IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 92 of 2002. Date of decision: 26.9.2011. Besari Ram and anr. ….. Appellants. Versus Smt. Biasa Devi and others. ….Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellants : Mr. Ajay Chandel, Advocate. For the Respondents : Mr. Lovneesh Kanwar, Advocate for respondents No.1 to 3. None for other respondents. Kuldip Singh, J (Oral) . This appeal is directed against judgment, decree dated 20.12.2001 passed by learned District Judge, Mandi in Civil Misc. Appeal No. 37/96 affirming order dated 2.5.1996 passed by learned Sub Judge Ist Class, Sarkaghat, District Mandi in Civil Suit No. 34/1992. The parties are referred to as plaintiffs and defendants in the judgment. 2. The facts, in brief, are that plaintiffs had filed a suit for declaration, permanent prohibitory injunction, in alternative for possession that they are owners in possession of 2/3rd share i.e. 8/12 shares in the suit land, more specifically described in the plaint. The Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 entries showing defendants No.1 and 2 as owners and as non- occupancy tenants over the suit land are wrong, illegal and not binding on the plaintiffs. The plaintiffs were the owners of 1/3rd share i.e. 4/12 shares in the suit land but later on vide mutation of exchange dated 29.3.1982, the plaintiffs exchanged their land situated in village Khurhal with the proforma defendants No.5 and 6 and by virtue of exchange became the owners in possession of 2/3rd share i.e. 8/12 shares in the suit land. The contrary entries are void, illegal and not binding on the plaintiffs. The plaintiffs or their predecessor-in-interest, proforma defendants No.5 and 6 never inducted defendants as non- occupancy tenants over any part of the suit land. The defendants in connivance with the revenue authorities got themselves recorded as non-occupancy tenants under the plaintiffs and proforma defendants No.5 and 6 which entries are wrong and illegal. 3. The suit was contested by defendants No.1, 1(a) 1(b) by filing written statement, preliminary objections of jurisdiction, estoppel, limitation and valuation are taken. On merits, it has been stated that the predecessor-in-interest of defendants No.1 (a) and 1(b) was non- occupancy tenant and the proprietary rights were conferred on Om Prakash predecessor-in-interest of the defendants on 29.6.1976 in respect of the suit land. It has been alleged that defendants are owners in possession of the suit land. The Civil Court has no jurisdiction. 4. The defendant No.2 Dhani Ram filed separate written statement and took preliminary objections of jurisdiction, estoppel. On merits, it has been stated that defendant No.2 has been rightly 3 recorded as owner in possession of the suit land. The revenue entries are correct. The defendant No.2 has become owner of the suit land by virtue of H.P. Tenancy and Land Reforms Act, 1972 (for short Act). The plaintiffs filed replications to the written statements and the stand taken in the plaint reiterated. On the pleadings of the parties, the following issues were framed:- 1. Whether the entries showing the defendants No.1 and 2 as owners and non occupancy tenants on the suit land are wrong, illegal and not binding upon the plaintiffs? OPP 2. Whether the plaintiffs have become owners in possession of 2/3rd i.e. 8/12 shares in the suit land by virtue of exchange alongwith proforma defendants? OPP. 3. Whether this court has no jurisdiction to try the suit?OPD. 4. Whether the plaintiffs are estopped by their act and conduct from filing the present suit? OPD 5. Relief. The issue No.3 was treated as preliminary issue. The learned Sub Judge answered preliminary issue in favour of the defendants and held on 2.5.1996 that the suit is not maintainable and in appeal the learned District Judge on 20.12.2001 affirmed the order dated 2.5.1996, hence second appeal which has been admitted on following substantial questions of law:- 1. Whether the Ld. Lower appellate court has not appreciated the fact that a non-occupancy tenant of one co-owner cannot be conferred with proprietary rights qua the share of other co-owners? And that the jurisdiction of the civil court has not been barred arising out of such situation? 4 2. Whether the Ld. first appellate court has wrongly held that the appeal under order 43 Rule 1(a) cannot be treated as an appeal under section 96 CPC and wrongly dismissed the appeal on that score also? The appeal, with the consent of learned counsel for the parties has also been heard on following substantial question of law:- 3. Whether the Ld. First Appellate Court has mis-interpreted and wrongly applied the law and held that civil court had no jurisdiction to try the suit? 5. I have heard the learned counsel for the parties and have also gone through the record. The learned counsel for the appellants has submitted that both the Courts below have erred in returning the findings that civil court has no jurisdiction to try the suit. The learned counsel for the respondents No.1 to 3 has submitted that the plaintiffs have pleaded that the defendants are not non-occupancy tenants on the suit land. The proprietary rights were conferred in favour of the defendants vide notification dated 29.6.1976. He has submitted that no fault can be found with the findings recorded by two Courts below. He has prayed for dismissal of the appeal. 6. The substantial question of law No.3 is taken first for determination. The Courts below have relied on Chuhniya Devi v. Jindu Ram 1991 (1) SLC 223 in which in para-64 (b) of the judgment, it has been held 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 5 with the fundamental principles of judicial procedure or where the provisions of the Act had not been complied with”. 7. The issue No.3 was treated as preliminary issue. The onus of issue No.3 was on defendants. The record shows that neither the Court had given an opportunity to lead the evidence to the defendants nor the defendants sought time to lead evidence on preliminary issue. This apart, it was the duty of the Court to give opportunity to the parties to lead evidence on the preliminary issue No.3. The preliminary issue referred to above could not has been decided in vacuum without evidence. 8. The sub-section (3) of section 104 of the Act provides conferment of proprietary rights in favour of non-occupancy tenants; however, procedure for attestation of mutation of conferring proprietary rights is provided in rules 27 to 29 of the H.P. Tenancy and Land Reforms Rules 1975 (for short Rules). The Courts below proceeded with the assumption that proprietary rights were conferred in the present case on the basis of notification dated 29.6.1976, no such notification has been brought to my notice at the time of hearing of the appeal. It cannot be assumed in presence of Act and Rules that proprietary rights can be conferred in the manner as held by the two Courts below. The jurisdiction of the Court is to be determined on the basis of allegations made in the plaint or on the basis of ultimate proof. 9. In the present case the plaintiffs have no where pleaded in the plaint that proprietary rights were conferred in favour of the defendants under Section 104 of the Act nor conferment of proprietary rights in favour of the defendants have been separately 6 proved by placing on record mutation. The written statement cannot be taken as evidence. In the written statement no doubt plea has been taken that proprietary rights were conferred in favour of the defendants but no evidence to this effect has been led to prove that proprietary rights were conferred in favour of defendants. 10. The trial Court had not given any opportunity to the defendants to lead evidence. This apart, if the Courts below have not followed the procedure then it cannot be assumed that the defendants have proved that they were conferred proprietary rights on the suit land under Section 104 of the Act. In brief the trial Court has decided the preliminary issue without any proof that proprietary rights were conferred in favour of the defendants under Section 104 of the Act. The order of the trial Court dated 2.5.1996 has been wrongly upheld by the learned District Judge. In these circumstances the order of the trial Court and the impugned judgment, decree dated 20.12.2001 passed by the learned District Judge are not sustainable and both are liable to be set aside. The substantial question of law No.3 is decided in favour of the appellants. 11. In view of decision rendered on substantial question of law No.3, no separate decision is required to be taken on substantial questions of law No.1 and 2, rather these substantial questions of law have become redundant in view of decision on substantial question of law No.3, therefore, the substantial questions of law No.1 and 2 are disposed of accordingly. 12. In view of above discussion, the appeal is allowed. The order dated 2.5.1996 passed by learned trial Court and the judgment, 7 decree dated 20.12.2001 passed by learned District Judge are set aside and the case is remanded to the learned trial Court to decide the suit afresh including issue No.3 after giving opportunity to the parties to lead evidence. The parties through their counsel are directed to appear before the learned trial Court on 20.10.2011. The record be sent back immediately. The suit was filed in the year 1992. The learned trial court shall make every endeavour to decide the suit in six months from the date of receipt of the record. September 26, 2011 (Kuldip Singh), ( sks) Judge.