C.R. No. 182/2015 vs Surjeet Singh on 24 September, 2018

[Cites 50, Cited by 0]

Himachal Pradesh High Court

C.R. No. 182/2015 vs Surjeet Singh on 24 September, 2018

Bench: Tarlok Singh Chauhan

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA C.R. No.182 of 2015 a/w C.R. .

No.183/2015

Reserved on: 17.9.2018 Date of decision: 24.9.2018

1. C.R. No. 182/2015 Sadhu Singh and ors. .... Petitioners Versus Surjeet Singh ...Respondent

2. C.R. No.183/2015 Sadhu Singh and ors. .... Petitioners Versus Mohinder Singh and ors. ...Respondents Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.

Whether approved for reporting?1 Yes For the petitioner(s): Ms. Jyotsna Rewal Dua, Senior Advocate with Mr. Tijender Singh, Advocate.

For the respondent(s): Mr. R.K. Gautam, Senior Advocate with Mr. Gaurav Gautam and Ms. Megha Kapur Gautam, Advocates.

Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 25/09/2018 22:58:20 :::HCHP 2 Tarlok Singh Chauhan, Judge These revision petitions at the instance of .

owners/plaintiffs/petitioners of the land take exception to the judgment and decree dated 31.7.2015 passed by the learned Additional District Judge, Sirmaur at Nahan, whereby their appeal preferred against the judgment and decree dated 24.7.2012 passed by the learned trial court was ordered to be dismissed and the crossobjections filed by the defendants/respondents were allowed and consequently, the suit of the petitioners for possession of the suit land on the strength of their title came to be dismissed on the ground of jurisdiction.

2 The brief facts leading to filing of the present petition are

a) That the petitioners along with others (nonparties) are the recorded owners of the suit land bearing Khata Khatauni No. 25/118, Khasra No. 300, measuring 1045 sq. mtrs. Suit land bore Khata Khatauni No. 26 min./76, Khasra No.145/1 measuring 218 bigha as per Missal haquiat consolidation 195657. Suit was filed by the petitioners seeking possession of the aforesaid land on the strength of their title.

b) Suit was defended by the respondents primarily on the ground that the suit land was given by the owners/petitioners to their (respondents) predecessorsin interest on tenancy in 1960. It was further pleaded that they were tenants under the petitioners. And that they in ::: Downloaded on - 25/09/2018 22:58:20 :::HCHP 3 2002 initiated proceedings before A.C. 1st Grade Paonta Sahib, District Sirmour for conferment of proprietary rights to them. It was further pleaded that since the proceedings .

for conferment of proprietary rights are pending before the A.C. 1st Grade wherein the relationship of landlord and tenant between the parties was being adjudicated therefore the civil suit had no jurisdiction over the subject matter.

c) Plaintiffs/petitioners contested the above defence of the respondents by submitting that they never created any tenancy in favour of the respondents. It was pleaded that suit land was given by them to one Sh. Geeta Ram, s/o Sh. Chuni Lal as a licensee. Geeta Ram without any consent of the owners used to cultivate the land through one Sh. Arjun Singh and Sh. Sohan Singh, predecessor in interest of the respondents. This action was contrary to the license. There was no agreement of tenancy between the petitioners and the respondents. Petitioners never ever received or were paid any rent by the respondents. The respondents came to be recorded in possession of the suit land as Gair Morusi Doyam under Geeta Ram recorded as Gair Morusi Avval. No rent was ever paid to the petitioners. The jamabandis only showed that ¼ batai was paid by respondents for a year to Geeta Ram. This in no way would mean that the respondents are tenants of the petitioners. It was submitted that the respondents have no right, title or interest in the suit land and they were cultivating the suit land on behalf of Sh. Geeta Ram, licensee and therefore they have no better title than Sh. Geeta Ram or his successors.

Petitioners are entitled to get the possession of the suit land on the strength of their title. Pendency of the proceedings before the Court of A.C. 1st Grade would not affect the ::: Downloaded on - 25/09/2018 22:58:20 :::HCHP 4 present suit. It was further pleaded that A.C. 1 st Grade had no jurisdiction to decide the application of the respondents moved by them for conferment of proprietary rights. And in .

any case it would not affect the present suit which was for possession and for this reason, the facts in respect of pendency of proceedings before the A.C. 1 st Grade, were not mentioned in the plaint.

That the learned trial court framed issued on merits as well as on maintainability of the suit. This Court vide its order dated 11.4.2008 in incidental proceedings resulting from frame of issues held that findings are required to be given on all the issues. This order attained finality. The learned trial court vide its judgment dated 24.7.2012 held following:

i) the petitioners are the recorded owners of the suit land.

ii) the respondents/defendants are trespassers over the land. There is no relationship of landlord and tenant between the parties. Respondents at best can be said to be cultivating land under Geeta Ram who was inducted as licensee over the suit land by the petitioners. Petitioners neither inducted the respondents as their tenants nor the respondents ever paid any rent/batai to the petitioners.

The stand taken by the respondents in the written statement regarding they being tenants of the petitioners was belied from a perusal of the documents brought on record by the petitioners.

iii) despite the above findings given on merits of the matter, the suit of the petitioners was not decreed as the jurisdiction of the civil court was held to be barred by the learned trial court. It was held that proceeding for conferment of proprietary rights was pending before the A.C. 1st GradecumLand Reforms Officer and during ::: Downloaded on - 25/09/2018 22:58:20 :::HCHP 5 pendency of these proceedings dispute of relationship of landlord and tenant had cropped up.

Therefore, it was held that despite holding the .

petitioners/plaintiffs entitled for the relief of possession on the strength of their title, suit could not be decreed in view of pendency of the proceedings before the A.C. 1 st Grade.

Plaint was ordered to be returned for presentation before competent authority i.e. Asstt. Collector 1st Gradecum Land Reforms Officer Paonta Sahib, District Sirmour.

That appeal was preferred by the petitoners before the learned District Jude against return of their plaint by the learned trial Court. Crossobjections were preferred by the respondents against findings give by the learned trial court on merits of the case wherein they were held to be trespassers over the suit land and whereby it was held that they were not tenants under the petitioners. Learned first appellate court initially vide judgment dated 9.1.2014 held that the suit was maintainable. The decree of the learned trial court was set aside to the extent it held that suit was not maintainable. Suit for possession on the strength of title was held to be maintainable however it was held that petitioners did not have any cause of action to file suit for possession. It was observed that at the time of filing the suit, the proceedings were already initiated by the respondents claiming proprietary rights over the suit land therefore there was no occasion for the petitioners to claim possession. Appeal was thus partly allowed but suit was dismissed for alleged want of cause of action. The cross objections were allowed and the findings of the learned trial court on merits of the case were set aside on the ground that said issue is pending adjudication before the A.C. 1st Grade.

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That feeling aggrieved against the judgment and decree, the petitioners preferred the second appeal RSA No. 254/2014 before this Court. The appeals were allowed by .

this Court vide judgment dated 12.11.2014. The matter was remanded to the learned first appellate court to decide the matter afresh after treating it as civil miscellaneous appeal. On remand, the learned court heard the matter afresh and took a different view from the one taken by his learned Predecessor inasmuch as appeal filed by the petitioners was dismissed in entirety holding that the suit of the petitioners was not maintainable whereas the cross objections were allowed in entirety.

The petitioners have filed these petitions on various grounds and the main ground being applicability/nonapplicability of the Full Bench Decision of this Court in Chuhniya Devi vs. Jindu Ram, 1991(1) Shim.L.C. 223.

4 I have heard the learned counsel for the parties and have also gone through the records of the case carefully.

5 In Chuhniya Devi's case (supra), the Full Bench after reviewing various decisions on the subject and the relevant provisions of the H.P. Land Revenue Act, 1954 and H.P. Tenancy and Land Reforms Act, 1972 formulated the following questions: Whether the civil court has jurisdiction, in respect of an order

(a) made by the competent authority under the H. P. Land Revenue Act, 1954, and ::: Downloaded on - 25/09/2018 22:58:20 :::HCHP 7

(b) of conferment of proprietary rights under section 104 of the H. P. Tenancy and Land Reforms Act, 1972. which has not been assailed under the provisions of these .

Acts.

and thereafter the questions were answered as follow:

(a) that an order made by the competent authority under the H. P. Land Revenue Act, 1954, is open to challenge before a civil court to the extent that it relates to matters falling within the ambit of section 37 (3) and section 46 of that Act ; and

(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 pro visions of the Act had not been complied with.

6 During the course of the judgment, Full Bench has made various observations in paras 39 and 40, which read thus: "Who decides

39. True it is that Rule 29 contemplates determination of disputes of the nature contemplated by section 104 (4) of the Act on a summary inquiry on the file', yet, it cannot be over looked that the dispute is envisaged about the question ' whether a person cultivating the land of a landowner, is a tenant or not ; as is clear from the language in which section 104 (4) is couched. The Legislature must be deemed to know its own mind when enacting a provision of this nature It is ::: Downloaded on - 25/09/2018 22:58:20 :::HCHP 8 not possible to say, as was canvassed before us by Shri B K. Malhotra, that section 104 (4) only lays down a rule of evidence when it says that "the burden of proving that such .

a person is not a tenant of the landowner shall be on the latter" whenever a dispute arises whether a person cultivating the land of a landowner is a tenant or not. It is implicit in subsection (4) of section 104 that the Legislature envisaged that a dispute may arise whether a person cultivating the land of a landowner is a tenant or not, when proceedings were in progress under Chapter X, and provided that it shall be decided by the authorities contemplated under this Chapter who shall require the landowner to establish that a person cultivating his land is not a tenant.

Not the Civil Court

40. 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 validity of my 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 It9 (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.

7 This judgment was being interpreted differently by various learned single Judges of this Court. However, a learned Division Bench of this Court in Shankar vs. Smt. Rukmani and ::: Downloaded on - 25/09/2018 22:58:20 :::HCHP 9 others, 2003(1) Shim.L.C. 300, culled out the precise ratio laid down in Chuhniya Devi's case (supra), which is as follows: .

"9. 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."

8 Thereafter, the matter was considered by a single Judge of this Court (Hon'ble Justice Deepak Gupta, his Lordship the then was) in Tajdin vs. Milkho Devi and ors., 2006(1) RCR (Civ) 790 wherein, it was observed as under: [5] The second question raised before the Full Bench was specifically with regard to conferment of proprietary rights under Section 104 of the H.P. Tenancy and Land Reforms Act. This is apparent from various observations made in the judgment. The Full Bench in Para 44 of the judgment has observed as follows :

"44. The exclusion of the jurisdiction of the Civil Court, in the matter of determination of the question whether a person ::: Downloaded on - 25/09/2018 22:58:20 :::HCHP 10 cultivating the land of a landowner is his tenant or not for purposes of ChapterX, is both reasonable and understandable. Permitting such a question to be determined .

by the Civil Court also would have introduced an element of unpredictability, spread over a long period while the matter was under adjudication before the Civil Court at the trial or an appellate stage, which could have made the effective implementation of measures of land reform aimed at by the Act, uncertain. The Legislature could legitimately think of ruling out such a situation. It has done so by excluding the jurisdiction of the Civil Court expressly in that matter."

[6] In para 45 of the judgment the Full Bench Observed as follows :

"45. Shri K.D. Sood, who also assisted Court during the hearing, urged that where there was no dispute about the relationship of landowner and tenant, the Civil Court would have no jurisdiction in the matter but where there was such a dispute, the Civil Court would have jurisdiction to go into the matter. The reasons which we have mentioned earlier rule out acceptance of the plea that the Civil Court would have jurisdiction where there is a dispute about the status of a person cultivating the land of a landowner being his tenant. The acceptance of the plea would negate the accomplishment of the object of securing to the actual tiller proprietary rights in the land under his cultivation as a measure of land reforms envisaged in the Act."

[7] A similar question came to be considered by a single Judge of this Court in Babu Ram (deceased) through L.Rs. Smt. Sita Devi v. Pohlo Ram, 1992 AIR(HP) 8 This case was decided after the decision was rendered by the Full Bench. It appears that the decision of the Full Bench was not brought ::: Downloaded on - 25/09/2018 22:58:20 :::HCHP 11 to the notice of the Court. Relying upon a judgment of the Apex Court in Raja Durga Singh v. Tholu and others, 1963 AIR(SC) 361 the Single Judge held as follows :

.

"8. In view of the specific pleadings and as observed by the Supreme Court in Durga Singh's case , Civil Court undoubtedly had jurisdiction to entertain and decide the suit. Moreover, plaintiff had felt aggrieved by an entry made in the revenue records on the basis of an order passed by Revenue Officer. Section 46 of the Himachal Pradesh Land Revenue Act provides that if a person considers himself aggrieved as to any right of which he is in possession by an entry in a record of right or any periodical record he can institute a suit for declaration of the rights under ChapterVI of the Specific Relief Act, 1963. The Courts below, as such, were right in their view that Civil Court had jurisdiction to entertain and decide the suit."

[8] A Division Bench in Ram Chand and other v. Jagat Ram and others, 1997 1 ShimLC 164 following the judgment of the Full Bench held that since the Land Reforms Officer had sanctioned the mutation granting proprietary rights in favour of the alleged tenants behind the back of the owners on the basis of the entries existing prior to the enforcement of the Act and not at the time of sanction, the Civil Court had jurisdiction.

[9] A single Judge of this Court in Shri Pritam Chand and others v. Shri Krishan Kumar and others, 1997 1 ShimLC 255, was dealing with a case where a suit had been filed for declaration that the plaintiffs were entitled to proprietary rights in their favour. The defendants did not accept the plaintiffs to be tenants on the suit land. It was held that in this situation the ratio of the Full Bench was not applicable.

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[10] In Malkiat Singh and another v. Hardial Singh,1994 Supp1 ShimLC 77 following the judgment of the Full Bench a Single Judge of this Court held that the Civil Court had no .

jurisdiction to go into any question connected with the conferment of proprietary rights pertaining to the land in dispute.

[11] In Inder Dutt and others v. Kala and another, 1997 2 ShimLC 274, it was held that the entry in the revenue records regarding the tenancy rights and the consequential proprietary rights conferred upon the JudgmentDebtors had been done exparte without any inquiry whatsoever. It was held that the DecreeHolders were not aware of such entries.

The Court held that in such a situation, it cannot be said, by any stretch of imagination, that the Civil Court had no jurisdiction to decide the question. In fact, the proposition laid down by the Full Bench, as aforesaid, itself governed the case and the matter fell within the scope of the jurisdiction of the Civil Court, as laid down by the Full Bench.

[12] In Roshan Lal v. Krishan Dev, 2010 159 PunLR 701 a Single Judge held that where primary relief of declaration claimed by the plaintiff was directly connected with the conferment of proprietary rights under the H.P. Tenancy and Land Reforms Act, the Civil Court had no jurisdiction. In that case the plaintiff had filed a suit seeking declaration to the effect that he was a tenant in possession of the land in dispute and had become an owner by virtue of the H.P. Tenancy and Land Reforms Act.

[13] A Division Bench of this Court in Shankar v. Smt. Rukmani and others,2003 1 ShimLC 300, considered the ::: Downloaded on - 25/09/2018 22:58:20 :::HCHP 13 question with regard to the interpretation of the judgment of the Full Bench and held as follows :

"9. After analyzing the judgment in Chuhniya Devi v. Jindu .

Rams case, 1991 1 ShimLC 223, 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."

[14] This judgment appears to have settled all the matters about which there was some conflict with regard to the interpretation of the judgment of the Full Bench in Chuhniya Devi v. Jindu Rams case, 1991 1 ShimLC 223. One factor which has to be kept in mind and should not be lost sight of while considering the import of the judgment of the Full Bench is that the question before the Full Bench was whether the Civil Court had jurisdiction in respect of an order conferring proprietary rights under Section 104 of the H.P. Tenancy and Land Reforms Act, 1972 which had not been assailed under the provisions of the said Act. The Full Bench in para 39 again made it clear that a dispute may arise where the person cultivating the land of a land owner is a tenant or not, when proceedings were in progress under ChapterX. Full Bench was dealing with the impact of the ::: Downloaded on - 25/09/2018 22:58:20 :::HCHP 14 bar to the jurisdiction of the Civil Court under Sections 112 and 115 of the H.P. Tenancy and Land Reforms Act both of which occur in ChapterX and it is in this context that the .

observations, made in para 40 have to be read. Again in para 44 (quoted above) the Full Bench has clearly held that the exclusion of the jurisdiction of the Civil Court in the matter of determining the question whether a person cultivating the land of the land owner is a tenant or not for the purposes of ChapterX is both reasonable and understandable. It is thus clear that the question before the Full Bench and its answer and the various observations were confined to disputes pertaining to the relationship of landlord and tenant arising out of and during the course of proceedings of conferment of proprietary rights on the tenant under ChapterX of the H.P. Tenancy and Land Reforms Act.

The observations made in Chapter 45 have to be read in this context only.

[15] This has been amply clarified by the Division Bench in Shankars case,2003 1 ShimLC 300 wherein after analyzing the entire law and the judgment in Chuhniya Devi s case, 1991 1 ShimLC 223 the Division Bench held that if a dispute pertaining to the relationship of landlord and tenant arises during the proceedings of conferment of proprietary rights upon the tenant and the resumption of land by the land owner and the order in respect thereof has been passed by the authorities under the Act the Civil Court will have no jurisdiction except in a case where it is found that the competent authority has acted either in violation of the Rules of Natural Justice or contrary to the provisions of law laid down in the Act or the Rules. If the dispute regarding the relationship of landlord and tenant has no connection with ::: Downloaded on - 25/09/2018 22:58:20 :::HCHP 15 the proceedings under ChapterX of H.P. Tenancy And Land Reforms Act the Civil Court would have jurisdiction to hear and decide this dispute.

[16] I am not only bound but am in respectful agreement with the observations of the Division Bench in Shankars case,2003 1 ShimLC 300 quoted hereinbefore. The bar to the jurisdiction of the Civil Court under Section 112 of the Tenancy and Land Reforms Act will only apply when the validity of proceedings or order made under ChapterX are called in question in any Civil Court. Similarly under Section 115 of the said Act the order in appeal or revision passed by the Collector, Commissioner or Financial Commissioner can also not be challenged before the Civil Court unless the same is in violation of the principles of Natural Justice or is contrary to the provisions of the Rules or the Act. The foundation for this must be laid in the plaint. It is the averments made in the plaint which will show the Civil Court has or does not have jurisdiction to entertain the suit.

9 The ratio in the aforesaid judgment was thereafter followed by the same learned Single Judge in FAO No. 314/2002, titled as Suram Singh and ors. vs. Narsh Kumar and ors, decided on 29.12.2007 and in RSA No. 405/1995, titled as Giano Devi (dead) LRs Ranjit Singh and ors. vs. Munshi Ram and another, decided on 19.5.2008.

10 In Sheetla Devi and ors. vs. Hara Dassi and ors., 2008(1) Latest HLJ 220, another learned single Judge of this Court (Justice Kuldip Singh) held that where the status of the ::: Downloaded on - 25/09/2018 22:58:20 :::HCHP 16 tenant has been specifically denied by the landlords, the jurisdiction of the civil court to entertain the suit would not be .

barred. It is apt to reproduce the observations as contained in paras 6 to 10, which read thus: [6] The learned Sub Judge found respondents No.1,2/plaintiffs in possession as owners of the suit land. It has been held that civil Court has jurisdiction to try the suit and ultimately the suit was decreed on 29.4.1994. Paras Nath filed Civil Appeal No.29/94. Smt.Chander Kaura and Mahavir Parsad filed Civil Appeal No.33/94 against the judgment and decree dated 29.4.1994, both the appeals were dismissed by common judgment by learned Additional District Judge, Kullu on 13.6.1995. Paras Nath filed RSA No.27 of 1996, Smt. Chander Kaura and Mahavir Parshad filed RSA No.179 of 1996 against common judgment and decree dated 13.6.1995. Both appeals have been heard on the following substantial question of law: Whether the Courts below erred in holding that Civil Court has jurisdiction and that judgment of this Hon'ble Court in Chuhniya Devi Vs. Jindu Ram and others, 1991 1 ShimLC 223, is not applicable in the present case. [7] I have heard Shri Ajay Mohan Goel, Advocate for the appellants and Mr.Ashwani Kumar Sharma, Advocate for respondents No.1,2/plaintiffs and gone through the record. The learned counsel for the appellants has submitted that in view of Chuhniya Devi Vs. Jindu Ram and others, 1991 1 ShimLC 223, the civil Court has no jurisdiction to try the case and, therefore, judgment and decree passed by the trial Court and upheld by lower appellate Court are not sustainable. The learned counsel for the respondents No.1, ::: Downloaded on - 25/09/2018 22:58:20 :::HCHP 17 2 has submitted that Civil Court has jurisdiction to try the suit. The decision of this Court in Chuhniya Devi's case is not applicable in the facts and circumstances of the present .

case.

[8] The controversy in the present case in view of substantial question of law framed above is very short regarding the jurisdiction of the civil Court to try the suit. In Chuhniya Devi's case the question 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 H.P.Tenancy and Land Reforms Act which has not been assailed under that Act. In Para64 of the judgment, the Full Bench has held the civil Court has no jurisdiction to go into any question connected with the conferment of proprietary rights under Section 104 of 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.

[9] In the present case, the suit has not been filed questioning the conferment of proprietary rights. The suit has been filed by the respondents No.1,2/plaintiffs simply on the ground that earlier their predecessor Khewa Ram was the tenant in possession of the suit land and after his death they are tenants in possession of the suit land and they have become owners of the suit land after coming into force of the Act. The case of ownership of the suit land has been pleaded by the respondents No.1,2/plaintiffs on the ground that conferment of proprietary rights under the Act is automatic. In Daulat Ram etc. Versus The State of H.P. etc., 1978 7 ILR(HP) 742 and in Mohan Singh Versus Manju Devi ::: Downloaded on - 25/09/2018 22:58:20 :::HCHP 18 and others, 1997 1 SLJ 304, it has been held that conferment of proprietary rights is automatic. [10] In Pritam Chand and others Versus Krishan Kumar and .

others, 1997 1 ShimLC 255, the plaintiffs filed a suit for declaration and injunction that they are tenants on the suit land and entries showing defendants in owners in possession are wrong, a prayer for injunction was also made. The learned Single Judge of this Court in Para7, after noticing Chuhniya Devi's case , held as follows: "The learned first appellate Court proceeded on the assumption that the plaintiffs in the present case were entitled for the declaration of proprietary rights in their favour and consequently, the suit involved a question connected with it. It may be noticed that the defendants who claim themselves to be the owners in possession of the suit land, at no point of time accepted the plaintiffs to be the tenants of the suit land. In this situation, the ratio of the Full Bench decision could not be made applicable to the present case. Here in the present case, the status of the plaintiffs tenants has been specifically denied by the landlords except on a small piece of land. The legislature has barred only such types of cases from the purview of the Civil Court where there was no dispute between the parties and the tenant cultivating the land was accepted to be in possession of it as a tenant. In the present case, the facts are totally different. It would thus be seen that the learned first appellate Court fell into an error in holding that the Civil Court's jurisdiction to try the present suit was barred."

11 In RSA No. 192/2002, titled as Sarv Dayal vs. Oma Devi and others, decided on 14.7.2008, while answering ::: Downloaded on - 25/09/2018 22:58:20 :::HCHP 19 substantial question of law regarding jurisdiction of civil court in light of Chuhniya Devi's case, it was observed as under: .

Further the relationship between the parties that of landlord and tenant has not been admitted. Therefore, in my view, the suit filed by the plaintiffs is totally maintainable and has been rightly entertained by the Court below. The Courts below have concurrently held that the entries in question have been effected behind the back of the plaintiffs. The plaintiffs have been able to prove on record their uninterrupted possession and ownership, which is evident from the Jamabandies and Khasra Girdawaries placed on record and noticed hereinabove. The revenue record is clear and consistent. During the course of hearing, learned counsel for the appellant has not been able to dislodge the findings returned by the Courts below, therefore, the contention that the Courts below could not have entertained the suit is rejected.

12 Dealing with the ratio of the judgment in Chuhniya Devi's case, learned single Judge of this Court (Justice Kuldip Singh) in RSA No. 205/1996, titled as Joginder Singh vs. Smt. Dropti Devi and others, decided on 13.3.2009 held that it is settled law that jurisdiction of the civil court is to be seen on the basis of averments made in the plaint and not on the basis of defence set up in the case and observed as under:

8. It is settled law that jurisdiction of the civil court is to be seen on the basis of averments made in the plaint and not ::: Downloaded on - 25/09/2018 22:58:20 :::HCHP 20 on the basis of defence set up in the case. In the present case, the appellant has nowhere pleaded that Bhajna was the tenant on the suit land under him nor he has challenged .

any order conferring the proprietary rights in favour of Bhajna of the suit land under the H.P. Tenancy and Land Reforms Act, 1972. Bhajna had, however, taken the plea of tenancy on the suit land. On merits, whether the appellant has proved his case or Bhajna succeeded in establishing his case that has not been considered by the learned lower appellate court. The appeal has been allowed simply on the point of jurisdiction. There is no issue of jurisdiction. The learned lower appellate court has wrongly applied Chuhniya Devis case, which in my opinion, in the facts and circumstances of the case is not applicable in the present case. In these circumstances, substantial questions of law No. 1 and 2 are decided in favour of the appellant. In view of my findings on substantial questions of law No.1 & 2, I do not think it proper to decide substantial questions of law No. 3 and 4 so that it may not prejudice the case of either side, inasmuch as, I intend to remand the matter to the learned District Judge, Una to decide the appeal afresh in accordance with law. The substantial questions of law No. 3 and 4, are therefore, disposed of accordingly.

13 Another learned single Judge of this Court (Justice Dev Darshan Sud) while dealing with same question in Krishan Chand and ors. vs. Jeet Ram and another, 2009(2) Latest HLJ 978 held that where the proceedings have been conducted without jurisdiction, where the question of tenancy is disputed, ::: Downloaded on - 25/09/2018 22:58:21 :::HCHP 21 independent of the proceedings under the HP Tenancy and Land Reforms Act, there is no finality to the adjudication of the revenue .

officials and the jurisdiction of the Civil Court is not barred, as observed in paras 13 and 14, which read thus:

[13] This question is answered against the appellants. The jurisdiction of the Civil Court is not ousted as pleaded. The decisions in Pritam Singh vs. Krishan Kumar, 1997 1 ShimLC 255, Birbal vs. Udhami, 1992 1 ShimLC 153 and Shankar vs. Rukmani,2003 1 ShimLC 300 are clear and unequivocal that where the proceedings have been conducted without jurisdiction, where the question of tenancy is disputed, independent of the proceedings under the HP Tenancy and Land Reforms Act, there is no finality to the adjudication of the revenue officials and the jurisdiction of the Civil Court is not barred.

In Rukmani's case this Court held: "After analyzing the judgment in Chuhniya Devi v. Jindu Ram's case , 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."

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[14] In the present case the very basis and foundation of conferment of proprietary rights has been questioned. The case pleaded by the plaintiffs is one of suppression of facts, .

exercise of powers by an officer not competent to do so and the very basis of tenancy has been challenged. This question is, therefore, answered against the appellants.

14 In RSA No. 157/1996, titled as Gaurju vs. Sham Singh and others, decided on 11.9.2009, it was reiterated by learned Single Judge of this Court (Hon'ble Justice Deepak Gupta, his Lordship the then was) that Chuhniya Devi's case will have no applicability where the orders passed by the revenue authorities are not challenged.

15 Dealing with question of ouster of jurisdiction on the basis of Chuhniya Devi's case, learned Single Judge of this Court (Justice Sanjay Karol) in RSA No. 57/2003, titled as Chatter Singh and another vs. Hem Raj and others, decided on 15.11.2012 observed as under:

17.The conferment of proprietary rights upon tenant was not an issue. Hence, the lower appellate Court, by taking into account the decision rendered by this Court in Shri Lajpat Rai (supra), held the jurisdiction of the Civil Court not to be barred, more so, for the reason that the plaintiff had filed a suit for injunction being in possession of the suit land.

18. In Babu Ram (deceased) through LRs Smt. Sita Devi and others versus Pohlo Ram (deceased) through LRs Smt. Vidya ::: Downloaded on - 25/09/2018 22:58:21 :::HCHP 23 Devi and others, this Court has taken the view that where relationship with respect to tenancy is in dispute, Civil Court would have jurisdiction.

19.A Coordinate Bench of this Court in Ramesh Kumar and others vs. Mandir Thor (Math Thor), 2007 (2) Shim.L.C. 422, has held as under: [6] The learned Courts below have relied on a Full Bench Judgment of this Court in Chuhniya Devi v. Jindu Ram, 1991 1 ShimLC 223, holding that the jurisdiction of the Civil Court was barred. This case was subsequently considered by this Court in Shankar v. Rukmani and Ors.,2003 1 ShimLC 300. While disposing of the appeal, this Court has held:

3. After hearing the learned Counsel for the parties and going through the record, we find that the District Judge has wrongly applied the ratio of judgment in Chuhniya Devi v.

Jindu Ram's case (supra) to the facts and circumstances of the present case. From the pleadings of the parties it is clear that the plaintiff claimed himself to be in "continuous possession of the suit land as tenant for the last 20 years, whereas the defendants denied his claim and asserted that they are owners in possession. Therefore, admittedly the relationship of landlord and tenant is in dispute despite the revenue entries in favour of the plaintiff and such kind of disputes are triable by the Civil Court.

10. Coming to the case in hand, it is not averred by the either party that either the proceedings were initiated or the order was passed under Chapter X of the Act. Therefore, we have no hesitation to hold that the ratio of judgment in Chuhniya Devi v. Jindu Ram's case is not applicable to the ::: Downloaded on - 25/09/2018 22:58:21 :::HCHP 24 facts and circumstances of the present case and the Civil Court has the jurisdiction to decide the suit of the plaintiff. [7] Similarly, in Amur Chand v. Thakri Devi Latest,2005 LLJ .

1108, this Court, following the ratio in Shankar v. Rukmani and Ors. (supra) held:

9. The dispute whether a given person is a tenant or not would arise when in the proceedings regarding resumption of land, the person cultivating the land claims that he is tenant qua that land and the owner of the land denies that claim. Such a question would be determined by the Land Reforms Officer, appointed for the purpose of Chapter X. A question which arises between two persons, each claiming to be tenant in respect of a given extent of land, as in the present case, cannot be said to be a dispute between the owner of the land and the tenant, nor has such a question arty relevance to the proceedings required to be conducted under Chapter X of the Act and hence the Land Reforms Officer does not have jurisdiction in respect of such a dispute. To such matters, the provision of Section 112 of the Act barring the jurisdiction of the Civil Court is not attracted.

[8] I see no reason to differ with the ratio laid down in these judgments. Even otherwise these judgments follow the established precedent of the Hon'ble Supreme Court in Dhulabhai etc. v. State of Madhya Pradesh and Anr., 1968 3 SCR 662 , holding that exclusion of jurisdiction of a Civil Court is not to be inferred readily unless the conditions precedent barring such jurisdiction are strictly established.

20. This Court further in Krishan Chand and others vs. Jeet Ram and another, Latest HLJ 2009 (HP) 978, has held:

Question No.5:

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[9] This question is answered against the appellants. The jurisdiction of the Civil Court is not ousted as pleaded. The decisions in Pritam Singh vs. Krishan Kumar, 1997 1 .

ShimLC 255, Birbal vs. Udhami, 1992 1 ShimLC 153 and Shankar vs. Rukmani,2003 1 ShimLC 300 are clear and unequivocal that where the proceedings have been conducted without jurisdiction, where the question of tenancy is disputed, independent of the proceedings under the HP Tenancy and Land Reforms Act, there is no finality to the adjudication of the revenue officials and the jurisdiction of the Civil Court is not barred.

In Rukmani's casethis Court held: "After analyzing the judgment in Chuhniya Devi v. Jindu Ram's case , 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."

In the present case the very basis and foundation of conferment of proprietary rights has been questioned. The case pleaded by the plaintiffs is one of suppression of facts, exercise of powers by an officer not competent to do so and ::: Downloaded on - 25/09/2018 22:58:21 :::HCHP 26 the very basis of tenancy has been challenged. This question is, therefore, answered against the appellants.

.

16 I myself have considered identical question in various cases regarding jurisdiction of civil court and in RSA No. 323/2002, titled as Jaswant Singh and others vs. Sant Nirankari Mandal, decided on 14.5.2014 it was observed as under:

14. The learned counsel for the appellants has further contended that the tenant automatically became the owner on the appointed day i.e. 03.10.1975 after coming into force the operation of H.P. Tenancy and Land Reforms Act and, therefore, the jurisdiction of the Civil Court was barred in terms of the Full Bench judgment of this Court in Chuhniya Devi versus Jindu Ram 1991 (1) S.L.C.223 which in turn has been followed in a subsequent judgment of this Court in Kala Devi and others versus Sat Pal and others 2011 (1) Shim. LC 137, wherein it has been held as under:

[9] Coming to the evidence led by the parties, the plaintiff had proved on record Ext. P3, copy of the jamabandi for the year 196566, Ext.P4 jamabandi for the year 197374, Ext.P5 copy of Khasra Girdavari from Kharif 1985 to Ravi 1989, Ext.P1 copy of jamabandi for the year 198182 and Ext.P2 copy of Khasra Girdavari from Kharif 1982 to Ravi 1988, which showed that the land in suit was entered in the ownership of the defendants and plaintiff and one Rama were shown in possession of the suit land as tenants. Thus, there were long standing entries in favour of the plaintiff showing him in possession over the suit land as tenant. The ::: Downloaded on - 25/09/2018 22:58:21 :::HCHP 27 plaintiff had taken up the plea that on the basis of these entries, on coming into operation the H.P. Tenancy and Land Reforms Act, from the appointed day i.e. 3.10.1975, the .

plaintiff had become owner of the suit land and the conferment of the proprietary rights was automatic. According to the provisions of Section 104 of the H.P. Tenancy and Land Reforms Act, 1972, the plaintiff was to be conferred with the proprietary rights and this conferment was automatic. The plaintiff pleaded that he has become owner by operation of law and the defendants in their written statement took up a specific plea that the mutation under Section 104 of the H.P. Tenancy and Land Reforms Act was entered in favour of the plaintiff but it was rejected by the Assistant Collector 1st Grade on 9.2.1984. Thus, the defendants admitted that the proprietary rights were conferred upon the plaintiff under Section 104 of the H.P. Tenancy and Land Reforms Act. Once the proprietary rights had been conferred upon the plaintiff under these provisions, the jurisdiction of the Civil Court was barred to look into the question of conferment of proprietary rights according to the Full Bench decision of this Court in Chuhniya Devi v. Jindu Ram, 1991 1 ShimLC 223. This question was not considered by the Courts below since the copy of the mutation entered was not placed on the record by both the parties. However, the defendants admitted that such a mutation was entered into/but it was pleaded that the same was rejected by the Assistant Collector 1st Grade on 9.2.1984. Once the defendants admitted the factum of conferment of proprietary rights, it was for them to have proved that it was rejected by the Assistant Collector 1st Grade on 9.2.1984 as pleaded by them, but the said ::: Downloaded on - 25/09/2018 22:58:21 :::HCHP 28 document never saw the light of the day and there is nothing on the record to show that any such order was passed by the Assistant Collector 1st Grade canceling the .

mutation entered in favour of the plaintiff.

15. To similar effect is the judgment in Shamsher Singh and others versus Roshan Lal and others 2011 (1) Shim. LC 570, wherein it has been held as under:

[9] The point involved in the appeal is very short. The perusal of the plaint indicates that the appellants have specifically challenged the mutation No. 1266 dated 15.6.1981 conferring ownership rights in favour of respondents No. 1 to 4 which has been placed on record by appellants/plaintiffs as Ex.P6 and by defendants as Ex.D

17. The conferment of proprietary rights under Section 104 of the H.P. Tenancy and Land Reforms Act cannot be assailed in civil suit as per Chuhniya Devi unless the parameters laid down in Chuhniya Devi are otherwise satisfied. In the plaint there is no averment that statutory authority has not followed mandatory procedure for conferring proprietary rights while attesting mutation. In these circumstances, no fault can be found with the findings returned by the two Courts below that the civil Court has no jurisdiction to try the suit. Similarly the direction for return of plaint by the learned District Judge is also correct. The civil Court has no jurisdiction to try the suit. In case, the appellants opt to file appropriate proceedings before statutory authority under the H.P. Tenancy and Land Reforms Act regarding their grievance then such authority shall decide the same in accordance with law uninfluenced by any findings given by learned District Judge and learned Senior Sub Judge on all issues except the issue of ::: Downloaded on - 25/09/2018 22:58:21 :::HCHP 29 jurisdiction. There is no merit in the appeal. The substantial question of law is decided against the appellant.

16. On the question of jurisdiction, the learned counsel for .

the appellants has further placed reliance upon the judgment delivered by this Court in Brij Bihari Lal versus Smt. Sarvi Devi and others 2011 (3) Him.L.R. 1515, wherein it has been held as under:

15. It is clear from the above decision that the question of proprietary rights could be looked into by the Civil Court in case there were specific allegations that 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. There were no allegations made in the plaint in this regard and though the suit was filed on 13.4.1971 and decided on 8.9.1976, appeal was filed on 26.5.1981 and decided on 21.9.2000 and by that time this judgment had already been passed by the Hon'ble Full Bench on

21.9.1990. The plaintiff could have withdrawn the suit and filed it afresh on the lines of the directions given in the above Paras under which the challenge could be led to the order of the Compensation Officer which was never done, though the parties continued to contest the suit, which was ultimately decided on 8.9.1976 and before that it must be clear to both the parties that such law has been laid down by the court.

17 Once again this question came up for consideration before me in Prita vs. Baldev Singh and others, 2016(5) ILR (HP)595 and it was observed as under: ::: Downloaded on - 25/09/2018 22:58:21 :::HCHP 30 [9] As regards question No.1, there is no difficulty in concluding that since the dispute was not one between landlord and tenant and was rather inter se two persons .

claiming themselves to be the tenant, therefore, it was the civil court alone which had the jurisdiction to determine the said issue. This court in Tulsa Singh Vs. Agya Ram & ors,1994 2 SimLC 434, was confronted with a similar issue and the same was repelled with the following observations:

"8. Learned counsel for the appellant has contended vehemently that as the appellant had already been granted proprietary rights under Section 104 or the Act and therefore the civil court will have no jurisdiction whatsoever to entertain and decide the case of present nature, where the rights of tenancy in favour of appellant stood legally decided under the provisions of the Act by the competent authority and civil court will have no jurisdiction to again go into that controversy. The learned counsel in support of the aforesaid contention has tried to rely upon Chuhniya Devi v. Jindu Ram, 1991 1 ShimLC 223.

9. In the reported case the appellants came up before the Full Bench for answer to the question whether civil court had jurisdiction in respect of an order:

(a) made by the competent authority under the H.P. Land Revenue Act, 1954, and

(b) of conferment of. proprietary rights under Section 104 of the H.P. Tenancy and Land Reforms Act, 1972.

10. In so far as present case was concerned point (b) above was more relevant.

11. In this Chuhniya Devi case their Lordships answered to the question as under :

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(a) that an order made by the competent authority under the H. P. Land Revenue Act, 1954, is open to challenge before a civil court to the extent that it related to matters falling .

within the ambit of Section 37(3) and Section 46 of that Act; and

(b) the civil court has no jurisdiction to go into any question connected with the conferment of proprietary rights under Section 104 of the Act, except in a case where it was 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.

12. I think the applicability of the principle disposed of in the aforesaid case on the basis of the facts involved and proved on record in the present case was not at all called for.

13. Firstly, in Chuhniya Devi v. Jindu Ram, 1991 1 ShimLC 223 referred to above the dispute was between the landlord and tenant but in the present case the dispute is between the two persons alleging themselves to be the tenant,

14. Secondly, in the aforesaid reported case the proprietary rights had been granted in favour of the tenant by the competent officer under the Act and that too in the presence of the landlord. In the case under reference the suit Was filed on February 4, 1977 and the proprietary rights were granted initially through mutation No. 2649 Ex. D5 on record sanctioned on December (sic).

15. Thirdly, it may be pointed out that the suit was filed on February 4, 1977 and the written statement was filed by the defendantappellant on March 25, 1977 while replication was filed on April 12, 1977, meaning thereby the ::: Downloaded on - 25/09/2018 22:58:21 :::HCHP 32 present appellant was in full knowledge of the present suit where his tenancy rights were being assailed in so far as on the date when the proprietary rights were conferred in his .

favour. The appellant did not bring .to the notice of the Revenue Officer under the Act sanctioning of mutation of proprietary, rights in his favour, pertaining to the alleged civil suit. Thus, the order of proprietary rights in favour of the appellant was granted in the absence of the present plaintiffs.

16. Fourthly, it may again be referred that the landlord preferred an appeal before the Collector, Una, assailing the order of grant of proprietary rights in favour of the present appellant which appeal was accepted and the case was remanded back to the Assistant Collector, for decision, afresh as is evident from Ex. P5, certified copy of the order of the Collector. Order of the Collector is dated April 5, 1978 and thereafter finally the proprietary rights in favour of the appellant were granted behind the back of the present plaintiffrespondent, though later mutation granting proprietary rights has not been brought on record.

17. The aforesaid facts which have been proved on record clearly make the present case of an altogether different nature than the facts involved in Chuhniya Devi v. Jindu Ram, 1991 1 ShimLC 223 referred to above. The applicability of the ratio of that judgment as such on the basis of dissimilarity of the facts in the two cases is not at all called for.

[10] In Babu Ram (deceased) through L.Rs Smt. Sita Devi & ors Vs. Pohlo Ram (deceased) through L.Rs Smt. Vidya Devi & ors, 1991 2 ShimLC 211, this court has categorically held that the Legislature barred only those suits from cognizance ::: Downloaded on - 25/09/2018 22:58:21 :::HCHP 33 of Civil Courts where there is no dispute between parties about relationship of landlord and tenant and where such relationship was disputed, it was the civil court alone which .

had the jurisdiction to entertain and decide the case. Relevant observations read as under:

"5. I have heard the learned counsel for the parties. Learned counsel for the appellants urged before me that in view of the averments made in the plaint, in which the plaintiff had claimed a decree for declaration that he was a tenant on the suit land, civil court had no jurisdiction to entertain and decide the suit. It was further urged that there was cogent and convincing evidence adduced by the defendant on record to show that plaintiff was not in possession of the suit property and before the Panchayat the plaintiff had, on April 3, 1974, admitted by giving a document in writing that he was not in possession of the property and on the basis of this document, an order Ex D 1 was passed on April 25, 1976, by the Assistant Collector Second Grade, ordering the correction of entries in revenue records by showing the defendant to be in possession. It was on the basis of this order that change was effected in Khasra Girdwari in Rabi 1976 and for which report in Roznamcha Waquati was also made by the Patwari on May 11, 1976 vide copy Ex D3. The learned counsel for the appellant further urged that the courts below were not right in discarding the order passed by the Assistant Collector Second Grade on the ground that it was based upon the report of Girdawar Kanungo, who had not been produced in the witness box. It was for this reason that application under order 41 Rule 27 of CPC had been made seeking to produce by way of additional evidence the report of Field Kanungo dated December 11, ::: Downloaded on - 25/09/2018 22:58:21 :::HCHP 34 1975 along with a copy of summon dated November 18, 1976, by which Assistant Collector Second Grade had asked the plaintiff to appear before him to show cause as to .

why the correction in revenue records be not made in favour of the defendant.

6. Learned counsel for the respondents, on the other hand, urged that the status of the plaintiff was not admitted by defendant and, therefore, there was no bar for civil court to entertain and decide the suit and moreover incorrect entry had appeared in the revenue record against the plaintiff, therefore, suit for declaration in a civil court was competent and maintainable in view of section 46 of the HP Land Revenue Act. It was further contended that defendant could not be permitted to lead additional evidence merely to fill in the lacunae in the case especially when such evidence was within the knowledge of the defendant and could have been easily produced in the trial court.

7. I see much force in the arguments advanced by the learned counsel for the respondentplaintiff. The argument of the learned counsel for the appellants that the suit is barred under Section 58 of the H.P. Tenancy and Land Reforms Act (hereinafter to be called as the Tenancy Act) is not tenable. There is no clause in section 58 of the Tenancy Act which provides for a suit by or against a person claiming himself to be a tenant and whose status as a tenant is not admitted by the land owner. The legislature barred only those suits from the cognizance of civil court where there is no dispute between the parties about the relationship of landlord and tenant. It was a suit filed by the plaintiff claiming himself to be in possession of the property as a tenant under the defendant and defendant had not ::: Downloaded on - 25/09/2018 22:58:21 :::HCHP 35 admitted the status of the plaintiff, as such, rather, it was pleaded that the plaintiff was not at all in possession. The provisions contained in the Punjab Tenancy Act, as .

applicable to Himachal Pradesh, which are parimateria with the provisions of section 58 of the Tenancy Act came up for consideration before the Supreme Court in Raja Durga Singh V. Tholu and others, 1963 AIR(SC) 361. The Supreme Court observed init report as under:

" There is no entry or item relating to a suit by or against a person claiming to be a tenant and whose status as a tenant is not admitted by the landlord. It would, therefore, be reasonable to infer that the legislature barred only those suits form the cognizance of a civil court where there was no dispute between the parties that a person cultivating land or who was in possession of land was a tenant "

8. In view of the specific pleadings and as observed by the Supreme Court in Durga Singh's case , Civil Court undoubtedly had jurisdiction to entertain and decide the suit. Moreover, plaintiff had felt aggrieved by an entry made in the revenue records on the basis of an order passed by Revenue Officer. Section 46 of the Himachal Pradesh Land Revenue Act provides that if a person considers himself aggrieved as to any right of which he is in possession by an entry in a record of right or any periodical record, he can institute a suit for declaration of the rights under Chapter VI of the Specific Relief Act, 1963.

The courts below, as such, were right in their view that Civil Court had jurisdiction to entertain and decide the suit." This question is answered against the appellant.

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18 Again, similar issue regarding jurisdiction of civil court came up before me in Swaran Singh (deceased) vs. .

Darshan Singh (deceased), 2016(5) ILR (HP) 620 and it was observed as under:

[7] At the outset, it may be observed that the jurisdiction of Civil Court cannot be readily inferred or easily excluded. While determining such jurisdiction, it is the pith and substance of the plaint's allegations that have to be kept in mind, so also the pith and substance of the relief sought and the jurisdiction does not depend upon the defence taken by the defendant in the written statement.

[8] Adverting to the facts of the case, it would be noticed that the only reason which weighed with the learned lower Appellate Court to conclude that the jurisdiction of the Civil Court was excluded is the judgment rendered by Hon'ble Full Bench of this Court in Chuhniya Devi Vs. Jindu Ram, 1991 1 ShimLC 223, as would be evident from para 9 of the judgment, which reads thus:

"9. The facts of the case are not disputed that the plaintiffs and proformadefendants No. 2 to 19 having been recorded as occupancy tenants of the suit land shall be deemed to have become its owners.

However, the suit land is alleged to be admittedly in possession of the defendant No. 1. Though it is alleged in the plaint that the defendant No. 1 has dispossessed the plaintiffs and came in illegal possession of the suit land in May, 1990, but the long standing entries in the revenue records commencing from the Jambandies 19601961 (Ext.DW1/A) todate show the possession of the defendant ::: Downloaded on - 25/09/2018 22:58:21 :::HCHP 37 No. 1 over the suit land as nonoccupancy tenant on payment or rent of Rs.150/ per annum. The presumption of correctness having been attached to the entries of the .

revenue records he shall prima facie be deemed to be in possession of the suit land as nonoccupancy tenant. However at the worst it can be taken that there is a dispute between the parties if the possession of the defendant No. 1 over the suit land has been as a nonoccupancy tenant or not. But such dispute is triable by the revenue Courts under the H.P. Tenancy and Land Reforms Act. The order of the Land Reform Officer to that effect is appealable to the higher revenue courts. Even the revision and review lies to the higher Authorities. Therefore, it is not disputed that the H.P. Tenancy and Land Reforms Act is a complete Code in itself with regard to the dispute in question. Therefore, I do agree with the learned counsel for the appellant that in view of the Chuhniya Devi's case referred to above the jurisdiction of the Civil Court in this matter is barred. This point as such is decided in favour of the appellants."

[9] To say the least, the learned lower Appellate Court has not at all applied its judicial mind and has further not even cared to have a glance, much less, read the judgment passed in Chuhniya Devi's case or else the learned lower Appellate Court would not have passed such an order. [10] In Chuhniya Devi's case , the Hon'ble Full Bench of this Court had categorically held that the jurisdiction of the Civil Court was barred only when both the parties admit about the status of landlord and tenant, but when there is dispute about such status, then the Civil Court alone would have the jurisdiction. This position of law has been consistently maintained by this Court and reference in this regard can ::: Downloaded on - 25/09/2018 22:58:21 :::HCHP 38 conveniently be made to Babu Ram (deceased) through L.Rs. Smt. Sita Devi and others Vs. Pohlo Ram (deceased) through L.Rs. Smt. Vidya Devi and others, 1991 2 ShimLC .

211, wherein it has been held as under: "6. Learned counsel for the respondents, on the other hand, urged that the status of the plaintiff was not admitted by defendant and, therefore, there was no bar for civil court to entertain and decide the suit and moreover incorrect entry had appeared in the revenue record against the plaintiff, therefore, suit for declaration in a civil court was competent and maintainable in view of section 46 of the HP Land Revenue Act. It was further contended that defendant could not be permitted to lead additional evidence merely to fill in the lacunae in the case especially when such evidence was within the knowledge of the defendant and could have been easily produced in the trial court.

7. I see much force in the arguments advanced by the learned counsel for the respondentplaintiff. The argument of the learned counsel for the appellants that the suit is barred under Section 58 of the H.P. Tenancy and Land Reforms Act (hereinafter to be called as the Tenancy Act) is not tenable. There is no clause in section 58 of the Tenancy Act which provides for a suit by or against a person claiming himself to be a tenant and whose status as a tenant is not admitted by the land owner. The legislature barred only those suits from the cognizance of civil court where there is no dispute between the parties about the relationship of landlord and tenant. It was a suit filed by the plaintiff claiming himself to be in possession of the property as a tenant under the defendant and defendant had not admitted the status of the plaintiff, as such, rather, it was ::: Downloaded on - 25/09/2018 22:58:21 :::HCHP 39 pleaded that the plaintiff was not at all in possession. The provisions contained in the Punjab Tenancy Act, as applicable to Himachal Pradesh, which are parimateria with .

the provisions of section 58 of the Tenancy Act came up for consideration before the Supreme Court in Raja Durga Singh V. Tholu and others, 1963 AIR(SC) 361. The Supreme Court observed init report as under:

" There is no entry or item relating to a suit by or against a person claiming to be a tenant and whose status as a tenant is not admitted by the landlord. It would, therefore, be reasonable to infer that the legislature barred only those suits form the cognizance of a civil court where there was no dispute between the parties that a person cultivating land or who was in possession of land was a tenant "

[11] On the same preposition, reliance can be placed on the judgment rendered in Birbal Vs. Udhami and others, 1992 1 ShimLC 153, wherein this Court held as under: ::: Downloaded on - 25/09/2018 22:58:21 :::HCHP 40 "8. The close perusal of section 58 (3) of the Act shows that there is no clause therein providing for a suit by or against a person claiming himself to be a tenant and whose status as .

a tenant is not admitted by the land owner. The legislature barred only those suits from the cognizance of civil courts where there is no dispute between the parties about the relationship of landlord and tenant. It was a suit filed by the plaintiff claiming himself to be in possession of the property as a tenant under the defendant and defendant had not admitted the status of the plaintiff as such, rather, it was pleaded that the plaintiff was not at all in possession. The provisions contained in the Punjab Tenancy Act, as applicable to Himachal Pradesh, which are pari material with the provisions of section 58 of the Tenancy Act came up for consideration before the Supreme Court in Raja Durga Singh V. Tholu and others, 1963 AIR(SC) 361. The Supreme Court observed as under:

" .There is no entry or item relating to a suit by or against a person claiming to be a tenant and whose status as a tenant is not admitted by the landlord. It would, therefore, be reasonable to infer that the legislature barred only those suits from the cognizance of a civil court where there was no dispute between the parties that a person cultivating land or who was in possession of land was a tenant .."

In view of the specific pleadings and as observed by the Supreme Court in Durga Singh's case , civil court undoubtedly had jurisdiction to entertain and decide the suit. In the instant case, admittedly, both the parties are at loggerheads with respect to the status of the plaintiff. The plaintiff claims to be the owner in possession of the suit land. The point involved in the instant case is covered by the ::: Downloaded on - 25/09/2018 22:58:21 :::HCHP 41 facts and circumstances of the case of Raja Durga Singh . Accordingly, the point being devoid of any merit is rejected. Even otherwise, no interference is called for in the second .

appeal keeping in view the peculiar facts and circumstances of the case which are covered by the observations made in V. Ramachandra Ayyar and another Vs. Ramalingam Chettiar and another, 1963 AIR(SC) 302. The observations, in fact, pertain to the Regular Second appeal under section 100, C.P.C. prior to its amendment by C.P.C. (Amendment) Act, 1976. Defendant Birbal has no legs to stand up irrespective of the plea of relinquishment of tenancy land by the plaintiff in view of section 31 of the Act."

[12] Above all, the question posed for consideration is no longer resintegra in view of the judgment rendered by the Hon'ble Supreme Court in Udham Singh Vs. Ram Singh and Another, 2007 (15) SCC 529, wherein it was observed as under: "11. The observations of the High Court on the point of jurisdiction may be quoted, which read as under:

"It may be very specifically pointed out here that so far as the present case is concerned, as per the allegations made in the plaint, the plaintiff filed a suit for possession against a trespasser on the basis of title. Such a suit primarily is triable by the civil court and in the present case the plaintiff has failed to prove his plea that he was the owner and the defendants were the trespassers. Suit, as discussed above, has to be disallowed. In the present case, relationship of landlord and tenant between the parties existed and stood established during the trial of the present suit. On the basis of the ratio of Chuhniya case the plaintiff otherwise has not been successful to make out a case for civil court's ::: Downloaded on - 25/09/2018 22:58:21 :::HCHP 42 interference. ON that account also, the plaintiff has not been successful."

12. According to the own observations of the High Court on .

the basis of the averment made in the plaint the suit was cognizable by the civil court. The averments and prayers made in the plaint, are relevant for purpose of deciding the forum where the cause will lie. Looking to the plaint case, the High Court was itself of the opinion that the civil court was competent to take cognizance of the suit. But we feel that the High court went wrong while holding otherwise on the basis of the findings ultimately arrived at by the High Court on facts that the defendants were not the trespassers.

The jurisdiction is not to be decided on the basis of the ultimate findings arrived at by the Court. We have already held earlier that the High Court erred in upsetting the concurrent findings of fact arrived at by the two courts of fact, namely, the trial court and first appellate court after detailed and elaborate discussion of the oral as well as documentary evidence on the record.

The High court misread the documents and thereby upset the findings of courts below."

[13] In view of the aforesaid exposition of law, the findings rendered by the learned lower Appellate Court on the point of jurisdiction cannot be sustained and are liable to be set aside. The learned Lower Appellate Court has not gone into the merits of the case and therefore, it would not be advisable for this Court to go into the factual matrix of the case, lest it defeats one's valuable right of appeal to the aggrieved party. The substantial question of law is answered accordingly and it is held that it is only the Civil Court which has the jurisdiction to entertain the instant lis.

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19 The principles, which can be deduced out of the .

aforesaid cases clearly, are as follow:

1. 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, the jurisdiction of the civil court would be barred. But if the dispute of landlord and tenant arises independent of the proceedings under the Act, the Civil Court has the jurisdiction. (Refer: Shankar's case)

2. The bar to the jurisdiction of the Civil Court under Section 112 of the Tenancy and Land Reforms Act will only apply when the validity of proceedings or order made under ChapterX are called in question in any Civil Court. Similarly under Section 115 of the said Act the order in appeal or revision passed by the Collector, Commissioner or Financial Commissioner can also not be challenged before the Civil Court unless the same is in violation of the principles of Natural Justice or is contrary to the provisions of the Rules or the Act, for which, the foundation must be laid in the plaint.

3. It is the averments made in the plaint which will show the Civil Court has or does not have jurisdiction to entertain the suit. (Refer: Joginder's and Tajdin's cases) ::: Downloaded on - 25/09/2018 22:58:21 :::HCHP 44

4. Only such types of cases are barred from the purview of the Civil Court where there was no dispute between the parties and the tenant cultivating the land was accepted to .

be in possession of it as a tenant. (Refer: Sheetla Devi's case) Meaning thereby, where the relationship between the parties that of landlord and tenant has not been admitted, the Civil Court has jurisdiction. (Refer: Sarv Dayal's case)

5. Where the proceedings have been conducted without jurisdiction, where the question of tenancy is disputed, independent of the proceedings under the HP Tenancy and Land Reforms Act, there is no finality to the adjudication of the revenue officials and, therefore, the jurisdiction of the Civil Court is not barred. (Refer: Krishan Chand's case)

6. Chuhniya Devi's case will have no applicability where the orders passed by the revenue authorities are not challenged. (Gaurju's case).

7. Apart from above, where the dispute is inter se the landlords or inter se the tenants, obviously then also, the same would not be barred and rather the same would be triable only by the civil court and not the revenue court.

20 Bearing in mind the aforesaid principles, one would now is required to advert to the plaint in order to find out whether the relationship between the parties that of landlords and tenants has been admitted and to further find out whether the dispute arises independent of the proceedings that have been initiated by the respondents under the Act.

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21 The amended plaint is available in the records of the learned trial court at page 69 and shows that the petitioners have .

filed simpliciter suit for possession on the basis of the title, as is evident from the head note of the plaint, which reads thus: "Suit for possession on the basis of title of the land bearing Khata Khatauni No. 25/117 Khasra No. 299 measuring 892.25 sq. mt., situated in Mauza Shub Khera Tehsil Paonta Sahib Distt. Sirmour H.P. as described in missal Haquiat for the year 200102."

In para 1 of the plaint, the petitioners have claimed themselves to be owners along with other cosharers of the suit land.

23 Paras 2 and 3 of the plaint, which are relevant for the adjudication of this case,read thus:

2. That the suit land was bearing Khata Khatauni No. 26 min/76 Khasra No. 145/1 measuring 2.18 bigha as described in missal Haquiat consolidation for the year 195657. The copy of which is attached herewith and the said land was given as licensee to Sh. Geeta Ram, s/o Chunni Lal, who was a rich and influential person of Paonta Sahib having flourishing business at Paonta Sahib. The predecessor in interest of the plaintiffs had family relation with Sh. Geeta Ram, therefore, gave the suit land on license to him. Said Sh. Geeta Ram started cultivation of the said land through Sh. Arjun Singh,the father of the defendants and Sh. Sohan Singh who with the passage of time got theirs names recorded in the revenue record and ::: Downloaded on - 25/09/2018 22:58:21 :::HCHP 46 made separate arrangement themselves for the cultivation of the suit land themselves thus the suit land in the possession of defendants is denoted by Khasra No. 299 .

measuring 892.25 sq.mts. (old Khasra No.145/1 min) in the missal Haquiat for the year 200102. The defendants has no right, title and interest in the suit land but are cultivating the suit land on behalf of Geeta Ram licensee and therefore they have no better title or right than Sh. Geeta Ram or his successors.

3. That Lt. Sh. Geeta Ram gave the suit land to Sh. Arjun Singh and Sohan Singh without the consent of the plaintiffs or their predecessors therefore the defendants have no right to remain in possession.

24 In para 4 of the plaint, it is claimed that the petitioners on 15.11.2004 requested the respondents to hand over the vacant possession of the suit land, but they refused to the request, hence the suit. Thereafter, mandatory paras regarding cause of action etc. have been set out from paras 5 to 8 and thereafter it has been prayed that a decree for possession on the basis of title as aforesaid be passed.

25 Thus, it would be clear from the aforesaid that the dispute of the landlord and tenants arises independent of the proceedings under the Act and further more, the petitioners have not admitted the respondents to be their tenants and rather the same has been specifically denied and in replication the status of the respondents is claimed that of trespassers, therefore, ::: Downloaded on - 25/09/2018 22:58:21 :::HCHP 47 jurisdiction of the civil court could not have been held to be barred by both the learned courts below. Reference in this .

regard can conveniently be made to the judgment of the Hon'ble Supreme Court in Udham Singh Vs. Ram Singh and Another, 2007 (15) SCC 529, relied upon by me in Swaran Singh's case (supra), wherein it was observed as under: "11. The observations of the High Court on the point of jurisdiction may be quoted, which read as under:

"It may be very specifically pointed out here that so far as the present case is concerned, as per the allegations made in the plaint, the plaintiff filed a suit for possession against a trespasser on the basis of title. Such a suit primarily is triable by the civil court and in the present case the plaintiff has failed to prove his plea that he was the owner and the defendants were the trespassers. Suit, as discussed above, has to be disallowed. In the present case, relationship of landlord and tenant between the parties existed and stood established during the trial of the present suit. On the basis of the ratio of Chuhniya case the plaintiff otherwise has not been successful to make out a case for civil court's interference. ON that account also, the plaintiff has not been successful."

12. According to the own observations of the High Court on the basis of the averment made in the plaint the suit was cognizable by the civil court. The averments and prayers made in the plaint, are relevant for purpose of deciding the forum where the cause will lie. Looking to the plaint case, the High Court was itself of the opinion that the civil court ::: Downloaded on - 25/09/2018 22:58:21 :::HCHP 48 was competent to take cognizance of the suit. But we feel that the High court went wrong while holding otherwise on the basis of the findings ultimately arrived at by the High .

Court on facts that the defendants were not the trespassers. The jurisdiction is not to be decided on the basis of the ultimate findings arrived at by the Court.

We have already held earlier that the High Court erred in upsetting the concurrent findings of fact arrived at by the two courts of fact, namely, the trial court and first appellate court after detailed and elaborate discussion of the oral as well as documentary evidence on the record. The High court misread the documents and thereby upset the findings of courts below."

26 Learned counsel for the respondents would then place reliance upon a judgment rendered by me in Gurdev Singh vs. Narain Singh and others, 2016(3) ILR(HP) 1656, but I wonder how the said judgment is of any assistance to the respondents, as therein I was dealing with a case where the order passed by the settlement authorities had attained finality and had not been assailed by the defendant therein. It was in this background that this Court after relying upon explanation VIII to Section 11 CPC observed as under: [9] Section 11 Explanation VIII of the Code of Civil Procedure reads as under:

"An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, ::: Downloaded on - 25/09/2018 22:58:21 :::HCHP 49 notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently .

raised."

[10] It cannot be disputed that the Settlement Collector had the jurisdiction to entertain the application for correction. Therefore, in such circumstances, whether the order was right or wrong or in accordance with law or not in accordance with law, would not make the order coram non judice or void and the respondents/defendants, if at all aggrieved, were required to assail the same before the competent authority.

[11] To be fair to the learned counsel for the respondents/defendants, he has vehemently argued that once it is proved on record that no proper procedure was followed by the Settlement Collector while ordering the correction of entries and also bearing in mind that these corrections were carried out at the back of the respondents without affording proper and reasonable opportunity of being heard to them, these findings cannot be held to be binding much less operate as res judicata against the respondents/defendants.

[12] It is more than settled that where a court or Tribunal is having authority or jurisdiction to decide a particular dispute, but in exercise of such jurisdiction, comes to a wrong conclusion then it is difficult to hold that such an order is void. The correctness of the order has nothing to do with the jurisdiction of the court. It is equally settled that where a quasi judicial authority has jurisdiction to decide a matter, it does not lose its jurisdiction by coming to a wrong ::: Downloaded on - 25/09/2018 22:58:21 :::HCHP 50 conclusion whether it is wrong in law or facts and if decides wrongly, the party wronged can only take the recourse prescribed by law for setting the matters right and if that .

course is not taken, the decision, however, wrong, cannot be disturbed.

[13] Similar issue came up before a Constitution Bench of Hon'ble Supreme Court in Ujjam Bai Vs. State of Uttar Pradesh& anr, 1962 AIR(SC) 1621 and it was held as under:

"15.Now, I come to the controversial area. What is the position with regard to an order made by a quasi judicial authority in the undoubted exercise of its jurisdiction in pursuance of a provision of law which is admittedly intra vires? It is necessary first to clarify the concept of jurisdiction. Jurisdiction means authority to decide. Whenever a judicial or quasijudicial tribunal is empowered or required to enquire into a question of law or fact for the purpose of giving a decision on it, its findings thereon cannot be impeached collaterally or on an application for certiorari but are binding until reversed on appeal. Where a quasijudicial authority has jurisdiction to decide a matter, it does not lose its jurisdiction by coming to a wrong conclusion whether it is wrong in law or in fact. The question, whether a tribunal hat; jurisdiction depends not on the truth or falsehood of the facts into which it has to enquire, or upon the correctness of its findings on these facts, but upon their nature, and it is determinable "at the commencement, not at the conclusion, of the enquiry".

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(Rex v. Bolten,1841 1 QB 66 at p.74).. Thus, a tribunal empowered to determine claims for compensation for loss of office has jurisdiction to determine all questions .

of law and fact relating to the measure of compensation and the tenure of the office, and it does not exceed its jurisdiction by determining any of those questions incorrectly but it has no jurisdiction to entertain a claim for reinstatement or damages for wrongful dismissal, and it will exceed its jurisdiction if it makes an order in such terms, for it has no legal power to give any decision whatsoever on those matters. A tribunal may lack jurisdiction if it is improperly constituted, or if it fails to observe certain essential preliminaries to the inquiry. But it does not exceed its jurisdiction by basing its decision upon an incorrect determination of any question that it is empowered or required, (i. e.) has jurisdiction to determine. The strength of this theory of jurisdiction lies in its logical consistency. But there are other oases where Parliament when it empowers an inferior tribunal to enquire into certain facts intend to demarcate two areas of enquiry, the tribunal's findings within one area being conclusive and with in the other area impeachable.

"The jurisdiction of an inferior tribunal may depend upon the fulfilment of some condition precedent or upon the existence of some particular fact. Such a, fact is collateral to the actual matter which the tribunal has to try and the determination whether it exists or not is logically prior to the determination of the actual question which the tribunal has to try. The tribunal must itself decide as to the collateral fact when, at the ::: Downloaded on - 25/09/2018 22:58:21 :::HCHP 52 inception of an inquiry by a tribunal of limited jurisdiction, a challenge is made to its jurisdiction, the tribunal has to make up its mind whether it will act or .

not, and for that purpose to arrive at some decision on whether it has jurisdiction or not. There may be tribunals which, by virtue of legislation constituting them, have the power to determine finally the preliminary facts on which the further exercise of their jurisdiction depends; but, subject to that an inferior tribunal cannot, by a wrong decision with regard to a collateral fact, give itself a jurisdiction which it would not otherwise possess."

(Halsbury's Laws of England, 3rd Edn. Vol. II page 59). The characteristic attribute of a judicial act or decision is that it binds, whether it be right or wrong. An error of law or fact committed by a judicial or quasi judicial body cannot, in general, be' impeached otherwise than on appeal unless the erroneous determination relates to a matter on which the jurisdiction of that body depends.

These principles govern not only the findings of inferior courts strito sensu but also the findings of administrative bodies which are held to be acting in a judicial capacity.

Such bodies are deemed to have been invested with power to err within the limits of their jurisdiction; and provided that they keep within those limits, their decisions must be accepted as valid unless set aside on appeal. Even the doctrine of res judicata has been applied to such decisions. (See Living stone v.

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Westminister Corporation, 1904 2 KB 109 Re Birkenhead Corporation, 1952 Ch 359 Re 56 Denton Road Twickenham, 1953 Ch 51 Society of Medical .

Officers of Health v. Hope, 1959 2 WLR 377. In Burn & Co. Calcutta v. Their Employees, 1957 AIR(SC) 38 this Court said that although the rule of res judicata as enacted by s. 11 of the Code of Civil Procedure did not in terms apply to an award made by an industrial tribunal its underlying principle which is founded on sound public policy and is of universal application must apply. In Daryao v. The State of U. P.,1961 2 SCA 591 this Court applied the doctrine of res judicata in respect of application under Art. 32 of the Constitution. It is perhaps pertinent to observe here that when the Allahabad High Court was moved by the petitioner under Art. 226 of the Constitution against the order of assessment, passed on an alleged misconstruction of the notification of December 14, 1957, the High Court rejected the petition on two grounds. The first ground given Was that the petitioner had the alternative remedy of getting the error corrected by appeal the second ground given was expressed by the High Court in the following words:

"We have, however, heard the learned counsel for the petitioner on merits also, but we are not satisfied that the interpretation put upon this notification by the Sales Tax Officer contains any obvious error in it. The circumstances make the interpretation advanced by the learned counsel for the petitioner unlikely. It is admitted that even handmade biris, have been subject to Sales Tax since long before the dated of the issue of ::: Downloaded on - 25/09/2018 22:58:21 :::HCHP 54 the above notification. The object of passing the Additional Duties of Excise (Goods of Special Importance) Central Act No. 58 of 1957, was to levy an .

additional excise duty on certain important articles and with the concurrence of the State Legislature to abolish Sales Tax on those articles. According to the argument of the learned counsel for the petitioner during the period 14th December, 1957, to 30th June, 1958, the petitioner was liable neither to payment of excise duty nor to pay ment of Sales Tax. We do not know why there should have been such an exemption. The language of the notification might well be read as meaning that the notification is to 'apply only to those goods on which an addi tional Central excise duty had been levied and paid".

If the observations 'quoted above mean that the High Court rejected the petition also on merits, apart from the other ground given, then the principle laid down in Daryao v. The State of U. P.,1961 2 SCA 591 will apply and the petition under Art. 32 will not be maintainable on the ground of res judicata. It is,' however, not necessary to pursue the question of res judicata any further, because I am resting my decision on the more fundamental ground that an error of law or fact committed by a judicial body cannot, in general, be impeached otherwise than on appeal unless the erroneous determination relates to a matter on which the jurisdiction of that body depends.

16. In Malkarjun Narhari,1950 LR 279 the Privy Council dealt with a case in which a sale took place after notice had been wrongly served upon a person ::: Downloaded on - 25/09/2018 22:58:21 :::HCHP 55 who was not the legal representative of the judgment. debtor's estate, and the executing court had erroneously decided that he was to be treated as such .

representative. The Privy Council said:

"In so doing the Court was exercising its jurisdiction. It made a sad mistake, it is true; but a Court has jurisdiction to decide wrong as well as right. If it decides wrong, the wronged party can only take the course prescribed by law for setting matters right;

and if that course is not taken the decision, however wrong, cannot be disturbed".

17. The above view finds support from a number of decisionsof this Court.

1. Aniyoth Kunhamina Umma v. Ministry of Rehabilitation, 1962 AIR(SC) 1616 Petn No.32 of 1959, D/ 22.3.1961.

In this case it had been held under the Administration of Evacuee Property Act, 1950, that a certain person was an evacuee and that certain plots of land which belonged to him were, therefore, evacuee property and vested. in the Cus todian of Evacuee Property.' A transferee of the land from the evacuee then presented a petition under Art. 32 for restoration of the lands to her and complained of an infringement of her fundamental right, under Art. 19 (1) (f) and Art. 31 of the Constitution by the aforesaid order under the Administration of Evacuee Property Act.

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The petitioner had been a party to the proceedings resulting in the declaration under that Act earliermentioned.

This Court held that as long as the decision under the Administration of Evacuee Property Act which had become final stood, the petitioner could not complain of any infringement of any fundamental right. This Court dismissed the petition observing :

" We are basing our decision on the ground that the competent authorities under the Act had come to a certain decision, which decision has now become final the petitioner not having moved against that decision in an. appropriate court by an appropriate proceeding. As long as that decision stands, the petitioner cannot complain of the. infringement of a fundamental right, for she has no such right".

2. Gulabdas & CO. v. Assistant Collector, of Customs, 1957 AIR(SC) 733. In this case certain imported goods had been assessed to customs tariff. The assessee continued in a petition under Art. 32 that the duty should have been charged under a different item of that tariff and that its fundamental right was violated by reason of the assessment order charging it to duty under a wrong item in the tariff. This Court held that there was no violation of fundamental right and observed :

"If the provisions of law under which impugned orders have been passed are with jurisdiction, whether they be right or wrong on fact,' there is really no question of the infraction of a fundamental right. If a particular ::: Downloaded on - 25/09/2018 22:58:21 :::HCHP 57 decision is erroneous on facts or merits, the proper remedy is by way of an appeal".

3. Bhatnagar & Co. Ltd. v. The Union of India, 1957 AIR(SC) 478. In this case the Government had held that the petitioner had been trafficking in licences and in that view confiscated the goods imported under a licence. A petition had been filed under Art. 32 challenging this action. It was held :

"If the petitioner's grievance is that the view taken by the appropriate authority in this matter is erroneous, that is not a matter which can be legitimately agitated before us in a petition under Art. 32".

4. The Parbhani Transport Cooperative Society. Ltd. v. Regional Transport Authority, Aurangabad, 1960 AIR(SC) 801. In this case it was contended that the decision of the Transport Authority in granting a permit for a motor carriage service had offended Art. 14 of the Constitution. This Court held that the decision of a quasijudicial body, right or wrong, could not offend Art. 14."

[14] Once the Settlement Collector had the jurisdiction to make the necessary corrections and such order was affirmed by the Divisional Commissioner who too had the jurisdiction, then even if it is assumed that the order passed was wrong, the same would not make such order a nullity or having been passed without jurisdiction and would , therefore, be binding on the parties.

[15] Accordingly, question No.1 is answered in favour of appellant by holding that the order passed by Collector Settlement was required to be assailed by the respondents ::: Downloaded on - 25/09/2018 22:58:21 :::HCHP 58 before a competent authority or court and in absence of any challenge to the same, the learned lower appellate court could not have gone into the validity of the order passed .

either by the Settlement Collector or the Divisional Commissioner and thereafter reverse the judgment and decree passed by the learned Trial Court.

27 Reverting to the facts, it would be noticed that the learned trial court had only on 27.6.2005 framed the following issues: r

1. Whether the plaintiffs are entitled for the decree of possession, as prayed for? OPP

2. Whether suit of plaintiffs is barred by law, as alleged ? OPD

3. Whether present suit is not maintainable before this Court under the provisions of H.P. Tenancy and Land Reforms Acts, as alleged OPD

4. Whether this Court has no jurisdiction to try the present suit, as alleged? OPD

5. Whether suit of the plaintiffs is not maintainable as alleged? OPD

6. Relief.

28 Even though issue No.1 was answered in favour of the petitioners, however, the suit was not decreed for want of jurisdiction and after answering issues No. 2 to 5 in affirmative, the plaint was ordered to be returned to the petitioners with a direction to agitate their claim before the competent authority i.e. Assistant Collector, 1st GradecumLand Reforms Officer, Paonta Sahib. On the other hand, the learned first appellate court did ::: Downloaded on - 25/09/2018 22:58:21 :::HCHP 59 not go into the merits of the case and in fact framed the following points for determination:

.

1. Whether the order passed by the learned trial court qua return of plaint is not legally sustainable in the eyes of law?

2. Whether the findings of learned trial court on issue No.1 are liable to be set aside?

3. Relief.

29 After answering point No.1 in negative and point No.2 in affirmative, the appeal filed by the petitioners was ordered to be dismissed, whereas crossobjections filed by the respondents were allowed as per operative portion of the judgment.

30 Evidently, the learned trial court did not pass the decree only on the ground that it lacked jurisdiction. Now, that this Court has held the jurisdiction to be that of civil court to adjudicate and decide the instant lis, therefore, the impugned order passed by the learned trial court is set aside and the suit of the petitioners is accordingly deemed to be decreed.

31 Likewise, since the learned first appellate court has not gone into the merits of the case and has dismissed the suit filed by the petitioners solely on the ground of jurisdiction, the judgment and decree passed by the learned first appellate court is accordingly set aside and the matter is remanded to it with a direction to restore the civil miscellaneous appeal as also the ::: Downloaded on - 25/09/2018 22:58:21 :::HCHP 60 crossobjections to their original number(s) and thereafter decide the same in accordance with law as expeditiously as possible and .

in no event later than 31.3.2019.

32 The parties through their respective counsel to appear before the learned first appellate court on 10.10.2018.

33 Needless to say that if any of the parties want to amend/withdraw the grounds of the appeal/crossobjections in light of this judgment, then at least one opportunity to do the needful shall be afforded to them.

34 This Court has deliberately avoided to render any findings on merits of the case lest it causes prejudice to any of the parties. Therefore, nothing hereinabove shall be considered to be an expression on merits of the case and the learned first appellate court shall decide the appeal and crossobjections uninfluenced by what has been stated or observed above.

35 The petitions are accordingly allowed, in the aforesaid terms, leaving the parties to bear their own costs. Pending application(s), if any, also stands disposed of.




September  24, 2018                    (Tarlok Singh Chauhan)
     (pankaj)                                  Judge




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