IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 25/2011 Reserved on: 9.8.2011 Decided on: 9.9.2011 ___________________________________________________ Janam Singh and another. …Appellants. Versus Deso alias Jagdish …Respondent Hem Singh and others. …Proforma Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the appellants : Mr. Anand Sharma, Advocate with Mr. Jagan Nath, Advocate. For the Respondents : Mr. R.K. Gautam, Sr. Advocate with Ms. Archana Dutt, Advocate for respondent No.1. None for other respondents. _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 29.10.2010 rendered by the learned Additional District Judge, Fast Track Court, Chamba, in Civil Appeal No.32/2009. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the respondent-plaintiff (hereinafter referred to as 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 ‘plaintiff’ for convenience sake) instituted a suit for declaration alongwith consequential relief of injunction against the appellants-defendants (hereinafter referred to as “defendants” for sake of convenience) stating therein that he was owner in possession of the land, as per the details given in the plaint. He has challenged the mutation No. 1377 dated 30.12.1976 Ex.P-1. The plaintiff had become owner of the suit land by operation of law. Appellant, No.1, namely, Janam Singh, has retired as Panchayat Secretary. Defendant No.2, namely, Raj Singh was Reader of the Deputy Commissioner. According to the plaintiff, defendants in connivance with the revenue official got mutation No. 1377 attested behind his back on the basis of order dated 12.2.1976 Ex.P-2. According to him, defendants No.1 and 2 were recoded owners of 1/4th share and 1/20th share, respectively in the revenue record. In the month of May, 2003, defendant No.1 threatened to dispossess the plaintiff from the suit land on the basis of wrong revenue entries. Hence, the suit was filed by the plaintiff. 3. The suit was contested by the defendants. According to the defendants, previously the plaintiff and his mother Smt. Sita were tenants. The suit land 3 was resumed on the basis of order passed by the Land Reforms Officer. It was denied that the plaintiff was in possession of the suit land. Defendants were owners in possession of the suit land. 4. Replication was filed by the plaintiff and he reiterated the averments contained in the plaint. Trial court framed issues on 22.8.2005. Trial court decreed the suit on 30.9.2009. Contesting defendants, namely, Janam Singh and Raj Singh preferred an appeal before the Additional District Judge, Fast Track Court, Chamba. He dismissed the same on 29.10.2010. Hence, the present Regular Second Appeal. 5. Notices were issued to the respondents. Contesting respondent No.1 was represented by Mr. R.K. Gautam, Senior Advocate. Other respondents were duly served, but neither they are present in person nor any Advocate has appeared on their behalf. 6. Mr. Anand Sharma on the basis of the substantial questions of law framed alongwith the memorandum of appeal has vehemently argued that his clients have clearly proved their ownership and possession of the suit land. According to him, the civil court had no jurisdiction since the orders were passed by the Land Reforms Officer under the Himachal 4 Pradesh Tenancy and Land Reforms Act, 1972 (hereinafter referred to as the “Act” for brevity sake). He then contended that the suit filed by the plaintiff was barred by limitation. According to him, the orders passed by the Land Reforms Officer are in conformity with law. 7. Mr. R.K. Gautam, Senior Advocate with Ms. Archana Dutt has supported the judgments and decrees passed by both the courts below. 8. I have heard the learned counsel for the parties and have perused the record as well as pleadings carefully. 9. Plaintiff has appeared as PW-1. According to him, the suit land was in his possession as tenant. Defendants got the suit land mutated in their favour in connivance with the revenue officials. He came to know about the mutation in the month of June, 2003. He has denied that he appeared before the Land Reforms Officer and the Land Reforms Officer passed order on 12.2.1976 in his presence. He also denied that he was present at the time of attestation of mutation. 10. PW-2 Jaisi Ram has deposed that plaintiff is cultivating the suit land. 5 11. Defendant No.1 has appeared as DW-1. He has testified that the suit land was resumed and the possession was delivered to the defendants on the spot by Patwari. He has admitted that he was serving as Panchayat Inspector. His share in the suit land is ¼. He moved application in the year 1975. He was residing in village Sarol, which is 65 KMs away from Chowari. He gets the suit land cultivated from Lal Singh. He has shown his ignorance about the death of Sadho, father of Puran in the year 1969. 12. DW-2 Lal Singh has supported the version of DW-1. 13. In rebuttal, plaintiff has examined PW-3 Dumo Ram. He also deposed that the plaintiff was cultivating the suit land. This is the oral evidence led by the parties. 14. Defendants have moved an application for resumption of the suit land, under section 104 of the Act. Order was passed by the Land Reforms Officer on 12.2.1976 vide Ex.P-2 on the basis of which mutation was attested on 30.12.1976. There is no mention in mutation Ex.P-1 that Smt. Sita, mother of the plaintiff, who was also in possession of the suit land as tenant, was present at the time of attestation of mutation. 6 Similarly, parentage of plaintiff has not been shown in the mutation while attesting the same. 15. According to Rule 28 of the H.P. Tenancy and Land Reforms Rules, 1975, the mutation is to be attested in the presence of the parties. Order of mutation cannot be passed by Assistant Collector 2nd Grade. In the instant case, the mutation has been attested by Assistant Collector 2nd Grade. Order dated 12.2.1976 has been passed against one Sh. Sadho Ram, father of Puran. Sadho died in the year 1969. Order dated 12.2.1976 has been passed against a dead person and the same is nullity. Moreover, the suit land in excess was resumed while attesting the mutation Ex.P-1 on 30.12.1976. 17. Mr. Anand Sharma has also argued that civil court had no jurisdiction to entertain, try and decide the suit. Learned Single Judge of this Court in Kali Ram Thakur versus Manorma Devi and others, Latest HLJ 2010 (HP) 116 has held that civil court has jurisdiction if the order is passed in violation of the provision of section 104 of the H.P. Tenancy and Land Reforms Act, 1972. Learned Single Judge has also held that no orders can be passed by Assistant Collector 2nd Grade for conferment of proprietary 7 rights, under section 104 of the Act. Learned Single Judge has held as under: “13. Coming to the question that the conferment of the proprietary rights was automatic, it could have been so once there was an entry in the jamabandi in favour of a tenant on the appointed day and the defendant has failed to prove that in the jamabandi, entry existed in his favour on the appointed day. The learned trial Court has clearly observed that there was no entry in favour of the defendant in the jamabandi for the year 1975-76 and, therefore, the correction has been ordered thereafter in the year 1977 by the Assistant Collector, without any notice to the previous owner. It has also been clearly observed by the learned trial Court that the order was passed by the Assistant Collector 2nd Grade and after referring to the provisions of the H.P. Tenancy and Land Reforms Act, it has been rightly concluded that the Assistant Collector 2nd Grade was not competent to pass such an order. I have no reason to disagree with the findings recorded by the learned trial Court in this regard. 14. Coming to the question that the decision in Chuhniya Devi’s case (supra) applies to the facts of the present case or not and as to whether the Civil Court was competent to look into this question, it has been rightly observed from the said decision that the civil Court’s jurisdiction in a suit challenging the conferment of proprietary rights cannot be said to be barred once the principles of natural justice have not been followed by the Revenue Officer while conferring the proprietary rights upon the defendant. The learned trial Court had referred to a decision of this Court in Chuhniya Devi’s case and had observed that civil court will have the jurisdiction if the order is passed in violation of the provisions of the Act. 8 15. I may make a reference to a latest decision of our High Court in Krishan Chand and others versus Jeet Ram and another, Latest HLJ 2009 (HP) 978, wherein similar observations have been made by a learned Single Judge that when the proceedings for conferment of proprietary rights have been conducted by the Assistant Collector 2nd Grade, no power has been given to him and proceedings are void ab initio and no right passed in favour of the alleged tenant. It was clearly held that the civil court has the jurisdiction to adjudicate the matter when the very basis of the tenancy has been challenged. This decision clearly applies to the present facts and since the order of correction and conferment of proprietary rights had been passed by the Assistant Collector 2nd Grade without jurisdiction and without notice to the previous owner, it could be said to be void ab initio and cannot be given effect to. It was for the defendant to have proved that the said order was passed legally or that the Assistant Collector 2nd Grade was competent to pass such order in which he has failed miserably.” 18. In the case in hand, the orders passed are nullity. These orders have been passed by the Assistant Collector 2nd Grade, though the same were required to be passed by the Assistant Collector 1st Grade under the H.P. Tenancy and Land Reforms Act. 18. Their Lordships of the Hon’ble Supreme Court in Ramkanya Bai and another versus Jagdish and others (2011) 7 SCC 452, while dealing with the case under the M.P. Land Revenue Code, 1959, have held that exclusion of the jurisdiction of 9 the civil court is not to be readily inferred. Their Lordships have held as under: “15. Having regard to section 9 of the Code of Civil Procedure, a civil court can entertain any suit of civil nature except those, cognizance of which is expressly or impliedly barred. In Kamala Mills Ltd. v. State of Bombay [AIR 1965 SC 1942] this court held: “The normal rule prescribed by section 9 of the Code of Civil Procedure is that the courts shall (subject to the provisions contained in the Code) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred……… Whenever it is urged before a civil court that its jurisdiction is excluded either expressly or by necessary implication to entertain claims of a civil nature, the Court naturally feels inclined to consider whether the remedy afforded by an alternative provision prescribed by a special statute is sufficient or adequate. In cases where the exclusion of the civil Courts’ jurisdiction is expressly provided for, the consideration as to the scheme of the statute in question and the adequacy or the sufficiency of the remedies provided for by it may be relevant but cannot be decisive. But where exclusion is pleaded as a matter of necessary implication, such considerations would be very important, and in conceivable circumstances, might even become decisive. If it appears that a statute creates a special right or a liability and provides for the determination of the right and liability to be dealt with by tribunals specially constituted in that behalf, and it further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, it becomes pertinent to enquire whether remedies normally associated with actions in civil Courts are prescribed by the said statute or not.” (emphasis supplied) 10 16. In Dhulabhai v. State of Madhya Pradesh - 1968 (3) SCR 662, a Constitution Bench of this Court held that exclusion of the jurisdiction of the civil court is not readily to be inferred with, unless the following, among other conditions apply: “(1) 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………… (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.” 19. Mr. Anand Sharma has also argued that the present suit was barred by limitation. Defendant Janam Singh has appeared before the trial court on 11 10.4.2006. He has not stated anything about the limitation. According to the plaintiff, he came to know about the illegal mutation in the month of June, 2003. Proceedings of the Land Reforms Officer have not been produced before the trial court to prove that any notice was issued to the plaintiff and the order was passed in his presence. It was necessary for the Land Reforms Officer to issue notice to the plaintiff as well as his mother before passing order dated 12.2.1976. In the mutation dated 30.12.1976, presence of the plaintiff’s mother is not marked. 20. Mr. Anand Sharma has also argued that name of the plaintiff finds mention in mutation Ex.P-1. Admittedly, parentage of the plaintiff has not been given. According to the defendants, possession was delivered to them by Patwari and Kanungo on the spot, but neither the Patwari nor Kanungo has been produced by the defendants. No suggestion has been put to the plaintiff that possession was taken back from him after the attestation of mutation on 30.12.1976. In view of this, both the courts below have rightly come to the conclusion that the suit was within limitation since the plaintiff came to know about the mutation only in the month of June, 2003. 12 21. Defendant No.1 has deposed that he is getting the suit land cultivated through Lal Singh DW- 2. Defendant Janam Singh is resident of village Sarol, which is at a distance of 65 kms from the suit land. 22. Accordingly, both the courts below have correctly appreciated the oral as well as documentary evidence led by the parties and there is no substantial question of law involved in the Regular Second Appeal and as such 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. 9.9. 2011 *awasthi*