IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 138 of 2000 Judgment reserved on : 10.9.2010 Date of decision: 11.11.2010 Nirmal Singh …Appellant. Versus Hira Singh and others ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Appellant : Mr. Ashwani K. Sharma, Advocate. For the respondents : Mr. B.K.Malhotra, Advocate. Kuldip Singh , Judge The plaintiff has come in appeal against judgment, decree dated 6.12.1999 passed by learned District Judge, Mandi in Civil Appeal No. 78 of 1995 passed by learned Sub Judge 1st Class (I), Mandi in Civil Suit No. 91 of 1992. 2. The facts, in brief, are that the appellant had filed a suit for declaration and confirmation of possession that land comprised in Khasra Nos. 2 and 165, Kittas 2, measuring 15-4-11 bighas Muhal Chhatru/218, Illaqua Balh, Tehsil Sadar, District Mandi was previously recorded in the ownership of Inder Singh predecessor-in-interest of respondents No.1 to 5 and was under the possession of Sewak, 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 Sobha, Tara, Govind, Smt. Badamu, Nirmal, Hukam Chand as tenants. The proforma respondents are the legal representatives of Tara, Govind and Smt. Badamu. 3. It is the case of the appellant that he was earlier serving in Army and now has retired. Inder Singh in order to grab the land of appellant had filed application for reservation before the Land Reforms Officer, Mandi on 14.11.1975 and got an exparte order in his favour of land bearing Khasra No. 2, measuring 7-6-7 bighas on 24.2.1977. The appellant was not served which is apparent from the report of the Process Server. It has been pleaded that order dated 24.2.1977 granting reservation in favour of Inder Singh is wrong, illegal and the same be declared void. The appellant and proforma respondents be held in possession of the suit land. In alternative, the suit for possession. 4. The suit was contested by respondents No.1 to 5 and they took preliminary objections of limitation, jurisdiction. They supported the order dated 24.2.1977. It has been pleaded that mutation has also been attested in pursuance to order of the Land Reforms Officer. The possession was delivered by the tenants and the replying respondents are in possession of the suit land. The appellant has no right or title in the suit land. The prayer was made for dismissal of the suit. The appellant filed replication and reiterated his stand. 5. On the pleadings of the parties, the following issues were framed:- 3 1. Whether the plaintiff was serving in Military and application for resumption was not competent against him? OPP. 2. Whether the application for resumption was barred by time, if so, its effect? OPP. 3. Whether the order of the L.R.O. is without jurisdiction? OPP. 4. Whether the suit is within time? OPP. 5. Whether the suit is bad for want of necessary parties, as alleged? OPD 6. Whether this court has got no jurisdiction? OPD 7. Whether the suit is rightly valued for the purposes of court fee and jurisdiction? OPD 8. Whether the plaintiff and proforma defendants are in possession? If so, its effect? OPP 9. Relief. The issues No. 1 to 5, 7 and 8 were held left redundant, issue No.6 was answered in affirmative and the suit was dismissed by the trial Court on 10.5.1995. In appeal, the learned District Judge on 6.12.1999 has affirmed the judgment, decree dated 10.5.1999, hence 2nd appeal which has been admitted on the following substantial question of law What is the effect of judgment of Chuhniya’s Case and to what extent the same is applicable in the facts of the present case? 6. I have heard the learned counsel for the parties and have also gone through the record. It has been submitted on behalf of the appellant that it was a case of resumption of land and not of conferment of proprietary rights, therefore, principle laid down in Chuhniya Devi Vs. Jindu Ram, 1991 (1) Sim.L.C. 223 is not applicable. The two courts below have erred in returning the finding 4 that Civil Court has no jurisdiction over the subject matter of the suit. The learned counsel for the respondents has submitted that the Civil Court has no jurisdiction over the subject matter of the suit property and he has supported the impugned judgment, decree. 7. In Chuhniya Devi (Supra), it has been held as follows:- “64(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.” 8. In Chuhniya Devi (supra) the H.P.Tenancy and Land Reforms Act, 1972 (for short ‘Act’) along with its objects, scheme more particularly Chapters IX, X with emphasis on Section 104 alongwith other Sections with reference to the jurisdiction of Civil Court were considered. The Full Bench in paragraph 25 of the report has observed that acquisition of proprietary rights by tenants other than the occupancy tenants is dealt with in Chapter X of the Act. That Chapter consists of sections 104 to 117. In paragraph 34, it has been observed that scheme of Chapter X being what it is, it is clear that there are bound to be occasions where the landowner may come out with a plea that the person cultivating his land is not a tenant. The person, who is actually cultivating the land, would be interested in asserting that he is in occupation as a tenant. If such a dispute arises, it would have to be resolved before the claim of a landowner 5 for resumption of any part of such land can be considered. In paragraph 35, the Full Bench has held as follows:- “The claim for resumption is to be dealt with in the manner prescribed. Rule 21 of the H.P.Tenancy and Land Reforms Rules, 1975, (for brief, “the Rules”) requires a landowner to submit an application for the purpose in prescribed Form LR-V to the Land Reforms Officer in whose jurisdiction the land is situate. The Land Reforms Officer shall issue a receipt of having received the application in the prescribed Form LR-VI and enable selection of land by the landowner in terms of Rule 22. The Land Reforms Officer shall then issue a 10 days notice in Form LR-VII to the parties concerned under Rule 24 and proceed to pass an order about the extinguishment of the rights of the tenant in such land after selection of land, where mutually agreed upon by the parties. He shall further order that the possession of the land be given to the landowner from the date to be specified in the order and in respect of the remaining land, shall confer proprietary rights on the tenant. Where there is a dispute about selection of land he shall proceed under sub-rule (2) of Rule 24 by passing requisite orders, including the one for extinguishment of the rights of tenancy on the land resumed by the landowner, and hand over possession thereof to the landowner as well as conferment of proprietary rights upon the tenant and the determination of an amount payable by the tenant to the landowner. Mutation, in terms of an order under Rule 24, shall be made under Rule 25.” The Full Bench in paragraph 40 has held as follows:- “Any enquiry by a Civil Court on the question was barred by the Legislature by specifically providing in sections 112 and 115, both occurring in Chapter X, that the 6 validity of any order made under the Chapter shall not be called in question in any court and that the order shall be final except as expressly provided in the Chapter. The Legislature knew its mind fully well. Where it wanted a dispute to be determined by the Civil Court, it provided so in Chapter X itself. One has only to look at sections 107 and 109(2). Not only that the Legislature ruled out any determination by a Civil Court by necessary implication, of other matters, it expressly said so in sections 112 and 115.” The Full Bench continued in paragraph 41 as follows:- ”The measure of land reforms which the Legislature has in mind, namely, making the actual tiller of land its proprietor, was such which could not be permitted to be postponed indefinitely. From that point of view, in particular, the Legislature appears to have provided for summary determination of the dispute whether a person cultivating the land of a landowner was a tenant or not by the Land Reforms Officer by going into the dispute regarding the entries of the land records in his capacity as Assistant Collector of the First Grade in that respect. The decision was made subject to appeal and revision by the Collector, the Commissioner and the Financial Commissioner under section 114. The Financial Commissioner has been given wide revisional powers under section 114 (3) read with section 65 of the Act.” 9. The Section 104 (i) of the Act provides resumption of land and consequences of landlord not cultivating the land resumed are provided in sub section (2) of Section 104. No doubt, one of the question referred to the Full Bench in Chuhniya Devi was regarding Civil Court jurisdiction in respect of an order of conferment of 7 proprietary rights under Section 104 of the Act which has not been assailed under the Act. The Full Bench after considering the objects, scheme of the Act and the Rules has held that scheme of Chapter X makes it clear that there are bound to be occasions where the landowner may take the plea that person cultivating his land is not a tenant, whereas such person would assert that he is a tenant. This dispute is to be resolved before the claim of a landowner for resumption of any part of such land can be considered. The Full Bench has also held that Sections 112 and 115 which are in Chapter X provide that the validity of any order made under the Chapter X shall not be called in question in any court and that the order shall be final except as expressly provided in the Chapter. 10. It is not the case of the appellant that the order passed by the Land Reforms Officer on 24.2.1977 does not fall in Chapter X of the Act. The appellant has not raised the dispute as provided in Section 107 and Section 109 (2) of the Act. In Dhulabhai vs. State of Madhya Pradesh, AIR 1969 SC 78, it has been held that where the statute gives a finality to the orders of the special tribunals the civil court’s jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. The order passed under Chapter X of the Act has been made final under Section 115 and shall not be called in question in any court or before any officer or authority. 8 Likewise Section 112 provides that validity of any proceeding or orders taken or made under Chapter X shall not be called in question in any civil court or before any other authority. In these circumstances, the law laid down in Chuhniya Devi (supra) is fully applicable to an order passed by the Land Reforms Officer for resumption of land. 11. PW-2 Narain Singh, Assistant Record Keeper, D.C. Office, Mandi has proved Ex.P-8 notice. There is an endorsement on Ex.P-8 directing the Process Server that if addressee (Nirmal S/o Sh. Shayam Singh) is not found at the residence then notice be delivered to some adult member and in case no adult member is available then notice be affixed on the residence. The report on the notice Ex.P-8 further indicates that Nirmal was not found at the residence and therefore, notice was affixed outside his residence. The notice Ex. P-8 was affixed in presence of Hukam Chand. PW-1 Nirmal Singh has stated that Hukam Chand is his ‘Chacha’ (uncle). It is thus clear that the appellant was served in the proceedings for resumption of the land. The appellant has not made out any case so as to conclude that the authority in resumption of land proceedings has not acted in conformity with the fundamental principles of judicial procedure or the provisions of the Act had not been complied with. 12. The two courts below have rightly held that Civil Court has no jurisdiction to try the suit. The appellant has failed to make out a case to the contrary. The substantial question of law referred to above is decided against the appellant. In view of the above discussion, there is no merit in the appeal which is accordingly 9 dismissed with no order as to costs. All pending applications, if any, also stand disposed of. November 11, 2010. ( Kuldip Singh ), (GR) Judge.