Sh. Khalil & Others vs Sh. Meena @ Yamin & Another on 16 December, 2015

[Cites 12, Cited by 3]

Himachal Pradesh High Court

Sh. Khalil & Others vs Sh. Meena @ Yamin & Another on 16 December, 2015

Bench: Sanjay Karol

    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA




                                                                        .

                                    RSA No. 312 of 2004

                                    Date of Decision : December                 16 , 2015





    Sh. Khalil & others                                     ...Appellants




                                                  of
                                    Versus

    Sh. Meena @ Yamin & another
                      rt                                    ... Respondents.


    Coram:

    The Hon'ble Mr. Justice Sanjay Karol, Judge.

    Whether approved for reporting?           1



    For the appellants            : Mr. Karan Singh Kanwar, Advocate, for the
                                    appellants.




    For the respondents          : Mr. Ramakant Sharma, Sr. Advocate, with
                                   Ms. Anita Dogra, Advocate, for the





                                   respondents.





    Sanjay Karol, J. (Oral)

This regular second appeal stands filed under the provisions of Section 100 of the Code of Civil Procedure.

2. Plaintiff (appellant herein) filed a suit for declaration and injunction against the defendants Whether reporters of Local Papers may be allowed to see the judgment?

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(respondents herein). Declaration was sought to the effect that plaintiff, as owner, is in possession of the suit land.

Defendant resisted the same inter alia on the ground that the question of title stood raised by the plaintiff in the proceedings for partition before the Assistant Collector 1st Grade. As on the date of filing of the suit, appeal against the of said order was pending before the higher authority.

3. Based on respective pleadings of the parties, rt trial Court framed the following issues:-

1. Whether plaintiff and defendant No. 2 are co-sharer in equal share in the suit land, if so, its effect? OPP

2. Whether the defendant No. 1 has wrongly been entered as owner, if so, its effect? OPP

3. Whether the plaintiff is estopped by his act, conduct and acquisance? OPD

4. Whether there was a settlement of the property of Nizamu Deen and defendant No. 2 was given 8 bighas of land? OPD

5. If settlement not proved whether defendant No. 1 in adverse possession since 1971, if so, its effect? OPD

6. Whether the Civil Court has no jurisdiction to try the suit u/s 171 of H.P. L.R. Act? OPD

7. Whether the suit is hit by res-judicata? OPD ::: Downloaded on - 15/04/2017 19:32:09 :::HCHP 3

8. Relief.

.

4. Trial court in terms of judgment dated 16.12.2002, passed in Civil Suit No. 46/1 of 2001/99, titled as Dasondhi (Deceased) through LRs vs. Mina @ Yamin & another, by only answering issue No. 6, rejected the plaint of on the jurisdictional issue, which finding stands affirmed by the lower appellate Court in terms of judgment dated rt 12.5.2004, passed in Civil Appeal No. 04-CA/13 of 2003, titled as Khalil & others vs. Meena @ Yamin & another.

5. The appeal stands admitted on the following substantial question of law:-

"1. Whether Civil Court has no jurisdiction under Section 171 of the H.P. Land Revenue Act, 1954 to give declaration to the plaintiff of his title to the suit land even though question of title raised by the plaintiff in the partition proceedings has not been decided by Assistant Collector or by Civil Court as per mandatory provision under Section 129 of the aforesaid Act."

6. Having heard learned counsel for the parties as also perused the record, I am of the considered view that no ground for interference is made out in the present appeal.

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7. Section 171 of the Himachal Pradesh Land Revenue Act, 1954 (hereinafter referred to as the Act) reads .

as under:-

"171. Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers. - Except as otherwise provided by this Act -

(1) A Civil Court shall not have jurisdiction in any of matter which the State Government or a Revenue Officer is empowered by this Act, to dispose of or take cognizance of the manner in which rt the State Government or any Revenue Officer exercise any powers vested in it or him by or under this Act, and in particular -

(2) A Civil Court shall not exercise jurisdiction over any of the following matters, namely -

(i) any question as to the limits of any land which has been defined by a Revenue Officer as land to which this Act does or does not apply;

(ii) any claim to compel the performance of any duties imposed by this Act or any other enactment for the time being in force on any Revenue Officer, as such;

(iii) any claim to the officer of kanungo, or village officer, or in respect of any injury caused by exclusion from such office, or to compel the performance of the duties or a division of emoluments thereof;

(iv) any notification directing the making or revision of a record-of-rights;

(v) the framing of a record-of-rights or periodical record or the preparation, signing or attestation of any of the documents included in such a record;

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(v-a) order regarding complete re-measurement of an estate or sub-estate under section 33-A of this .

Act;

(vi) the correction of any entry in a record of rights, periodical record or register of mutations;

(vi-a) correction of clerical errors under section 38-A of this act;

(vii) any notification of the undertaking of the of general reassessment or a district or tehsil having been sanctioned by the State Government;

(viii) the claim of any person to be liable for an assessment of land revenue or of any other revenue rt assessed under this act;

(ix) the amount of land revenue to be assessed on any estate or to be paid in respect of any holding under this act;

(x) the amount of, or the liability of any person to pay, any other revenue assessed under this Act, or any cess, charge or rate to be assessed on an estate or holding under this Act on any other enactment for the time being in force;

(xi) any claim relating to the allowance to be received by a land owner who has given notice of his refusal to be liable for an assessment, or any claim connected with, or arising out of, any proceeding taken in consequence of the refusal of any person to be liable for an assessment under this Act;

(xii) the formation of an estate out of waste land;

(xii-a) formation of Sub-Division of an estate or merger of sub-estates or estates etc. under section 34-A of this Act;

(xiii) any claim to hold free of revenue any land, mills, fisheries or natural products of land or water;

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(xiv) any claim connected with, or arising out of, the collection by the State Government, or the enforcement by the Government of any process for .

recovery of land, revenue or any sum recoverable as an arrear of land-revenue;

(xv) any claim to set aside, on any ground other than fraud, a sale for the recovery of an arrear of land revenue or any sum recoverable as an arrear of land- revenue;

(xvi) the amount of, or the liability of any person to of pay any fee, fines, costs or other charges imposed under this Act;

(xvii) any claim for partition of an estate, holding or tenancy, or any question connected with, or arising rt out of proceedings for partition not being a question as to title in any of the property of which partition is sought;

(xviii) any question as to the allotment of land on the partition of an estate holding or tenancy or as to the distribution of land subject by established custom to periodical redistribution, or as to the distribution of land-revenue on the partition of an estate or holding or on a periodical redistribution of land, or as to the distribution of rent on the partition of a tenancy;

(xix) any question connected with or arising out of or relating to any proceeding for the determination of boundaries of estates subject to river action under sections 108, 109, 110 and 111 respectively of Chapter VIII;

(xx) any claim to set aside or disturb a division or appraisement of produce confirmed or varied by a Revenue Officer under this Act;

(xxi) any question relating to the preparation of a list of village cesses or the imposition by the State Government of conditions on the collection of such cesses;

(xxii) any proceeding under this Act for the communication of the dues of a superior land-owner;

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(xxiii) any claim arising out of the enforcement of an agreement to render public service in lieu of paying .

land-revenue;

(xxiv) any claim arising out of the liability of an assignee of land-revenue to pay a share of the cost of collecting or reassessing such revenue, or arising out of the liability of an assignee to pay out of assigned land revenue, or of a person who would, be liable for land revenue, if it had not been released, compounded for, or redeemed, to pay on the land of revenue for which he would, but for such release, composition or redemption, be liable, such a percentage for the remuneration of a village officer as may be prescribed by rules for the time being in force under this Act;

rt (xxv) any question, as to any land or any right to, or title or interest in, the land which is an encroached land or in relation to which any person claims that it has vested or is deemed to have vested in him and that he can not be ejected therefrom under sub- section (1) of section 163; and (xxvi) the ejectment of any person under section 163 or the recovery of damages or fine payable under sub-section (1) of that section."

[Emphasis supplied]

8. Section 129 of the Act reads as under:-

"129. Disposal of questions as to title in property to be divided. - (1) When there is a question as to title in any of the property of which partition is sought, the Revenue Officer may decline to grant the application for partition until the question has been determined by a competent Court, or he may himself proceed to determine the question as through he were such a Court.

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(2) Where the Revenue Officer himself proceeds to determine the question, the following rule shall .

apply, namely -

(a) if the question is one over which a Revenue Court has jurisdiction, the Revenue Officer shall proceed as a Revenue Court under the provisions of law for the time being in force;

(b) if the question is one over which a Civil Court has jurisdiction, the procedure of the Revenue Officer of shall be that applicable to the trial of an original suit by a Civil Court, and he shall record a judgment and decree containing the particulars required by the Code of Civil Procedure to be specified therein; rt

(c) an appeal shall lie from the decree of the Revenue Officer under clause (b) as though that decree were a decree of a Subordinate Judge in an original suit;

(d) upon such an appeal being made, the District Court or High Court as the case may be, may issue an injunction to the Revenue Officer requiring him to stay proceedings pending the disposal of the appeal;

(e) from the appellate decree of a District Court upon such an appeal a further appeal shall lie to the High Court if such a further appeal is allowed by the law for the time being in force."

[Emphasis supplied]

9. Section 129 of the Act envisages two situations:

(i) Revenue Officer can decline application for partition till such time the question of title is decided by a competent Court, which can be by a Civil Court. (ii) He may himself determine the question of title by exercising the power, so conferred under the Act, that of a Civil Court. Now if the ::: Downloaded on - 15/04/2017 19:32:09 :::HCHP 9 Revenue Officer exercises such power of determining the title by converting himself into a Civil Court, then in view of .

sub-Section (1) of Section 171 of the Act the jurisdiction of Civil Court to determine the same, stands specifically ousted. Needless to add the question of title is to be determined by the Revenue Officer in accordance with the of provisions of Section 129 of the Act.

10. A Coordinate Bench of this Court in Dalip Singh & rt others vs. State of H.P. & others, 1992(1) Sim. L. C. 320 has categorically held that statute ousting the jurisdiction of the Civil Court is required to be strictly construed. To similar effect are the decisions rendered by the apex Court in Dhruv Green Field Ltd. vs. Hukam Singh & others, (2002) 6 SCC 416 and State of A. P. vs. Prameela Modi (Smt.) & others, (2006) 13 SCC 147.

11. In Dhruv Green Field Ltd. (supra), Court has held as under:-

"10. In the light of the above discussion, the following principles may be restated:

(1) If there is express provision in any special Act baring the jurisdiction of a civil court to deal with matters specified thereunder the jurisdiction of an ordinary civil court shall stand excluded.

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(2) If there is no express provision in the Act but an examination of the provisions contained therein leads to a conclusion in regard to exclusion of .

jurisdiction of a civil court, the court would then inquire whether any adequate and efficacious alternative remedy is provided under the Act; if the answer is in the affirmative, it can safely be concluded that the jurisdiction of the civil court is barred. If, however, no such adequate and effective alternative remedy is provided then exclusion of the jurisdiction of the civil court cannot be inferred.

of (3) Even in cases where the jurisdiction of a civil court is barred expressly or impliedly, the court would nonetheless retain its jurisdiction to entertain and adjudicate the suit provided the order complained of is a nullity."

12. On the asking of the appellants, Revenue Officer did proceed to determine the title of the parties in the proceedings for partition pending before him. It being a different matter that he did not follow the procedure nor was any decree sheet prepared by him. But then as has been held by this Court in State of Himachal Pradesh vs. Chet Ram, 2000 (3) Shim. L.C. 344 the appellants have a remedy of filing an appeal and not independently assail the order by way of a civil suit. In fact, appellants did prefer an appeal and have to exercise remedies only in accordance with the special statute.

13. Significantly in the case in hand, Section 129 of the Act categorically empowers the Revenue Officer to ::: Downloaded on - 15/04/2017 19:32:09 :::HCHP 11 determine the question of title by converting himself as a Civil Court and by virtue of the bar contained under Section .

171 of the Act, jurisdiction of the Civil Court is specifically barred on matters over which a Revenue Officer is empowered with, including correction of any entry in the record of rights, periodical record or register of mutations.

of Hence the substantial question of law is no longer res integra and is answered accordingly. The Courts below rt rightly held the jurisdiction of the civil court to have been ousted by a special statute in the aforesaid factual backdrop.

Consequently, appeal is dismissed. Pending applications, if any, also stand disposed of accordingly.

(Sanjay Karol), Judge.

    December    16 , 2015 (PK)





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