Himachal Pradesh High Court
Reserved On: 26.02.2026 vs Of on 10 March, 2026
2023:HHC:10350
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No.36 of 2007
Reserved on: 26.02.2026
.
Date of Decision: 10.03.2026
Bainsu(deceased) through LRs ....Appellants.
Versus
of
Budhia & others .....Respondents.
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
rt
Whether approved for reporting?1 No.
For the Appellants : Mr R.K. Sharma, Sr. Advocate, with
Ms Vidushi Sharma, Advocate.
For the Respondents : Mr Nimish Gupta, Advocate.
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 learned Trial Court) was allowed, and the judgment and decree passed by learned Civil Judge (Senior Division), Chamba (learned Trial Court) were set aside. (Parties shall hereinafter be referred to in the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 10/03/2026 20:33:48 :::CIS 22023:HHC:10350 same manner as they were arrayed before the learned trial Court for convenience) .
.
2. Briefly stated, the facts giving rise to the present appeal are that the plaintiffs filed a Civil Suit before the learned Trial Court for seeking a declaration that Mutation No. 185 dated 14.05.2002 attested on the basis of Will dated 27.11.1984 of regarding the land measuring 4-10 Bighas bearing Khasra No. 135 Khata Khatauni no. 32 min/50 situated at village Bharoga, rt Pargana Kihar, Tehsil Salooni, District Chamba (hereinafter referred to as the suit land) in the name of the defendant is illegal, void and inoperative qua, the rights of the plaintiffs. The plaintiffs also sought possession of the suit land as consequential relief. It was pleaded that late Sh. Panchi was recorded 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. A 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 a forged and unattested Will dated 27.11.1984. Panchi had not executed any Will. Tenancy rights could not be bequeathed and are to be inherited by the plaintiffs as per the H.P. Tenancy and Land ::: Downloaded on - 10/03/2026 20:33:48 :::CIS 3 2023:HHC:10350 Reforms Act. Defendant obtained forcible possession of the suit land based on the Will. Hence, the suit was filed to seek the .
reliefs mentioned above.
3. The suit was opposed by filing a written statement taking preliminary objections regarding lack of maintainability, locus standi and cause of action. The contents of the plaint were of denied on the merits. However, it was admitted that Panchi was the tenant of the suit land. It was asserted that he had become rt the owner on 03.10.1975 after the commencement of the HP Tenancy and Land Reforms Act. 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.
4. A replication denying the contents of the written statement and affirming those of the plaint was filed.
5. 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 ::: Downloaded on - 10/03/2026 20:33:48 :::CIS 4 2023:HHC:10350
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, of and plaintiff Budhiya examined himself (PW-1). The defendant examined Abdul Shakur (DW-1), himself (DW-2) and Chet Ram (DW-3).
rt
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 became the owner after the commencement of the HP Tenancy and Land Reforms Act, and he had every right to execute the Will regarding the property owned by him. Hence, the learned Trial Court answered issues nos. 1 to 4 in negative, issu nos. 5 and 6 in the affirmative and dismissed the suit of the plaintiffs.
8. Being aggrieved from the judgment and decree passed by the learned Trial Court, plaintiff no. 2-Budhiya filed an appeal, which was decided by the learned Additional District ::: Downloaded on - 10/03/2026 20:33:48 :::CIS 5 2023:HHC:10350 Judge, Fast Track Court, Chamba (learned Appellate Court).
Learned Appellate Court held that a copy of Jamabandi for the .
year 1977-78 shows that Ishru widow of Devi Dayal, was recorded as owner, and 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 of 01.02.1992, and his wife Nimo died on 27.07.2001. Ishru widow of Devi Dayal, was alive in the year 1977. Section 104(8) of the rt H.P. Tenancy and Land Reforms Act provides that a tenant under a widow will not acquire the proprietary rights during her lifetime, and Panchi could not have become the owner during the lifetime of Ishru. 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 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 aside.
9. Being aggrieved from the judgment and decree passed by the learned First Appellate Court, the defendant has ::: Downloaded on - 10/03/2026 20:33:48 :::CIS 6 2023:HHC:10350 filed the present appeal before this Court, which was admitted on the following substantial questions of law on 01.05.2008:
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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 dispossession in the circumstances of the case, more particularly, when there is a specific provision for getting the possession under Section of 43 of the H.P. Tenancy and Land Reforms Act, 1972?
2. Whether plaintiffs were entitled to the relief of rt possession on the ground of alleged tenancy in the circumstances of the case on the face of a Will dated 27.11.1984?
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 Senior Counsel, assisted by Ms. Vidushi Sharma, learned counsel for the appellants/defendants and Mr. Nimish Gupta, learned counsel for the respondents/plaintiffs.
12. Sh. R.K. Sharma, learned Senior Counsel for the appellants/defendants, submitted that the validity of the Will was upheld by the learned Trial Court. This finding was not upset by the learned First Appellate Court. Learned First Appellate Court erred in holding that Panchi could not have ::: Downloaded on - 10/03/2026 20:33:48 :::CIS 7 2023:HHC:10350 become the owner during the lifetime of the widow. This plea was not taken by the plaintiffs, and the defendant was caught by .
surprise. The defendant has filed an application to lead additional evidence to prove the date of death of Ishru. This evidence could not be led before the learned Trial Court, as no such plea was taken by the plaintiffs. The additional evidence of shows that Ishru had died in August 1975, before the commencement of the HP Tenancy and Land Reforms Act, and rt the reasoning of the learned First Appellate Court is not correct.
Hence, he prayed that the application for leading additional evidence and the appeal be allowed, and judgment and decree passed by the learned First Appellate Court be set aside.
13. Sh. Nimish Gupta learned counsel for the respondents/plaintiffs supported the judgment and decree passed by the learned First Appellate Court. He submitted that once Ishru was recorded to be the owner of the suit land in the copy of Jamabandi for the year 1977-78, the operation of H.P. Tenancy and Land Reforms Act would remain suspended qua the land owned by her. The plaintiffs had taken a specific plea in the written statement that the tenancy cannot be bequeathed, and the burden was upon the defendant to show that the executant ::: Downloaded on - 10/03/2026 20:33:48 :::CIS 8 2023:HHC:10350 was the owner on the date of the execution of the will. The defendant had not pleaded that Ishru had died, and the evidence .
regarding her death cannot be led without pleadings. Learned First Appellate Court had rightly held that the tenancy cannot be bequeathed. Therefore, he prayed that the present application and appeal be dismissed.
of
14. I have given considerable thought to the rival submissions made at bar and have gone through the records rt carefully.
15. Before adverting to the substantial questions of law framed by the Court, at the time of admission of the appeal, it is necessary to dispose of an application filed for leading additional evidence. It was laid down by the Hon'ble Supreme Court in Iqbal Ahmed v. Abdul Shukoor, 2025 SCC OnLine SC 1787, that the additional evidence can only be led if the foundation for the evidence is laid in the pleadings. It was observed:
"8. In our opinion, before undertaking the exercise of considering whether a party is entitled to lead additional evidence under Order XLI Rule 27(1) of the Code, it would be first necessary to examine the pleadings of such party to gather if the case sought to be set up is pleaded so as to support the additional evidence that is proposed to be brought on record. In the absence of necessary pleadings in that regard, permitting a party to lead additional ::: Downloaded on - 10/03/2026 20:33:48 :::CIS 9 2023:HHC:10350 evidence would result in an unnecessary exercise and such evidence, if led, would be of no consequence, as it may not be permissible to take such evidence into consideration. Useful reference in this regard can be made .
to the decisions in Bachhaj Nahar v. Nilima Mandal, (2008) 17 SCC 491: AIR 2009 SC 1103 and Union of India v. Ibrahim Uddin, (2012) 8 SCC 148. Thus, besides the requirements prescribed by Order XLI Rule 27(1) of the Code being fulfilled, it would also be necessary for the Appellate Court to consider the pleadings of the party seeking to of lead such additional evidence. It is only thereafter, on being satisfied that a case as contemplated by the provisions of Order XLI Rule 27(1) of the Code has been made out, that such permission can be granted. In the rt absence of such exercise being undertaken by the High Court in the present case, we are of the view that it committed an error in allowing the application moved by the defendant for leading additional evidence."
16. In the present case, the plaintiffs specifically asserted in para 6 of the plaint that the tenancy rights cannot be bequeathed. Defendant did not plead in response that Ishru had died and Panchi had become the owner on the date of the execution of the Will. Therefore, the defendant is leading evidence to prove a plea that was never taken, and the additional evidence cannot be allowed to be led.
17. The defendant wants to prove the copy of the Pariwar register and certificate issued based on this entry to establish the date of death of Ishru. This is not permissible. It was laid down by the Division Bench of this Court in State of H.P. v. Janam ::: Downloaded on - 10/03/2026 20:33:48 :::CIS 10 2023:HHC:10350 Singh, 2010 SCC OnLine HP 649, that a copy of the pariwar register is not admissible to prove the date of birth, and only the .
entry in the register of birth and death can be admitted. It was observed:
"The Pariwar register has virtually no evidentiary value to prove the age of a person. The best evidence in this of regard is the birth and death register, which was not available and has not been produced."
18. A similar view was taken in State of H.P. v. Sunil rt Kumar, 2011 SCC OnLine HP 4780, wherein it was observed:
"11... Family register is not a statutory register required to be maintained under the provisions of the Registration of Births and Deaths Act, 1969. Prosecution ought to have proved that the register required to be maintained under the said Act was either not maintained or that the entries in the Parivar register were got recorded by or through them in accordance with law..."
19. Therefore, the copy of pariwar register cannot be proved, and only an entry made in the birth and death register could have been proved. Hence, the application cannot be allowed on this ground as well.
20. Thus, the application for leading additional evidence fails, and it is dismissed.
::: Downloaded on - 10/03/2026 20:33:48 :::CIS 112023:HHC:10350 Substantial Question of Law No. 1:-
21. The law related to the ouster of the jurisdiction of the .
Civil Court was elaborately discussed by the Hon'ble Supreme Court in Dhulabhai v. State of M.P., (1968) 3 SCR 662: AIR 1969 SC 78: 22 STC 416 as under:
35. The result of this inquiry into the diverse views of 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 rt held to be excluded if there is an 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 complied with, or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.
(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 ::: Downloaded on - 10/03/2026 20:33:48 :::CIS 12 2023:HHC:10350 constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.
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(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 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 of 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 rt 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 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 down apply.
22. 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.
23. Section 43 of the H.P. Tenancy and Land Reforms Act reads as follows:
"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 ::: Downloaded on - 10/03/2026 20:33:48 :::CIS 13 2023:HHC:10350 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."
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24. Section 57 of the Act provides for the application and proceedings cognizable by the revenue officer. It reads as fol-
lows:
57. Application and proceedings cognizable by of Revenue Officer.
(1) The following applications and proceedings shall be disposed of by Revenue Officers as such, and no Court shall take cognisance of any dispute or rt 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;
xxxxxx
25. Section 58 creates a bar regarding the jurisdiction of the Civil Courts regarding the suit cognizable by the revenue courts. It reads as follows:
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 ::: Downloaded on - 10/03/2026 20:33:48 :::CIS 14 2023:HHC:10350 jurisdiction within any local limits under this Act shall be a Revenue Court of the same class having jurisdiction within the same local limits.
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(3) The following suits shall be instituted in and heard and determined by Revenue Courts, and no other Court shall take cognisance of any dispute or matter with respect to which any suit might be instituted:--
First Group of
(a) suits between landowner and tenant for addition to or abatement of rent under section 22 or for commutation of rent;
rt (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;
(e) any other suit between landowner and tenant arising out of the condition on which a tenancy is held;
(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 ::: Downloaded on - 10/03/2026 20:33:48 :::CIS 15 2023:HHC:10350 as an arrear of land revenue under any enactment for the time being in force. Procedure where a revenue matter is raised in the Civil Court .
xxxxxxx
26. 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 jurisdiction under section 58 applies to those cases where the of status of the landowner and tenant was not disputed. It was observed at page 10:
rt "7. I see much force in the arguments advanced by the learned counsel for the respondent plaintiffs. 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. 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 cognisance 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):--::: Downloaded on - 10/03/2026 20:33:48 :::CIS 16
2023:HHC:10350 ".....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 cognisance 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 of 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 rt 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 Chapter VI of the Specific Relief Act, 1963. The Courts below, as such, were right in their view that the Civil Court had jurisdiction to entertain and decide the suit."
27. In the present case, the parties are 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 to hear and entertain such a suit is not barred. Hence, the substantial question of law is answered against the appellant-
defendants.
::: Downloaded on - 10/03/2026 20:33:48 :::CIS 172023:HHC:10350 Substantial Question of Law No. 2: -
28. Learned Trial Court held that 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 copy of Jamabandi for the year 1977-78 (Ext. PA) in which Smt. Ishru widow of Devi Dayal, was recorded as the owner, and Panchi was of recorded as a tenant. Section 104(8) of the H.P Tenancy and Land Reforms Act provides that a tenant under a widow will not be-
rt come the owner under the Act. It reads as follows:
"(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 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 an 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:
(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;::: Downloaded on - 10/03/2026 20:33:48 :::CIS 18
2023:HHC:10350
(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 is either owned by or is vested in the Government under any law, whether before or after the commencement of this Act and is leased out to any of person."
29. Therefore, Panchi, being a tenant under Ishru, a rt widow, would not have become the owner because of the protection provided under Section 104 (8) of the HP Tenancy and Land Reforms Act.
30. Learned Trial Court relied upon the judgment of this Court in Daulat Ram and others versus State of Himachal Pradesh and others, 1979 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 ::: Downloaded on - 10/03/2026 20:33:48 :::CIS 19 2023:HHC:10350 shall vest in the tenants free from all encumbrances 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 conclusive proof of 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 person so entered shall become the owner by virtue of the rt 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 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 - 10/03/2026 20:33:48 :::CIS 20
2023:HHC:10350
31. 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, and the learned First Appellate Court had rightly held it to be so.
32. Learned First Appellate Court held that it was not permissible to bequeath the tenancy. There is no infirmity in of this finding recorded by the learned First Appellate Court. It was laid down by this Court in Devi Saran vs. Lekh Ram and others rt 1992 (1) Shim LC 46 that a tenant could not have transferred a tenancy 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 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 is void-ab initio, meaning thereby that the appellant did not inherit any interest, nor he has any locus standi to ::: Downloaded on - 10/03/2026 20:33:48 :::CIS 21 2023:HHC:10350 institute the suit. On that Court too, his suit is liable to be dismissed."
33. Similar is the judgment in Bhola versus 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 a Will which is not a transfer inter vivos. This argument has been raised to be rejected because the rule of succession of laid down under Section 45 of the Act is absolute and also exclusive. It cannot be sustained 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 the rt 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 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."
34. This position was reiterated in Mansha Ram versus Tulsi Devi and others, 1998(2) Current Law Journal 32, regarding the land covered under H.P. Abolition of Big Landed Estates and Land Reforms Act, 1953, and it was held:
::: Downloaded on - 10/03/2026 20:33:48 :::CIS 222023:HHC:10350 "29. If the argument put forth 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 persons 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 of to claim any right in the tenancy, being an heir of the tenant, much less on the strength of a 'Will'. The provisions contained in Section 68 read with Section 54 of the Act leave no room for doubt, and the tenant cannot be rt permitted to create any right whatsoever except as which is provided 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."
35. Therefore, it is not permissible to bequeath the tenancy rights of a person.
36. In the present case, Panchi continued to be a tenant, and he could not have bequeathed his right. This substantial question of law is answered accordingly.
Substantial Question of Law No. 3:-
37. It was submitted that the dispute between the parties pertained 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 ::: Downloaded on - 10/03/2026 20:33:48 :::CIS 23 2023:HHC:10350 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 jurisdiction of the Civil Court to go into the validity of the order of is barred. It was observed:-
"4. So far the ratio in judgment in Chuhniya v. Jindu Ram's rt 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 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.
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 ::: Downloaded on - 10/03/2026 20:33:48 :::CIS 24 2023:HHC:10350 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:
"...........It is implicit in sub-section (4) of Section 104 that the Legislature envisaged that a dispute of 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 rt 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 :
"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, 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 does the Legislature rule 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:
::: Downloaded on - 10/03/2026 20:33:48 :::CIS 252023:HHC:10350 "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 of 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 rt 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 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 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."
38. It was laid down by this Court in Tajdin vs. Milkho Devi and Ors. (29.04.2005 - HPHC): MANU/HP/0337/2005 that the jurisdiction of the Civil Court is only barred when some order ::: Downloaded on - 10/03/2026 20:33:48 :::CIS 26 2023:HHC:10350 has been passed by the Land Reforms Officer and not otherwise.
It was observed:
.
"The bar to the jurisdiction of the Civil Court under Section 112 of the Tenancy and Land Reforms Act will only apply when the validity of proceedings or order made under 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, Commissioner of or Financial Commissioner can also not be challenged before the Civil Court unless the same is in violation of the principles of Natural Justice or is contrary to the provisions of the Rules or the Act. The foundation for this rt must be laid in the plaint. It is the averments made in the plaint which will show the Civil Court has or does not have jurisdiction to entertain the suit."
39. It was laid down by this Court in Amar Chand vs. Thakri Devi (19.07.2005 - HPHC): MANU/HP/0261/2005 that when the dispute was between two persons claiming to be the tenants, the jurisdiction of the Civil Court is not barred. It was observed:
"9...A question which arises between two persons, each claiming to be tenant in respect of a given extent of land, as in the present case, cannot be said to be a dispute between the owner of the land and the tenant, nor has such a question any relevance to the proceedings required to be conducted under Chapter X of the Act and hence the Land Reforms Officer does not have the jurisdiction in respect of such a dispute. To such matters, the provision of Section 112 of the Act barring the jurisdiction of the Civil Court is not attracted."
40. In the present case, there is no dispute related to the conferment of the proprietary rights; rather, the dispute is ::: Downloaded on - 10/03/2026 20:33:48 :::CIS 27 2023:HHC:10350 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:
41. In view of the aforesaid discussions, the present of appeal fails, and it is dismissed.
(Rakesh Kainthla)
rt Judge
10th March, 2026
(Chander)
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