Himachal Pradesh High Court
Mohinder Singh And Others vs Nikku Ram on 29 September, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 263 of 2008.
Reserved on: 16.09.2016.
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Decided on: 29.09.2016.
Mohinder Singh and others ....Appellants.
Versus
Nikku Ram ... Respondent.
________________________________________________________ of Coram The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 Yes rt For the appellants. : Mr. Anup Rattan, Advocate.
For the respondent : Mr. N.K. Thakur, Sr. Advocate with Ms. Jamuna Pathik, Advocate for the respondent.
Ajay Mohan Goel, Judge.
By way of this appeal, the appellants/plaintiffs have challenged the judgment passed by the Court of learned District Judge, Una, in Civil Appeal No. 41 of 2007, dated 31.01.2008, vide which, learned Appellate Court dismissed the appeal of the present appellant and upheld the judgment passed by the Court of learned Civil Judge (Jr. Divn.), Court No. 2, Amb, District Una, in Civil Suit 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:19:34 :::HCHP 2No. 83 of 2000, dated 31.05.2007, whereby, learned trial Court had returned the plaint of the plaintiff after endorsement under Order 7, .
Rule 10 (2) of the Code of Civil Procedure (for short 'CPC) on the ground that the Civil Court was not having the jurisdiction to decide the matter in dispute.
2. This appeal was admitted on 20.11.2008 on the following of substantial questions of law:
"Whether the learned Courts below have erred by returning the plaint when the question of title was raised before the learned rt courts below?
Whether the impugned judgments are against the law laid down by this Hon'ble Court in case titled as Leetho versus Chamelo and others (2001 Volume-II SLJ 1802)"
3. Brief facts necessary for the adjudication of this case are that the appellants (hereinafter referred to as 'plaintiffs') filed a suit for declaration to the effect that they were owners in possession of the suit property being part of courtyard of the residential abadies and defendant had no right, title and interest over the land measuring 0-00- 76 hectares, comprised of Khewat No. 214 min, Khatauni No. 299 min, Khasra No. 1473 (old) and Nos. 1155 and 1188 (new) as entered in Nakal Misal Hakiat Istemal for the year 1998-1999, situated in village Nari, Tehsil Amb, District Una, H.P.(hereinafter referred to as 'suit land') and entries in the revenue record in the name of ::: Downloaded on - 15/04/2017 21:19:34 :::HCHP 3 defendants as owner in possession were wrong, illegal, void without the order of any competent authority and ineffective as against the .
rights of the plaintiffs. Plaintiffs had further prayed for issuance of decree of permanent injunction as a consequential relief restraining the defendants from forcibly ousting the plaintiffs or raising any construction over the suit land.
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4. The suit of the plaintiffs was contested by the defendant and a preliminary objection was taken by the defendant with regard to rt maintainability of the same on the ground that suit was barred under the provisions of Section 57 of The Himachal Prsadesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 (hereinafter referred to as 'Consolidation Act'). It was stated in para 6 of the written statement that plaintiffs in fact had filed an appeal under Section 54 of the Consolidation Act before the Director, Consolidation which appeal was preferred against the dismissal of their appeal before Settlement Officer, Consolidation and litigation pertaining to the suit land was pending before the consolidation authorities for the last more than five years. On these bases, it was contended by the defendant that suit in fact was barred under the provisions of Section 57 of the Consolidation Act. Besides this, on merits also, the suit of the plaintiff was contested by the defendant.
::: Downloaded on - 15/04/2017 21:19:34 :::HCHP 45. On the basis of pleadings of the parties, learned trial Court framed the following issues:-
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"1.Whether the plaintiffs are owners in possession of the suit land, as alleged? OPP.
2. Whether the entry in the name of defendant is wrong, illegal, void as alleged? OPP.
3. Whether the plaintiffs are entitled for relief of injunction, as prayed for? OPP.
4. Whether the suit is not maintainable? OPD.
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5. Whether this court has no jurisdiction? OPD.
6. Whether plaintiffs have got no cause of action? OPD. rt
7. Whether the plaintiffs are estopped by their act and conduct? OPD.
8. Whether the suit is not properly valued? OPD
9. Whether the suit is bad for non-joinder of necessary parties?OPD.
10. Relief."
6. On the basis of evidence led by the parties both ocular as well as documentary in support of their respective cases, the issues so framed were answered by the learned trial Court in the following manner:-
"Issue No.1 : Redundant.
Issue No. 2 : Redundant.
Issue No. 3 : Redundant.
Issue No.4 : Redundant.
Issue No.5 : Yes.
Issue No. 6 : Redundant.
Issue No. 7 : Redundant.
Issue No. 8 : Redundant.
Issue No. 9 : Redundant.
Relief : The plaint be returned to the plaintiffs as
per operative portion of the judgment."
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7. It was held by the learned trial Court that it stood proved on record that plaintiffs had moved an application before the .
Consolidation Officer under Section 30(2) of the Consolidation Act and aggrieved by the decision on the same, plaintiffs moved an application before the Settlement Officer, Consolidation under Section 30 (3) of the Consolidation Act. Learned trial Court further held that it of was also revealed that aggrieved from the order of Settlement Officer, Consolidation, plaintiffs had thereafter filed an appeal under Section rt 30 (4) of the Consolidation Act before the Director Consolidation which was pending adjudication. On these bases, it was held by the learned trial Court that as the matter in dispute was already pending adjudication before the statutory authority under the Consolidation Act, Civil Court was having no jurisdiction to adjudicate the matter as the jurisdiction of the Civil Court was barred under Section 57 of the Consolidation Act. It was further held by the learned trial Court that though in the plaint, plaintiffs had tried to make out a cause of action for maintaining the suit by pleading that defendant under the garb of wrong revenue record had started throwing illegal threats, however, plaintiffs had concealed in the plaint the factum of having filed applications and appeals before various authorities under the Consolidation Act. On these bases, it was concluded by the learned ::: Downloaded on - 15/04/2017 21:19:34 :::HCHP 6 trial Court that this proved that the plaintiffs themselves were aware that if the said facts were pleaded by them in the plaint then it would .
have an adverse effect on their case. Accordingly, it was held by learned trial Court that the suit filed by the plaintiffs was barred under Section 57 of the Consolidation Act and the Civil Court was not having jurisdiction to try the same. On these bases, the plaint was of returned to the plaintiff after endorsement under Order 7, Rule 10(2) of CPC. It was further held that as the appropriate authorities were rt already adjudicating the matter in dispute, hence, there was no necessity to direct the plaintiff to present the plaint before the appropriate authorities.
8. Feeling aggrieved by the said judgment passed by the learned trial Court, plaintiffs filed an appeal. Learned Appellate Court vide judgment dated 31.01.2008, upheld the judgment and decree passed by the learned trial Court and dismissed the appeal so filed by the plaintiffs. It was held by the learned Appellate Court that it was a matter of fact that the controversy in the case had arisen out of consolidation proceedings and appeal filed in this regard by the plaintiffs under the Act was still pending before the Appellate Authority. It was held by the learned Appellate Court that in view of the provisions of Section 57 of the Act, jurisdiction of the Civil Court ::: Downloaded on - 15/04/2017 21:19:34 :::HCHP 7 to entertain the suit was clearly barred. Learned Appellate Court further held that the contention of the plaintiffs to the effect that .
consolidation authorities had failed to observe the procedure laid down in the Consolidation Act and therefore the Civil Court could assume jurisdiction to entertain the suit despite express bar was without any merit as there was no evidence produced on record by the of plaintiffs to the effect that while adjudicating the matter in controversy the authorities concerned had failed to observe the rt procedure laid down under the Consolidation Act. On these bases, learned Appellate Court while upholding the judgment and decree passed by the learned trial Court dismissed the appeal so filed by the plaintiffs.
9. Mr. Anup Rattan, learned counsel for the appellants has strenuously argued that the findings returned by both the learned Courts below to the effect that the suit filed by the plaintiffs was barred under Section 57 of the Consolidation Act were perverse as the judgments passed by the learned Courts below were not in consonance with the law laid down by this Court in Leetho versus Chamelo and others, (2001) II SLJ 1802. It was further argued by Mr. Rattan that both the learned Courts below failed to appreciate that Civil Court was having jurisdiction to adjudicate upon the suit filed by the ::: Downloaded on - 15/04/2017 21:19:34 :::HCHP 8 plaintiffs in view of the fact that the question of title was raised by the plaintiffs in the suit so filed. On these basis, it was argued by Mr. .
Rattan that the judgments and decrees passed by both the learned Courts below were liable to be quashed and set aside and the suit of the plaintiffs deserves to be decreed as prayed for.
10. On the other hand, Mr. N.K. Thakur, learned senior of counsel appearing for the respondent submitted that the judgments and decrees passed by both the learned Courts below were not rt perverse as both the Courts below had rightly held that the suit filed by the plaintiffs was not maintainable in view of the provisions of Section 57 of the Consolidation Act. It was argued by Mr. Thakur that it was a matter of record that the suit land, subject matter of the Civil Suit filed by the plaintiffs was the same with regard to which, the plaintiffs had already filed proceedings and appeals under Section 30 of the Consolidation Act. Mr. Thakur further argued that it was also an admitted fact that the plaintiff in fact was aggrieved by the consolidation proceedings which had been initiated by the authorities concerned under the provisions of Consolidation Act. It was further argued by Mr. Thakur that because the plaintiffs were aware of the fact that their suit was not maintainable in view of the bar contained in Section 57 of the Consolidation Act, therefore purposely the factum of ::: Downloaded on - 15/04/2017 21:19:34 :::HCHP 9 proceedings already having been initiated by the plaintiffs before the appropriate authorities under the provisions of Consolidation Act were .
concealed in the plaint. Accordingly, it was argued by Mr. Thakur that there was no merit in the present appeal and the same be dismissed.
11. I have heard the learned counsel for the parties and also gone through the records of the case as well as the judgments passed of by both the learned Courts below.
12. During the course of arguments, learned counsel for the rt plaintiffs/appellants did not dispute the fact that the proceedings which had been initiated by the appellants/plaintiffs under the provisions of Consolidation Act pertained to the same land which was subject matter of the civil suit filed by them before the Civil Court, from which this appeal has arisen. Further learned counsel for the appellant also did not deny the fact that the dispute which was raised by the appellants before the consolidation authorities was same and similar to the dispute which had been raised by them in the Civil Suit and therein also the case was filed against the present respondent.
Therefore, it is abundantly clear that before filing civil suit bearing No. 83 of 2000 before the Court of learned Civil Judge (Jr. Divn.) Court No. (II), Amb, District Una, the plaintiffs had already invoked the jurisdiction of the competent authorities under the Consolidation ::: Downloaded on - 15/04/2017 21:19:34 :::HCHP 10 Act for the redressal of their grievance qua the land which was subject matter of the civil suit filed before the learned trial Court. Further the .
suit was filed by the plaintiffs by concealing all these facts and that too during the pendency of an appeal filed by them before the Appellate Authority, feeling aggrieved by the orders which had been filed on their applications by the competent statutory authorities under of the Consolidation Act. It is not a case where the jurisdiction of the authorities under the Consolidation Act was invoked by the present rt respondent. Admittedly, the jurisdiction was invoked by the plaintiffs themselves. Therefore, simply because the orders which were passed by the competent authorities under the Consolidation Act went against the plaintiffs, this did not confer upon the plaintiffs a right to file a suit pertaining to the same land and praying for the similar relief though differently worded before a Civil Court. The findings returned by the learned Appellate Court to the effect that plaintiffs could not point out any procedural irregularity carried out by the competent authority while deciding the matter under the Consolidation Act could not be demonstrated to be incorrect during the course of arguments in the present appeal by the learned counsel for the appellant.
13. Section 57 of the Consolidation Act reads as under:
"57. Jurisdiction of civil court barred as regards matters arising under this Act-No person shall institute ::: Downloaded on - 15/04/2017 21:19:34 :::HCHP 11 any suit or other proceedings in any civil court with respect of any matter arising out of the consolidation proceedings or with respect of any other matter in .
regard to which a suit or application can be filed under the provisions of this Act."
14. As I have already discussed above, it is not in dispute that the case of the plaintiffs on the basis of which they filed the civil suit is arising out of the consolidation proceedings. It is also a matter of of record that the plaintiffs were already agitating the issue before the authorities as prescribed under the Consolidation Act and suit was rt filed without disclosing this fact in the plaint. Be that as it may, fact of the matter still remains that under the provisions of Section 57 of the Consolidation Act, jurisdiction of Civil Court is barred with respect to any matter arising out of consolidation proceedings. In this view of the matter, in my considered view, learned trial Court rightly returned the plaint under the provisions of order 7 Rule, 10(2) of CPC by holding that the suit so filed by the plaintiffs was barred by the provisions of Section 57 of the Consolidation Act. Similarly, learned Appellate Court also rightly upheld the findings so returned by the learned trial Court. There is no infirmity with the findings so returned by both the learned Courts below. The judgment of this Court in case Leetho Versus Chamelo and others, (2001) II, SLJ 1802, is distinguishable and has no bearing in the present case. In the above ::: Downloaded on - 15/04/2017 21:19:35 :::HCHP 12 case, this Court was dealing with the interpretation of Section 171 (2) (xvii) of the H.P. Land Revenue Act, 1953 and while interpreting the .
said provisions it was held by this Court that the statutory provisions of Section 171 (2) (xvii) of the H.P. Land Revenue Act, 1953 puts a bar that Civil Court shall not exercise jurisdiction over any claim of partition of an estate, holding or tenancy, or any question connected of with, or arising out of proceedings for partition, but qualifies that a question as to title should not be involved in any of the property of rt which partition is sought. Thus, on the basis of language of the said provision, it was held by this Court that there was no absolute bar and the moment the question of title is raised, the Civil Court gets the jurisdiction. In my considered view the findings returned by this Court in the abovementioned case do not have any bearing in the present case because in the abovementioned case, this Court was dealing with the provisions of H.P. Land Revenue Act and the interpretation given by this Court was based on the language of statute itself. Similarly the judgment passed by this Court in Parmeshwari Dass & Ors. Vs. Roshal Lal & Ors. in RSA No. 114 of 1999 reported in (2009) 1Cur.L.J. 225 is also of no assistance to the appellant because in that case it was held by this Court that the revenue entries recorded therein were a nullity and it was on these basis that this Court is relying upon ::: Downloaded on - 15/04/2017 21:19:35 :::HCHP 13 the judgment of the Hon'ble Supreme Court in Dhruv Green Field .
Limited v. Hukam Singh and others, 2002 (6) SCC 416 held that civil court had jurisdiction as the action complained was a nullity. In the present case, it is an admitted fact that it was the appellants who invoked the jurisdiction of the competent authority under the of Consolidation Act and subsequent proceedings arising thereof were still pending by way of appeal before competent authority which rt appeal was also filed by the present appellant under the provisions of the Consolidation Act when the suit was also simultaneously filed.
Therefore, in my considered view, the judgments and decrees passed by both the learned Courts below against the present appellants cannot be faulted with. Learned trial Court rightly returned the plaint to the plaintiffs under the provisions of Order 7, Rule 10(2) of the Civil Procedure Code and learned Appellate Court rightly upheld the judgment so passed by the learned trial Court.
Keeping in view the fact there is neither any perversity nor any infirmity with the findings which have been returned by learned Courts below and also in view of the ratio of the abovementioned judgments, I do not find any merit in the present ::: Downloaded on - 15/04/2017 21:19:35 :::HCHP 14 appeal and the same is accordingly dismissed with costs. Pending application(s), if any, also stands disposed off.
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(Ajay Mohan Goel) Judge 29th September, 2016.
(narender) of rt ::: Downloaded on - 15/04/2017 21:19:35 :::HCHP