Himachal Pradesh High Court
Bainsu(Deceased) Through His Lrs vs Budhia & Others on 8 September, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.36 of 2007 Reserved on: 08.08.2023 Date of Decision:08.09.2023 .
Bainsu(deceased) through his LRs ....Appellants.
Versus
Budhia & others. .....Respondents.
Coram
Hon'ble Mr. Justice Rakesh Kainthla, Judge.
of Whether approved for reporting?1 Yes For the Appellants : Mr.R.K. Sharma, Sr. Advocate with Ms. Anita, Advocate.
For the Respondents :
rt Mr.Nimish Gupta &Mr. Anil
Kapoor, Advocates.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment & decree dated 07.12.2006, passed by learned Additional District Judge, Fast Track Court, Chamba, vide which the appeal filed by the respondent no. 1-Budhia (Plaintiff no.2 before the learned Trial Court) was allowed and judgment and decree passed by learned Civil Judge (Senior Division), Chamba was set aside.
(Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned trial Court for convenience).
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 11/09/2023 20:33:33 :::CIS 22. Briefly stated, the facts giving rise to the present appeal are that the plaintiffs filed a Civil Suit before learned Trial Court for seeking a declaration that Mutation No.185 dated .
14.05.2002 attested based on the Will dated 27.11.1984 regarding the land measuring 4-10 Bighas bearing Khasra No.135 (hereinafter referred to as the suit land) in the name of the of defendant is illegal, void and inoperative qua, the rights of the plaintiffs. A consequential relief of possession of the suit land was also sought. It was pleaded that late Sh.Panchi was recorded rt as the tenant of the suit land. He died issueless on 01.02.1992 leaving behind Nimo as his widow. Nimo died on 27.07.2001.
Mutation was entered in the name of the plaintiffs in equal share being the heirs of Panchi. However, the defendant got the mutation attested in his favour based on the Will dated 27.11.1984. Panchi had not left any Will. Tenancy rights could not be bequeathed and are to be inherited by the plaintiffs as per the H.P. Tenancy and Land Reforms Act. Defendant obtained forcible possession of the suit land based on the Will.Hence, the suit was filed to seek the relief mentioned above.
3. The suit was opposed by filing a written statement taking preliminary objections regarding lack of maintainability, ::: Downloaded on - 11/09/2023 20:33:33 :::CIS 3 locus standi and cause of action. The contents of the plaint were denied on merits. However, it was admitted that Panchi was the tenant. It was asserted that he became the owner of the suit land .
on 03.10.1975. He had executed a valid Will in favour of the defendant. The suit was filed without any basis; hence, it was prayed that the same be dismissed.
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4. A replication denying the contents of the written statement and affirming those of the plaint was filed.
5. rt The following issues were framed by the learned Trial Court on 31.03.2005:-
1. Whether Will dated 27.11.1984 is forged and illegal as alleged? OPP
2. If issue No.1 is proved in affirmative, whether the mutation dated 14.05.2002 is illegal as alleged? OPP
3. Whether the plaintiffs are entitled for the decree of possession as prayed? OPP
4. Whether the plaintiffs have got no cause of action to file the present suit as alleged? OPD
5. Whether the suit is not maintainable in the present form as alleged? OPD
6. Whether the plaintiffs have got no locus standi to file the present suit as alleged? OPD
7. Relief.
6. The parties were called upon to produce the evidence and plaintiff no.2-Budhiya examined himself(PW-1). The ::: Downloaded on - 11/09/2023 20:33:33 :::CIS 4 defendant examined Abdul Shakur (DW-1), himself(DW-2) and Chet Ram(DW-3).
.
7. Learned Trial Court held that Panchi was recorded as a tenant. He became the owner after the commencement of the H.P. Tenancy and Land Reforms Act. The execution of the Will was duly proved. Panchi being the owner had every right to of execute the Will regarding the property owned by him. Hence, the learned Trial Court answered issues no. 1 to 4 in negative, rt issued no. 5 and 6 in affirmative and dismissed the suit of the plaintiff.
8. Being aggrieved from the judgment and decree passed by the learned Trial Court, plaintiff no.2-Budhia filed an appeal. Learned Additional District Judge, Fast Track Court, Chamba held that a copy of Jamabandi for the year 1977-78 shows that Ishru widow of Devi Dayal was recorded as the owner. Panchi was recorded as a non-occupancy tenant. The copy of the Jamabandi for the year 1997-98 shows that the land was owned by Bainsu. Panchi died on 01.02.1992 and his wife Nimo died on 27.07.2001. Ishru was alive in the year 1977 and Panchi could not have become the owner in view of Section 104(8) of the H.P. Tenancy and Land Reforms Act, which ::: Downloaded on - 11/09/2023 20:33:33 :::CIS 5 provides that a tenant under a widow will not acquire the proprietary rights of the tenancy during her lifetime. Learned Trial Court erred in holding that Panchi had become the owner .
on the commencement of the H.P. Tenancy and Land Reforms Act. The tenancy rights could not have been bequeathed and would devolve as per Section 45 of the H.P. Tenancy and Land of Reforms Act. The plaintiffs being the heirs of Panchi are entitled to succeed to the tenancy. Hence, the appeal was allowed and the judgment and decree passed by the learned Trial Court were set rt aside.
9. Being aggrieved from the judgment and decree passed by the learned First Appellate Court, the defendant has filed present appeal before this Court. It was asserted that the learned First Appellate Court had not taken cognizance of the fact that Ishru Devi has died. The plaintiffs were required to prove this fact and in the absence of the death of Ishru, the rights of the parties could not be effectively determined. The suit of the plaintiffs was likely to fail on this ground alone. The plaintiffs were seeking the possession of the land, which was the subject matter of tenancy. The jurisdiction of the Civil Court to entertain the suit for possession is barred and such a suit is ::: Downloaded on - 11/09/2023 20:33:33 :::CIS 6 cognizable only by the Revenue Officer under Section 43 of the H.P Tenancy and Land Reforms Act. Learned Trial Court had rightly held that Panchi became the owner on the .
commencement of the H.P. Tenancy and Land Reforms Act and learned First Appellate Court was not justified in upsetting this finding. Learned Trial Court had upheld the validity of the Will of and this finding was not upset by the learned First Appellate Court. The defendant has become the owner by way of the Will.
Therefore, it was prayed that the present appeal be allowed and rt the judgment and decree passed by the learned First Appellate Court be set aside.
10. The appeal was admitted on the following substantial questions of law on 01.05.2008:
1. Whether the Civil Court had the jurisdiction to entertain the suit for possession on the ground of tenancy of the plaintiffs on the allegation of wrongful dis-possession in the circumstances of the case, more particularly, when there is a specific provision for getting the possession under Section 43 of the H.P. Tenancy and Land Reforms Act, 1972?
2. Whether plaintiffs were entitled to the relief of possession on the ground of alleged tenancy in the circumstances of the case on the face of a Will dated 27.11.1984?::: Downloaded on - 11/09/2023 20:33:33 :::CIS 7
3. Whether the suit was maintainable in the Civil Court when the dispute was admittedly relating to the tenancy of the agricultural land?
11. I have heard Mr.R.K. Sharma, learned Sr. Counsel, .
assisted by Ms.Anita, learned counsel for the appellans Lrs of original defendants and Mr.Nimish Gupta and Mr. Anil Kapoor, learned counsel for the respondents-plaintiffs.
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12. Sh. R.K. Sharma, learned Senior Counsel for the appellant-defendant submitted that the validity of the Will was upheld by the learned Trial Court. This finding was not upset by rt the learned First Appellate Court, therefore, the defendant has become the owner of the land bequeathed to him. Learned First Appellate Court erred in holding that Panchi did not become the owner during the lifetime of Ishru. There was no evidence of the date of death of Ishru. The suit of the plaintiffs was liable to be dismissed on this ground alone. Even if, the reasoning of the learned First Appellate Court is accepted that the tenancy continued over the suit land, the jurisdiction of the Civil Court is barred and a suit for possession of the tenancy land lies before the Revenue Officer under Section 43 of the H.P. Tenancy and Land Reforms Act.Hence, he prayed that the present appeal be ::: Downloaded on - 11/09/2023 20:33:33 :::CIS 8 allowed and judgment and decree passed by the learned First A1ppellate Court be set aside.
.
13. Sh. Nimish Gupta & Mr. Anil Kapoor, learned counsels for the respondents-plaintiffs supported the judgment and decree passed by the learned First Appellate Court. They submitted that once Ishru was recorded to be the owner of the of suit land in the copy of Jamabandi for the year 1977-78, the operation of H.P. Tenancy and Land Reforms Act would suspend rt qua the land owned by her. In the absence of any evidence about the date of death of Ishru, the tenancy will continue and the plaintiffs will succeed to the same being the heirs of Panchi. A tenancy cannot be bequeathed and learned First Appellate Court had rightly held it to be so. Therefore, they prayed that the present appeal be dismissed.
14. I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.
Substantial Question of Law No. 1:-
15. The law related to the ouster of the jurisdiction of the Civil Court was elaborately discussed by the Hon'ble Supreme ::: Downloaded on - 11/09/2023 20:33:33 :::CIS 9 Court in Dhulabhai v. State of M.P., (1968) 3 SCR 662: AIR 1969 SC 78: 22 STC 416as under:
.
35. The result of this inquiry into the diverse views expressed in this Court may be stated as follows:
(1) Where the statute gives a finality to the orders of the special Tribunals the civil courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been of complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.
rt (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.
(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include ::: Downloaded on - 11/09/2023 20:33:33 :::CIS 10 a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
(5) Where the particular Act contains no machinery for a .
refund of tax collected in excess of constitutional limits or illegality collected a suit lies. (6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case, the scheme of the particular Act must be examined because it of is a relevant enquiry.
(7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set
16. rt down apply.
Therefore, the ouster of the jurisdiction of the Civil Courts is not to be lightly inferred and the Court has to see whether there is an express or implied bar to the jurisdiction of the Court or not.
17. Section 43 of H.P. Tenancy and Land Reforms Act reads as under:
"43. Relief for wrongful dispossession or ejectment.
If a tenant has been dispossessed without his consent from his tenancy or any part thereof otherwise than in execution of a decree or than in pursuance of any order under section 39, he may, within one year from the date of his dispossession or ejectment, make an application for recovery of possession or for compensation, or for both."
18. Section 57 of the Act provides for the application and proceedings cognizable by the revenue officer. It reads as under:
::: Downloaded on - 11/09/2023 20:33:33 :::CIS 1157. Application and proceedings cognizable by Revenue Officer.
(1) The following applications and proceedings shall be disposed of by Revenue Officers as such, and no Court shall take cognizance of any dispute .
or matter with respect to which any such application or proceeding might be made or had:--
First Group xxxxx
(e) applications under section 43 for recovery of possession or for compensation or for both;
of xxxxxx
19. Section 58 creates a bar regarding the jurisdiction of the Civil Courts regarding the suit cognizable by the Revenue rt Courts. It reads as under:
58. Revenue Courts and suits cognizable by them.
(1) When a Revenue Officer is exercising jurisdiction with respect to any such suit as is described in sub-section (3), or with respect to an appeal or other proceeding arising out of any such suit, he shall be called a Revenue Court.
(2) There shall be the same classes of Revenue Courts as of Revenue Officers under this Act, and, in the absence of any order of the State Government to the contrary, a Revenue Officer of any class having jurisdiction within any local limits under this Act shall be Revenue Court of the same class having jurisdiction within the same local limits.
(3) The following suits shall be instituted in and heard and determined by, Revenue Courts, and no other Court shall take cognizance of any dispute or matter with respect to which any suit might be instituted:--
First Group ::: Downloaded on - 11/09/2023 20:33:33 :::CIS 12
(a) suits between landowner and tenant for addition to or abatement of rent under section 22 or for commutation of rent;
(b) suits under section 29 for the determination of rent or other sum on the .
expiration of the term of an assessment of land revenue;
Second Group
(c) suits by a tenant to establish a claim to a right of occupancy, or by the landowner to prove that a tenant has not such a right;
(d) suits for ejectment of tenants;
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(e) any other suit between landowner and tenant arising out of the condition on which a tenancy is held;
rt (f) suits for sums payable on account of village expenses;
(g) suits by a co-sharer in an estate or holding for a share of profits thereof or for a settlement of accounts;
(h) suits for the recovery of over-payments of rent or land revenue or of any other demand for which a suit lies in a Revenue Court under this sub-section;
Third Group
(i) suits by a landowner for arrears of rent or for the money equivalent of rent 1[***]; and
(j) suits for sums payable on account of land revenue or of any other demand recoverable as an arrear of land revenue under any enactment for the time being in force. Procedure where revenue matter is raised in Civil Court xxxxxxx
20. It was laid down by this court in Babu Ram v. Pohlo Ram, 1990 SCC OnLine HP 20: AIR 1992 HP 8 that the bar of ::: Downloaded on - 11/09/2023 20:33:33 :::CIS 13 jurisdiction under section 58 applies to the cases where the status of the landowner and tenant was not disputed. It was observed (at page 10):
.
"7. I see much force in the arguments advanced by the learned counsel for the respondentplaintiffs. The argument of the learned counsel for the appellants that the suit is barred under S. 58 of the Himachal Pradesh Tenancy and Land Reforms Act (hereinafter to be called as the Tenancy Act) is not tenable. There is no clause in S. of 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 rt cognizance of the 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 the 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 materia with the provisions of S. 58 of the Tenancy Act came up for consideration before the Supreme Court in Raja Durga Singh v. Tholu, AIR 1963 SC 361. The Supreme Court observed in its report as under (at page 363):-- ".....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 the land or who was in possession of the land was a tenant....."
In view of the specific pleadings and as observed by the Supreme Court in Durga Singh's case (supra), the Civil ::: Downloaded on - 11/09/2023 20:33:33 :::CIS 14 Court undoubtedly had jurisdiction to entertain and decide the suit. Moreover, the plaintiff had felt aggrieved by an entry made in the revenue records on the basis of an order passed by the Revenue Officer. S. 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 his rights under Chap. 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."
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21. In the present case, there is no relationship of the landlord and the tenant and the dispute is between the two rt persons claiming themselves to be successors of the tenant.
Such a suit is not cognizable by the Revenue Court and the jurisdiction of the Civil Court is not barred to hear and entertain such a suit. Hence, the substantial question of law is answered against the appellants LRs of original defendant.
Substantial Question of Law No. 2:-
22. Learned First Appellate Court held that it was not permissible to bequeath the tenancy. There is no infirmity in this finding recorded by learned First Appellate Court.It was laid down by this Court in Devi Saran vs. Lekh Ram and others 1992 (1) Shim. LC 46 that a tenant could not have transferred a tenancy ::: Downloaded on - 11/09/2023 20:33:33 :::CIS 15 right by way of a Will and Section 45 of the Act puts a bar upon such transfer of the right of the tenant. It was observed:
.
"17. Viewing the facts from another angle even if it be assumed that Smt Shibi was a tenant then she could not have transferred her tenancy interest in favour of the appellant by way of a will Ex PA/1. Section 45 of the Act impliedly puts a bar upon such transfer of rights of the tenant. There is no controversy that "will" is effective after the death of the executant. At the same time under section 45 of the Act, after the death of the tenant, the of tenancy right is succeeded by his/her relations in the manner stated in the said provision. Thus in that view of the matter, a tenant is precluded to transfer his or her tenancy rights by way of a will If that be so, then the will rt is void-abnitio meaning thereby that the appellant did not inherit any interest nor he has any locus standi to institute the suit. On that Court too, his suit is liable to be dismissed."
23. Similar is the judgment in Bhola versus Smt. Jiwan Wati 1994(2) Current Law Journal 370, wherein it was observed:
"Sh.Gupta has further argued that under Section 45 of the Act, there is no bar to bequeath tenancy rights by way of Will which is not a transfer inter vivos. This argument has been raised to be rejected because the rule of succession laid down under Section 45 of the Act is absolute and also exclusive. It cannot be substituted or modified on the grounds of the custom or personal law of the parties or at the will of the parties. The bar is implicit as relationship of landlord and tenant as well as their rights, are governed by the Act and Sec. 45 thereof specifically provides in respect of "Succession to right of tenancy".
Above all, from the perusal of the Will Ex. PW-8/A, it is clear that Ganga Ram has not bequeathed his tenancy rights in favour of the appellants-plaintiffs by way of this Will. The movable and immovable property which was ::: Downloaded on - 11/09/2023 20:33:33 :::CIS 16 bequeathed by him has been specifically mentioned in the first part of the Will and the later part, which is in general terms that the appellants-plaintiffs would become owners in possession of all the property which he would hold at the time of his death, cannot be interpreted to .
mean that it includes the tenancy rights which he possessed at the time of his death. No other point has been raised on behalf of the appellants-plaintiffs."
24. This position was reiterated in Mansha Ram versus Tulsi Devi and others, 1998(2) Current Law Journal 32 regarding of the land covered under H.P. Abolition of Big Landed Estates and Land Reforms Act, 1953 and it was held:
rt "29. If the argument putforth by Mr. Bhupender Gupta is appreciated, it would mean that a sitting tenant can always by-pass the provisions contained in the Act by executing a 'Will' of the tenancy rights and thereby depriving such person who are legally entitled to succeed to the interest of tenancy.
30. As I look at this provision, a tenant cannot be permitted to bequeath his right of occupation by a 'Will' in favour of someone, who is not covered by the definition. In the given situation, the defendant cannot be permitted to claim any right in the tenancy being an heir of the tenant muchless on the strength of a 'Will'. The provisions contained in Section 68 read with Section 54 of the Act leaves no room for doubt and the tenant cannot be permitted to create any right whatsoever except as which is provided for by law. Once it is found that tenancy rights could not be passed on as such by any colourable transaction it may be seen, it cannot be permitted to nullify the effect of the mandate by the legislature."::: Downloaded on - 11/09/2023 20:33:33 :::CIS 17
25. Therefore, it is not permissible to bequeath the tenancy rights of a person and the findings recorded by the learned First Appellate Court cannot be said to be bad.
.
26. Learned Trial Court held that the Panchi had become the owner and there was no bar in bequeathing the property by him. Learned First Appellate Court had rightly relied upon the of copy of Jamabandi for the year 1977-78 (Ext. PA) in which Smt.Ishru widow of Devi Dayal was recorded as the owner and rt Panchi was recorded as a tenant. Section 104(8) of the H.P Tenancy and Land Reforms Act reads as under:
"(8) Save as otherwise provided in sub-section (9), nothing contained in sub-sections (1) to (6) shall apply to a tenancy of a landowner owner during the period mentioned for each category of such landowners in sub-
section (9) who,--
(a) is a minor or unmarried woman, or if married, divorced or separated from husband or widow; or
(b) is permanently incapable of cultivating land by reason of any physical or mental infirmity; or
(c) is a serving member of the Armed Forces; or
(d) is the father of the person who is serving in the Armed Forces, up to the extent of inheritable share of such a member of the Armed Forces on the date of his joining the Armed Forces, to be declared by his father in the prescribed manner. (9) In the case of landowners mentioned in clauses (a) to
(d) of sub-section (8), the provisions of sub-sections (1) to (6) shall not apply:
::: Downloaded on - 11/09/2023 20:33:33 :::CIS 18(a) in case of a minor during his minority and in case of other persons mentioned in clauses (a) and
(b) of sub-section (8) during their lifetime;
(b) in case of persons mentioned in clauses (c) and .
(d) of sub-section (8), during the period of their service in the Armed Forces subject to the resumption of land by such persons to the extent mentioned in the first proviso to clauses (d) and (dd) of sub-section (1) of section 34 2[ (:) ] Provided that nothing contained in this section shall apply to such land which either owned by or is vested in of the Government under any law, whether before or after the commencement of this Act and is leased out to any person."
27. It is apparent that a tenant under a widow will not rt acquire the ownership rights during the lifetime of the widow.
28. Learned Trial Court relied upon the judgment of this Court in Daulat Ram and others versus State of Himachal Pradesh and others1979 Shim. LC 215 = 1978 ILR (HP) 742 in support of its conclusion that the conferment of proprietary rights is automatic and a tenant becomes the owner on the date of commencement of H.P. Tenancy and Land Reforms Act;
however, this Court was concerned with Section 104(3) of the Act as is apparent from the following paragraph(s):
"15. Under sub-section (3) of section 104 of the Act, all rights, title and interest (including a contingent interest, if any) of the landowner of the land held by tenants shall be extinguished, and all such rights, title and interest shall vest in the tenants free from all encumbrances ::: Downloaded on - 11/09/2023 20:33:33 :::CIS 19 created by the landowner, with effect from the date to be notified by the State Government in the Official Gazette, provided that if the tenancy is created after the commencement of this Act, the provision of this sub- section shall apply immediately after the creation of such .
tenancy. It cannot be disputed that the entry of tenancy existed much before the promulgation of the Act, and the respondents cannot question the tenancy when it is so recorded in the revenue papers which is a conclusive proof of the factum of the existence of the tenancy. Once a person is entered as a tenant in the revenue record then notwithstanding any agreement, etc. to the contrary, the of person so entered shall become the owner by virtue of the provision of subsection (3) of section 104 of the Act. The conferment of the proprietary rights under the Act is automatic from the date of the issue of the notification by rt the State Government in the Official Gazette, and the vestment of ownership shall be free from all encumbrances. Under rule 27 of the Himachal Pradesh Tenancy and Land Reforms Rules 1975, all rights, title and interests in the tenancy land of landowners.........shall vest in the non-occupancy tenants with effect from the commencement of these rules, Similarly, the proprietary rights of tenancy land of the non-occupancy tenants on Government land shall also vest in the tenants from the commencement of these rules. These rules came into force on 3-10-1975. Therefore, from that date, the ownership rights vested free from all encumbrances on the persons who were so recorded as tenants under the landowners or for the matter of that the State Government in that land. Therefore, the plea taken up by the respondents that they were not the tenants is wholly incorrect because they cannot set up this case when they are so recorded, and once they are so recorded they become the owner of the land by virtue of the operation of law and they actually became owners with effect from the date of the publication of the rules."::: Downloaded on - 11/09/2023 20:33:33 :::CIS 20
29. Since Section 104(8) has excluded the operation of Section 104(1) to 104(6); therefore, this judgment does not apply to the present case covered under Section 104(8) and learned .
First Appellate Court had rightly held it to be so. Hence, the findings recorded by the learned Trial Court that Panchi had become the owner and he was entitled to bequeath the suit land of were not correct and the learned First Appellate Court had rightly set them aside. Thus, the plaintiff cannot be held entitled to the possession on the ground of the tenancy. This substantial rt question of law is answered accordingly.
Substantial Question of Law No. 3:-
30. It was submitted that the dispute between the parties pertains to the tenancy rights and the jurisdiction of the Civil Court was barred. Reliance was placed upon the judgment of this Court in Chuniya Devi versus Chandu Ram 1991 (1) Shimla Law Cases 213 in support of this submission. In the present case, the question regarding the conferment of proprietary rights is not involved. This judgment was explained by this Court in Shankar Versus Rukmani 2003 (1) Shim.L.C. 300, and it was held that where an order has been passed by the Land Reforms Officer, the ::: Downloaded on - 11/09/2023 20:33:33 :::CIS 21 jurisdiction of the Civil Court to go into the validity of the order is barred. There is no bar in other cases. It was observed:-
.
"4. So far the ratio in judgment in Chuhniya v. Jindu Ram's case (supra) is concerned, the reference before the Full Bench was whether the Civil Court has the jurisdiction in respect of the order of conferment of proprietary rights under Section 104 of the H.P. Tenancy and Land Reforms Act, 1972 (hereinafter called 'the Act') which has been answered in the negative except in a case where it is found that the statutory authorities envisaged by the Act of have not acted in conformity with the fundamental principles of the judicial procedure or where the provisions of the Act have not been complied with. rt
5. The acquisition of proprietary rights by tenants other than non-occupancy tenants is dealt with in Chapter X of the Act. This Chapter consists of Sections 104 to 117.
Section 112 of the Act provides for a bar of jurisdiction of the Civil Court for calling into question the validity of any proceedings or orders taken or made under this Chapter. By providing an appeal and revision against the order passed by the Land Reforms Officer under this Chapter, a further bar of jurisdiction has been provided under Section 115 to call in question any order made by the Collector, Commissioner or Financial Commissioner by declaring them final. It is also observed by the Full Bench in Chuhniya Devi v. Jindu Ram's case (supra) that from the Scheme of Chapter X, it is clear that there are bound to be occasions when the dispute about the relationship of landlord and tenant would arise in the proceedings which need to be adjudicated upon by the authorities as provided therein, before conferment of proprietary rights upon a tenant or before the resumption of land by the landowner.
6. Referring to sub-section (4) of Section 104 and Rule 29, the Full Bench has concluded in para 39 that:::: Downloaded on - 11/09/2023 20:33:33 :::CIS 22
"...........It is implicit in sub-section (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."
7. It was in this context that the Full Bench further held in paragraph 40 :
of "Any inquiry 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, rt that the validity of any 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 109 (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."
8. While discussing the rationale for the exclusion of the Civil Court, the learned Judges have held in paragraph 44 that:
"The exclusion of the jurisdiction of the Civil Court, in the matter of determination of the question whether a person cultivating the land of a landowner is his tenant or not for purposes of Chapter X, 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 ::: Downloaded on - 11/09/2023 20:33:33 :::CIS 23 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."
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 of proprietary rights upon the tenant and resumption of land by the landowner 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 rt envisaged by that Act had not acted in conformity with the fundamental principles of a judicial procedure or where the provisions of the Act had not been complied with. But if the dispute of landlord and tenant arises independently of the proceedings under the Act, the Civil Court has the jurisdiction."
31. This aspect was also clarified by a Single Judge of the Hon'ble High Court in Tajdin & Ors. Vs. Milkho Devi & Ors. Latest HLJ 2005 H.P. 825, wherein it was held:-
"13. 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 Ram's case (supra). One factor which has to be kept in mind and should not be lost sight of white 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 ::: Downloaded on - 11/09/2023 20:33:33 :::CIS 24 may arise where the person cultivating the land of a landowner is a tenant or not when proceedings were in progress under Chapter X. The Full Bench was dealing with the impact of the bar to the jurisdiction of the Civil Court under Sections T12 and 115 of the HP. Tenancy and .
Land Reforms Act both of which occur in Chapter X 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 landowner is a tenant or not for the of purposes of Chapter X 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 rt relationship of landlord and tenant arising out of and during the course of proceedings of conferment of proprietary rights on the tenant and Chapter X of the H.P. Tenancy and Land Reforms Act. The observations made in Chapter 45 have to be read in this context only.
14. This has been amply clarified by the Division Bench in Shankar case (supra) wherein after analyzing the entire law and the judgment in Chuhniya Devi's case (supra) 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 landowner 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 the proceedings under Chapter X of H.P. Tenancy and Land Reforms Act the Civil Court would have jurisdiction to hear and decide this dispute.::: Downloaded on - 11/09/2023 20:33:33 :::CIS 25
15. I am not only bound but am in respectful agreement with the observations of the Division Bench in Shankar's case 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 orders made under Chapter X 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, Commission 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 of foundation for this must be laid in the plaint. It is the averments made in the plaint which will show whether the Civil Court has or does not have jurisdiction to entertain the suit."
rt
32. In the present case, there is no dispute related to the conferment of the proprietary rights; rather the dispute is between two persons claiming to be successors of the tenants.
Therefore, the jurisdiction of the Civil Court is not barred.
Hence, this substantial question of law is answered accordingly.
Final Order:
33. In view of the aforesaid discussions, the present appeal fails and the same is dismissed. Pending miscellaneous application(s), if any, shall stand(s) disposed of.
(Rakesh Kainthla) Judge 8th, September, 2023 (pathania) ::: Downloaded on - 11/09/2023 20:33:33 :::CIS