Himachal Pradesh High Court
Surindera Devi W/O Sh. Tikka vs Jagtamba Parsad on 27 August, 2021
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
ON THE 27TH DAY OF AUGUST, 2021
BEFORE
HON'BLE MR. JUSTICE SURESHWAR THAKUR
REGULAR SECOND APPEAL NO. 501 of 2004
Between:-
1. SURINDERA DEVI W/O SH. TIKKA
RAJINDER CHAND,
2. SMT. KRISHNA DEVI, W/O SH. KASHMIR
SINGH S/O MOOLA.
3. SH. KASHMIR SINGH, S/O MOOLA
SINGH, S/O DEVI SINGH.
4. SH. PRAKASH CHAND (DECEASED)
THROUGH HIS LEGAL REPRESENTATIVES:
(I) RAM PYARI, W/O SH. PRAKASH
CHAND.
(II) SH. ROSHAN LAL, S/O SH.
PRAKASH CHAND.
(III) SH. CHAMAN LAL, S/O SH.
PRAKASH CHAND.
(IV) SH. SURESH KUMAR, S/O SH.
PRAKASH CHAND.
(V) SMT. VANDANA DEVI, D/O SH.
PRAKASH CHAND.
5. MANMOHAN SINGH S/O SH. JAGJIT
SINGH (SH. JAGJIT SINGH DELETED VIDE
ORDER DATED 1-10-2020)
6. CHAJJU RAM S/O SH. MANGAL SINGH
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ALL RESIDENTS OF VILLAGE RAMGARH,
TEHSIL AND DISTRICT UNA, H.P.
.
........ APPELLANTS.
(BY SH. R.K GAUTAM, SR. ADVOCATE
WITH MS. MEGHA KAPUR GAUTAM, ADVOCATE)
AND
1. KISHORI LAL SON OF LAKHU RAM;
2.
CHHAJJU RAM SON OF SH. LEKHU
RAM; (EX-PARTE VIDE ORDER DATED
1.10.2019)
CASTE RAJPUT, RESIDENT OF VILLAGE
BANGARH, TEHSIL AND DISTRICT UNA, H.P.
.....RESPONDENTS
(BY. BHUPENDER GUPTA, SR. ADVOCATE
WITH MR. AJIT JASWAL, ADVOCATE FOR
RESPONDENT NO.1
RESPONDENT NO.2 EX-PARTE).
RESERVED ON: 19.8.2021
DECIDED ON : 27.8.2021
This appeal coming on for orders this day, the Court passed the
following:-
JUDGMENT
Plaintiff/respondent No.1 Kishori Lal instituted a Civil Suit bearing No. 38/92 before the learned Sub Judge, 1st Class, Court No.1, Una, District Una. H.P. In the afore Civil Suit, the ::: Downloaded on - 31/01/2022 22:58:30 :::CIS ...3 plaintiff claimed the making of a declaratory decree against the .
defendants, and, vis-à-vis, the suit khasra numbers, and, the plaintiff also claimed the making of a decree for permanent prohibitory injunction against the defendants, and, vis-à-vis, the suit khasra numbers..
2. The afore espoused relief(s) became accorded, vis-à-
vis, the plaintiff by the learned trial Court through its verdict drawn on 30th May, 2002.
3. The aggrieved defendants thereagainst carried an appeal bearing No. 50/2002, before the learned District Judge, Una, H.P. The learned first Appellate Court partly accepted the appeal, and, made the hereinafter extracted relief:-
"In view of my findings on point Nos. 1 and 2 above, the appeal is partly accepted and the relief of declaration as granted by the learned trial Judge is set-aside and decree for permanent injunction restraining the defendants from interfering in the possession of the plaintiff over the suit land comprised in khewat No.2 min. Khatauni No.2, min khasra Nos. 1080 and 1081 measuring 8 kanalas 18 marlas, situate in village Bangarh The and Distt. Una, HP is hereby granted with no order as to costs.::: Downloaded on - 31/01/2022 22:58:30 :::CIS
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4. The reasons which prevailed, upon, the learned first .
Appellate Court, to decline to the plaintiff, the relief of declaration in as much as his becoming owner of the suit land, through operation of the mandate carried in Section 104 of H.P Tenancy and Land Reforms Act, 1972, are embodied in paragraph 28 of its verdict, paragraph whereof stands extracted hereinafter:-
"28. In the case in hand the plaintiff has sought declaration that he has become owner of the suit land under the provisions of H.P Tenancy and Land Reforms Act. 1972. To my mind such a declaration normally cannot be granted by the Civil Court as only a Land Reform Officer can decided about the conferment of proprietary rights under Section 104 readwith Rule 29 of the H.P Tenancy and Land Reforms Act. This view appears to have been taken by the Hon'ble High Court in the case of Gopal Krishan versus Jagtamba Parsad 2002 (1) S.L.J. 425 and Roshan Lal versus Surjan, 1999 S.L.J (1) 502 (HP). In both these cases it was held that power to grant injunction is a common law remedy exclusively within the province of civil court. However the question of conferment of the proprietary rights does not fall within the jurisdiction of the Civil Court and parties are at liberty to approach the Land Reform Officer for the determination of such dispute. Accordingly, declaration granted by the learned trial Judge to the effect that the plaintiff has become owner of the suit land measuring 8 kanals 18 marlas ::: Downloaded on - 31/01/2022 22:58:30 :::CIS ...5 comprised in khewat No.2 min. khatauni No.2 min.
.
Khasra Nos. 1080 and 1081 situate in village Bangarh Tehsil and Distt. Una is liable to be set-aside and it is held that plaintiff is in possession of the suit land as a tenant. In view of this both these points are decided accordingly."
5. The defendants became aggrieved from the afore drawn verdict of the learned first appellate Court, and, obviously were led to institute there-against the instant appeal before this Court.
6. Earlier this Court had upon the extant Regular Second Appeal pronounced a verdict on 11.3.2015. Through the afore drawn verdict, it had proceeded, to, affirm the verdict, as, become recorded by the learned first Appellate Court, and, accordingly answered the substantial questions of law, which became extracted hereinafter:-
"1. Whether the Courts below wrongly interpreted Chuhniya Devi vs. Jindu Ram [1991 (1) Sim. L.C. 223], which resulted in miscarriage of justice?
2. Whether the findings of the trial Court as affirmed are dehors the evidence on record?"::: Downloaded on - 31/01/2022 22:58:30 :::CIS
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7. Against the afore drawn verdict, the aggrieved therefrom carried Civil Appeal No. 9933 of 2017, before the Hon'ble Apex Court. The Hon'ble Apex Court, upon, the afore Civil Appeal, made a decision on 31.7.2017, which becomes extracted hereinafter:-
"1)
2).r to Leave granted.
Two substantial questions of law were framed in the present case which are reflected from para 2 of the impugned judgment. The sub-Judge ultimately held that the Civil Court had jurisdiction and decreed the suit. The first Appellate Court partly reversed the decree holding as under:-
"28. In the case in hand the plaintiff has sought declaration that he has become owner of the suit land under the provisions of H.P Tenancy and Land Reforms Act. 1972. To my mind such a declaration normally cannot be granted by the Civil Court as only a Land Reform Officer can decided about the conferment of proprietary rights under Section 104 readwith Rule 29 of the H.P Tenancy and Land Reforms Act. This view appears to have been taken by the Hon'ble High Court in the case of Gopal Krishan versus Jagtabna Parsad 2002 (1) S.L.J. 425 and Roshan Lal versus Surjan, 1999 S.L.J (1) 502 (HP). In both these cases it was held that power to grant injunction is a common law remedy exclusively within the province of civil court. However the question ::: Downloaded on - 31/01/2022 22:58:30 :::CIS ...7 of conferment of the proprietary rights does not fall .
within the jurisdiction of the Civil Court and parties are at liberty to approach the Land Reform Officer for the determination of such dispute. Accordingly, declaration granted by the learned trial Judge to the effect that the plaintiff has become owner of the suit land measuring 8 kanals 18 marlas comprised in khweat No.2 min. khatauni No.2 min. Khasra Nos.
1080 and 1081 situate in village Bangarh Tehsil and Distt. Una is liable to be set-aside and it is held that plaintiff is in possession of the suit land as a tenant. In view of this both these points are decided accordingly.
29. In view of my findings on point Nos. 1 and 2above, the appeal is partly accepted and the relief of declaration as granted by the learned trial Judge is set-aside and decree for permanent injunction restraining the defendants from interfering in the possession of the plaintiff over the suit land comprised in khewat No.2 min. Khatauni No.2, min khasra Nos. 1080 and 1081 measuring 8 kanalas 18 marlas, situate in village Bangarh The and Distt. Una, HP is hereby granted with no order as to costs. Decree sheet be prepared accordingly."
3). The High Court, in second Appeal, recorded as under:-
"9. In this view of the matter, Courts below rightly held the jurisdiction of the Civil Court not to be barred under the provions of the H.P. Tenancy and Land Reforms Act, 1972. Thus, it cannot be held that ::: Downloaded on - 31/01/2022 22:58:30 :::CIS ...8 Courts below erred in correctly applying the principle .
of law laid down by this Court in Chuhniya devi Vs. Jundu Ram, 1991 (1) Sim. L.C. 223.
10. Substantial questions of law, as framed, essentially deals with the question of factual appreciation of evidence by the Courts below. Having heard learned Counsel for the parties, Court is of the considered view that no question, much less substantial question of law arises for consideration."
4). Having heard the learned counsel appearing for the parties and having perused the record of the case, were are of the view that both the Courts did not hold the same thing, as is clear from the partial allowance of the appeal by the first Appellate Court. Second, we are also of the view that substantial question of law does arise and this is not a case of mere factual appreciation of evidence as has been held. We, therefore, set aside the impugned judgment and remand the matter to be heard on merits.
5). The Civil Appeal is disposed of accordingly."
8. Consequently, after remand of the lis to this Court, by the verdict (supra) drawn by the Hon'ble Apex Court, this Court has proceeded, to, hear arguments addressed on behalf of the contesting litigants, by their respective counsel(s).
9. With the consent of the learned counsel for the parties, this Court proceeds to answer the substantial questions ::: Downloaded on - 31/01/2022 22:58:30 :::CIS ...9 of law, whereon the instant RSA became admitted on .
22.11.2004, by this Court.
10. Before meteing an answer to substantial question of law No.1, it is deemed imperative, to, cull the questions of law which became answered by this Court in a verdict drawn upon a case titled as Chuhniya Devi vs. Jindu Ram [1991 (1) Sim.L.C.223]. Questions whereof and also the answers meted thereon are extracted hereinafter:-
"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 (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 ::: Downloaded on - 31/01/2022 22:58:30 :::CIS ...10 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."
11. Not only a reading of the afore questions of law formulated in verdict (supra), but also the answers meted thereto, and as, become extracted (supra) are imperative. A reading of both the afore, unfolds that the questions as became formulated in verdict (supra), pointedly and squarely appertained to the validity of jurisdiction of Civil Courts, to, test the legality of orders made under the statutory provisions (supra). The answers as became meted thereon, and, as become extracted (supra), make clear and candid displays, in as much, as the orders made by the statutory authorities concerned, upon, theirs exercising jurisdiction, under statute (supra), rather acquiring conclusivity, and any challenge thereon being barred. However with an exception that the questions falling within the domain of Section ::: Downloaded on - 31/01/2022 22:58:30 :::CIS ...11 37(3), and, Section 46 of the Himachal Pradesh Land Revenue .
Act, 1954 (for short " the Land Revenue Act") being left open to become challenged before the Civil Courts concerned. However yet if, it has also been expostulated therein, that the Civil Court has no jurisdiction to determine the validity of an order made by the statutory authority concerned, especially when there-through conferment of proprietary rights is made upon the Gair Marusi concerned. However even the afore bar against exercising of jurisdiction by a Civil Court concerned, has an exception, and, is comprised in the statutory authority evidently not conforming to the fundamental principles of judicial procedure, and/or, where the apposite statutory provisions become evidently breached.
12. Since the verdict pronounced in Chuhniya Devi's case has preserved jurisdiction in the Civil Court concerned, to determine and try the controversy(s) falling within the realm of Section 37 (3), and, those falling within the realm of Section 46 of the Land Revenue Act. However, since the afore excepting provisions, to, the rule afore carried in verdict (supra) are argued to be affirmatively workable, vis-à-vis, the extant lis. Therefore, it becomes imperative for this Court to extract the statutory ::: Downloaded on - 31/01/2022 22:58:30 :::CIS ...12 provisions (supra), provisions whereof becomes extracted .
hereinafter, and, to also apply them, vis-à-vis, the lis at hand:-
"Section 37 of H.P Land Revenue Act:
Determination of dispute- (1) If during the making, revision or preparation of any record or in the course of any enquiry under this Chapter a dispute arises as to any matter of which an entry is to be made in a record or in a register of mutations, a Revenue Officer may of his own motion or on the application of any party interested, but subject to the provisions of the next following section, and after such inquiry as he thinks fit, determine the entry to be made as to that matter.
(2) If in any such dispute the Revenue Officer is unable to satisfy himself as to which of the parties thereto is in possession of any property to which the dispute relates, he shall ascertain through the Gram Panchayat constituted under the Himachal Pradesh Panchayati Raj Act, 1994 (4 of 1994) or any other agency so prescribed by the Financial Commissioner or by summary inquiry who is the person best entitled to the property, and shall be order direct that, that person be put in possession thereof, and that an entry in accordance with that order be made in the record or register.
(3) A direction of a Revenue Officer under sub-section (2) shall be subject to any decree or order which may be subsequently passed by any Court of competent jurisdiction.::: Downloaded on - 31/01/2022 22:58:30 :::CIS
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Section 46 of H.P Land Revenue Act:
Suit for declaratory decree by persons aggrieved by an entry in a record- If any person considers himself aggrieved as to any right of which he is in possession by an entry in record of rights or in a periodical record, he may institute a suit for a declaration of his right under Chapter VI of the Special Relief Act, 1963 ( 47 of 1963)."
13. A reading of the afore provisions, as, become carried in the Land Revenue Act, especially of sub Section 3 of Section 37 of the Land Revenue Act, does candidly unveil, that any order made by the Revenue Officer concerned, and, appertaining to preparation or revision of any records of right, rather making the afore order to be testable or being determinable, through a Civil Suit becoming filed before the Civil Court concerned. Moreover, any decree or order as may become affirmatively rendered thereons by the Civil Court concerned, rather in the apposite subsequent suit becoming instituted there-before, by the aggrieved concerned completely prevailing upon the challenged therebefore order, as, earlier thereto made by the Revenue Officer concerned.
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14. Moreover, the mandate carried in Section 46, of the .
Land Revenue Act, preserves a right in any aggrieved, from an erroneous entry occurring in the revenue records, to institute a suit for declaration, for seeking correction of the relevant entry, as becomes carried in the relevant records of right.
15. The applicability(s) of the afore preserved statutory jurisdiction(s) in the Civil Court concerned, is to be tested, on the anchor of the declaratory relief, as, becomes espoused, by the aggrieved plaintiff, in as much, upon, an erroneous entry carried, in the relevant records of right, he espouses that his becoming untenably debarred of his statutory right of ipso facto conferment of proprietary rights, upon him, through affirmative application(s) vis-à-vis him, of the mandate carried in Section 104 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 (for short "Tenancy and Land Reforms Act.
16. Since a deepest reading of the relevant clause, as carried in the plaint, does unfold, that the aggrieved plaintiff, nursed a grievance against an invalidly made entry in the records of right, in as much, as, his earlier entry in the jamabandi appertaining to the suit land, as a Gair Marusi, becoming abruptly ::: Downloaded on - 31/01/2022 22:58:30 :::CIS ...15 deleted, in the latest jamabandi(s), despite in the earlier thereto .
jamabandi(s) appertaining to the suit land, and, commencing from 1952-1953 up till 1962-1963, his validly becoming recorded as a Gair Marusi, over the suit land. Therefore the afore declaratory suit relief as becomes claimed by him, for setting aside the deletion of his name as a Gair Marusi, in the latest jamabandi appertaining to the suit land, and, also for the quashing of the concomitant thereto entries rather reflecting the defendants to be the land owners of the suit land, can be concluded to be validly constituted before the learned Civil Court concerned, through a civil suit filed therebefore, as both do fall, within the realm, and, domains of section 37(3), of Land Revenue Act, as well as within the domain of Section 46, of, the Land Revenue Act.
Consequently, when both reliefs, do fall, within the realm(s) thereof. Therefore, with this Court in a verdict drawn upon Chuhniya Devi's case (supra), has, vis-à-vis, the afore rather preserved the jurisdiction of the Civil court concerned. As a sequel, the Civil suit for the afore purpose, was maintainable before the Civil Court concerned.
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17. Be that as it may, it yet to be tested whether the .
deletion or abrupt disappearance of the name of the plaintiff, as a Gair Marusi in the relevant column of the jamabandi concerned, despite his being earlier reflected in the apposite column of, the, Jamabandi(s), to be a Gair Marusi, conspicuously in the Jamabandi(s) commencing from 1952-1953 uptill 1962-1963 continuously, can come to be validated.
18. The test for pronouncing, vis-à-vis, the afore abrupt deletion of the name of the plaintiff, as a Gair Marusi in the relevant jamabandi, is whether it became preceded by a valid order becoming pronounced by an empowered Revenue Officer concerned. However, a deepest reading of the entire evidence, on record, does not disclose, that the apposite deletion of the plaintiff in the apposite column of Jamabandi concerned, hence as a Gair Marusi, over the suit land, ever became founded upon, or became preceded by a valid order becoming made by the empowered Revenue Officer concerned. Consequently the afore abrupt deletion is vitiated and also it becomes nonest.
19. The defendants would succeed in asking for, the, valid deletion of the name of the plaintiff, as a Gair Marusi in the ::: Downloaded on - 31/01/2022 22:58:30 :::CIS ...17 jamabandi(s) appertaining to the suit land, and, commencing from .
1952-1953 uptill 1962-1963, only upon clinching evidence becoming adduced by them, and, the afore evidence visibly displaying, that the afore occurrence(s) of the plaintiff, as a Gair Marusi, upon the suit land, hence on the afore phases, was not valid, as the plaintiff was never during the afore phases, provenly liquidating rent in cash in kind to the land owners concerned.
However the afore evidence is grossly amiss. Since only, upon, emergence of the afore clinching evidence, the entries as become carried in the Jamabandi(s) concerned, and, commencing from 1952-1953 and continuing up till 1962-1963, could lead to an inference that the entries (supra) rather acquiring the taint of vitiation, whereas, the evidence (supra) never becoming adduced on record, whereas only upon, its adduction into evidence, this Court may be constrained, to, take a view that the subsequent apposite deletion in the latest jamabandi appertaining to the suit land, even when becomes not founded, upon, any valid order rendered by an empowered Revenue Officer, yet hence the afore deletion prima-facie, and, tentatively ::: Downloaded on - 31/01/2022 22:58:30 :::CIS ...18 is lawful. Thereupon, want of evidence (supra) constrains this .
Court, to, annul the questioned entries.
20. Since the learned first Appellate Court, has denied the declaratory decree to the plaintiff, on the ground, that the order of conferment of proprietary rights upon a proven Gair Marusi hence holding possession in the afore capacity over the suit land, rather prior to the coming into force of the relevant statute, hence was required to be made by the empowered Revenue Officer.
However, the afore denial by the learned first Appellate Court, is completely mis-founded, and, also is legally fallacious, as, the mandate carried in Section 104 of Tenancy and Land Reforms Act, does ipso facto, through a statutory leverage purveyed, upon, a Gair Marusi, evidently holding possession of the suit land in the afore capacity, prior to the coming into force the statute (supra), rather makes him empowered, to, seek statutory conferment of proprietary rights upon him. The effect of the afore ipso facto statutory conferment of proprietary rights, upon, a proven Gair Marusi hence validly holding possession of the suit land prior to coming into force of the apposite mandate occurring in the Tenancy and Land Reforms Act, obviously also did not ::: Downloaded on - 31/01/2022 22:58:30 :::CIS ...19 require any order, to the effect (supra) becoming rendered by the .
Revenue Officer concerned.
21. Therefore, this Court declares the challenged revenue entries to be void abinitio and also annulls them, and, the afore bring to fore, the further legal effect, that when the plaintiff was evidently, prior to coming into force of the mandate carried in Section 104 of Tenancy and Land Reforms Act, a proven Gair Marusi, over the suit land. Consequently, the further statutory sequel thereof is, as declared supra by this Court, that the plaintiff dehors making of any order for hence conferring rights, upon him, by an empowered Revenue Officer concerned, rather became entitled to statutory conferment of proprietary rights, upon him, and, also that the afore declaration, is a dire legal necessity in pursuance, to this Court nullifying the apposite revenue entries. The making of or attestation of an order of mutation, by the empowered Revenue Officer, is, only a sequel thereof, or, is a mere ministerial imperative function.
22. Since the verdict made by the learned 1st Appellate Court to the extent as extracted hereinbefore has declined, the declaratory relief to the plaintiff, and, when the afore denial is for ::: Downloaded on - 31/01/2022 22:58:30 :::CIS ...20 the reasons (supra) per incuriam, vis-à-vis, the relevant statute.
.
Therefore, dehors the plaintiff not instituting any appeal against the verdict (supra), or, his not instituting any cross-objections against the hereinbefore extracted portion of the verdict (supra),yet this Court deems it fit, to rather for ensuring the completest compliance being meted to the relevant statutory provisions as contained in the relevant statute, also grant the espoused declaratory relief to the plaintiff. Conspicuously, also when the afore is a natural legal sequel of this Court invalidating the questioned legal entries, also is a natural legal corollary, of, this Court, thereupons granting the relief of permanent prohibitory injunction to the plaintiff.
23. As a sequel, and, reiteratedly, the reasons (supra) drawn upon by the learned first Appellate Court, to, deny to the plaintiff, the benefit of statutory conferment of proprietary rights upon him, is, completely astray from the mandate carried in Section 104 of H.P Tenancy and Land Reforms Act, and, are required to be quashed and set aside. Accordingly, the substantial questions of law are answered accordingly. The instant RSA is dismissed, and, the verdict of the trial Court is ::: Downloaded on - 31/01/2022 22:58:30 :::CIS ...21 maintained and affirmed, whereas, the verdict made by the .
learned first Appellate Court is also partly quashed and set aside.
However, the decree granted by the learned first Appellate Court for permanent prohibitory injunction against the defendants, is affirmed and maintained. All pending applications stand disposed of accordingly.
27th August, 2021 (Sureshwar Thakur),
(priti) Judge.
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