Himachal Pradesh High Court
Mandir Thakurdwara vs Raj Kumar & Ors on 18 September, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 104 of 2003 .
Reserved on: 12.09.2019 Date of decision: 18.09.2019.
Mandir Thakurdwara .....Appellant/Plaintif Versus Raj Kumar & Ors. .....Respondents/defendants Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
No. Whether approved for reporting?1 For the Appellant/Plaintif: Mr. Bhupender Gupta, Sr. Advocate, with Mr. Janesh Gupta, Advocate.
For the Respondents/Defendants: Nemo Tarlok Singh Chauhan, Judge Plaintif is the appellant, who having lost before both the learned Courts below, has filed the instant appeal.
The parties hereinafter shall be referred to as the 'plaintif' and 'defendants'.
2. Brief facts of the case are that plaintif has filed a suit for declaration to the efect that he was owner in possession of the land measuring 5 kanals 12 Marlas, comprised in Khewat No. 218, 1012, Khatauni No. 274 min. 1400, Khasra Nos. 625, 626, 627, 628 and 631 situated in village Dulehar Teh. & District 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 29/09/2019 04:31:01 :::HCHP 2 Una. It was alleged that entries of possession as tenant in the revenue papers in the name of defendants are wrong, invalid, .
false, inefective, without jurisdiction made at the back of the plaintif and subsequent mutation No. 4645 dated 05.05.1983 conferring ownership rights to them with respect to the suit land on the basis of the said wrong entries was also wrong, illegal, invalid, null and void as against the rights of the plaintif, as a consequential relief for issuance of permanent restraining the defendants from interfering in any manner in the possession of the plaintif or taking forcible possession thereof injunction and in the alternative suit for possession.
3. It was further pleaded by the plaintif that Mahant Hari Dass was the Mohitmim of Mandir Thakur Dwara who looked after the management of property including the suit land and other afairs and neither the plaintif nor his predecessor-in-
interest had inducted the defendant Kashmiri Lal now deceased as tenant over the suit land. The entries of possession in the column of cultivation in the revenue record in the name of the defendant as tenant were wrong, false, fictitious, illegal, null and void and against the rights of the plaintif and subsequent mutation No. 4645 dated 05.05.1983 regarding the conferment of proprietary rights on defendant on the basis of wrong entries is inefective and not binding upon the plaintif.
::: Downloaded on - 29/09/2019 04:31:01 :::HCHP 34. It was further alleged by the plaintif that under the garb of illegal entries and subsequently the mutation regarding .
conferment of proprietary rights the defendant Kashmiri Lal (now deceased) had started threatening the plaintif to take forcible possession of the suit land without any right, title or interest over the same. Hence, the present suit.
5. The suit was contested by the defendants by filing written statement whereby they had taken the preliminary objections that the plaintif was estopped to file the present suit by his act and conduct; that the present suit was barred by law of limitation; that the Mahant Hari Dass has got no locus standi to file the present suit as he was not the so called Mahant of the plaintif and that the learned Trial Court has got no jurisdiction to hear and decide the present suit.
6. On merits, the defendant has denied the avements made by the defendant and specifically pleaded that Mahant Hari Dass is not Mohitmim of plaintif and, as such, has no right to file the present suit. The defendants was in cultivatory possession of the suit land since the time of his fore-fathers and they have raised kucha abadi over the land as non-occupancy tenant on payment of rent to the plaintif-owner through the Mohitmim and now he has become owner by enforcement of H.P. Tenancy and Land Reforms Act. He has further pleaded that ::: Downloaded on - 29/09/2019 04:31:01 :::HCHP 4 earlier Mohitmim has inducted the present defendant as non-
occupancy tenant and has been receiving the Bataee rent from .
him. The mutation regarding conferment of proprietary rights was rightly sanctioned by the revenue officer. The plaintif had gone in appeal against the said mutation order before the Collector and same had been dismissed on 07.03.1984, and now the plaintif has no locus standi to file the present suit, he has litigation.
7. In replication, prayed for special cost for dragging him unnecessarily in the the plaintif controverted the allegations of the defendants and re-affirmed and reiterated the averments made in the plaint.
8. On the pleadings of the parties, the learned Trial Court, on 12.03.1991, framed the following issues:-
1. Whether the plaintif is owner in possession of the suit land as alleged?OPP
2. Whether Mahant Hari Dass has locus-standi to file present suit?OPP
3. Whether plaintif is estopped by his act and conduct? OPD
4. Whether suit is within limitation?OPP
5. Whether Civil Court has no jurisdiction?OPD
6. Relief.
9. Learned trial Court after recording evidence and evaluating the same, dismissed the suit of the plaintif vide judgment and decree dated 01.07.1998.
::: Downloaded on - 29/09/2019 04:31:01 :::HCHP 510. Aggrieved by the judgment and decree passed by the learned Trial Court, the plaintif filed an appeal before the .
learned first Appellate Court, which also came to be dismissed vide judgment and decree dated 03.01.2003, constraining the plaintif to file the instant appeal.
11. On 27.03.2008, the appeal came to be admitted on the following substantial questions of law:-
1. Whether both the Courts below have acted beyond their jurisdiction to declare the defendant-respondents to be owners having acquired proprietary rights on the basis of alleged existence of relationship of land owner and tenant between the parties? Have not both the courts below ignored the factum of plaintif being a perpetual minor whose rights were protected under the provisions of HP Tenancy and Land Reforms Act?
2. Whether the mutation of conferment of proprietary rights was beyond the jurisdiction of the authorities attesting the same, could the suit of the plaintif-appellant for recovery of possession based on title be dismissed as barred by limitation having the provisions of Limitation Act being wrongly appreciated and misapplied by courts below.
3. Whether both the Courts below have acted with material illegality and irregularity in dismissing the suit of the plaintif-appellant by holding that the civil Court had no jurisdiction? Are not the findings of both the Courts below illegal, erroneous and perverse when it was established that the sanctioning of the mutation was beyond the jurisdiction of the authorities who do not conform with the principles of law and procedure?::: Downloaded on - 29/09/2019 04:31:01 :::HCHP 6
12. At the outset, before answering substantial questions of law, it has to be borne in mind, that the property in this case belongs .
to an institution and this Court in RSA No. 478 of 1989, title Thakarji Maharaj and others vs. Dhani Ram, decided on 01.07.1997, while dealing with a case of appellant herein, has categorically held that Mahant, Mohitmim and Manager has no power to alienate the property of the institution except for the benefit of the deity on a legal necessity.
13. It would be apposite to reproduce the relevant observations, which read as under:-
"14. The learned first appellate Court in the impugned judgment has certainly gone wrong to observe that the onus to prove that the Mahant did not have the authority to alienate the property, lay upon the plaintif. It is too well-known that a Mahant has no right or authority to alienate the property which is attached to the institution except for legal necessity. No such necessity has been even remotely suggested by the defendant, least proved.
14. Even a property is acquired by an individual who belongs to a particular sect or fraternity, the acquisition so made is to be considered as the acquisition of that religious or charitable institution to which he belongs. A person who enters religious fraternity, severs all connections with his natural family and is not entitled to inherit the property as a heir in his own family.
15. A religious Trust, the management, the office and the property attached to the institution cannot be alienated by the office-holder of the institution for the time being. The office-holder may, in the given situation, ::: Downloaded on - 29/09/2019 04:31:01 :::HCHP 7 be called a Mahant, Mohitmim, Manager, Gadinashin, spiritual head of the Muth, a Granthi, Matwali or a .
Sujdanashin.
16. The office-holder has a very restricted right of alienation and if at all a situation of that kind arises, it has to be seen whether there was unavoidable necessity warranting such type alienation or not.
17. If it is proved that the alienation was entered into for the benefit of the deity or for defending hostile litigation, a case may be made out to support such alienation. If an alienation is held to be illegal, it may, in the given situation, be a ground for the removal or expulsion of the office-holder from his status.
18. A Mahant possesses wide powers of administration in respect of the property that is attached to the temple, 'Dera', 'Math' or 'Thakardwara' by virtue of the office he holds. He holds the institution and its properties in the position of a Trustee and like a guardian of an infant minor. The property held by him is to be utilized for the purposes of the institution to fulfill the aims and objects for which it has been so founded. The Mahant has vast powers which are manifested in respect of collection of rents and profits, earnings from oferings and a wide discretion in the application of funds.
19. A Mahant, as a head of the institution and being in- charge of its afairs in his capacity as such can, no doubt, incur debts and borrow money for the upkeep and maintenance of the customary rituals and ceremonies as well as for the preservation of the Trust property.
20.The Judicial Committee in Hunooman Persaud Mussamat Babooee (1856) 6 M.I.A. 393 has defined the power and authority of a Mahant in regard to the alienation of the property as analogous to that of a manager for an infant minor. It was further held that he ::: Downloaded on - 29/09/2019 04:31:01 :::HCHP 8 has no power to alienate the debutter property except "in a case of need or for the benefit of the estate."
.
21. It may also be noticed that needs to be emphasised that a Mahant has no right to grant a permanent lease what to talk of outright sale. It has been held by their Lordship of the Privy Council in the case reported in AIR 1933 Privy Council 75, (Ram Charan Das vs. Naurangi Lal and others) that an alienation by Mahant of property belonging to mutt is good and efective for life time of such Mahant and adverse possession of alinee begins only on his death or removal and not from the date of alienation. At page 78 it has been observed that a Mahant is at liberty to dispose of the property of a mutt during the period of his life and a grant purporting to be for a longer period is good to the extent of Mahant's life interest. Whatever the intended duration of the attempted grant may be, it is good but good only for the limited period indicated. It, thus, follows that the property attached to the institution in the real sense belongs to the idol installed therein. Even the building consisting of brick, mortar and earth where the idol is installed, belongs to it. Since, the idol in the very nature of things is unable to manage its afairs, it has to work through a human agency who would be the Mahant or office-holder of the institution in the given situation. A Mahant, admittedly, cannot delegate his powers.
22. In my considered view, even a long lease at a fixed rent cannot be termed as an act of good management. Even short leases should be proved to have been entered into for the benefit of the endowment and a lease on a fixed rent for a long time can certainly not be held to be for the benefit of the endowment for augmentation of a variable rent from time to time. A lease created in complete derogation of this rule, would amount to breach ::: Downloaded on - 29/09/2019 04:31:01 :::HCHP 9 of duty on the part of the Mahant who is the custodian of the Trust. It is also a settled proposition that where the .
succession to the 'GADI' has devolved from 'Guru' to 'Chela', the presumption is that the institution and the property is dedicated to religious use and the property, even if it is recorded in the personal name of the Mahant, will not belong to him but would belong to the institution of which he is Mahant for the time being.
14. Similar reiteration of law can be found in another judgment of this Court in Smt. Urmil Commissioner, AIR 2017 HP 183, wherein the ratio of the judgment is in tune with of Dhani Ram's case (supra) and it Gupta vs. has been specifically held that "Mohitmim has no power to alienate debutter property except in case of need or for benefit of the estate".
15. It would be apposite to refer to the relevant observations, which read thus:-
16. In the present case, even if facts/averments, as contained in plaint, are taken to be correct, one Ramanuj, who was 'Mohatmim', created a permanent lease in respect of the suit land in favour of the plaintif by executing a lease deed Ex. PW-2/A for leased money at the rate of Rs.100/- per annum. 'Mohatmim' Ramanuj, at the time of leasing out property, was acting like the guardian of temple and as such he had no authority, whatsoever, to lease out property belonging to the Deity. It is well settled that property given for maintenance of religious worship and of charities connected with it is inalienable and the powers of 'Mohatmim' or a Mahant to ::: Downloaded on - 29/09/2019 04:31:01 :::HCHP 10 alienate debutter property is analogous to that of a manager for an infant heir. 'Mohatmim' has no power to .
alienate the property except for his need or for benefit of the estate.
17. Hon'ble Apex Court in case titled as Sridhar Suar and another vs. Shri Jagan Nath Temple and others, AIR 1976 SC 1860, which has also been taken note of by the learned first appellate Court, has categorically held that it is beyond the powers of a manager to grant a permanent lease at a fixed rent I the absence of unavoidable necessity; for, to fix the rent, though adequate at the time in perpetuity, in lieu of giving the endowment the benefit of an augmentation of a variable rent from time-to-time would be a breach of duty on the part of the manager. It has been specifically held that the 'Mohatmim' has no power to alienate debutter property except in case of need or for benefit of the estate. Hon'ble Apex Court has further held in the aforesaid judgment that 'Mohatmim' is not entitled to sell the property for the purpose of investing the price of it so as to bring in an income larger than that derived from the property itself. Nor can he, except for legal necessity grant a permanent lease of debutter property, though he may create proper derivative tenures and estates conformable to usage.
18. It would be profitable to take note of the following paras of the judgment supra:
"14. Now assuming without holding that the Sanand amounted to a lease, it cannot even then be held to be valid as permanent alienation of the temple debutter properties prohibited. The position is stated thus at page 489 of Mulla's Treatise on Principles of Hindu Law (11th Edition):
"The power of a shebait or a mohunt to alienate debutter property is analogous to that of a manager for an infant heir as defined by the Judicial Committee in Hunooman Pershad vs. Mussamat Babooee 6 MIA 393. As held in that case, he has no power to alienate debutter proerty expect in a case of need or for the ::: Downloaded on - 29/09/2019 04:31:01 :::HCHP 11 benefit of the estate. He is not entitled to sell the property for the purpose of investing, the price of it so as to bring in an income larger than that derived from .
the property itself. Nor can he, except for legal necessity grant a permanent lease of debutter property, though he may create proper derivate tenures and estates conformable to usage."
16. Once the ratio of the aforesaid judgments is absolutely clear then, judicial comity, discipline, concomitance, pragmatism, poignantly point, per force to observe constitutional propriety and adhered to the decision rendered by the Coordinate Bench, more particularly, when I see no reason to disagree with the view taken in the aforesaid judgments. Thus, what stands settled is that the power of Shebait, Mohitmim or a Mahant to alienate deity's property is analogous that of a Manager for an infant heir and he has no power to alienate such property except in case of need for the benefit of the estate, which is not the fact situation obtaining in the instant case.
Substantial Question of Law No. 117. Now proceeding to determine the question of ownership by the defendants by conferment of propriety rights under the H.P. Tenancy and Land Reforms Act, it needs to be observed that the property admittedly belongs to idol, who is perpetual minor and, therefore, no propriety rights qua its property can be conferred on any person in terms of sub Sections 8 and 9 of Section 104, which read as under:-
::: Downloaded on - 29/09/2019 04:31:01 :::HCHP 12(8) Save as otherwise provided in sub-section (9), nothing contained in sub-section (1) to (6) shall apply to a tenancy .
of landowner owner during the period mentioned for each category of such landowners in sub-section (9), who,-
(a) is a minor or unmarried woman, or if married, divorced or separated from husband ow widow; or
(b) is permanently incapable of cultivating land by reason of any physical or mental infirmity; or
(c) is a serving member of the Armed Forces; or
(d) is the father of the person who is serving in the Armed Forces, up to the extent of inheritable share of such a member of the Armed Forces on the date of his joining the Armed Forces, to be declared by his father in the prescribed manner.
(9) In the case of landowners mentioned in clauses (a) to
(d) of sub-section (8), the provisions of sub-sections (1) to (6) shall not apply:-
(a) In case of minor during his minority and in case of other persons mentioned in clauses (a) and
(b) of sub-section (8) during their life time;
(b) in case of persons mentioned in clauses (c) and (d) sub-section (8) the period of their service in the Armed Forces subject to resumption of land by such persons to the extent mentioned in first proviso to clauses (d) and (dd) of sub-section (1) of section 34 Provided that nothing contained in this section shall apply to such land which is either owned by or is vested in Government under any law, whether before or after the commencement of this Act, and is leased out to any person."
18. Now, adverting to the plea of tenancy, it needs to be noticed that there is no presumption of tenancy and the same has to be proved in accordance with law.
19. This question has been dealt with in detail by a Coordinate Bench of this Court in Mangsharoo vs. Sarfu, 2011 (3) HLR 1413, wherein it was observed as under:-
::: Downloaded on - 29/09/2019 04:31:01 :::HCHP 13" 16. Adverting to the first question dealing with the affidavit Ex.PW-1/B and Ex.DA, a number of submissions .
have been made by the learned counsel appearing for the parties. The sale deed has been upheld by the learned trial Court and I do not see any cogent reason to difer with that finding. In-fact, it is a registered document and there is nothing on record to establish/show that the plaintif is not owner of the suit land. Ex.PW-1/A which is same as Ex.DA, is an affidavit executed by Amerpur before the Compensation Officer, Rohru. It states that Amerpur son of Sarnu in some proceedings, titled: Madan son of Mangal Dass son of Usfu and Sarfu son of Karmu. I find that it does not talk about tenancy rights or all that it records is that Sarfu has given 15 bighas 19 biswas of land in Khasra No.59, Khata-Khatauni No.15/28 to Mangal Das s.How and in what circumstances the Court used this as interpreting to mean that there was actually tenancy on the land, is not clear. Adverting to the sale deed Ex.PW-1/A it shows that the possession of the land sold has been delivered to the plaintif herein. In these circumstances, I find that two Courts below have been remiss in holding that this document itself constitutes the starting point/creation of any tenancy. Question Nos.2 and 5:
17. In question No.2, both the parties have cited a number of judgments in support of their contentions.
Before adverting to the facts, the law cited by learned counsel may be considered. Learned counsel for the appellant relies upon the decision of the Lahore High Court in Girdhari Ram and others vs. Qasim and others, AIR 1936 Lahore 461, holding:-
"... ... ... ... ... ... ... ... I am aware of the fact that it is the practice of revenue authorities in this province to record a person, who is in possession of land without any ostensible title thereto, in the column of cultivator ::: Downloaded on - 29/09/2019 04:31:01 :::HCHP 14 describing him as a tenant-at-will, and that sometimes a remark is added mentioning the grounds on which the person in possession claims to be in possession. No .
presumption of tenancy necessarily arises in such cases, but in the present case there is something more than that."
(p.462)
18. In Relhu Ram vs. Than Singh and others, 1966 (LXVIII) P.L.R.866 again the Court holds:-
"5. Mr.Nehra then sought to contend that the defendants had established on the present record that they were the tenants of the land in dispute.
Again on this matter there is a concurrent decision on a question of fact by the courts below which is binding on me in second appeal. Moreover, there is no evidence that any rent was being paid by the defendants to the plaintifs. As a matter of fact the entry is that they are paying no rent because of assertion of ownership. Therefore, the documentary evidence clearly shows that the entry that the tenants are non occupancy tenants is clearly erroneous. It is well known that the revenue authorities when they find a person in possession of the land without any right normally record him as a tenant irrespective of the fact whether he is a tenant or not. Non-payment of rent negatives existence of relationship of landlord and tenant. This was so held in Kanwar A. Ahmed Khan v. The Union of India, (1954)56 P.L.R.468:-
"The relationship of landlord and tenant comes into existence as the result of an agreement, express or implied. It may be implied from the acts and conduct of the parties which indicate that the landlord intended to divest himself of the possession of the premises and that the tenant intended to assume possession thereof. One of the most important circumstances from which this inference may be drawn is the payment of rent, for although rent is not an essential, it is a normal incident of tenancy, and the fact that a person in possession of the ::: Downloaded on - 29/09/2019 04:31:01 :::HCHP 15 premises paid rent to the owner thereof indicates to an extent at least that the relationship of landlord and tenant exists between the parties. On the other .
hand the fact that no rent was paid would lead one to a contrary conclusion and negative the existence of such relationship." (pp.868-869)
19. In Maman Singh vs. The Resident Magistrate, Gohana and others, 1965(LXVII) P.L.R. 161, the Court holds:-
"5. ... ... ... ... ... ... ... ... ... It is well-settled that in deciding whether a person is a tenant, we have not to look to the entries in the column of cultivation in the jamabandi because that column only gives the name of the person in occupation, irrespective of the capacity in which he is occupying the land. On the contrary we have to look to the column of rent because it is the entries in that column which go to show as to whether the person is occupying the land as a tenant, and if so, on how much rent, or whether he is occupying the land rin any other capacity. See Ghulam Murtaza v.Nagina, A.I.R.1930 Lah.991, Puran v.Kure, 57 P.L.R.,57 and Sher v.Phuman Ram, 1942 P.L.R. 497. .... ... ... ... ... ... ..."
(p.163)
20. To similar efect is the judgment of the Punjab High Court in Shri Tarlok Singh vs.Shri Harnam Singh and Another, 1974 P.L.J. 396, holding that the non-payment of rent negatives the existence of relationship of landlord and tenant, the entries in cultivation column and in the rent column are to be read together in order to ascertain the rights of the parties, entries in Khasra Girdawari do not attach presumption of truth and in case of any conflict in the entries in the copies of Khasra Girdawari with the copies of Jamabandi, the Patwari has to be examined for explaining the discrepancy. Similar is the decision in Ajmer Singh and Another vs. Surjit Singh and others, 1992 PLJ 311, holding that a person reflected in cultivating possession of the suit land in the revenue record without mentioning any rent being paid does not establish the relationship of landlord and tenant. In fact, the Court held:-
::: Downloaded on - 29/09/2019 04:31:01 :::HCHP 16"7. ... ... ... ... ... ... ... Non-payment of rent negatives the existence of relationship of landlord and tenant. Thus, the case set up by the first appellate Court that .
the defendants were in permissive possession cannot be sustained either on facts or in law."
21. Last case relied upon by the appellant is Kanshi Ram and Others vs. Rawat Singh and others, 1 972 P.L.J. 580.
The Court holds:-
"2. ... ... ... ... ... ... ... It was nobody's case that these vendees were setting up any adverse possession or hostile title. The vendees were not claiming any better rights than those of tenants and they had actually paid a substantial amount to the owner in racknowledgement of his superior title or right of ownership in the land. The simple fact that the column of rent does not mention any lagan or rent would not imply that we can force on these persons who have been described as muzaras ghair maurusi the superior title or the ownership rights that they had never claimed. The expression "muzaras ghair maurusi" has to be given its ordinary meaning unless the entries in the column of rent were found to be inconsistent with the meaning to be assigned to the entries in the column of occupation. All the rulings cited before me by the counsel for the plaintif- pre-emptor are on altogether diferent facts. In Maman Singh v. The Resident Magistrate, Gohana and others, 1965 P.L.R. 161, Rulhu Ram v.Than Singh and others, 1966 P.L.R. 866 and Annamalai Goundan v.Venkatasami Naidu and others, A.I.R. 1959 Madras 354, the person who was in possession and who was described as a tenant-at-will in the column of cultivation was claiming better rights and could show entries in the column of rent in support of his plea of prescriptive title or better rights and could show entries in the column of rent in support of ::: Downloaded on - 29/09/2019 04:31:01 :::HCHP 17 his plea of prescriptive title or better rights in the land. The entries in the column of rent in our case do not .
suggest that the person in possession was anything over and above a tenant-at-will as described in the column of cultivation and the person in possession does not claim any rights which could be described as hostile to the true owner. The words `muzaras' or `ghair maurusi' or `tenant-at-will' in the column of cultivation have, therefore, to be given their ordinary meaning and there is nothing in the entries in the column of rent to suggest that this description of the person in possession was incorrect. In fact, the person in possession does not claim to have any better rights rthan that of a tenant-at-will. The Courts are not entitled to make out a case for the parties which had not at all been pleaded by them. ... ... ..
Accordingly, the substantial question of law is answered in favour of the plaintif and against the defendants.Substantial Question of Law No. 2
20. As regards question No. 2 regarding the limitation, it would be noticed that the suit could not have been barred by limitation by invoking the provisions of Article 58 of the Limitation Act or rather in the given circumstances when the plaintif was admittedly the owner, it was incumbent upon the defendants to prove a better title or raise a plea of adverse possession. Once these pleas are not raised, the mere fact that the revenue entries are in favour of the defendants is of no avail ::: Downloaded on - 29/09/2019 04:31:01 :::HCHP 18 and could not have formed the basis for computing the period of limitation.
.
Accordingly, the substantial question of law is answered in favour of the plaintif and against the defendants.Substantial Question of Law No. 3
21. It would be noticed that the learned Courts below have held that the Civil Court has no jurisdiction to entertain the suit filed by the plaintif. To say the least, such findings of the learned Courts below are totally perverse and, therefore, deserves to be set aside.
22. As observed above, the property in question belongs to a minor and, therefore, no propriety rights could have been conferred upon the defendants under sub Sections 8 and 9 of Section 104 as held above.
23. Therefore, the approach of the learned Courts below was totally erroneous when they held that there has been no statutory violation of the provisions of the Act at the time of conferment of proprietary rights.
24. This Court in Civil Revision Nos. 182 of 2015 and 183 of 2015, tittled as Sadhu Singh & Ors. vs. Surjit Singh and another connected matter, decided on 24.10.2018, after taking into consideration the judgment in Chuhniya Devi vs. Jindu Ram, 1991(1) Shim.L.C. 223 and hosts of other ::: Downloaded on - 29/09/2019 04:31:01 :::HCHP 19 judgments of this Court, has laid down the following principles regarding the jurisdiction/exclusion of the jurisdiction of the Civil .
Court;
19. The principles, which can be deduced out of the aforesaid cases clearly, are as follow:
1. 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 land owner 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 judicial procedure or where the provisions of the Act had not been complied with, the jurisdiction of the civil court would be barred. But if the dispute of landlord and tenant arises independent of the proceedings under the Act, the Civil Court has the jurisdiction. (Refer:
Shankar's case)
2. 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 ChapterX 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 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, for which, the foundation must be laid in the plaint.::: Downloaded on - 29/09/2019 04:31:01 :::HCHP 20
3. It is the averment made in the plaint which will show the Civil Court has or does not have jurisdiction .
to entertain the suit. (Refer: Joginder's and Tajdin's cases)43
4.Only such types of cases are barred from the purview of the Civil Court where there was no dispute between the parties and the tenant cultivating the land was accepted to be in possession of it as a tenant. (Refer: Sheetla Devi's case) Meaning thereby, where the relationship between the parties that of landlord and tenant has not been admitted, the Civil Court has jurisdiction. (Refer: Sarv Dayal's case)
5. Where the proceedings have been conducted without jurisdiction, where the question of tenancy is disputed, independent of the proceedings under the HP Tenancy and Land Reforms Act, there is no finality to the adjudication of the revenue officials and, therefore, the jurisdiction of the Civil Court is not barred. (Refer: Krishan Chand's case)
6. Chuhniya Devi's case will have no applicability where the orders passed by the revenue authorities are not challenged. (Gaurju's case).
7. Apart from above, where the dispute is inter se the landlords or inter se the tenants, obviously then also, the same would not be barred and rather the same would be triable only by the civil court and not the revenue court.
25. It would be noticed that the case of the plaintif is squarely covered by principles No. 1, 3, 4, 6 and 7, therefore, only the Civil Court would have the jurisdiction to entertain the suit.
::: Downloaded on - 29/09/2019 04:31:01 :::HCHP 2126. Bearing in mind the aforesaid exposition of law, now in case, the relief claimed in the plaint is seen, it would be .
noticed that the plaintif had sought for decree for declaration to the efect that the plaintif is the owner in possession of the land and the alleged entries of possession as tenant in revenue papers in the name of the defendants were wrong, invalid, false, illegal, null and void, inefective without jurisdiction at the back of the plaintif and the subsequent mutation No. 4675 dated 05.05.1983 confers ownership rights in respect of the suit land on the basis of the wrong entries was also wrong, illegal, invalid, null and void and against the rights of the plaintif, as a consequential relief for issuance of permanent injunction restraining the defendants from interfering in any manner in the possession of the plaintif over the suit land or taking forcible possession thereof or in alternate for a decree of possession.
Accordingly, the substantial question of law is answered in favour of the plaintif and against the defendants.
27. In view of the aforesaid discussion, the appeal is allowed and the judgments and decrees passed by the learned Courts below are set aside. Consequently, the suit of the plaintif is decreed, as prayed for. Pending application(s), if any, stand(s) disposed of.
18th Sept., 2019 (Tarlok Singh Chauhan)
(sanjeev) Judge
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