1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 378 of 2002. Date of decision: 08.12.2011. 1. Sh. Mahipal Singh ) 2. Sh.Rajinder Singh ) sons of Sh. Devinder Singh. 3. Rahul minor son of Sh. Mahipal Singh (respondent No.3 being minor through his father and natural guardian, Sh. Mahipal Singh, appellant No.1) All residents of Village Delag, Tikkri, Tehsil Chachiot, Distt. Mandi (HP). …Appellants/Plaintiffs. Versus 1. Smt. Soma Sen ) widow of ' 2. Sh. Pushapinder Singh) ' Sh. Yash Pal. 3. Sh. Ravinder Singh ) sons of ' 4. Bandana Kumari daughter of ' All residents of House No. 32/4, Hospital Road, Mandi(HP). ...Respondents/Defendants. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Appellants : Mr. Ashwani K.Sharma, Advocate. For the Respondents : Mr. G.R.Palsra, Advocate. No.1 to 4. Kuldip Singh , Judge ( Oral). The plaintiffs having lost in both the Courts have come in second appeal against judgment, decree dated 13.06.2002 passed by 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 learned District Judge, Mandi, in Civil Appeal No. 68 of 2000, affirming judgment, decree dated 29.02.2000 passed by learned Senior Sub Judge,Mandi, in Civil Suit No. 69/1993. Some of the parties have died and their legal representatives have been brought on record. The parties in this judgment are referred to as appellants/plaintiffs and defendant No.1/respondents. 2. The brief facts of the case are that plaintiffs filed a suit for declaration that the revenue entries in jamabandi for the year 1974-75 qua the shares of the plaintiffs out of land comprised in Khasra No. 802/1, measuring 3-0-17 bighas, mauza Delag Tikkari, Tehsil Chachiot ( for short 'Suit Land') and mutation No. 401 conferring proprietary rights in favour of defendant No.1 be declared wrong, illegal, null and void. The plaintiffs are owners in possession of their shares in the suit land. In case, the defendant No.1 is found in possession of the suit land qua the shares of the plaintiffs or defendant No.1 succeeded in taking forcible possession of the suit land during the pendency of the suit, then decree for possession of the suit land in the alternative. The plaintiffs prayed consequential relief of permanent prohibitory injunction restraining the defendant from interfering over the suit land. 3. The further case of the plaintiffs is that plaintiffs and one Smt. Harni are recorded joint owners with possession of suit land in the jamabandi for the year 1969-70. In jamabandi 1974-75, the defendant No.1 has been shown as 'gair maurusi' tenant under the plaintiffs and this entry has been repeated in later jamabandies. The Assistant Collector 2nd Grade, Chachiot, also conferred proprietary 3 rights in favour of defendant No.1 vide mutation No. 401 dated 11.06. 1992. It has been stated that revenue entries showing defendant No.1 as tenant are wrong. 4. The further case of the plaintiffs is that defendant No.1 has manipulated wrong entries in the column of possession qua the shares of the plaintiffs showing defendant No.1 as non occupancy tenant in connivance with lower revenue staff or due to some clerical mistake behind the back and without the knowledge of the plaintiffs. The defendant No.1 was never inducted as non-occupancy tenant by plaintiffs over their shares nor defendant No.1 remained in possession of the suit land over the shares of plaintiffs. There is no order of the competent Officer to show the entry of tenancy of defendant No.1 in the revenue record. It has been stated that entry of tenancy of defendant No.1 in the jamabandi 1974-75 and consequent conferment of proprietary rights vide mutation No. 401 in favour of defendant No.1 is wrong and illegal. It has been stated that plaintiffs came to know first time about the wrong revenue entries and conferment of proprietary rights vide mutation No. 401 on 04.05.1993 when plaintiff No.3 received summons from the Court where the defendant No.1 had filed a suit for partition. 5. Yash Pal Singh, the defendant No.1, contested the suit by filing written statement in which several preliminary objections such as maintainability, no enforceable cause of action, limitation, jurisdiction, valuation were taken. On merits, it has been stated that defendant No.1 is owner to the extent of 3/4th share of the suit land, but in possession of 4 entire suit land. It has also been pleaded that defendant No.1 was non occupancy tenant in possession of the suit land and entries showing him as non occupancy tenant are correct. The proprietary rights were rightly conferred in his favour vide mutation No. 401 dated 16.06.1992. He has denied that revenue entires have been manipulated by him in connivance with revenue staff. The prayer has been made for dismissal of the suit. 6. During the pendency of the suit, Yash Pal Singh died and his legal representatives were brought on record. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiffs are owners in possession of the suit land along with other co-sharers as alleged ? OPP. 2. Whether the entries in the name of the defendant as non- occupancy tenant and subsequent entries in his name are wrong, illegal and void? OPP. 3. Whether suit is not maintainable in the present form? OPD. 4. Whether the plaintiffs have no cause of action and locus- standi to file the present suit? OPD. 5. Whether the suit is not within limitation? OPD. 6. Whether this court has no jurisdiction to try and entertain the present suit ? OPD. 7. Whether the suit is not properly valued for the purpose of court -fee and jurisdiction ? OPD. 8. Relief. The issues No.1 to 6 were answered in negative and issue No.7 in affirmative and the suit was dismissed on 29.02.2000. In appeal, learned District Judge, on 13.06.2002 upheld the judgment, decree dated 29.02.2000. The second appeal has been admitted on following 5 substantial questions of law:- 1. Whether the impugned judgment passed by Ld. First Appellate Court is the result of total misreading and misappreciation of pleadings and evidence adduced on record by the plaintiffs, especially when no oral or documentary evidence was led by the defendants and thus, the resultant findings and conclusions are wrong and incorrect? 2. Whether the procedure prescribed by law was followed by the Asstt. Collector II Grade while conferring the proprietary rights upon the defendants and if not, what is the effect on mutation order? 7. I have heard learned counsel for the parties and have also gone through the record. On behalf of the appellants/plaintiffs, it has been submitted that the two Courts below have mainly dismissed the suit on the ground of jurisdiction by holding that Civil Court has no jurisdiction to try the suit. It has been submitted that mutation conferring proprietary rights Ex. PA dated 11.06.1992 has been attested by Assistant Collector 2nd Grade in violation of Himachal Pradesh Tenancy and Land Reforms Act, 1972, ( for short 'Act') and Himachal Pradesh Tenancy and Land Reforms Rules, 1975 ( for short 'Rules). 8. It has been argued that Assistant Collector 2nd Grade, has no jurisdiction to attest the mutation conferring proprietary rights under the Act and Rules. The plaintiffs have been shown owners in possession of their share in the suit land in jamabandi for 1969-70 Ex. PB and abruptly in jamabandi 1974-75 Ex. PC defendant No.1 Yash Pal Singh has been shown tenant over the suit land. The entry of 6 tenancy in favour of Yash Pal Singh is wrong, illegal and is not binding on the plaintiffs. There is no legal evidence on record to show that Yash Pal Singh was ever inducted as tenant by plaintiffs over the suit land. The two Courts below have misconstrued and misinterpreted the evidence and the case put-forward by the plaintiffs. 9. The learned counsel for the respondents has supported the impugned judgment and decree. He has submitted that mutation conferring proprietary rights Ex. PA has been attested in favour of Yash Pal Singh, predecessor-in-interest, of the respondents under the Act and Rules and , therefore, Civil Court has no jurisdiction to try the suit. It has been submitted that before attestation of mutation Ex. PA the revenue entries continuously are in favour of Yash Pal Singh from the year 1974-75. It has been submitted that Yash Pal Singh was inducted as tenant over the suit land and, therefore, no fault can be found with the impugned judgment and decree. 10. The substantial questions of law No. 1 and 2 are inter- connected, therefore, both of them taken up together for determination. The case of the plaintiffs is that they are owners in possession of the suit land. The revenue entries showing Yash Pal Singh firstly as tenant and thereafter as owner in possession of the suit land on the basis of Ex. PA are wrong and illegal. Yash Pal Singh at no point of time was inducted as tenant on the suit land. The mutation Ex. PA has been attested by an Officer who was not competent to attest mutation conferring proprietary rights. The attestation of mutation Ex. PA is without jurisdiction. The respondents cannot take any benefit of such 7 mutation. The Civil Court has jurisdiction to try the suit. 11. In order to appreciate the rival contentions of the learned counsel for the parties, it is necessary to refer to the relevant provisions. Sub-section (3) of Section 104 of Act provides that all rights, title and interest of a landowner other than a landowner entitled to resume land under sub-section (1) shall be extinguished and all such rights, title and interest shall with effect from the date to be notified by the State Government in the Official Gazette vest in the tenant free from all encumbrances. Rule 27 provides that all rights, title and interests in the tenancy land of land-owners who have already under their personal cultivation 3 acres un-irrigated or 1 ½ acres irrigated land shall vest in the non-occupancy tenants with effect from the commencement of these rules. Sub-rule (1) of Rule 28 provides that the Patwari will enter the mutation of ownership in the mutation register in favour of the non-occupancy tenants on whom proprietary rights under rule 27 vested and the Revenue Officer will attest the mutation in the presence of the parties. Rule 29 provides that if there is a dispute regarding the entries of the land records, the Land Reforms Officer, in his capacity as an Assistant Collector of the First Grade, shall decide the dispute under sub-section(4) of Section 104 in accordance with the relevant provisions of the Punjab Land Revenue Act, 1887, or the Himachal Pradesh Land Revenue Act, 1954, as the case may be. The disputes of such cases will be determined on a summary inquiry on the files. 12. The Section 2(16) of the Act defines 'Revenue Officer'. 8 The Section 86 (1)(b) of the Act provides that the State Government may by notification confer on any person all or any of the powers with which an Assistant Collector of either grade is, or may be, invested thereunder, and may by notification withdraw any powers so conferred. The sub-section (2) of Section 86 further provides that a person on whom powers are conferred under sub-section (1) shall exercise those powers within such local limits and in such classes of cases as the State Government may direct and except as otherwise directed by the State Government, shall for all purposes connected with the exercise thereof be deemed a Financial Commissioner, Commissioner, Collector, or Assistant Collector, as the case may be. 13. The Governor of Himachal Pradesh vide notification dated 27/29th September, 1975, in exercise of the powers vested in him under sub-section(1) of Section 86 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972, and all other powers enabling him in this behalf has conferred on all the Tehsildars in Himachal Pradesh all the powers exercisable by an Assistant Collector of First Grade, for the purpose of Chapter X of the aforesaid Act, within their respective jurisdiction, with immediate effect. Section 104 of the Act is in Chapter X, therefore, Tehsildars in their respective jurisdiction have powers of an Assistant Collector of 1st Grade for purpose of Chapter X of the Act. The Rule 28 provides that the Revenue Officer will attest the mutation conferring proprietary rights in presence of the parties. 14. The question involved in the present case is whether mutation Ex. PA dated 11.06.1992 conferring proprietary rights in 9 favour of Yash Pal Singh has been attested by competent Revenue Officer as per Rules 28 and 29 and if not consequence thereof. In Besru vs. Shibu 1999 (1) SLC 343, the learned Single Judge as held as follows:- “Admittedly, in the present case no attempt was made by the Assistant Collector 2nd Grade to serve the plaintiff in accordance with law. As such, the mutation is void ab initio being violative of the principles of natural justice. It can be held so for another reason that it was not passed by the competent authority. From Rule 29 of the Rules, it is clear that only Assistant Collector of the Ist Grade was the competent Land Reforms Officer to hold inquiry under Section 104 of the Act. It is further fortified by the Notifications dated 27th /29th September, 1995 whereby all the Tehsildars in Himachal Pradesh were conferred with powers of Assistant Collector of Ist Grade for purposes of Chapter X of the Act under which Section 104, pertaining to acquisition of proprietary rights by the tenants, fails. By another Notification of the same date, Tehsildars conferred with the powers of Assistant Collector Ist Grade were appointed Land Reforms Officers for carrying out the purposes of Chapter X of the Act within their respective jurisdiction with immediate effect. So far the present case is concerned, from the perusal of mutation, it is clear that it was attested by the Assistant Collector 2nd Grade who had no jurisdiction to do so. Had the plaintiff been served in accordance with law and the competent authority held proper inquiry, the mutation conferring proprietary rights on the defendants would not have been passed in view of the Bar under sub-section (8) (a) of Section 104 of the Act.” 15. In Tara Chand vs. State of Himachal Pradesh and 10 others Latest HLJ 2007 (HP) 122. The Division Bench after noticing Section 104 of the Act and Rules 27 to 29 has held as follows:- “14. The above provision clearly applies to the acquisition of proprietary rights by the tenants. This chapter is self exploit and comprehensive. Further it is also evident from Section 93 ibid that for the purposes of this Chapter, i.e. Chapter X, the State Government shall appoint the Revenue Officer of the rank of Assistant Collector II Grade. Section 104 read with rules 27 to 29 inter alia, as already said, deals with the conferment of the proprietary rights on the non- occupancy tenants, attestation of mutations and settlement of disputes etc. Vide notification dated 20th May, 1975 all the Tehsildar have been appointed as the Land Reforms Officers and all the Land Reforms Officers are the A.C. Ist Grade Chapter-X of the Act falls within the scope and jurisdiction of the Land Reforms Officer who is also Assistant Collector Ist Grade, whether it relates to the attestation of mutation of proprietary rights or settle the dispute interse the landlord and the tenant. Therefore, the Assistant Collector II nd Grade is neither competent to attest the mutation nor settle their dispute. Section 56 of the Act only provides the classes of the Revenue Officers under the Act.” “ 15. On the strength of the above legal provisions, we hold that the matter in this case was dealt by the A.C. II grade without jurisdiction and quite contrary to the provision of the Act and rules. We fully endorse the view taken by the learned Single Judge of this Court in Besru-v-Shibu 1991 (1) Sim. L.C.343, which has correctly interpreted the provisions of the Act and the Rules, on the facts akin to this case. The ratio descendi 11 fully applied to this case. Therefore, the mutations in question are void abinitio.” 16. The perusal of mutation Ex. PA dated 11.06.1992 indicates that mutation conferring proprietary rights of the suit land has been attested in favour of Yash Pal Singh by Assistant Collector 2nd Grade. The rules 28, 29 do not permit attestation of mutation conferring proprietary rights by Assistant Collector 2nd Grade. In these circumstances, the mutation Ex. PA conferring proprietary rights in favour of Yash Pal Singh is without jurisdiction and, therefore, Yash Pal Singh and his successors cannot take any benefit of mutation Ex. PA. The mutation Ex. PA is void and does not confer any right in favour of Yash Pal Singh and his successor. 17. In Chuhniya Devi vs. Jindu Ram 1991 (1) SLC 223, one of the questions before the Full Bench was whether the Civil Court has jurisdiction in respect of an order of conferment of proprietary rights under Section 104 of the Act which has not been assailed under the Act. The Full Bench answered the question and held that 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. 18. In Shankar vs. Smt. Rukmani and others 2003 (1) SLC 300, the Division Bench analyzed Chuhniya Devi ( supra) and held 12 as follows:- “After analysing the judgment in Chuhniya Devi v. Jindu Ram's case ( supra), we have no doubt that the jurisdiction of the Civil Court is barred under the Act if the dispute pertaining to the relationship of landlord and tenant arises during the proceedings of conferment of proprietary rights upon the tenant and resumption of land by the land owner and the order in respect thereof has been passed by the authorities under the Act 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. But if the dispute of landlord and tenant arises independent of the proceedings under the Act, the Civil Court has the jurisdiction.” 19. The mutation Ex. PA dated 11.06.1992 has been attested by Assistant Collector 2nd Grade having no jurisdiction for attestation of mutation conferring proprietary rights under the Act and Rules. Therefore, in view of Chuhniya Devi (supra) and Shankar (supra), the Civil Court has jurisdiction to try the suit. 20. The next question is whether Yash Pal Singh and his successors have proved their tenancy over the suit land. The tenancy is a creation of contract. In the written statement, the pleadings with respect to contract of tenancy are completely vague. It has not been pleaded when Yash Pal Singh was inducted as tenant and by whom and on what terms. It has been only pleaded that he was inducted as non occupancy tenant on the suit land and entry showing his possession is 13 correct. In jamabandi 1969-70 Ex. PB Yash Pal Singh has not been shown either in the column of owner or in possession in any capacity. The name of Yash Pal Singh, first time, cropped up in jamabandi 1974-75 Ex. PC showing him as non occupancy tenant over the suit land. There is nothing on record how change of entry incorporating the name of Yash Pal Singh was effected and when his name, first of all, entered in the revenue record after 1969-70. It is common knowledge that before an entry is made in the jamabandi, the entry is made in the khasra girdawari or other relevant revenue papers. There is no order of competent Officer showing change in revenue entry replacing the names of plaintiffs by Yash Pal Singh in the column of possession and showing him as tenant under the owners of the suit land. 21. The Supreme Court in Durga ( deceased) and others vs. Milkhi Ram and others 1969 P.L.J. 105 has held that where the earlier revenue entries were changed in the later revenue entries and the change was effected without any mutation and there was no order of the revenue authorities showing how the change was made, although the presumption would be in favour of the later entries but that presumption was a rebuttable one and it would stand rebutted by the fact that the alteration in the later entries was made unauthorizedly or mistakenly, there being no material to justify the change of entries. 22. In the present case, no material has been placed on record showing the change of revenue entries in favour of Yash Pal Singh. The learned counsel for the respondents has submitted that in report Ex. PW4/A the possession of Yash Pal Singh has been shown on the 14 suit land. I have perused Ex. PW4/A. It is not clear who gave this report. Moreover, Ex. PW4/A has not been proved inasmuch as Ex. PW4/A has been produced by PW4 Rattan Chand, Record Keeper. Therefore, respondents cannot take any benefit of Ex. PW4/A. In addition, the plaintiffs have led evidence and denied the claim of tenancy of Yash Pal Singh over the suit land. The defendant No.1 or respondents have led no evidence to rebut the evidence led by the plaintiffs. In these circumstances, the respondents have miserably failed to prove that Yash Pal Singh was inducted as tenant over the suit land. The appellants/plaintiffs have proved their ownership and possession over the suit land. The two Courts below have misconstrued and misinterpreted the oral and documentary evidence, Act and Rules, in returning the findings that Yash Pal Singh was inducted as tenant over the suit land and thereafter proprietary rights over the suit land were conferred in his favour. The impugned judgment, decree together with the judgment, decree of the trial Court are not sustainable. The substantial questions of law No. 1 and 2 are decided in favour of the appellants/plaintiffs and against the defendant No.1/respondents. 23. No other point was urged. 24. The result of above discussion, the appeal is allowed. The judgment, decree dated 13.06.2002 passed by learned District Judge, Mandi, in Civil Appeal No. 68 of 2000, affirming judgment, decree dated 29.02.2000 passed by learned Senior Sub Judge,Mandi, in Civil Suit No. 69/1993, are set aside. The appellants/plaintiffs are declared owners in possession of suit land. The respondents are restrained from 15 interfering in the ownership and possession of the appellants/plaintiffs over the suit land. No costs. ( Kuldip Singh ), December 8, 2011. Judge. (krt)