IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 157 of 1996. Date of decision: 11.9.2009 Gaurju …. Appellant Versus Sh.Sham Singh and ors. ….. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? For the appellant: Shri Ashwani Sharma, Advocate. For the respondents: Sh.K.D.Sood, Advocate for respondents No.1 to 4. _____________________________________________________ Deepak Gupta, J.(Oral) This Regular Second Appeal was admitted on the following questions of Law:- 1. Whether Civil Courts have jurisdiction to go into the question regarding conferment of Proprietary Rights under H.P Tenancy and Land Reforms Act, 1972 on a tenant on the basis of his non-occupancy tenancy in view of the Judgment rendered by this Hon’ble Court in a Full Bench Decision of Chuhnia Versus Jindu Ram {1991(1) Shimla Law Cases 223} …….?....... 2. Whether the factum of non-occupancy Tenancy of a person can be concluded in the absence of any evidence or material on record regarding the payment of rent in the absence of any proof as to who inducted such a person as a tenant and when…..?..... 2 3. Whether the learned First Appellate Court while reversing the Judgment and Decree passed by the Ld.Trial Court has rightly and correctly appreciated the evidence adduced on record by the parties in their respective behalf…….?....... 4. Whether the impugned judgment and decree in appeal is sustainable in the eyes of law….?.... This Regular Second Appeal is directed against the judgment and decree of the learned District Judge, Bilaspur dated 29.3.1996 whereby he has upheld the judgment and decree passed by the learned Sub Judge 1st Class, Ghumarwin, District Bilaspur in Civil Suit No.210/1 of 1983, 33/1 of 1988 dated 30.3.1988. Briefly stated the facts of the case are that Smt.Karju predecessor-in-interest of respondents No.1 to 4 filed a suit against Smt.Gaurju Devi, widow of Nain Singh who has since expired and is represented by her legal representatives and Jai Singh and Pritam Dei. In this suit, plaintiff Karju claimed herself to be sister of Pohlo Ram. It was alleged that Pohlo Ram was a non-occupancy tenant of the land measuring 8 biswas situated in Khata/Khatoni No.30/48-49, Khasra No.484 in village Bari Majherwan, Pargna Tiun, Tehsil Ghumarwin, District Bilaspur under the predecessors of Jai Singh and Pritam 3 Dei. It was alleged that Pohlo had been tenant on the suit land for more than 40 years and became owner of the same by acquisition of tenancy rights. Pohlo died in the year 1980 and since the plaintiff was his sole sister she inherited the land in question. Jai Singh and Pritam Dei sold the suit land to defendant No.1 Gaurju Devi. It was alleged that this was a fraudulent transaction. Jai Singh and Pritam Die had no right to transfer any land since Pohlo had already become owner of the land. The defendants contested the suit. According to them, Pohlo was never inducted as non-occupancy tenant and as such never became owner. It was contended that the sale deed was legal and valid. Various issues were framed by the learned Trial Court. One of the points raised was that the Civil Court had no jurisdiction to entertain the suit. The learned Trial Court found all the issues in favour of the plaintiff. It held that Pohlo was a non-occupancy tenant and acquired the ownership rights pursuant to the H.P Tenancy and Land Reforms Act, 1972. It also held that the Civil Court had jurisdiction to entertain the suit. The appeal filed by Smt.Karju before the District Judge, Bilaspur has been dismissed. Hence the present appeal. 4 I have heard Sh.Ashwani Sharma, learned counsel for the appellant and Sh.K.D.Sood, learned counsel for the contesting respondents. The first contention raised on behalf of the appellant is that the Civil Court had no jurisdiction to decide this matter. Reliance in this regard has been placed on a Full Bench Judgment of this Court passed in Chuhniya Devi v. Jindu Ram 1991(1) Shimla Law Caes 223. In my view, the judgment in Chuhniya Devi’s case is not at all applicable to the present case. In the said case, a Full Bench of this Court came to the conclusion that the Civil Court had no jurisdiction to decide a dispute in respect of an order of conferment of proprietary rights under Section 104 of the H.P Tenancy and Land Reforms Act, 1972. In the present case, no such order was challenged by the defendants. The plaintiff had been granted proprietary rights and on the basis of the grant of ownership to her, she filed the suit. It may be true that the defendants challenged the contention of the plaintiff that Pohlo was a tenant on the land in dispute. This dispute however did not arise out of and had no connection with the order passed under the H.P 5 Tenancy and Land Reforms Act and, therefore, the Civil Court would have jurisdiction to decide the matter. This Court in Tajdin vs. Smt.Milkho Devi and others decided on 29.4.205 after considering the judgment of Chuhniya Devi as well as a Division Bench judgment in Shankar vs. Smt.Rukmani and others 2003(1) Shimla Law Cases, 300 held as follows:- “This has been amply clarified by the Division Bench in Shankar’s case (supra) wherein after analyzing the entire law and the judgment in Chuhniya Devi’s case (supra) the Division Bench held that if a dispute pertaining to the relationship of landlord and tenant arises during the proceedings of conferment of proprietary rights upon the tenant and the resumption of land by the land owner and the order in respect thereof has been passed by the authorities under the Act the Civil Court will have no jurisdiction except in a case where it is found that the competent authority has acted either in violation of the Rules of Natural Justice or contrary to the provisions of law laid down in the Act or the Rules. If the dispute regarding the relationship of landlord and tenant has no connection with the proceedings under Chapter-X of H.P. Tenancy and Land Reforms Act the Civil Court would have jurisdiction to hear and decide this dispute. I am not only bound but am in respectful agreement with the observations of the Division Bench in Shankar’s case quoted hereinbefore. The bar to the jurisdiction of the Civil Court under Section 112 of the Tenancy and Land Reforms Act will only apply when the validity of proceedings or order made under Chapter X are called in question in any Civil Court. Similarly under Section 115 of the said Act the order in appeal or revision passed by the Collector, Commission or Financial Commissioner can also not be challenged before the Civil Court unless the same is in violation of 6 the principles of Natural Justice or is contrary to the provisions of the Rules or the Act. The foundation for this must be laid in the plaint. It is the averments made in the plaint which will show whether the Civil Court has or does not have jurisdiction to entertain the suit.” In the present case, plaintiffs have not challenged the conferment of proprietary rights. Their case was in fact based on the order passed under the H.P Tenancy and Land Reforms Act. The Civil Court in such an eventuality would have jurisdiction to decide the matter. The finding whether Pohlo was a tenant or not is a pure finding of fact which cannot be challenged in the second appeal. However to satisfy my judicial conscience, I have gone through the records produced by the parties. The evidence placed on record clearly shows that Pohlo was shown as non-occupancy tenant in Khasra No.484 under Krishan Singh, Vijay Singh, Ishwar Singh, Smt.Sita Devi etc. The entire Khasra number has shown to be in his occupation as non-occupancy tenants. Presumption of truth is attached to the revenue entries which show Pohlo to be in possession over the suit land as non-occupancy tenant. This presumption has not been rebutted by the defendants. The only defence taken is 7 that Pohlo was not inducted as a tenant by the Predecessor-in-interest of defendants No.2 and 3 nor he was inducted as tenant over their share qua the suit land. In Ext.D/4 Pohlo has been shown as tenant over the entire suit land. In the Jamabandi for the year 1974-75, an entry has been made whereby Sh.Pohlo has shown to be owner of the land in view of the notification issued by the State of H.P under the H.P Tenancy and Land Reforms Act, 1972. Tenancy under law is indivisible and, therefore, it can be presumed without any manner of doubt that Pohlo occupied the entire land measuring 8 biswas as non- occupancy tenant. In view of the above discussion, I find no merit in the appeal and substantial question of law No.1 is answered against the appellant and in favour of the respondents. As far as question No.2 is concerned, it is held that it stands proved that Pohlo was a tenant on the land in question on payment on rent. Questions No.3 and 4 are not substantial questions of law and do not arise at all. The appeal is dismissed. No order as to costs. September 11, 2009 ( Deepak Gupta ) (m) Judge