IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.114/1999 Reserved on: 27.11.2008 Decided on:18.12.2008 Parmeshwari Dass and others. …Appellants. Versus Roshan Lal and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the Appellants : Mr. N.K. Thakur, Advocate. For the Respondents : None. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 1.2.1999 passed by the learned District Judge, Una in Civil Appeal No. 94 of 1991. Brief facts necessary for the adjudication of this Regular Second Appeal are that the respondents-plaintiffs (hereinafter referred to as ‘the plaintiffs’ for convenience sake) filed a civil suit in the court of learned Sub Judge 1st Class, Amb, District Una for declaration with permanent injunction and in the alternative for possession. The plaintiffs have stated 1 Whether the reporters of Local Papers may be allowed to see the judgment?No. 2 in the plaint that one Ghasitu, Amar Nath sons of Sh. Tulsi Ram and Milkhi Ram son of Sh. Sudama, deceased, along with defendants No.1 to 4, namely, Parmeshwari Dass, Harbans Lal, Nanak Chand and Parkash Chand got entered their names in the suit land at the back of the plaintiffs in connivance with the revenue field staff and on the basis of the said illegal and false entries in their names, said Ghasitu, Amar Nath, Milkhi Ram deceased and defendants No. 1 to 4 further got sanctioned the mutation No. 187 of proprietary rights with respect to the land mentioned in paras (a) and (b) of the head note of the plaint and mutation No. 188 of proprietary rights with respect to the land mentioned in para (c) of the plaint in their names illegally at the back of the plaintiffs without taking recourse to law though actually Ghasitu etc. deceased Milkhi Ram or defendants No.1 to 4 were never inducted nor admitted as tenants on the suit land nor they paid any rent to the plaintiffs, which is a first requisite of tenancy. It is further averred that during the consolidation operation in the village, the defendants in connivance with the consolidation staff and also by taking benefit of illegal and false entries in the names of defendants No.1 to 4 and Ghasitu, deceased, got allotted the suit land in their favour in the following manner:- Defendants No. 1 to 5 got allotted the land measuring 5 kanals 12 marlas mentioned in para (a) of the head note of the plaint, defendants No. 6 to 14 got allotted the land mentioned in para (b) of the head note of the plaint and similarly, defendants No. 3 and 4 got allotted the land mentioned in para (c) of the head note of the plaint in their favour. These proceedings according to the plaintiffs were held at their back and without adopting proper procedure. Defendants No. 1, 2, 6 and 8 to 14 in the original suit filed the written statement to the plaint. Their 3 case in nutshell was that the predecessor-in-interest of the defendants and the defendants were in possession of the suit land as tenants and have become owners prior to the consolidation operation and the plaintiffs did not raise any objection during the course of consolidation proceedings. The plaintiffs filed the detailed replication to the written statement filed by the defendants. The trial court framed the following issues: 1. “Whether the suit land is jointly owned and possessed by the plaintiffs and the revenue entries in favour of defendants No. 1 to 4, Ghasitu, Amar Nath and Milkhi are wrong and false, as alleged? OPP 2. Whether the suit is within time? OPD 3. Whether the suit is not maintainable? OPD 4. Whether the jurisdiction of this court is barred under section 57 of the H.P. Consolidation of Holding Act? OPD 5. Whether the plaintiffs are estopped by their act and conduct? OPD 6. Whether the suit is bad for non-joinder and misjoinder of necessary parties? OPD. 7. Relief.” The trial court returned the following findings on the aforesaid issues: “Issue No.1 Plaintiffs are owners and entries in favour of defendants are wrong. Issue No.2 Yes Issue No.3 No Issue No.4 No Issue No.5 No Issue No.6 No Relief Suit decreed for possession as per operative portion of the judgment.” On issue No.4, the trial court held that since the suit was based on title, the civil court had the jurisdiction to decide the suit. The suit was 4 decreed by the trial court on 18.9.1991. The defendants preferred an appeal before the learned District Judge, Una. The learned District Judge framed the following points for determination: 1. “Whether the learned trial Judge has been just in adjudging that the court had jurisdiction to adjudge the lis and by returning a finding that the appellant did not cultivate the suit land in the capacity of tenants and for that reason the conferment of the proprietary rights on them is erroneous? 2. Final order (Relief).” The learned District Judge dismissed the appeal on 1.2.1999. The first appellate court has held that the civil court had the jurisdiction to decide the question of title and similarly the jurisdiction of the civil court was not barred under section 57 of the Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1972. This Regular Second Appeal has been directed against the judgment and decree dated 1.2.1999. The Regular Second Appeal was admitted on the following substantial questions of law: 1. “When once the tenants conferred the ownership and thereafter consolidation operation allotting the land to owners in repartition, can the plaintiffs maintain the suit in the civil court? 2. Whether in the facts and circumstances of the present case the jurisdiction of the civil court is barred under both, H.P. Tenancy and Land Reforms Act and H.P. Consolidation of Holdings Act?” Mr. N.K. Thakur, Advocate has strenuously argued that the civil court had no jurisdiction in view of the specific bar under the Himachal Pradesh Tenancy and Land Reforms Act and Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act. He also contended 5 that both the learned courts below have misconstrued the provisions of law while coming to a conclusion that his clients were never inducted as tenants by the plaintiffs. I have heard the learned counsel for the plaintiffs and perused the record carefully. Since both the substantial questions of law are inter-linked and inter connected, therefore, the same are being taken up together for determination to avoid repetition of discussion of the evidence. The case set up by the plaintiffs is that the defendants were never inducted as tenants by them. The learned courts below have returned concurrent findings that there was no bilateral relationship of the landlords and tenants between the parties. Both the courts below have returned the clear findings that the rent which is pre-requisite for tenancy was never paid by the tenants and the proprietary rights could never be conferred on the defendants without associating the plaintiffs, who are the owners. It is also on the basis of the revenue entries whereby the proprietary rights were conferred on the defendants, they had succeeded in getting the land allotted in their favour during the consolidation proceedings as per the details given in the plaint. The short question involved is: whether the jurisdiction of the civil court was ousted under the Himachal Pradesh Tenancy and Land Reforms Act and the Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1972? I am of the considered opinion that in view of the averments contained in the plaint and relief prayed for in the suit and the evidence led by the parties, the jurisdiction of the civil court was not ousted and further since the suit is based on title, the jurisdiction of the civil court is not barred. 6 Their Lordships of the Hon’ble Supreme Court in Sri-La-Sri Sivaprakasa Pandara Sannadhi Avargal versus T. Parvathi Ammal (Smt.) and others, (1998) 9 SCC 603 have held that the civil court’s jurisdiction to adjudicate the title of the parties is not barred under the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 Their Lordships have held as under: “The plea of exclusion of the civil court's jurisdiction to adjudicate the title of the parties in the present case is based on the provisions of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963. This court in a recent decision in R. Manicka Naicker v. E. Elumalai Naicker has clearly held that the civil court's jurisdiction to adjudicate title of the parties, is not barred by virtue of the provisions of the said Act. This is a direct decision of this court on the provisions of the Act with which we are concerned in the present case. Learned counsel for the appellant placed reliance on the decision in Vatticheruku Village Panchayat v. Nori Venkatarama Deekshithulu. It is sufficient to observe that this decision relates to the provisions under a different Act of A. P.. Moreover, in R. Manicka Naicker this decision relating to the provisions in the A. P. Act was considered and distinguished. In view of the direct decision of this court in R.. Manicka Naicker there is no merit in this appeal. The appeal and the contempt petition are dismissed. No costs.” Similarly, their Lordships of the Hon’ble Supreme Court in Sankalchan Jaychandbhai Patel versus Vithal Bhai Jaychandbhai Patel, (1996) 6 SCC 433 have held that mutation entries do not create any title to the property and the bar of civil court’s jurisdiction is not applicable if the suit is based on title under the Bombay Revenue Jurisdiction Act, 1876. Their Lordships have held as under: 7 “A reading of the section would clearly indicate that there is a prohibition on the civil court to entertain any suit against the government, on account of any act or omission of any Revenue Officer, unless the plaintiff first proves that he previously brought it by way of an appeal before the competent authority and within the time prescribed. Without availing of that remedy, he cannot present the suit against the State. The question is whether Section 11 applies to the inter se claim of the private parties? It would be seen that the learned Single Judge has construed Section 11 of the Bombay Revenue Jurisdiction Act, and concluded that Section 11 prohibits entertainment of the suit between private parties unless the plaintiff has exhausted right of appeal or revision prescribed therein and available to him before he resorts to the suit challenging the order passed by the Revenue Officer. A reading of Section 11 does not indicate any prohibition on private parties inter se to avail of the remedy of a suit provided under the Code of Civil Procedure, 1908 (Civil Procedure Code). Section 9 of Civil Procedure Code does not expressly or by necessary implication, prohibits the jurisdiction of the civil court to entertain the suit based on title. It is settled law that mutation entries are only to enable the State to collect revenues from the persons in possession and enjoyment of the property and that the right, title and interest as to the property should be established dehors the entries. Entries are only one of the modes of proof of the enjoyment of the property. Mutation entries do not create any title or interest therein. Therefore, the view taken by the learned Single Judge, with due respect, is not correct in law. The civil suit is clearly maintainable. The High court rightly granted injunction restraining the appellants from alienating the land. Even otherwise, Section 52 of the Transfer of Property Act, 1882 lis pendens always 8 stands in the way of the purchaser of the land subject to the result in revision. Their Lordships of the Hon’ble Supreme Court in Dhruv Green Field Limited versus Hukam Singh and others, (2002) 6 SCC 416 have held that the jurisdiction of the civil court would be retained despite express or implied bar, if the order or action complained of is a nullity. Their Lordships have held as under: “In the light of the above discussion, the following principles may be re-stated- (1) If there is express provision in any Special Act barring the jurisdiction of a civil court to deal with matters specified thereunder the jurisdiction of an ordinary civil court shall stand excluded. (2) If there is no express provision in the Act but an examination of the provisions contained therein lead to a conclusion in regard to exclusion of jurisdiction of a civil court, the Court would then inquire whether any adequate and efficacious alternative remedy is provided under the Act; if the answer is in the affirmative, it can safely be concluded that the jurisdiction of the civil court is barred. If, however, no such adequate and effective alternative remedy is provided then exclusion of the jurisdiction of civil court cannot be inferred. (3) Even in cases where the jurisdiction of a civil court is barred expressly or impliedly the court would nonetheless retain its jurisdiction to entertain and adjudicate the suit provided the order complained of is a nullity.” Similarly, the Court is of the firm opinion that the jurisdiction of the civil court was not ousted in view of section 56 of the Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1972. The 9 case of the plaintiffs in nutshell is that on the basis of the wrongful revenue entries whereby the defendants have been conferred with proprietary rights, they have got the land allotted to them during the course of consolidation proceedings in the Muhal. The present proceedings have not arisen out of any consolidation proceedings as such. It is only the ancillary issue and the larger issue was whether on the basis of revenue entries, the defendants could get proprietary rights or not without following due process. The learned courts below have returned the concurrent findings that the defendants have never paid any rent to the plaintiffs. The payment of rent is sine qua non to establish the tenancy. Since the defendants have got the entries made in their favour whereby the proprietary rights have been conferred upon them, they got the land allotted during the consolidation proceedings. The revenue entries have been got recorded by the defendants without associating the plaintiffs. It will amount to a nullity. In these circumstances it is held that the civil court had the jurisdiction to decide the lis between the parties. In view of the observations made hereinabove it is held that the suit of the plaintiffs was maintainable and the jurisdiction of the civil court was not ousted since the suit was based on title. Consequently, there is no merit in this Regular Second Appeal and the same is dismissed. There will, however, be no order as to costs. 18.12. 2008 (Rajiv Sharma ), J. *awasthi*