IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.8 of 1999 Date of decision : May 26, 2010 Basanta …Appellant. Versus Kalu and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. N.K. Thakur, Advocate. For the Respondents : Mr. Sanjeev Kuthiala, Advocate, for respondents No.1 to 6. Surjit Singh, J (Oral) This Regular Second Appeal by the defendant was admitted on the following substantial questions of law: “1. Whether the jurisdiction of the civil court is barred under Section 57 of the Consolidation Act? 2. What is the effect of the order of Director, Consolidation of Holdings setting aside the un-authorised change made in favour of the respondents thereby restoring the entries in favour of the defendant- appellant? 3. Whether a sub tenant can claim/acquire the status of a tenant unilaterally without the consent and concurrence of the owner/ tenant?” 2. Appeal is directed against the judgment and decree dated 11th December, 1998 of learned Additional District Judge, Una, whereby appeal filed by the present appellant-defendant against the judgment and decree dated Whether reporters of the local papers may be allowed to see the judgment? …2… 26th May, 1993 of learned Sub Judge 1st Class, Court No.1, Amb, was dismissed and the said judgment and decree of the trial Court were affirmed. 3. Suit was filed by respondent No.1 Kalu, hereinafter referred to as plaintiff, for declaration that he and the LRs of his brother Heeru, impleaded as proforma- defendant, were initially non-occupancy tenants on land bearing Khasra No.3927 (old), new Khasra No.3086, and that with the enforcement of H.P. Tenancy and Land Reforms Act, they had become its owner on and with effect from the appointed date, i.e. 3rd October, 1975. It was pleaded that the suit land had been in occupation of the predecessor of the plaintiff since 1929-30, on payment of rent, as per entry in the Jamabandi for the year 1929-30, copy Ex. P-2, but sometime in the year 1962 their names were unauthorisedly dropped from the Jamabandi. They pleaded that when consolidation took place during the period 1980 to 1982, they approached the Consolidation Officer to reflect their names, as tenants, in respect of the suit land. Said Consolidation Officer allowed their prayer and passed an order accordingly. That order was challenged by the present appellant-defendant before Director (Consolidation), who set aside the order of Consolidation Officer, as a result of which the names of the plaintiff and proforma-defendants were again deleted from the revenue record and previous entries in the Jamabandi …3… restored. They claimed that they had been in continuous possession of the suit land as tenants and with the coming into force of H.P. Tenancy and Land Reforms Act, they acquired proprietary rights. 4. Defendant Basanta contested the suit. It was stated that the suit was barred, under Section 57 of the H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, because the plaintiff had challenged the order passed by the Consolidation Officer, restoring the original entries. It was pleaded that the defendant was himself in possession of the suit property, in the capacity of owner. Plaintiff’s plea that he and proforma-defendants and their predecessors were in possession of the suit land as tenants was denied. 5. Learned trial Court concluded that the plaintiff and proforma-defendants were tenants since the time of their forefathers and that they had become owners by virtue of the provision of Section 104(4) of the H.P. Tenancy and Land Reforms Act, on and with effect from the appointed date. It was also held that the Civil Court had the jurisdiction and Section 57 of the H.P. Holdings (Consolidation and Prevention of Fragmentation) Act was not attracted. Suit was, consequently, decreed. Appeal filed by appellant-defendant Basanta against the decree of the trial Court has been dismissed by the District Judge, as aforesaid. …4… 6. I have heard the learned counsel for the parties and gone through the record. 7. Job of the Consolidation Authorities is to consolidate the holdings of all the land-holders of an estate. Procedure is prescribed in the H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, itself. As per the procedure prescribed in the Act and the Rules framed thereunder, entire land of a revenue estate notified for consolidation is converted into one pool and valuation of various kinds of land is done. Valuation of individual pieces of land possessed by different land-holders is also done. Then entitlement of land-holders, according to the valuation of their holdings, is carried out and land is allotted to them in the shape of one piece, based on the valuation of the land earlier held by them. This is the only job Consolidation Authorities are required to perform. 8. What was done by the Consolidation Officer, in the present case, was that he ordered the incorporation of the names of the plaintiff and proforma-defendants in the Misl Hakiat and other record prepared during consolidation, as tenants, even though their names did not appear in the Jamabandis from 1963-64 onwards. He did not have the jurisdiction to pass this kind of order. This order and the consequential entries were challenged by filing a revision petition before Director (Consolidation), who set aside the order of Consolidation Officer and ordered the restoration of …5… the previous entries in the Misl Hakiat. Since the order of the Consolidation Officer was without jurisdiction, Director (Consolidation) was right in setting aside the said order. 9. The order of Director (Consolidation) was not an order of the kind, in respect of which jurisdiction of the Civil Court is barred, under Section 57 of the H.P. Holdings (Consolidation and Prevention of Fragmentation) Act. Section 57 of the said Act applies only in respect of the matters arising out of the consolidation proceedings. The matter regarding correction of entries in the revenue papers, which were prevailing immediately before notification for consolidation, cannot be said to arise out of the consolidation proceedings. Therefore, substantial question of law No.1 is answered against the appellant. 10. As regards substantial question of law No.2, the effect of the order of Director (Consolidation) was that the position, as it existed prior to consolidation proceedings, with regard to the name of the owner and the name of the person in possession of the suit land, was restored. The substantial question of law is answered accordingly. 11. As regards substantial question of law No.3, acquisition of proprietary rights by a tenant is not a unilateral act of the tenant or bilateral act of the tenant and the owner, but it is by virtue of operation of law, i.e. Section 104 sub Section 4 of the H.P. Tenancy and Land …6… Reforms Act. Substantial question of law is answered accordingly. 12. In view of the aforesaid answers to the substantial questions of law, on which the appeal was admitted, it is held that the appeal is without merit. The same is, therefore, dismissed. Appeal stands disposed of. May 26, 2010(sd) ( Surjit Singh ), J