IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 300 of 1999. Judgment reserved on: 24.4.2009 Date of decision: May 15, 2009. State of H.P. ……….Appellant Vs. Updesh Singh ……Respondent Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. Anshul Bansal, Additional Advocate General. For the Respondents : Mr. K.C. Rana, Senior Advocate with Ms. Uma Manta, Advocate. Kuldip Singh, Judge. This appeal has been directed against the judgment, decree dated 24.5.1999 passed by learned District Judge, Kangra at Dharamshala in Civil Appeal No.32/91, affirming judgment, decree dated 4.3.1991 passed by learned Sub Judge Ist Class, (II) , Nurpur in Civil Suit No.68 of 1990/88. 2. The respondent was plaintiff in the suit for declaration and injunction regarding land comprised in khasra Nos.632, 643, 645, plots 3, measuring 1-01-09 hectares vide missal haquiat 1983-84, situate in Tika and Mauza Kursan, Tehsil Indora. The further case of the respondent is that on coming into force of Himachal Pradesh Whether the reporters of the local papers may be allowed to see the Judgment? Yes - 2 - Tenancy and Land Reforms Act, 1972 ( for short Act) he became owner of the suit land along with some other land and mutation No.390 conferring proprietary rights in favour of respondent was attested on 6.2.1982. The mutation No.390 was reviewed on 26.5.1987 which took away rights of ownership of respondent on the suit land, such review is wrong, illegal, void and without jurisdiction. The respondent continued to be owner in possession of the suit land. The respondent earlier filed suit without waiting for the period of notice which was withdrawn with permission of the Court to file a fresh suit and thereafter the respondent filed the suit. 3. The suit was contested by appellant by filing written statement, in which preliminary objections of jurisdiction of the Civil Court to try the suit and want of legal notice before the filing of the suit were taken. On merits, it was pleaded that respondent was not in possession of the suit land either as tenant or owner. The suit land is owned and possessed by appellant. The order dated 26.5.1987 is not arbitrary or illegal. 4. The learned trial Court had framed the following issues:- 1. Whether the plaintiff had been tenant of the suit land under the defendant as alleged? OPP 2. If issue No.1 is proved, whether the plaintiff has become full owner of the suit land by operation of law i.e. enforcement of H.P. Tenancy & Land Reforms Act, 1974, as alleged? OPP 3. If issues No.1 and 2 are proved, whether the review of mutation of ownership No.390 is illegal, wrong, without jurisdiction and not - 3 - binding upon the rights of the plaintiff, as alleged? OPD 4. Whether the defendant interferes in the ownership and possession of the plaintiff over the suit land, as alleged? OPP 5. Whether the jurisdiction of civil court is barred, as alleged? OPD 6. Whether no legal notice had been served upon the replying defendant under section 80 CPC, as alleged? OPD 7. Relief. The issues No.1 to 4 were answered in affirmative, issues No.5 and 6 were decided in negative and under issue No.7, the suit was decreed as per operative part of the judgment dated 4.3.1991. In appeal learned District Judge on 24.5.1999 affirmed the judgment, decree of learned trial Court. Hence, second appeal by the State, which has been admitted on the following substantial question of law:- 1. Whether civil courts has any jurisdiction to hear and decide the appeal in view of bar under H.P. Land Reforms and Tenancy Act, 1971 and H.P. Village Common Lands ( Vesting & Utilization) Act, 1974? 2. Whether the Court below has correctly appreciated the judgment passed by this Hon’ble Court in the case Chuniya Devi vs. Jindu Ram 1991 (1) SLC 223? 3. Whether Gram Panchayat was legally competent to lease out land for cultivation under Punjab Village Common Land ( Regulation) Act, 1961? 4. Whether proprietary rights conferred upon the respondent are valid in view of the provisions as contained in Section 104 of H.P. Land Reforms and Tenancy Act, 1974? - 4 - 5. I have heard Mr. Anshul Bansal, learned Addl. Advocate General on behalf of the appellant and Mr. K.C. Rana, learned Senior Advocate, for the respondent and have also gone through the record. The learned Addl. Advocate General has submitted that the Civil Court has no jurisdiction in view of bar of Sections 112, 115 of the Act and Section 10 of the Himachal Pradesh Village Common Lands (Vesting and Utilization) Act, 1974. The Courts below have not properly appreciated Chuniya Devi vs. Jindu Ram 1991 (1) Sim.L.C. 223. The Gram Panchayat was not competent to lease out land for cultivation under Punjab Village Common Lands (Regulation) Act, 1961. The proprietary rights conferred on respondent of the suit land were not valid under Section 104 of the Act and therefore, the mutation No.390 was rightly reviewed. The learned counsel for the respondent has supported the impugned judgment, decree and has submitted that on facts the Courts below have returned the findings in favour of the respondent. 6. The substantial questions of law No. 1 and 2 are interconnected , therefore, both of them are being taken up together for disposal. In Chuhniya Devi vs. Jindu Ram 1991 (1) Sim.L.C. 223, the following questions came for consideration before Full Bench:- Whether the civil court has jurisdiction, in respect of an order: (a) made by the competent authority under the H.P. Land Revenue Act, 1954, and (b) of conferment of proprietary rights under section 104 of the H.P. Tenancy and Land Reforms Act, 1972. - 5 - In paragraph-64 of the report, the Full Bench has answered the questions as follows:- (a) that an order made by the competent authority under the H.P. Land Revenue Act, 1954, is open to challenge before a civil court to the extent that it relates to matters falling within the ambit of section 37 (3) and section 46 of that Act; and (b) the civil court has no jurisdiction to go into any question connected with the conferment of proprietary rights under section 104 of the H.P. Tenancy and Land Reforms Act, 1972, except in a case where it is found that the statutory authorities envisaged by that Act had not acted in conformity with the fundamental principles of judicial procedure or where the provisions of the Act had not been complied with. Sections 112, 115 of the Act provide that save as otherwise expressly provided in Chapter X, the validity of any proceedings or orders taken or made under Chapter X shall not be called in question in any civil court or before any other authority. In Dhulabhai etc. vs. State of Madhya Pradesh and another AIR 1969 SC 78, the Hon’ble Supreme Court has held that exclusion of civil court jurisdiction is not to be readily inferred. In Chuhniya Devi’s case (supra), the Full Bench of this court has held that civil court has no jurisdiction to go into any question connected with the conferment of proprietary rights under section 104 of the Act except in a case where it is found that statutory authority envisaged by that Act had not acted in conformity with the fundamental principles of judicial procedure or where the - 6 - provisions of the Act had not been complied with. It is significant to notice here that State had filed appeal against judgement dated 4.3.1991 of learned trial court, the learned District Judge earlier on 30.12.1992 had set-aside the judgement, decree dated 4.3.1991 of the trial court. The respondent had filed RSA No. 124 of 1993 against judgement, decree dated 4.3.1991 in this court, which was allowed on 22.2.1999 and the case was remanded to learned District Judge for fresh decision. In judgement dated 22.2.1999, this court has held as follows:- “…….It also appears from the record that the plaintiff- appellant was not afforded a proper opportunity of being heard before the sanction of mutation by conferment of proprietary rights by him in respect of the suit land, was reviewed. ….” 7. In view of findings recorded by this court on 22.2.1999 that the respondent was not afforded proper opportunity of being heard at the time of review of mutation conferring proprietary rights, it can be safely concluded that the case of the appellant falls in the exception pointed out by the Full Bench in Chuhniya Devi’s case (supra) for filing civil suit to challenge the proceedings connected with the conferment of proprietary rights. The proprietary rights were conferred of the suit land in favour of the respondent under the Act. In the suit, vestment of the land in favour of the State was not challenged. Therefore, H.P. Village Common Lands (Vesting and Utilization) Act, 1974 does not come into picture. In these circumstances, the civil court has the jurisdiction to decide the suit and the appeal arising from the suit. The substantial questions of law No. 1 - 7 - and 2 are decided against the appellant and in favour of the respondent. 8. The substantial question of law No. 3 does not emerge from the pleadings of the parties. The leasing out of the land by the Gram Panchayat in favour of anyone under Punjab Village Common Lands (Regulation) Act, 1961 has not been questioned by any party in the suit. In these circumstances, substantial question of law No. 3 is disposed of with the observation that this substantial question of law does not emerge from the case put forward by either side. 9. In so far as substantial question of law No. 4 is concerned, it is common case of the parties that initially proprietary rights of some parcel of land were conferred on respondent vide mutation No. 390 on 6.2.1982. The mutation No. 390 was reviewed on 26.5.1987 vide Ex. P-7 and thereafter respondent filed the suit for declaration and injunction regarding the land comprised in khasra Nos. 632, 643, 645. The appellant has denied that respondent was tenant and owner of the suit land. It has been pleaded in the written statement that prior to settlement correct khasra number of the suit land was 324/2 and after settlement new numbers were formed. Khasra Nos. 632 and 645 are pasture land and khasra No. 643 is a nallah and as such suit land is not cultivable land. On the basis of these pleadings, the appellant intends to say that since the suit land is pasture and nallah, therefore, respondent could not be tenant and in possession of the said land. 10. Ex. D-1 jamabandi 1951-52 indicates that new khasra No. 324 was equivalent to old khasra No. 428. Khasra No.324 was - 8 - measuring 49-5 kanals as per jamabandi 1957-58 Ex. D-2. In jamabandi 1966-67 Ex.D-3 respondent has been shown non- occupancy tenant under Gram Panchayat on khasra No. 324 min, measuring 39 kanals. In jamabandi 1971-72 Ex. P-11 respondent has been shown non-occupancy tenant under Gram Panchayat on payment of 1/3rd Galla batai on land comprised in khasra No.316 measuring 2-15 kanals, khasra No. 324 min measuring 39 kanals total measuring 41-15 kanals. In jamabandi 1976-77 Ex. P-10 respondent has been shown tenant under Gram Panchayat Deh on khasra No. 316 measuring 2-15 kanals, khasra No. 324 min measuring 39 kanals total measuring 41-15 kanals on payment of 1/3rd Galla Batai. In Ex.P-10 in column No. 12, there is a note that vide mutation No. 317 ownership of khasra No. 316, 324/2 kitas-2, total measuring 41-15 kanals has been transferred in favour of State. There is another note in Ex.P-10 that vide mutation No. 390 dated 6.2.1982 ownership has been conferred in favour of Updesh Singh of land comprised in khasra Nos. 316, 324/2, kitas-2, total measuring 41-15 kanals. In Ex. P-11 jamabandi 1971-72 and Ex. P-10 jamabandi 1976-77 khasra No. 324 min has not been recorded as pasture. 11. It is reasonable to infer that khasra No. 324 min measuring 39 kanals mentioned in column No. 7 of Ex. P-10 is equivalent to khasra No. 324/2 measuring 39 kanals mentioned in column No. 12 of jamabandi 1976-77 Ex. P-10. In Ex. D-6 misal- haquiat 1983-84 khasra Nos. 632, 643 and 645 are shown equivalent to old khasra Nos. 324/2 min, 324/2 min, 324/2 min. Khasra Nos. 632 and 645 have been recorded as pasture with trees, khasra No. 643 - 9 - has been recorded as nallah in Ex. D-6. The nature of trees has not been mentioned in khasra No. 632 and khasra No. 645 in Ex. D-6. It supports the case of the respondent that he had developed the land and planted trees, that is why the entry with respect to khasra Nos. 632 and 645 in Ex. DC is showing trees. In so far as entry of khasra No. 643 is concerned, the appellant cannot take any benefit from this entry inasmuch as it appears to be a case of natural nallah which emerged on the land due to development of land. Before 1983-84 on no part of khasra No. 324 in the record nallah has been shown. The position of the land is to be seen on the date of conferment of proprietary rights. The conferment of proprietary rights under the Act is automatic. In other words, respondent had become owner of the tenanted land on coming into force of the Act and the Rules framed under the Act. 12. It has been submitted that mutation No. 390 was rightly reviewed on 26.5.1987 inasmuch as on khasra Nos. 632, 643 and 645 the respondent could not be a tenant in view of nature of land of such khasra numbers. This submission is not available to the appellant, the position is to be seen on the date of conferment of proprietary rights and not on the date when the order was reviewed on 26.5.1987. No reasons have been given on review mutation No. 390 Ex. P-7. The two courts below have recorded a concurrent finding in favour of the respondent regarding review mutation No. 390. The substantial question of law No. 4 is decided against the appellant and in favour of the respondent. - 10 - 13. It has not been pointed out on behalf of the appellant that some material evidence has been ignored or some inadmissible evidence has been considered by the two courts below in decreeing the suit of the respondent. The appellant has failed to make out any case for interference. 14. No other point was urged. 15. As a result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. May 15, 2009. ( Kuldip Singh ), (sks/Hem) Judge.