt, Advocate for respondent No.1 None for other respondents. _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 29.10.2010 rendered by the learned Additional District Judge, Fast Track Court, Chamba, in Civil Appeal No.31/2009. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the respondent-plaintiff (hereinafter referred to as 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 ‘plaintiff’ for convenience sake) instituted a suit for declaration alongwith consequential relief of injunction against the appellants-defendants and proforma defendants (hereinafter referred to as “defendants” and “proforma defendants”, respectively for sake of convenience) stating therein that he was owner in possession of the land, as detailed in the plaint. He has challenged the mutation No. 1376 dated 30.12.1976 attested on the basis of order of Land Reforms Officer, Bhatiyat being void. He has alleged that Amar Singh son of Sh. Nar Singh and Tej Singh son of Sh. Labh Singh were the owners of the suit land and Sadho, the father of plaintiff, was their tenant. He has become owner in possession of the suit land by operation of law. Defendant No.1, namely, Janam Singh, has retired as Panchayat Inspector, Chowari and defendant No.2, namely, Raj Singh has retired as Reader to the Deputy Commissioner, Chamba. According to the plaintiff, defendants in connivance with the revenue official got mutation No. 1376 attested behind his back on the basis of order dated 12.2.1976, without summoning the plaintiff and without following the due procedure. According to him, defendants No.1 and 2 were recorded owners of 3 1/4th share and 1/20th share, respectively in the revenue record. His father died in the year 1969, however, he was treated alive in the order dated 12.2.1976. In the month of May, 2003, defendant No.1 threatened to dispossess the plaintiff from the suit land on the basis of wrong revenue entries. 3. The suit was contested by the defendants. On merits, it was stated that Sadho was tenant in the year 1960-61 and the suit land was resumed on the basis of order passed by the Land Reforms Officer and two mutations as envisaged under rule 25 of the Himachal Pradesh Tenancy and Land Reforms Rules were attested. Defendant No.1 has admitted that he retired as Panchayat Inspector. According to the defendants, they were in possession of the suit land. 4. Replication was filed by the plaintiff and he reiterated the averments contained in the plaint. Trial court framed issues on 22.8.2005. Learned trial court decreed the suit on 30.9.2009. Contesting defendants, namely, Janam Singh and Raj Singh preferred an appeal before the Additional District Judge, Fast Track Court, Chamba. He dismissed the same on 29.10.2010. Hence, the present Regular Second Appeal. 4 5. Notices were issued to the respondents. Contesting respondent No.1 is represented by Mr. R.K. Gautam, Senior Advocate. Other respondents were duly served, but neither they are present in person nor any Advocate has appeared on their behalf. 6. Mr. Anand Sharma on the basis of the substantial questions of law framed alongwith the memorandum of appeal has vehemently argued that his clients have clearly proved their ownership and possession of the suit land on the basis of Ex.D-3 and Ex.D-10 to Ex.D-13. According to him, the civil court had no jurisdiction since the orders were passed by the Land Reforms Officer under the Himachal Pradesh Tenancy and Land Reforms Act, 1972 (hereinafter referred to as the “Act” for brevity sake). He then contended that the suit filed by the plaintiff was barred by limitation. According to him, the orders passed by the Land Reforms Officer are in conformity with law. 7. Mr. R.K. Gautam, Senior Advocate with Ms. Archana Dutt has supported the judgments and decrees passed by both the courts below. 8. I have heard the learned counsel for the parties and have perused the record as well as pleadings carefully. 5 9. Plaintiff has appeared as PW-1. According to him, the suit land was in possession of his father as tenant. He died in the year 1969. Defendants got the suit land mutated in their favour in connivance with the revenue officials. He came to know about the mutation in the month of May, 2003. According to him, defendants were never in possession of the suit land. He denied the suggestion specifically that his father appeared before the Land Reforms Officer during proceedings. He has also denied that he was present at the time of attestation of mutation. 10. PW-2 Jaisi Ram has deposed that plaintiff’s father cultivated the suit land and thereafter the plaintiff is cultivating the suit land. PW-3 Kehar Singh has produced the death certificate of Sadho Ex.PW- 3/A. 11. Defendant No.1 has appeared as DW-1. According to him, the suit land was resumed and the possession was delivered to the defendants on the spot by the Patwari. He was in possession of the suit land. He has admitted that he has served as Panchayat Inspector and remained posted at Chowari. According to him, his share in the suit land was 1/4th. He moved an application for resumption in the year 1975. He 6 could not tell that Sadho, father of the plaintiff, died in the year 1969. 12. DW-2 Lal Singh has deposed that defendant No.1, namely, Janam Singh was in possession of the suit land and cultivates the same. According to him, plaintiff did not remain in possession of the suit land after 1976. 13. Plaintiff has produced PW-4 Dumo Ram in rebuttal. According to him, the suit land was situated adjoining to his land and the plaintiff cultivates the suit land. This is the oral evidence led by the parties. 14. Defendants have moved an application for resumption of the suit land. The application was filed in the year 1975 before the Naib Tehsildar, Chowari. The presence of plaintiff’s father was marked in the proceedings. In the order dated 30.1.1976 also presence of the plaintiff’s father has been marked again. The application was decided by the Naib Tehsildar on 12.2.1976. Name of the plaintiff’s father again has been mentioned. In fact, the plaintiff’s father has died on 9.2.1969. This fact was specifically pleaded and proved by the plaintiff. Plaintiff has placed and proved on record the death certificate of Sadho Ex.PW-3/A. It was necessary for the Land 7 Reforms Officer to implead the legal heirs of Sadho, who had died in the year 1969 in the proceedings initiated, under section 104 of the Act after his death. The proceedings were initiated by the defendants for resumption against a dead person and the orders were also passed against a dead person by the Land Reforms Officer on 12.2.1976. These orders are nullity. Even in the mutation No. 1376, the land has been resumed in favour of defendant No.1. There is no mention of defendant No.2. Parentage of the plaintiff has not been mentioned while attesting the mutation on 30.12.1976. There is a detailed procedure the manner in which the mutation has to be attested as per rule 28 of the H.P. Tenancy and Land Reforms Rules, 1975. The orders under section 104 of the Act are required to be passed by the Assistant Collector 1st Grade. The orders passed by the Assistant Collector 2nd Grade was a nullity. Thus, the mutation attested on the basis of illegal and void ab initio order is also nullity. 15. Mr. Anand Sharma has also argued that civil court had no jurisdiction to entertain, try and decide the suit. Learned Single Judge of this Court in Kali Ram Thakur versus Manorma Devi and others, 8 Latest HLJ 2010 (HP) 116 has held that civil court has jurisdiction if the order is passed in violation of the provision of section 104 of the H.P. Tenancy and Land Reforms Act, 1972. Learned Single Judge has also held that no orders can be passed by Assistant Collector 2nd Grade for conferment of proprietary rights, under section 104 of the Act. Learned Single Judge has held as under: “13. Coming to the question that the conferment of the proprietary rights was automatic, it could have been so once there was an entry in the jamabandi in favour of a tenant on the appointed day and the defendant has failed to prove that in the jamabandi, entry existed in his favour on the appointed day. The learned trial Court has clearly observed that there was no entry in favour of the defendant in the jamabandi for the year 1975-76 and, therefore, the correction has been ordered thereafter in the year 1977 by the Assistant Collector, without any notice to the previous owner. It has also been clearly observed by the learned trial Court that the order was passed by the Assistant Collector 2nd Grade and after referring to the provisions of the H.P. Tenancy and Land Reforms Act, it has been rightly concluded that the Assistant Collector 2nd Grade was not competent to pass such an order. I have no reason to disagree with the findings recorded by the learned trial Court in this regard. 14. Coming to the question that the decision in Chuhniya Devi’s case (supra) applies to the facts of the present case or not and as to whether the Civil Court was competent to look into this question, it has been rightly observed from the said decision that the 9 civil Court’s jurisdiction in a suit challenging the conferment of proprietary rights cannot be said to be barred once the principles of natural justice have not been followed by the Revenue Officer while conferring the proprietary rights upon the defendant. The learned trial Court had referred to a decision of this Court in Chuhniya Devi’s case and had observed that civil court will have the jurisdiction if the order is passed in violation of the provisions of the Act. 15. I may make a reference to a latest decision of our High Court in Krishan Chand and others versus Jeet Ram and another, Latest HLJ 2009 (HP) 978, wherein similar observations have been made by a learned Single Judge that when the proceedings for conferment of proprietary rights have been conducted by the Assistant Collector 2nd Grade, no power has been given to him and proceedings are void ab initio and no right passed in favour of the alleged tenant. It was clearly held that the civil court has the jurisdiction to adjudicate the matter when the very basis of the tenancy has been challenged. This decision clearly applies to the present facts and since the order of correction and conferment of proprietary rights had been passed by the Assistant Collector 2nd Grade without jurisdiction and without notice to the previous owner, it could be said to be void ab initio and cannot be given effect to. It was for the defendant to have proved that the said order was passed legally or that the Assistant Collector 2nd Grade was competent to pass such order in which he has failed miserably.” 16. In the case in hand, the orders passed were nullity. These orders have been passed by the Assistant Collector 2nd Grade and the same were also 10 illegal since the same have been passed against a dead person. 17. Their Lordships of the Hon’ble Supreme Court in Ramkanya Bai and another versus Jagdish and others (2011) 7 SCC 452, while dealing with the case under the M.P. Land Revenue Code, 1959, have held that exclusion of the jurisdiction of the civil court is not to be readily inferred. Their Lordships have held as under: “15. Having regard to section 9 of the Code of Civil Procedure, a civil court can entertain any suit of civil nature except those, cognizance of which is expressly or impliedly barred. In Kamala Mills Ltd. v. State of Bombay [AIR 1965 SC 1942] this court held: “The normal rule prescribed by section 9 of the Code of Civil Procedure is that the courts shall (subject to the provisions contained in the Code) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred……… Whenever it is urged before a civil court that its jurisdiction is excluded either expressly or by necessary implication to entertain claims of a civil nature, the Court naturally feels inclined to consider whether the remedy afforded by an alternative provision prescribed by a special statute is sufficient or adequate. In cases where the exclusion of the civil Courts’ jurisdiction is expressly provided for, the consideration as to the scheme of the statute in question and the adequacy or the sufficiency of the remedies provided for by it may be relevant but cannot be decisive. But where exclusion is pleaded as a matter of necessary implication, such considerations would be very important, and in 11 conceivable circumstances, might even become decisive. If it appears that a statute creates a special right or a liability and provides for the determination of the right and liability to be dealt with by tribunals specially constituted in that behalf, and it further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, it becomes pertinent to enquire whether remedies normally associated with actions in civil Courts are prescribed by the said statute or not.” (emphasis supplied) 16. In Dhulabhai v. State of Madhya Pradesh - 1968 (3) SCR 662, a Constitution Bench of this Court held that exclusion of the jurisdiction of the civil court is not readily to be inferred with, unless the following, among other conditions apply: “(1) Where the statute gives a finality to the orders of the special tribunals the civil court’s jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure………… (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability 12 and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.” 18. Mr. Anand Sharma has also argued that the present suit was barred by limitation. According to him, the mutation was attested on 30.12.1976 and the present suit was filed on 7.8.2004. Defendant Janam Singh has appeared before the trial court on 10.4.2006. He has not stated anything about the limitation. According to the plaintiff, defendants got mutation Ex.P-1 attested in their favour by exercising influence of their post because defendant No.1 was working as Panchayat Inspector and defendant No.2 was working as Reader in the office of Deputy Commissioner, Chamba. Plaintiff came to know about the illegal order and mutation in the month of May, 2003 when defendants tried to take forcibly possession of the suit land. Plaintiff was not a party in the proceedings before the concerned authority. The orders have been passed against the father of the plaintiff on 12.2.1976 though he had died on 9.2.1969. Plaintiff has placed on record copy of death certificate of his father. Defendant Janam Singh when appeared 13 as DW-1 has admitted in his cross-examination that at the time when the mutation was attested, Des Raj, Puran, Teko and Puran Gaddi were present. It is evident from Ex.D-6, copy of jamabandi for the year 1968-69, that there was one another tenant Puran son of Sahib Singh resident of Gulahar. Plaintiff was not aware of the orders passed at his back by the concerned authority as well as the mutation. The orders passed by the concerned authority were void ab initio. In the instant case, since the plaintiff came to know about the impugned order only in the month of May, 2003, the suit has been filed within a period of three years; and the same is within limitation. 19. Mr. Anand Sharma has also argued that the defendants were put in possession and they have started cultivating the suit land. According to defendants, possession of the suit land was delivered to them by Patwari and Kanungo. Defendants have neither examined the Patwari nor Kanungo to substantiate this fact. 20. Defendant No.1 has deposed that he is getting the suit land cultivated through Lal Singh DW- 2. Defendant Janam Singh is resident of village Sarol, which is at a distance of 60 kms from the suit land. 14 Defendants have not led any tangible evidence to establish that Sadho was alive on 12.2.1976. The mutation has to be attested in the presence of parties. 21. Accordingly, both the courts below have correctly appreciated the oral as well as documentary evidence led by the parties and there is no substantial question of law involved in the Regular Second Appeal and as such the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs. (Justice Rajiv Sharma), Judge. 9.9.2011 *awasthi*