IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.237 of 2010 Reserved on: 9.3.2011 Date of decision: 16.3.2011 Nagesh …. Petitioner Versus Godawari & ors, ….. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? Yes For the petitioner: Mr.G.C.Gupta, Sr.Advocate with Mr.Ashish Jamalta, Advocate. For the respondents: Mr.Jitender P.Ranote, counsel for respondents No.1 to 6. _____________________________________________ Deepak Gupta, J. 1. This petition by the judgment debtor is directed against the order dated 20.5.2010 passed by the learned Civil Judge (Senior Division), Bilaspur in case No.12/10 of 2005 rejecting the objections filed by the petitioner. 2 Briefly stated the facts of the case are that S/Sh.Devi Roop, Sham Lal and Dharam Pal were the original plaintiffs in the Civil suit in which Jai Kishan, Roshan Lal, Sant Ram and Jagata were the contesting defendants. In this suit, the plaintiffs claimed to be in possession as non-occupancy tenants on some portion of the suit land and non- occupancy tenants alongwith proforma defendants on another parcel of land. They challenged the change in the revenue entries in respect of a portion of the suit land measuring 41 bighas in which the defendants No.1 to 4 were shown to be in possession of the same. The suit was contested by the defendants on various grounds including the ground of jurisdiction. According to the defendants, they are owners in possession of the suit land and, therefore, the question of plaintiffs being the tenants thereon did not arise. The suit was decreed by the learned Trial Court after trial on 29.6.1990 and a decree for declaration was passed that the plaintiffs are in possession of the suit land as owners in respect of their shares and as tenants qua the shares of other co- sharers including 41 bighas of land which is subject 3 matter of the present petition. It was further held that the revenue entries showing the land to be in the ownership and possession of the defendants No.1 to 4 are wrong and illegal. It would be pertinent to mention that the learned Trial Court held that the revenue entries were changed in favour of the contesting defendants in the year 1984-85 without following the procedure prescribed under law and, therefore, they were totally illegal. The defendants including Jagata filed an appeal. During the pendency of this appeal, Jagata expired and his legal representatives including the present petitioner Nagesh who was a minor son were brought on record as appellants in the appeal. The appeal was contested on various grounds including the ground that the Civil Court had no jurisdiction to decide the suit. The appeal was dismissed on 11.10.2002. Thereafter, the defendants including the present petitioner through his mother filed an appeal in this Court which was registered as RSA No.55 of 2003. This Regular Second Appeal was dismissed on 4 28.11.2003 since the Court found that no question of law much less a substantial question of law arises in the appeal. Thereafter, an application under Order 21 Rule 32, CPC was filed by the decree holders and it was alleged that the judgment debtors have dis- obeyed the decree and judgment dated 29.6.1990 and, therefore, their property may be attached and they be detained in civil imprisonment. This application was contested and the present petitioner filed objections under Section 47, CPC. These objections have been dismissed vide impugned order which has given rise to the present petition. Sh.G.C.Gupta, learned senior counsel appearing on behalf of the petitioner-judgment debtor has raised the following three contentions. 1. The first contention is that triable issues arose and, therefore, issues should have been framed and parties should have been directed to lead evidence. 2. The second contention is that the Civil Court had no jurisdiction to decide the suit and the suit was barred in terms of 5 Section 171 of the H.P Land Revenue Act and the decree being a nullity could not have been executed. It is further contended that the Civil Court had no jurisdiction since under Section 104 of the H.P Tenancy and Land Reforms Act and Rule 29 of the H.P Tenancy and Land Reforms Act. It was only the Land Revenue Officer who could have decided the question as to whether the plaintiffs are tenants over the suit land or not. 3. The third contention is that the applicant was a minor and his interest having not been properly watched, the Court should have framed issues and then decided the objections. In support of his contentions, Sh.Gupta has cited Sh.Sohan Lal Vs. Sh.Sadhu Ram, Latest HLJ 2003 (1) (HP) 154 and states that issues should have been framed. He has also placed reliance on the judgment of this Court in Khushi Ram Vs. Roshni Devi & ors. Latesh HLJ 2010 (2) (HP) 923 wherein it has been held that when there are 6 long standing revenue entries, the burden of proving that the revenue entries is wrong is on the person challenging the revenue entries and the jurisdiction of the Civil Court is barred to determine this kind of dispute. The question of jurisdiction of the Civil Court should have been raised and agitated in the Civil Court itself. It is not that in every case of tenant and landlord that the jurisdiction of the Civil Court is barred. This Court in a number of cases has held that the jurisdiction to decide such a question is barred only when there is a challenge to the order of the Land Reforms Officer passed under Section 104 of the H.P Tenancy and Land Reforms Act. Even in such cases, if the Land Reforms Officer does not follow the rules of natural justice or the procedure prescribed under law then also the jurisdiction of the Civil Court would not be barred. As far as the contention that under Section 171 of the H.P Land Revenue Act the jurisdiction of the Civil Court is barred is concerned, It would be pertinent to mention that under Section 37 of the Act, in case disputes arise while making entries in the revenue records, the revenue officer can make entries after following the prescribed procedure but sub Section 3 clearly states that 7 any direction issued by the Revenue Officer shall be subject to a decree or order which may be passed by a Court of competent jurisdiction. Even under Section 171, the jurisdiction of the Civil Court is not barred in respect of the claim like the one in the present case. In any event, once the Regular Second Appeal was decided by this Court wherein the petitioner did not raise the issues of jurisdiction, the Executing Court could under no circumstance go behind the decree. As far as the contention that the interest of the petitioner who was minor was not watched is concerned, to say the least, this is an argument of desperation. As pointed out above, there were four defendants in the suit and all were contesting the suit on all grounds. The minor was only brought on record as a legal representative of his deceased father in appellate proceedings. His interest was identical to that of all the other appellants and the case was properly argued and it cannot be said that his interest was not watched. The learned Executing Court rightly held that no triable issues arise in the case and it is not necessary that where objections can be dismissed without recording evidence, it is necessary to frame issues. The contentions 8 raised by the judgment debtor were legal contentions which have been decided in accordance with law. It is apparent that the whole intention was to delay the execution proceedings and in fact, the petitioner succeeded in as much as these objections remained pending for almost five years. In view of the above discussion, I find no merit in the petition which is dismissed with costs assessed at Rs.2500/-. March 16, 2011 ( Deepak Gupta ) (m) Judge