IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.262 of 1999 Judgment reserved on : 2.11.2010 Date of decision : 9 .11.2010 ____________________________________________________ Krishan Lal and Ors. …Appellants. Vs. Vidya Devi and Ors. …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the appellants : Mr. Rakesh Jaswal, Advocate. For the Respondents : Mr. J.R. Thakur, Advocate , for respondents No.1 to 9. Kuldip Singh, J This appeal is directed against judgment, decree dated 5.4.1999 passed by learned District Judge, Bilaspur in Civil Appeal No.30 of 1990, affirming judgment, decree dated 17.1.1990 passed by learned Senior Sub Judge, Bilaspur, camp at Ghumarwin in Civil Suit No.15/1 of 1988/85. 2. The facts in brief are that Garja predecessor-in-interest of respondents No.1 to 7 and respondents No.8 and 9 had filed suit against Chaudhary predecessor-in-interest of appellants. In the suit respondents No.10,11 were impleaded as proforma defendants . The suit is for permanent prohibitory injunction and in alternative for _____________________________ whether reporters of Local Papers may be allowed to see the Judgment? Yes 2 possession. The further pleaded case is that Ramku mother of respondent No.10 inherited her husband’s estate including the suit land described in the plaint. Ramku had sold her share including the suit land to Chaudhary by a registered sale deed dated 2.3.1955 Ex.DA. The respondents No.1 to 9 pleaded that they had been coming in possession as tenants under Ramku and they have become owners of the suit land under the H.P. Tenancy & Land Reforms Act, 1972 under Chaudhary or in the alternative against respondent No.10 after the death of Ramku on 8.7.1985. They alleged that Collector had wrongly cancelled the mutation of ownership; hence the suit was filed for declaration and injunction restraining Chaudhary for interfering in any manner over the suit land. 3. The suit was contested by Chaudhary on the ground that he has become owner of the suit land on the basis of sale deed dated 2.3.1955 but for a covenant entered in the sale deed envisaging that the suit land would be held by Ramku during her life time in lieu of maintenance which after her death will revert back to him. Thus Chaudhary projected his case that after the death of Ramku he is owner in possession of the suit land. The respondents No.1 to 9 have no concern over the suit land. The replication was filed and the respondents No.1 to 9 reasserted their case put forward in the plaint. On the pleadings of the parties the following issues were framed :- 1. Whether the plaintiff alongwith proforma defendants are joint owners in possession of the suit land as alleged? OPP 3 2. If issue No.1 is proved in affirmative, whether the defendant is interfering over the suit land as alleged? …OPP 3. Whether the defendants are owners in possession over the suit land by way of registered sale deed dated 3.3.1955 as alleged? …OPD 4. Relief. The issues No.1,2 were answered in affirmative, issue No.3 in negative and the suit was decreed. The respondents were declared owners in possession of the suit land, Chaudhary was restrained from interfering on the suit land. The learned District Judge dismissed the appeal on 5.4.1999, hence second appeal which has been admitted on the following substantial questions of law:- 1. Whether in the facts and circumstances of the case, Sub Section 2 of Section 14 of Hindu Succession Act, 1956 is applicable? 2. Whether the Civil Court had jurisdiction to adjudicate the matter connected with the conferment of proprietary rights under H.P. Tenancy and Land Reforms Act, 1972 after the verdict of the Hon’ble High Court in Chunhiya Devi vs. Jindu Ram reported in 1991 (1) Shimla Law Cases 223? 4. I have heard learned counsel for the parties and have also gone through the record. The learned counsel for the appellants has made submissions in support of the substantial questions of law. The learned counsel for the respondents has submitted that no substantial question of law is involved in the appeal; he has supported the impugned judgment, decree. 4 5. In Chaudhary vs. Ajudhia 2001 (2) SLC 147 implication of Section 14 of the Succession Act, 1956 regarding the land in question held by Ramku was considered. Chaudhary was also party in that litigation. The substantial question of law No.1 in the present appeal was also involved in that appeal and it was held that though the widow Ramku alienated the share of her husband in the joint property to Chaudhary, brother of her husband, but at the same time, Chaudhary had reconveyed some of the property, including the suit land, to Ramku under an agreement recognizing her maintenance right on the estate of her husband. It was held that at the time of coming into force of the Act, Ramku was in possession of the suit property in recognition of her pre-existing rights. In these circumstances, sub section (1) of Section 14 of the Act would come into play blossming the limited rights of Ramku into full ownership rights over the disputed land. In view Chaudhary vs. Ajudhia 2001 (2) SLC 147, the substantial question of law No.1 is answered against the appellants. 6. The learned counsel for the appellants in support of substantial question of law No.2 has relied Chunhiya Devi vs. Jindu Ram 1991 (1) SLC 223 and has submitted that Civil Court has no jurisdiction regarding the conferment of proprietary rights under Section 104 of the H.P. Tenancy and Land Reforms Act, 1972. It has been submitted that in the plaint a reference to cancellation of proprietary rights by the Deputy Commissioner has been pleaded. In paragraph-5 of the plaint, it has been further pleaded that the decision of Deputy Commissioner was wrongly implemented by 5 Assistant Collector 2nd Grade. In the plaint, it has also been pleaded that respondents are owners in possession of the suit land in view of H.P. Tenancy and Land Reforms Act, 1972. In the plaint there is no challenge to any order passed under H.P. Tenancy and Land Reforms Act, 1972. In Chunhiya Devi, it has not been held that under no circumstance the Civil Court has jurisdiction. In paragraph 64 of the judgment, in certain situations the Civil Court has jurisdiction. In the written statement there is no objection regarding the jurisdiction of the Civil Court to try the subject matter of the suit nor there is any issue to this effect. In absence of pleadings, issues, in second appeal the jurisdiction of the Civil Court sought to be challenged by way of substantial question of law No.2 is not permissive. More particularly, when as per Chunhiya Devi case there is no absolute bar of jurisdiction of the Civil Court. Thus substantial question of law No.2 is decided against the appellants. 7. In view of above discussion, there is no merit in the appeal which is accordingly dismissed with no order as to costs. November 9, 2010 (Kuldip Singh), (sks) Judge.