IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.278 of 1999 Date of decision : March 9, 2009 Maya Ram …Appellant. Versus Gian Chand (through LRs) …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Baldev Singh, Advocate. For the Respondents : Mr. Ramakant Sharma, Advocate. Surjit Singh, Judge( Oral ) CMP No.1246/2008 Dismissed, as not pressed. RSA No.278/1999 This is Regular Second Appeal against the decree of the trial Court, which has been partly affirmed in appeal by the District Judge. Appeal is by the defendant. 2. Relevant facts are that respondent Gian Chand, hereinafter called plaintiff, filed a suit seeking a declaration that he was owner in possession of the suit land. He pleaded that initially he was a tenant under Devta Kali Nag and to whom by way of rent he used to give a portion of the produce of the land. He claimed that by operation of Section 104(3) of the H.P. Tenancy and Land Reforms Act, he had acquired ownership rights. It was stated that the present appellant, hereinafter Whether reporters of the local papers may be allowed to see the judgment? …2… called defendant, had nothing to do with the suit land nor had he ever been in possession thereof, but in connivance with the Patwari and the Kardar of the Devta, who happened to be his brother, he got incorporated an entry, in the revenue papers, showing him as sub-tenant, on payment of rent at the rate of Rs.400/- per annum. Entry was alleged to be illegal, unauthorized, void and of no consequence upon the right of the plaintiff. Besides seeking declaration to the aforesaid effect, injunction was also sought, restraining the defendant from causing any interference in the possession of the plaintiff, on the basis of wrong entry in the revenue papers, which appeared in Jamabandi for the year 1970-71. 3. Defendant-appellant took the plea that he was not a sub-tenant, under the plaintiff-respondent, but a tenant under the Devta Kali Nag and that the entry, showing the plaintiff-respondent as tenant, under the said land owner, was wrong and illegal. He also raised certain preliminary objections. The relevant ones are that the suit was bad for non-joinder of the land owner, i.e. Devta Kali Nag, and the Civil Court did not have the jurisdiction to try the suit. Issues based on these objections were found by the two Court below against the appellant-defendant. 4. The two Courts below have held the plaintiff- respondent to be in possession of the suit land. It has also been held that the defendant-appellant has nothing to do with the suit land and that the entry, showing him as sub-tenant, …3… under the plaintiff-respondent, is illegal and contrary to the factual position prevailing on the spot. 5. Trial Court passed a declaratory decree declaring the plaintiff-respondent as owner in possession of the suit land and restraining the defendant-appellant from causing any interference in his possession. Learned District Judge has modified the decree, on the ground that in the absence of the owner of the land, a decree declaring the plaintiff as owner could not have been passed. The modified decree, passed by the District Judge, is to the effect that plaintiff-respondent is tenant in possession of the suit land and defendant-appellant is not a sub-tenant under him and the entry in the revenue papers, showing him as sub-tenant, is illegal, wrong, void and not binding upon the plaintiff-respondent. 6. This appeal was admitted on the following substantial questions of law: “1. Whether the Civil Court has jurisdiction to determine the status of tenant over suit land in view of Section 58 of HP Tenancy and land Reform Act and law laid down by Apex Court? 2. Whether Plaintiff could seek any relief without impleading recorded owner Devta Kali Nag Ji of suit land?” 7. I have heard the learned counsel for the parties and gone through the record. 8. As regards the first substantial question of law on which the appeal has been admitted, learned counsel for the appellant places reliance upon Entry (c) of Second Group of …4… sub-section (3) of Section 58 of the H.P. Tenancy and Land Reforms Act, which reads as under: “(3) The following suits shall be instituted in, and heard and determined by, Revenue Courts, and no other Court shall take cognizance of any dispute or matter with respect to which any suit might be instituted:- FIRST GROUP (a) XXX XXX XXX (b) XXX XXX XXX SECOND GROUP (c) Suits by a tenant to establish a claim to a right of occupancy, or by land-owner to prove that a tenant has not such a right. (d) XXX XXX XXX (e) XXX XXX XXX (f) XXX XXX XXX (g) XXX XXX XXX (h) XXX XXX XXX THIRD GROUP (i) XXX XXX XXX (j) XXX XXX XXX” 9. A bare reading of the aforesaid entry suggests that the jurisdiction of the Civil Court has been barred only in respect of that suit which is instituted by a tenant to establish a right of occupancy. Naturally, right of occupancy would be claimed by a tenant, only against the owner of the land and not against a third person or a stranger, or an encroacher. The doubt, if any, which may be there in the mind of the learned counsel is further removed by the fact that the second portion of the entry says that a suit denying occupancy right of a tenant by land owner can also not be instituted in Civil Court. …5… 10. In view of the abovestated position, the first substantial question of law is answered against the defendant- appellant. 11. So far as the second substantial question of law on which the appeal was admitted is concerned, suffice it to say that the suit filed by the plaintiff-respondent is in the nature of a lis in personam and not a lis in rem and so the decree would affect only the parties to the litigation and not any other person. In any case, the declaration of ownership sought by the plaintiff and granted by the trial Court, has been declined by the first Appellate Court, by amending the decree, as already noticed hereinabove. So, this substantial question of law is also answered against the defendant-appellant. In view of the abovestated position, appeal is dismissed. March 9, 2009(sd) ( Surjit Singh ), J