Himachal Pradesh High Court
Shri Chet Ram vs Shri Daulat Ram on 28 December, 2015
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
RSA No. 141 of 2004
Judgment reserved on : 16.12.2015.
Date of Decision : December 28 , 2015
of
Shri Chet Ram ...Appellant/Defendant.
rt Versus
Shri Daulat Ram ... Respondent/plaintiff.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
Whether approved for reporting? No. 1
For the appellant : Mr. Bhupender Gupta, Senior Advocate,
with Mr. Janesh Gupta, Advocate, for the
appellant.
For the respondent : Mr. Virender Singh Kanwar, Advocate, for
the respondent.
Sanjay Karol, J.
This is the defendant's Regular Second Appeal filed under Section 100 of the Code of Civil Procedure.
Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 19:35:50 :::HCHP 22. For the sake of convenience, Sh. Daulat Ram (respondent herein) is referred to as the plaintiff and Sh.
.
Chet Ram (appellant herein) is referred to as the defendant.
3. Plaintiff filed a suit for declaration, claiming to be owner in possession of 5 bighas and 16 biswas of land situate in village Malgi bearing khata/khatauni No. 12/16.
of Also that entries of mutation Numbers 145 and 147, recording the defendant to be owner thereof are illegal.
rt Injunction restraining the defendant not to interfere with the possession was sought. Plaintiff alleged to be owner in possession of the suit land on the strength of a registered gift deed dated 8.12.1975 (Ext. PA) executed by the original co-owner Brestu, which stood recorded in the revenue record vide sanction dated 18.12.1975.
4. Defendant set up his title on the ground that (i) being a non-occupancy tenant, proprietary rights stood conferred upon him under the provisions of Section 104 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 (hereinafter referred to as the Tenancy Act); and in the alternative (ii) adverse possession.
::: Downloaded on - 15/04/2017 19:35:50 :::HCHP 35. Facts as alleged by the defendant stood refused by the plaintiff by way of replication.
.
6. On the strength of respective pleadings of the parties, trial Court framed the following issues:
1. Whether the plaintiff is owner in possession of the suit land as alleged? OPP of
2. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction as prayed? OPP 2-A Whether the plaintiff is entitled for the decree 3. rt of possession in alternative as alleged?
Whether the suit is not maintainable OPP as alleged? OPD 3-A. Whether the defendant has become owner in possession over the suit land by virtue of adverse possession in alternative as alleged? OPD
4. Whether this court has no jurisdiction to try the suit as alleged? OPD
5. Relief.
7. Holding the defendant to be owner in possession of the suit land, on the strength of entries of mutation dated 18.5.1976 (Ext. DA-1 and Ext. DA) being the revenue record prepared under the Tenancy Act, trial Court, in terms of judgment and decree dated 22.7.2003, passed in Civil Suit No. 497/1 of 1994, titled as Daulat Ram vs. Chet Ram, dismissed the suit.
::: Downloaded on - 15/04/2017 19:35:50 :::HCHP 48. However, in the plaintiff's appeal, the lower appellate Court, in terms of judgment and decree dated .
21.2.2004, passed in Civil Appeal No. 59-S/13 of 2003, titled as Daulat Ram vs. Chet Ram, reversed such findings holding
(i) the defendant not to be a tenant entitling him for conferment of proprietary rights; (ii) entries of mutation of (Ext. DA-1 and Ext. DA) to have been effected without any order passed by a competent authority;
rt (iii) defendant
failed to prove conferment of proprietary rights in
accordance with the provisions of the Tenancy Act and as such (iv) the plaintiff to be the rightful owner of the suit land on the strength of a registered gift deed dated 8.12.1975 (Ext. PA).
9. Hence the present appeal which stands admitted on the following substantial questions of law:-
1. Whether the Lower Appellate Court has wrongly held that civil court had jurisdiction even to determine the question of the proprietary rights under the provisions of H.P. Tenancy and Land Reforms Act, without there being any pleadings bringing the case within the exception? Has not the Lower Appellate Court misunderstood the provisions of the Act and the Rules framed thereunder and ::: Downloaded on - 15/04/2017 19:35:50 :::HCHP 5 misapplied the law especially the pronouncement of the Full Bench of this Hon'ble Court?
.
2. Whether the Lower Appellate court has committed grave error of law in ignoring the provisions of Section 3 of the Limitation Act, whereby it was imperative for the Lower Appellate court to have seen whether the suit as filed by the plaintiff-
respondent was within the period of limitation for the of reliefs claimed? Is not the Judgment and decree of the Lower Appellate Court erroneous and perverse when the same granted decree without determining 3. rt the question of limitation?
Whether the Lower Appellate Court has further committed grave error of law in holding the plaintiff- respondent to be owner in possession when admittedly the Gift Deed on the basis of which the title was claimed was executed on such day when the owners lost their title by enforcement of H.P. Tenancy and Land Reforms Act and the Rules framed thereunder?
10. Having heard learned counsel for the parties as also perused the record, I am of the considered view that no ground for interference is made out in the present appeal.
Substantial Questions of Law No. 1 and 3:
11. A three Judge Bench of this Court in Chuhniya Devi vs. Jindu Ram, 1991 (1) Sim. L.C. 223 had an occasion to deal with the provisions of the Tenancy Act. Chapter IX of ::: Downloaded on - 15/04/2017 19:35:50 :::HCHP 6 the Tenancy Act relates to acquisition of proprietary rights by the occupancy tenants. Section 94 of the Tenancy Act .
provides for automatic extinguishment of the right, title and interest of the original owner and vesting thereof, in favour of the occupancy tenant, free from all encumbrances.
12. Chapter X, and more specifically Section 104 of of the Tenancy Act, deals with the acquisition of proprietary rights by non-occupancy tenants. The issue of jurisdiction of rt the Civil Court to deal with the matters is specifically dealt with. It specifically provides that validity of the proceedings or orders so passed under Chapter X shall not be called in question in any civil court or before any other authority.
However, in Chuhniya Devi (supra), the Court while examining the question as to whether the jurisdiction of the Civil Court to examine the propriety of the orders passed under the Act is barred or not, held that:-
"(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 ::: Downloaded on - 15/04/2017 19:35:50 :::HCHP 7
(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 of judicial procedure or where the provisions of the Act had not been complied with."
[Emphasis supplied]
13. rt Significantly the written statement is conspicuously silent about the fact (i) as to who was the landlord; and (ii) what was the amount or the nature of rent paid by the defendant. In fact, no specific issue with regard to the title, except by way of adverse possession was framed by the Court or pressed by the parties. Be that as it may, parties led evidence with regard to conferment of proprietary rights. But then the evidence so led by the defendant does not establish (i) as to who was the landlord;
(ii) what was the amount of rent and to whom it was paid;
(iii) what was the order passed by the authority under the provisions of Section 104 of the Tenancy Act. Neither is the order on record nor has the officer been examined.
::: Downloaded on - 15/04/2017 19:35:50 :::HCHP 814. It is a settled position of law that entry of mutation does not confer any proprietary rights. As such .
the lower appellate Court rightly held the defendant not to have established the factum of his entitlement for conferment of the proprietary rights or passing of any order to such effect, as he did not fall within the definition of a of non-occupancy tenant. Finding in para -10 of the impugned judgment is evidently clear to such effect.
rt
15. Now if the conferment of the title was without following due process of law, in view of the law laid down in Chuhniya Devi supra), it cannot be said that the jurisdiction of Civil Court was barred.
16. In Tulsa Singh vs. Agya Ram & others, 1995 (1) S.L.J. 428, the Court held that the change of tenancy rights has to be in accordance with Clause 9.8 of the H.P. Land Records Manual which deals with the change of entry in Khasra Girdawari and the relevant para of the judgment is reproduced as under:
"The crops will be entered in the Khasra girdawari, as the inspection proceeds, in the column provided for the purpose. The change in rights, rents and possession will be noted in the ::: Downloaded on - 15/04/2017 19:35:50 :::HCHP 9 appropriate column in pencil. And, where the boundaries or area of a field have changed in .
such a manner as to require a correction of the field map, the patwari will make a rough measurement, sufficient for the crop entries. All changes in rights, rents and possession shall be recorded by the Patwari in pencil and by putting of a cross in pencil in columns 12, 16, 20, 24 and 28 of Khasra girdawari in accordance with Govt. instructions issued vide letter No. 10-5/73-II, rt dated 4.9.1980. As per these instructions, the patwari will given information of such changes to the Tehsildar/Naib-Tehsildar as the case may be. The Tehsildar/Naib-Tehsildar will inquire and given reasonable opportunity of being heard to the parties. The inquiry should be completed within 3 months and the entries will be made in khasra girdawari according to the orders passed by the Revenue Officers after entering in his diary."
17. In Dhulabhai Etc. vs. State of Madhya Pradesh & another, AIR 1969 SC 78, the Court held as under:
"Where the statue gives finality to the orders of the special tribunals the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, ::: Downloaded on - 15/04/2017 19:35:50 :::HCHP 10 does not exclude those cases where the provisions of the particular Act have not been .
complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure."
18. In Raja Durga Singh of Solon vs. Tholu & others, of AIR 1963 SC 361, the Court observed as under:
"There is no entry or item in Section 77(3) rt 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. A suit for possession and mesne profits against the defendants who claimed to be occupancy tenants but whose status as tenants was denied by the plaintiff, is not barred from the cognizance of the civil court under Section 73(3) read with the first proviso."
19. Significantly neither the plaintiff nor his predecessor-in-interest ever accepted the defendant to be ::: Downloaded on - 15/04/2017 19:35:50 :::HCHP 11 his tenant. There is dispute with regard to the status of the landlord and tenant.
.
20. No doubt entries of mutation (Ext. DA-1 and Ext.
DA) records presence of the defendant but however, not only such fact is in dispute, but there is no evidence to corroborate the same. There is no order of the sanctioning of authority.
21. Plaintiff and his witnesses have categorically rt deposed the possession to be that of the plaintiff, which fact stands corroborated and fortified by the gift deed (Ext. PA) duly proved on record and the subsequent entries of record.
22. Even with regard to the plea of adverse possession, defendant could not lead any substantive evidence to establish the same.
23. Hence, it cannot be said that the lower appellate Court misunderstood or misapplied the provisions of law and erred in determining the jurisdictional issue. Plaintiff has categorically pleaded that his predecessor-in-interest namely Brestu was always in possession and taking advantage of the Emergency (so declared under Article 352 of the Constitution of India) defendant, in connivance with ::: Downloaded on - 15/04/2017 19:35:50 :::HCHP 12 the revenue officials, wrongly got the proprietary rights of the land in question recorded in his favour, which action is .
illegal.
24. Since there was no automatic vestment of the right, title or interest of the original owner in favour of the defendant, the challenge to the gift deed (Ext. PA) is of untenable in law. Substantial questions of law No. 1 and 3 are answered accordingly.
rt Substantial question of Law No. 2:
25. Learned counsel invites attention of this Court to the decision rendered by the apex Court in State of Gujarat vs. M/s Kothari & Associates, JT 2015 (9) SC 421.
26. Plaintiff has categorically pleaded cause of action to have arisen four months prior to the filing of the suit, which was so done on 1.11.1994. In para-4 of the plaint, it is categorically pleaded that only recently, plaintiff learnt about the entries of mutation and this was when the defendant threatened to forcibly dispossess him. Written statement records bare denial of such facts. Significantly neither did the defendant take any plea of limitation nor did he press at the time of framing of issues. Record reveals ::: Downloaded on - 15/04/2017 19:35:50 :::HCHP 13 that the defendant amended his written statement and got additional issues framed on 26.6.2003 and no such plea was .
either taken or issue pressed.
27. From the plaintiff's evidence (five witnesses), it cannot be inferred that the defendant seriously raised the issue of limitation. On the contrary plaintiff and his of witnesses, while stepping into the witness box have categorically deposed that it was only recently, interference rt was sought to be made by the defendant. In this view of the matter, the question of suit being barred by limitation does not arise. Hence the ratio of law laid down in Kothari (supra) is inapplicable in the given facts and circumstances as there the Court was dealing with a case where the suit was filed on 25.1.1985, whereas cause of action to pay the debt had arisen in the year 1979. Substantial question of law No. 2 is answered accordingly.
28. In view of the aforesaid discussions and in my considered view, there is no merit in the present appeal and the same is accordingly dismissed. It cannot be said that the judgment passed by the lower appellate Court is based on incorrect and incomplete appreciation of facts and ::: Downloaded on - 15/04/2017 19:35:50 :::HCHP 14 material placed on record by the parties or that the same is perverse which has resulted into miscarriage of justice.
.
Pending application(s), if any, also stand disposed of accordingly.
(Sanjay Karol), of Judge.
December 28 , 2015 (PK) rt ::: Downloaded on - 15/04/2017 19:35:50 :::HCHP