IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 402/1999 Reserved on:10.3.2009 Decided on:4.5.2009 Uttam Singh and others. …Petitioners. Versus State of Himachal Pradesh. …Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the appellants : Mr. D.N. Ronta, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. and Mr. Vikas Rathore, Deputy Advocate General. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 1.7.1999 passed by the learned District Judge, Shimla in civil appeal No. 89-S/13 of 1997. Brief facts necessary for the adjudication of this Regular Second Appeal are that the appellants-plaintiffs (hereinafter referred to as ‘the plaintiffs’ for convenience sake) filed a suit for declaration that they were owners in possession of land measuring 43-12 bighas bearing khasra Nos. 481,505 and 540 min, land measuring 8-18 bighas bearing Khasra No. 803/782/455/2 and land measuring 16-14 bighas bearing Khasra No. 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 785/484 situated in Chak Kuthar, Paragana Mandali, Tehsil Theog, District Shimla and that the entries in the revenue record showing the said land in the ownership of the State of Himachal Pradesh are wrong, illegal and have no consequence. They have also prayed for permanent prohibitory injunction restraining respondent-defendant (hereinafter referred to as ‘the defendant’ for convenience sake) from interfering in their possession over the suit land. They had withdrawn their claim with respect to Khasra No. 505 measuring 24-18 bighas vide statement dated 21.6.1997 of their counsel Sh. M.L. Chauhan. The suit land was earlier owned by the ruler of the erstwhile State of Balson. He inducted plaintiff No.2 to 5 as tenants on the suit land in the year 1961 on sharing of half of the produce of the land as rent, as per averments contained in the plaint. Ever since the plaintiffs had been continuing in possession of the suit land. The entries in the revenue papers, however, continued to show the former ruler of erstwhile State of Balson as owner in possession of the suit land and taking undue advantage of these entries, which were factually incorrect, the said former ruler, included the suit land in the land which he offered to surrender to the State of Himachal Pradesh as surplus land under the provisions of the Himachal Pradesh Ceiling on Land Holdings Act, 1972. Consequently, an order declaring the suit land as surplus under the Himachal Pradesh Ceiling on Land Holdings Act, 1972 was passed and the land was mutated in the name of State of Himachal Pradesh. The plaintiffs were, however, not made a party to the proceedings taken by the Collector for the declaration of the suit land as surplus though the possession of the suit land on the spot was with them. Even after the declaration of the suit land as surplus, the plaintiffs continued to be in possession of the suit land. They came to know about the declaration of the suit land as surplus and the change of the entries in favour of the State 3 of Himachal Pradesh sometime in the year 1978. They filed an application under section 37 of the Himachal Pradesh Land Revenue Act for the correction of entries in their favour. Their application was dismissed. Thereafter the notice was served upon the State of Himachal Pradesh. The suit was contested by the defendant. It was alleged that the suit was not maintainable and the plaintiffs were estopped to sue by their acts, deeds and conduct. It was further averred in the written statement that the civil court had no jurisdiction under the Himachal Pradesh Ceiling on Land Holdings Act, 1972. It was denied on merits that the plaintiffs were ever inducted as tenant by the former ruler of the erstwhile State of Balson, It was further alleged that Rana Vidya Bhushan, the former ruler of erstwhile State of Balson, was himself the owner in possession of the suit land and he included this land in the land which he offered to surrender to the State of Himachal Pradesh as surplus land under the provisions of the Himachal Pradesh Ceiling on Land Holdings Act, 1972 and thereafter the suit land was declared surplus and vested in the State of Himachal Pradesh. It was further stated that a part of the suit land i.e. land bearing khasra No. 455 and 484 had earlier vested in the State of Himachal Pradesh under the provisions of the Abolition of Big Landed Estates and Land Reforms Act, 1953, but later on its ownership rights were granted by the Compensation Officer to Rana Vidya Bhushan and mutation was attested in his favour on 5.12.1966. Rana Vidya Bhushan while filing the return of surplus land, included the suit land bearing Khasra Nos. 455 and 484 alongwith the rest of the suit land and some other land in the land sought to be declared surplus and consequently an order declaring whole of the suit land and some other land of Rana Vidya Bhushan as surplus, was passed by the Collector. The trial court decreed the suit on 26.6.1997. The defendant-State preferred an appeal before 4 the learned District Judge, Shimla. The learned District Judge accepted the appeal on 1.7.1999. The judgment and decree passed by the trial court was set aside. The learned District Judge has held that the civil court had no jurisdiction in the matter. The Regular Second Appeal was admitted on the following substantial question of law: “Whether the jurisdiction of the civil court is barred in view of the provisions contained in section 18 of the H.P. Ceiling on Land Holdings Act, 1972?” Mr. D.N. Ronta, Advocate has supported the judgment and decree passed by the trial court. He then contended that the learned District Judge has erred in law by coming to a conclusion that the jurisdiction of the civil court was barred in view of the Himachal Pradesh Ceiling on Land Holdings Act, 1972. He further contended that the plaintiffs were inducted as tenants. He lastly contended that the entries made in favour of the State of Himachal Pradesh were nullity since the plaintiffs were in possession of the suit land and no notice was served upon them as per the provisions of the Himachal Pradesh Ceiling on Land Holdings Act, 1972. Mr. R.K. Sharma, the learned Senior Additional Advocate General has supported the judgment and decree passed by the learned District Judge. I have heard the learned counsel for the parties and perused the record carefully. PW-1 Uttam Singh has deposed that he and his brother deceased Mehar Singh were inducted as tenants over the suit land by Rana of Balson about 35-40 years back on Nisab Batai (half share of the produce) as rent. According to him he used to pay rent in the shape of Nisab Batai to Rana of Balson. He then testified that he and his brother had been 5 coming in possession of the suit land continuously, openly and without any interruption. He had applied for correction of the revenue entries in the year 1978. The same was rejected. He then stated that they never relinquished the possession of the suit land nor any notice was served upon them about the vestment of the suit land in the State of Himachal Pradesh. PW-2 Bikram Singh has supported the version of PW-1. He has deposed that his grand-father Rana Ran Singh had given the suit land to uttam Singh and Mehar Singh on payment of Nisab Batai as rent. In his cross-examination he has admitted that under the Himachal Pradesh Ceiling on Land Holdings Act, 1972, the suit land was declared surplus and the same was vested in the State of Himachal Pradesh. He supported the version of PW-1 on the question of possession. PW-3 Dhaju Ram has deposed that since 1965, the suit land was in possession of the plaintiff and deceased Mehar Singh. The plaintiffs have not proved on record any revenue entry depicting their status as tenants. The statement of PW-1 is self serving statement. In case the plaintiffs were inducted as tenants there ought to be some revenue entries to this effect in the revenue record. The trial court had erred in law by coming to a conclusion on the basis of statements of PW-1, PW-2 and PW-3 that the plaintiffs were inducted as tenants in the year 1961. It will also be apt at this stage to refer to the documents proved on record by the defendant. Ex.DA is the copy of jamabandi for the year 1963-64 pertaining to Khasra No. 455 and 484 and as per entry in this jamabandi, the possession of the suit land was with Rana Vidya Bhushan. The possession was not with the plaintiffs or their predecessor in interest. Ex.DB is the copy of jamabandi for the year 1963-64 pertaining to khasra Nos. 481 and 540. In this jamabandi, Kanwar Prakriti Bhushan Singh is 6 recorded to be in possession of these khasra numbers through a non- occupancy tenant, namely, Sudama. The names of the plaintiffs or their predecessor-in-interest did not figure in this jamabandi. Similarly, in Ex.DJ i.e. copy of jamabandi for the year 1955-56 pertaining to khasra No. 481 and 540, Kanwar Prakriti Bhushan is shown to be in possession of the suit land as occupancy tenant while Rana Vidya Bhushan Singh , the former ruler of Balson State is recorded as the owner of the land. In Ex.DL i.e. copy of jamabandi for the year 1959-60 pertaining to Khasra Nos. 451 and 540, Rana Vidya Bhushan Singh is recorded as owner while Kanwar Prakriti Bhushan is recorded as occupancy tenant and one Sudama is recorded as non-occupancy tenant. In Ex.DM i.e. copy of jamabandi for the year 1959-60 pertaining to Khasra No. 455 and 484; Rana Vidya Bhushan is recorded as owner in possession of the suit land. There is presumption of truth attached to these entries. These entries have not been refuted by the plaintiffs in any manner. Cumulatively the picture that emerges from the oral as well as documentary evidence produced by the parties is that the plaintiffs have failed to prove that they were ever inducted as tenants in the year 1961. They had no right to challenge the mutation entered in the State of Himachal Pradesh under the Himachal Pradesh Ceiling on Land Holdings Act, 1972. In the revenue entries neither the names of the plaintiffs nor their predecessor-in-interest figured. The plaintiffs were required to prove the tenancy by leading tangible evidence. The same is lacking in the present case. PW-1 has testified that the suit land had been in possession of the plaintiffs as non-occupancy tenants for the last 35-40 years. Similar is the statement of PW-2 Bikram Singh. It is the case of the plaintiffs, as noticed above, that the tenancy was created in the year 1961, but in this year it 7 was father of Bikram Singh and not his grant-father Ran Singh, who was the owner of the suit land as per the entries in the jamabandi for the years 1955-56 and 1959-60. The version PW-3 cannot be relied upon for the simple reason that he has deposed that the plaintiffs were inducted as tenants in the year 1956 as the pleaded case of the plaintiffs is that the tenancy was created in the year 1961. The learned District Judge has rightly observed that an effort has been made by the plaintiffs to declare null and void the mutation entered in favour of the State of Himachal Pradesh after the land was declared surplus and vested in the State of Himachal Pradesh. The plaintiffs have failed to prove that they were ever inducted as tenants in the year 1961. Since they have failed to prove this essential fact, there is no question of conferment of proprietary rights on the plaintiffs. The proprietary rights could only be conferred if the plaintiffs were ever inducted as tenants. The plaintiffs have also moved an application for the correction of the revenue entries and the same has been rejected by the competent authority. The suit land was declared as surplus and was vested in the State of Himachal Pradesh free from all encumbrances. Mr. D.N. Ronta, Advocate has strenuously argued that the plaintiffs were in possession of the suit land and thus they were required to be heard under the Himachal Pradesh Ceiling on Land Holdings Act, 1972. It was not necessary since the plaintiffs were never inducted as tenants nor were they in possession of the suit land. The suit land was declared surplus under the Himachal Pradesh Ceiling on Land Holdings Act, 1972. Section 18 of the Himachal Pradesh Ceiling on Land Holdings Act, 1972 bars the jurisdiction of the civil court to settle, decide or deal with any matter which is under the Act required to be 8 settled, decided or dealt with by the Financial Commissioner. Section 18 of the Himachal Pradesh Ceiling on Land Holdings Act, 1972 reads thus: “18. Bar of jurisdiction- (1) No civil Court shall have jurisdiction to- (a) entertain or proceed with a suit for specific performance of a contracts for transfer of land which affects the rights of the State Government to the surplus area under this Act; or (b) settle, decide or deal with any matter which is under this Act required to be settled, decided or dealt with by the Financial Commissioner, the Commissioner, the Collector. (2) No order of the Financial Commissioner, the Commissioner, the Collector made under or in pursuance of this Act, shall be called in question of any Court.” Accordingly, it is held that the civil court had no jurisdiction to go into the question raised in the suit after the land was declared surplus. The Hon’ble Apex Court in Azad and others versus Dharampal and others, (1998) 9 SCC 161 while interpreting section 26 of the Haryana Ceiling on Land Holdings Act, 1972 have held that the jurisdiction of the civil court was barred. Section 26 of the Haryana Ceiling on Land Holdings Act, 1972 and section 18 of the Himachal Pradesh Ceiling on Land Holdings Act, 1972 are pari materia. The Apex Court after considering section 26 of the Haryana Ceiling on Land Holdings Act, 1972 has held that the suit filed on behalf of respondents was not maintainable. Their Lordships have held as under: “4. It was urged on behalf of the appellants that civil court had no jurisdiction to entertain the suit in question filed on behalf of the respondents, in view of Section 26(l)(b) of the Haryana Ceiling on Land Holdings Act, 1972 which is as follows: 9 "26. Bar of jurisdiction.-(1 No civil court shall have jurisdiction to- (A) entertain or proceed with a suit for specific performance of a contract for transfer of land which affects the right of the State government to the surplus area under this Act: or (B) settle, decide or deal with any matter which is under this Act required to be settled, decided or dealt with by the Financial Commissioner, the Collector or the Prescribed Authority. (2 No order of the Financial Commissioner, the Commissioner, the Collector or the prescribed authority made under or in pursuance of this Act shall be called in question in any court." The bar of the jurisdiction of the civil court has been considered by this court from time to time and recently it has been examined in the case of Shiv Kumar Chadhu v. Municipal Corpn. of Delhi by a bench of three Judges. 5. According to us in view of clear bar prescribed by Section 26(l)(b) of the Haryana Ceiling on Land Holdings Act. 1972 the suit filed on behalf of a the respondents was not maintainable. Accordingly, we allow this appeal and dismiss the suit filed on behalf of the respondents. There shall be no order as to costs.” It is settled law by now that the court has to see the substance and not the form of the plaint, written statement and the evidence led by the parties to determine whether the civil court has the jurisdiction or not. The relief prayed for is one of the criteria to see whether the civil court has the jurisdiction or not. I have gone through the contents of the plaint. It is clear that the plaintiffs have tried to wriggle out of the mutation made in favour of the State of Himachal Pradesh after the land was declared surplus by the owner. The tenancy is contractual. The tenant has to prove 10 payment of rent as prescribed under law. The plaintiffs have failed to prove the basic ingredients of tenancy. Mr. D.N. Ronta has relied upon Faquir Chand versus State of Himachal Pradesh, 1991 (1) SLJ 400, Shankutla Devi versus Mohan Lal Gupta, 1991 (1) SLC 38 and State of Himachal Pradesh versus Padam Dass, 2001 (1) SLC 257 to fortify his submission that opportunity was required to be afforded to the plaintiffs under the Himachal Pradesh Ceiling on Land Holdings Act, 1972. The judgments citied by Mr. Ronta will not apply to the facts of the present case. In the judgments cited by Mr. Ronta, the question of tenancy was not in dispute. In the present case the plaintiffs have failed to prove their tenancy as well as possession over the suit land, as discussed hereinabove. The land belonged to the erstwhile ruler of Balson State as per the revenue record. They were in possession of the same and the plaintiffs have failed to prove their possession over the suit land. Accordingly, there is no merit in the Regular Second Appeal and the same is dismissed. There will, however, be no order as to costs. 4.5. 2009 (Rajiv Sharma ), J. *awasthi*