IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 242 of 1998. Decided on : 1.4.2009. ____________________________________________________________ Ram Murti & Others. …Appellants. Versus Brij Lal & Others. ….Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes. For the Appellants : Ms. Seema Guleria, Advocate. For the Respondents : Mr. Ajay Sharma, Advocate. Kuldip Singh , Judge (Oral ). This appeal has been directed against the judgment, decree dated 3.9.1997 passed by the learned District Judge, Kangra at Dharamshala in Civil Appeal No. 99-K/XIII/1996 affirming the judgment, decree dated 31.7.1996 passed by the learned Sub Judge (1), Kangra in Civil Suit No.37 of 1995/1988. 2. The facts, in brief, are that the appellants No. 5 to 10 and one Ramesh Chand , predecessor of appellants No. 1 to 4 had filed a suit for possession regarding land comprised in Khata No.166 min, Khatauni No. 331, Khasra Nos. 1021, 1028 and 1029, Kittas 3, measuring 0-17-39 Hectares, vide jamabandi for the year 1983-84 situate at Mouza Kachhiari, Tehsil and District Kangra. The pleaded case of the appellants was that they and their predecessor late Ramo Devi remained in cultivating possession of the suit land till the year, 1991. They had good relations with 1 Whether reporters of Local Papers may be allowed to see the Judgment ? .Yes. Diwan Chand, predecessor of respondents 1(a) to 1(d), who had been working as servant of late Ramo Devi and was cultivating the suit land on wages being servant of late Ramo Devi. He was never inducted as tenant on the suit land. Ramo Devi died in the year 1981 and after her death, Diwan Chand started claiming tenancy rights on the suit land. He encroached the suit land without the consent of appellants and their predecessors. Diwan Chand in collusion with revenue staff got his possession recorded as tenant and the revenue record showing Diwan Chand as tenant is wrong, illegal. The mutation of conferment of proprietary rights in favour of Diwan Chand is without authority, illegal, null and void and is liable to be ignored as Diwan Chand was never inducted as tenant on the suit land. 3. The suit was contested by Diwan Chand by filing written statement. In preliminary objections jurisdiction of the Court to try the suit was denied. It was pleaded that Diwan Chand had been coming in possession of the suit land as tenant since 1964. On merits, the claim of the appellants was denied. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiffs and their predecessors-in-interest Ramo Devi had been in cultivating possession over the land in dispute owned by the plaintiffs, as alleged, if so, its effect? ..OPP. 2. Whether the defendant was working as servant on wages of late Smt. Ramo Devi predecessor of the plaintiffs and defendant was never inducted as a tenant, if so, its effect? …OPP. 3. Whether the plaintiffs are entitled to possession of the property in dispute? ..OPP. 4. Whether the Court has no jurisdiction to entertain the suit, as alleged?...OPD. 5. Whether the plaintiffs have got no cause of action to file the suit?...OPD. 6. Relief. The issues Nos. 1 to 4 were answered in negative, issue No.5 in affirmative and the suit was dismissed on 31.7.1996. In appeal, the learned lower Appellate Court had framed the following points for determination:- 1. Whether the plaintiffs or their predecessor-in-interest used to cultivate the suit land and defendant remained as servant and cultivated the suit land on wages, as alleged, and the plaintiffs are entitled to the relief as claimed in the plaint? If so, its effect? 2. Whether the court has got jurisdiction? If so, its effect? 3. Relief. The points 1, 2 were answered in negative and the appeal was dismissed, hence this appeal which has been admitted on following substantial questions of law:- 1. Whether any change made by the settlement staff in the revenue record without following the procedure laid down under Sections 37 and 38 of the Himachal Pradesh Land Revenue Act and without the consent of the owners, is binding against the parties? 2. Whether the presumption of truth can be attached to the revenue entries which have been changed behind the back of party when there were regular and continuous entries in favour of the affected party? 3. Whether where the relationship of land lord and tenant is disputed and the correctness of revenue entries disputed, a civil court has no jurisdiction to entertain the suit or the suit is barred under the provisions of the Himachal Pradesh Tenancy and Land Reforms Act? 4 Whether in the given circumstances and the facts the learned lower courts have legally and correctly appreciated and relied upon the documentary evidence of the parties? 5. Whether the law relied upon by the learned lower appellate court, has been rightly applied to the facts of the present case? 4. I have heard the learned counsel for the parties and perused the record. The substantial question of law No.3 is taken first for decision. In the plaint, the appellants have pleaded that mutation of conferment of proprietary rights in favour of the defendant is without authority, illegal, null and void and is, therefore, liable to be ignored as the defendant was never tenant on the suit land. In other words, the appellants have projected the case that Diwan Chand was not their tenant nor the tenant of their predecessors and proprietary rights conferred in his favour under the H.P.Tenancy and Land Reforms Act, 1972 (for short ’Act’) of the suit land are wrong and illegal. The appellants by challenging the conferment of proprietary rights of suit land on Diwan Chand, have clearly challenged ownership of Diwan Chand of the suit land which he acquired under Section 104 of the Act. In Chuhniya Devi Vs. Jindu Ram, 1991 (1) S.L.C. 223, the question before the Full Bench was 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, which has not been assailed under the provisions of these Acts. The Full Bench in para 64 of the report has answered question No.(b) as follows:- “ 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.” In light of decision in Chuhniya Devi (supra), the civil court has no jurisdiction to go into any question connected with the conferment of proprietary rights under the Act, subject to exception that the authorities under the Act had not acted in conformity with the fundamental principles of judicial procedure or provisions of the Act had not been complied with. 5. In the present case, the suit of the appellants is not based upon exceptions mentioned in Chuhniya Devi so as to give jurisdiction to the civil court. The learned counsel for the appellants has relied Shankar vs. Smt. Rukmani and others, 2003 (1) S.L.C., 300, in support of her proposition that civil court has jurisdiction when a dispute of landlord and tenant arises between the parties. In Shankar (supra), a Division Bench of this Court has held that if dispute of landlord and tenant arises independent of the proceedings under the Act, the civil court has jurisdiction. In para 10 of the judgment, it has been observed that either party has not averred that either the proceedings were initiated or the order was passed under Chapter X of the Act. In those circumstances, Division Bench held that ratio of judgment in Chuhniya Devi’s case is not applicable to the facts and circumstances of that case and it was held that civil court has jurisdiction to try the suit. 6. The facts in the present case are entirely different. The appellants themselves in the plaint have pleaded that proprietary rights were conferred on Diwan Chand predecessor of respondents 1(a) to 1(d) and such proprietary rights were wrong and illegal. In these circumstances, it cannot be said that the dispute of landlord and tenant arises independent of the proceedings under the Act. The present case is fully covered by Chuhniya Devi’s case and Shankar case is not applicable to the facts of the present case. In light of above discussion, the civil court has no jurisdiction to try the suit. The learned counsel for the appellants has failed to make out a case in this regard. The substantial question of law No.3 is decided against the appellant. Substantial questions of law No.1, 2, 4 and 5: 7. In light of answer to substantial question of law No.3, it is not necessary to go into and determine substantial questions of law No.1, 2, 4 and 5 and those are disposed of accordingly. 8. No other point was urged. 9. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh), April 1, 2009. Judge. (GR)