IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 205/2009 Reserved on: 24.5.2011 Decided on:15.6. 2011 _____________________________________________ Anand Kumari and others. …Appellants. Versus Kashmir Singh and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No For the appellants : Mr. Bimal Gupta, Advocate. For the Respondents: Mr. Romesh Verma, Advocate for respondents No. 1 to 7. None for other respondents. _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 17.1.2009 rendered by the learned District Judge, Sirmaur District at Nahan in Civil Appeal No.13-CA/13 of 2007. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the appellants- plaintiffs (hereinafter referred to as ‘plaintiffs’ for convenience sake) have filed a suit for declaration with 1 Whether reporters of the local papers may be allowed to see the judgment? No 2 consequential relief of injunction against the respondents-defendants (hereinafter referred to as ‘defendants’ for convenience sake). Case of the plaintiffs, in a nutshell, is that in a suit for declaration and permanent injunction No.11/1 of 1999 decided on 13.12.1999 by the learned Sub Judge 1st Class, Nahan, defendants No.1 to 8 had been declared to be non- occupancy tenants under the plaintiffs in respect of land comprised in Khata Khatauni No. 65/154, Khasra Nos. 16, 319/19, 48, 55, 56, 330/266, 333/267 and 343/279, total measuring 35-18 bighas, situated in village Mohlia Khatola, Tehsil Nahan, District Sirmaur. The nature of the suit land is agriculture. According to the plaintiffs, the dispute relating to tenancy falls within the purview of Himachal Pradesh Tenancy and Land Reforms Act, 1972 (hereinafter referred to as ‘the Act’ for brevity sake) and the Land Reforms Officer is competent to decide the dispute in his capacity as Assistant Collector 1st Grade. It is also averred that it is only the court of Land Reforms Officer, constituted under the Act, who could entertain an application or suit with regard to the dispute relating to tenancy under section 104 of the Act. It is also averred that sections 112 and 115 of the Act oust the jurisdiction of the civil court in 3 matters involving tenancy governed by the Act. According to the plaintiffs, the Act is a complete Code in itself and bars the jurisdiction of the civil court for determination of any question connected therewith; therefore, the decree dated 13.12.1999 passed in Civil Suit No. 11/1 of 1999 to the extent of holding defendants No.1 to 8 as non-occupancy tenant under the plaintiffs was nullity and void ab initio being passed without inherent jurisdiction. Defendants No. 1 to 8, on the basis of invalid decree, have filed an application before the Land Reforms Officer-cum-Assistant Collector 1st Grade, Nahan under section 104 of the Act for conferment of proprietary rights qua the suit land vide application dated 28.2.2002, thus, the suit for declaration with consequential relief of injunction. 3. Defendants No. 1 to 9 contested the suit. Defendants No. 10 to 12 were proceeded ex parte. Joint written statement was filed on behalf of defendants No. 1 to 8. According to them, in civil suit No. 11/1 of 1999, the learned Sub Judge, Nahan declared the possession of defendants No.1 to 8 over the suit land as non-occupancy tenant as per revenue entries and the evidence adduced by the parties during the trial of the suit. It is also admitted that the suit land is an 4 agriculture land. According to them, it was the plaintiffs, who had filed the suit for declaration that the revenue entries in the revenue record showing the defendants as non-occupancy tenants in possession, are illegal, null and void and also disputed the relationship of landlord and tenant in that case. According to the defendants, the jurisdiction of the civil court was not ousted. Defendant No.9 has filed separate written statement assailing the suit on the ground of maintainability and res judicata. He also claimed that the plaintiffs had disputed the tenancy of defendants No.1 to 8 on the suit land and asserted that there was no relationship of landlord and tenant between the plaintiffs and defendants No. 1 to 8 and, as such, the jurisdiction of civil court was not ousted. Trial court framed issues on 28.7.2004. Trial court dismissed the suit on 29.11.2005. The plaintiffs preferred an appeal before the learned District Judge, Nahan. He dismissed the same on 17.1.2009. Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law: 1. “Whether in view of sections 101, 112 and 115 of the H.P. Tenancy and Land Reforms Act, the Civil Court has jurisdiction to entertain and hold a person as a non-occupancy tenant. 5 2. Whether judgment and decree dated 13.12.1999 passed by the Civil Court in Civil Suit No. 11/1 of 1999 is a nullity in view of specific provisions of H.P. Tenancy and Land Reforms Act. 3. Whether the learned Courts below have rightly held that judgment and decree dated 13.12.1999 passed by the civil court in civil suit No. 11/1 of 1999 cannot be challenged after expiry of three years, more particularly, when it is a well settled law that null and void decree can be challenged even in collateral proceedings or in execution.” 4. Mr. Bimal Gupta has strenuously argued that the jurisdiction of the civil court was ousted and the dispute could only be adjudicated upon by the authority constituted under the Act. He then argued that both the courts below have mis-appreciated the evidence led by the parties. 5. Mr. Romesh Verma has supported the judgments and decrees passed by both the courts below. 6. I have heard the learned counsel for the parties and have perused the records carefully. 7. Since all the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. 8. Plaintiff No.5 Vinod Aggarwal has appeared as PW-1. He has tendered certified copy of judgment 6 and decree dated 13.12.1999 passed by the Sub Judge 1st Class, Nahan in civil suit No. 11/1 of 1999 Ex.P-1. According to him, plaintiffs had instituted civil suit for declaration and injunction against the defendants, which was assigned Civil Suit No. 11/1 of 1999 seeking declaration that the plaintiffs have become owners of the suit land due to non-redemption of the suit land in which the defendants asserted that they were non- occupancy tenants of the plaintiffs on the suit land whereas they were not the non-occupancy tenants of the plaintiffs. He also stated that the findings of the Sub Judge whereby the defendants No. 1 to 8 were declared as non-occupancy tenants under the plaintiffs in respect of the suit land were without jurisdiction. According to him, the plaintiffs were coming in possession of the suit land from the very beginning. However, in his cross-examination, he admitted that Sh. A.N. Sheikh was the counsel in civil suit No. 11/1 of 1999 and he had also appeared as a witness in that civil suit, which was disposed of by the learned Sub Judge, Nahan vide judgment and decree dated 13.12.1999 Ex.P-1. He also testified in his cross-examination that another suit instituted by the plaintiffs against some of the defendants was also disposed of on 13.12.1999 and 7 in appeal by the defendants against the judgment and decree; the plaintiffs entered into a compromise with the defendants, but denied that in the compromise, they admitted the defendants as their non-occupancy tenants. He has also admitted that the plaintiffs have not preferred any appeal against the judgment and decree dated 13.12.1999 Ex.P-1. He also testified that the defendants have instituted application for conferment of proprietary rights in respect of the suit land before the Land Reforms Officer, Nahan on the basis of judgment and decree dated 13.12.1999. It is evident from the contents of the judgment and decree dated 13.12.1999 that the plaintiffs had challenged the entries appearing in the records of right whereby defendants No.1 to 8 were shown in possession of the suit property as non-occupancy tenants. 9. According to defendants, the proprietary rights were conferred upon them under section 104 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 and they have become owners of the land. In fact issue No.7 regarding tenancy in favour of the defendants was framed and the same was answered vide judgment and decree dated 13.12.1999 alongwith other issues. The civil suit bearing No. 11/1 of 1999 8 was instituted by the plaintiffs and the judgment and decree is dated 13.12.1999 and the present suit was filed on 14.1.2004. Thus, in view of this, the plaintiffs are estopped from assailing the judgment and decree Ex.P-1, which was passed on 13.12.1999. 10. It is settled law that when there is a dispute with regard to status pertaining to tenancy, the jurisdiction of civil court is not barred [See: 1998 (1) CLJ H.P. 165 and 1997 (1) Shim. L.C. 255]. In civil suit No. 11/1 of 1999, issue No.8 was framed with regard to jurisdiction of the civil court to decide the matter. The issue was decided in favour of the plaintiff by holding that the civil court had the jurisdiction to try the suit. The findings recorded by the learned Sub Judge, Nahan had attained finality as the plaintiffs had not preferred an appeal against the judgment and decree dated 13.12.1999. 11. In view of the findings and discussions made hereinabove, the judgment reported in 1991 (1) SLC 223, Chuhniya Devi versus Jindu Ram and others, relied upon by Mr. Bimal Gupta is not applicable to the facts and circumstances of the present case. The learned courts below have correctly appreciated the evidence. 9 12. Consequently, there is no substantial question of law involved in the present Regular Second Appeal and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs. (Justice Rajiv Sharma), Judge. 15.6. 2011 *awasthi*