Himachal Pradesh High Court
Sanjay Sood And Another vs State Of H.P. And Others on 4 October, 2016
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 67 of 2007
.
Reserved on: 27/09/2016
Date of decision: 4/10/2016
Sanjay Sood and another
..Appellants/plaintiffs.
of
Versus
State of H.P. and others
..Respondents/defendants
Coram
rt
The Hon'ble Mr.Justice Sureshwar Thakur, J.
Whether approved for reporting?1.yes.
For the appellants: Mr. R.K.Bawa, Sr. Advocate with Mr. Amit Kumar, Advocate.
For the respondents: Mr. R.S.Thakur, Additional Advocate General for respondent No.1.
Sureshwar Thakur, J:
The instant appeal stands directed against the impugned judgement and decree of the learned Additional District Judge, Sirmaur District at Nahan, H.P. whereby, he set aside the verdict recorded by the learned trial Court whereby the plaintiffs and proforma defendants No. 4 and 5 stood declared to be the owners 1 Whether the reporters of the local papers may be allowed to see the Judgment?::: Downloaded on - 15/04/2017 21:21:23 :::HCHP
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of the suit land besides the orders passed by the learned Collector on 14.1.1997 whereby the suit land stood .
vested in the State of Himachal Pradesh and consequent attestation of mutation No. 855 of 19.9.1998 was declared to be illegal. However, the granting by the of learned trial Court the relief of permanent prohibitory injunction vis.a.vis. the plaintiffs whereupon the rt defendants through its agents and servants stood permanently restrained from causing any interference in the peaceful possession of the plaintiffs and proforma defendants No. 4 and 5 till they stand evicted therefrom in due course of law stood maintained and affirmed.
2. The facts necessary for rendering a decision on the instant appeal are that the plaintiffs filed suit for declaration and permanent prohibitory injunction against the defendants/State of H.P. The case of the plaintiffs is that one Shri Mehru was tenant of suit land situated at village Kolwa, Tehsil Renuka Ji, who was conferred the proprietary rights under H.P.Tenancy and Land Reforms Act and the mutation to this effect was also attested in his favour on 11.01.1976. Shri Mehru after few years, created tenancy of suit land in favour ::: Downloaded on - 15/04/2017 21:21:23 :::HCHP ...3...
of defendants No. 2 and 3 and predecessor in interest of defendants No. 4 and 5. They remained in possession of the .
suit land as tenants without any let or hindrances. That Mehru expired and he was survived by his two daughters Smt. Ram Devi and Smt. Minki and widow Smt. Jivni who subsequently sold the suit land to one Shri Krishan Kumar Sood vide of registered sale but he could not get possession of the same as the possession remained with the proforma defendants. That rt defendants No. 2 to 5 were also conferred proprietary rights of suit land under Section 104 of the H.P.Tenancy and Land Reforms Act and the mutation of conferment of proprietary rights No. 808 was also attested in their favour on 22.07.1992. That proforma defendants No. 2 and 3 thereafter vide sale deed dated 01.12.1996 sold their 2/3rd share in suit land to the plaintiffs for a consideration of Rs.16,500/- and the possession of the suit land was also delivered to them and the mutation No. 854 was also attested in their favour on 27/08/1998. That in the month of June, 2000, the Patwari Halqa and field kanungo approached the plaintiffs and asked them to vacate the suit land and on enquiry they came to know that the suit land has been vested in the State of H.P. by order of District Collector as the appeal preferred by ::: Downloaded on - 15/04/2017 21:21:23 :::HCHP ...4...
Krishan Lal Sood against proforma defendants was dismissed by the Collector, Sirmaur District at Nahan in view of breach .
of Section 113 of H.P.Tenancy and Land Reforms Act. The plaintiffs alleged that the impugned order passed by the Collector, Sirmaur District at Nahan dated 14.01.1997 is without jurisdiction, void abinitio and legally unenforceable, as of under Section 113 of the H.P.Tenancy and Land Reforms Act the land could not vest in the State of H.P. That they are rt enjoying peaceful possession over the suit land and the defendant No.1 State of H.P. has no legal right to cause any sort of interference in their possession over the suit land.
Hence, the plaintiffs per force filed the present suit for declaration and permanent prohibitory injunction against the defendants.
3. The suit of the plaintiffs was resisted and contested by the defendant No.1 by raising preliminary objections, inter alia, that the suit is not maintainable under the Act and that the trial Court had no jurisdiction to try it and that neither the plaintiffs, including proforma defendants, had locus-standi and cause of action to file the suit which was also bad for non joinder of necessary parties and also for want of notice under Section 80 CPC. The case of the contesting ::: Downloaded on - 15/04/2017 21:21:23 :::HCHP ...5...
defendant/State is that Shri Mehru created tenancy in favour of Kundhu, Chetu and Malku in violation of legal provision of .
Section 113 of the H.P.Tenancy and Land Reforms Act, wherein it has been clearly provide that no land in respect of which proprietary rights have been acquired under this Chapter shall be transferred by sale, mortgage, gift or of otherwise. That Krishan Kumar filed an appeal under Section 114 of the H.P.Tenancy and Land Reforms Act against the rt orders of the Land Reforms Officer passed on mutation No. 818, whereby mutation has been attested in favour of S/Sh.
Ved Prakash, Sat Pal, Chetu and Malku. That the Collector, Sirmaur District at Nahan vide order of 14.01.1997 dismissed the appeal preferred by Krishan Kumar and held that creating a tenancy implies a transfer of land and no owner can transfer the land within ten years of acquiring ownership and thus the suit land was vested in the State of H.P. but the defendants No. 2 and 3 on 1.12.1996 tried to alienate the suit land by way of sale. The contesting defendant/State alleged that the suit land has been vested in the State of H.P. vide mutation No.855 of 19.09.1998 free from all encumbrances and this mutation was also attested on the basis of order passed on 14.01.1997 after observing the mandatory lawful procee and ::: Downloaded on - 15/04/2017 21:21:23 :::HCHP ...6...
in accordance with legal provisions. Hence, the defendant/State of H.P. sought dismissal of suit with costs.
.
4. On the pleadings of the parties, the trial Court struck following issues inter-se the parties at contest:-
(1) Whether the plaintiffs and proforma defendants No. 4 and 5 are owners in of possession of suit land, as alleged? OPP. (2) Whether the order dated 14.01.1997 and mutation No. 855 of 19.09.1998 based on rt this order are illegal, void abinito, if so its effect? OPP (3) Whether the defendant NO.1 is causing interference over the suit land, as alleged?
OPP.
(4) Whether the plaintiffs are entitled to relief of injunction, as prayed? OPD.
(5) Whether the suit is not maintainable under H.P.Tenancy and Land Reforms Act, 1972, as alleged? OPD.
(6) Whether the plaintiffs and proforma defendants have no locus standi to file the present suit, as alleged? OPD.
(7) Whether the plaintiffs have no cause of action to file the present suit against reply respondent, as alleged? OPD.::: Downloaded on - 15/04/2017 21:21:23 :::HCHP
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(8) Whether this Court has no jurisdiction to try
the suit under H.P.Tenancy and Land
.
Reforms Act, 1972, as alleged? OPD.
(9) Whether no notice under Section 80 CPC
has been served on replying defendant, as alleged, If so its effect? OPD (10) Whether the suit is bad for non joinder of of necessary parties, as alleged? OPD (11) Relief.
5. rt On an appraisal of evidence, adduced before the learned trial Court it decreed the suit of the plaintiffs whereas the learned First Appellate Court partly modified its decree.
6. Now the plaintiffs/appellants herein instituted herebefore the instant Regular Second Appeal for assailing the findings recorded in its impugned judgment and decree by the learned first Appellate Court. When the appeal came up for admission on 08.04.2008, this Court admitted the appeal on the hereinafter extracted substantial questions of law:-
1. Whether once it is found that the Statutory authority (District Collector) envisaged by the H.P.Tenancy and Land Reforms Act had not acted in conformity with the fundamental ::: Downloaded on - 15/04/2017 21:21:23 :::HCHP ...8...
principles of judicial procedure as no notice was issued to the plaintiffs in the appeal pending before it and the plaintiffs were not the party .
respondents in the said appeal and further as the statutory authority/District Collector has failed to comply with the provisions of H.P.Tenancy and Land Reforms Act, the civil Court has jurisdiction to try the suit?
2. Whether once it is found that the orders of of 14.1.1997 i.e. Ext.PB passed by the learned District Collector are in violation to the provisions of the H.P.Tenancy and Land rt Reforms Act and the said orders are illegal and ultra vires of the law, the learned first appellate Court has erred by holding that the civil Court had no jurisdiction to grant the declaration as prayed for by the plaintiffs/appellants.
Substantial questions of law.
7. Prior to coming into force the H.P.Tenancy and Land Reforms Act one Mehru held the suit land as 'Gair Marusee'. Under a statutory enactment nomenclatured as H.P.Tenancy and Land Reforms Act (hereinafter referred to as the Act) wherein a 'Gair Marusee' tenant stood conferred a right qua automatic conferment of proprietary rights vis.a.vis. the land whereon he hitherto was recorded a 'Gair Marusee', in sequel, whereof one Mehru a recorded 'Gair Marusee' qua ::: Downloaded on - 15/04/2017 21:21:23 :::HCHP ...9...
the suit land stood foisted with an indefeasible statutory right qua automatic conferment of proprietary rights .
vis.a.vis him qua the suit land in respect wheroef he hitherto stood recorded as 'Gair Marusee', in consonance wherewith the relevant proprietary rights vis.a.vis. him of qua the suit land stood bestowed upon him under a mutation attested on 11.1.1976. However, subsequent to rt conferment of statutory proprietary rights upon Mehru vis.a.vis. the suit land, he within three years thereafter in 1979, inducted Kundia, Chetu and Malku as tenants vis.a.vis the suit land. The aforesaid creation of tenancies by Mehru upon the suit land within three years since conferment of proprietary rights vis.a.vis. him obviously when constituted its alienation by him vis.a.vis.
lessees/tenants inducted thereon naturally hence invited the bar constituted in 113 of the H.P.Tenancy and Land Reforms Act, which stands extracted hereinafter:
"113. Bar of teransfer of ownership rights- No land in respect of which proprietary rights have been acquired under this Chapter shall be transferred by sale, mortgage, gift or otherwise during a period of ten years by a person from the date he acquires proprietary rights:::: Downloaded on - 15/04/2017 21:21:23 :::HCHP
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"Provided that nothing contained in sub-section (1) shall apply to the transfer of land made for a productive purpose with the prior permission of the State Government in a .
prescribed manner."
Provided further that nothing in this sub-section shall apply to the land mortgaged with the Co-operative Societies established under the Himachal Pradesh Co-operative Societies Act, 1968 or with a [8] bank. (3 of 1969). (2) Any transfer of land made in contravention of sub-
of section (1) shall be void and no registering authority shall register any document evidencing such transfer under the Indian Registration Act, 1908."
rt wherewithin a statutory embargo stands constituted against a hitherto 'Gair Marusee' whereupon statutory vestment of proprietary rights stand bestowed not upto 10 years therefrom making its alienation whereas with Mehru within three years of occurrence of bestowment upon him of statutory proprietary rights qua the suit land alienating it by inducting tenants thereon rendered the relevant bar qua him to stand squarely attracted vis.a.vis him besides qua the suit land. However, at that stage no proceedings stood initiated by the competent revenue officer for materializing the effect of Section 113 of the Act rather on his demise under a mutation bearing No. 740 attested on 14.2.1981 the suit land stood mutated ::: Downloaded on - 15/04/2017 21:21:23 :::HCHP ...11...
vis.a.vis his legal heirs wherefrom- whom one Krishan Kumar acquired title qua the suit land under a sale deed .
executed by them vis.a.vis. him. Subsequently, proprietary rights qua the suit land stood also conferred upon the persons who during the life time of Mehru stood of inducted as tenants upon the suit land whereas creation of tenancy vis.a.vis them stood statutorily interdicted also rt constituted alienation thereof vis.a.vis them, alienation whereof entailed qua the suit land the statutory consequences constituted in Section 113 of the Act besides hence stirred the statutory consequences arising from infraction of its provisions, yet the aforesaid consequence spurring from the relevant statutory embargo standing infracted remained unawakened rather remained un-materialized merely for inaction of the relevant revenue agency concerned. Nonetheless occurrence of stark infractions for reasons aforestated, of the statutory mandate embodied in Section 113 of the Act per se render invalidated the alienation of the suit land by Mehru vis.a.vis. tenants inducted thereon by him significantly when its alienation occurred within the ::: Downloaded on - 15/04/2017 21:21:23 :::HCHP ...12...
statutorily interdicted period since conferment of proprietary rights thereon upon him also rendered .
invalidated the attestation of mutation No. 740 whereupon his legal heirs stood conferred title qua the suit land wherefromwhom one Krishan Kumar acquired of under a sale deed executed by them vis.a.vis. him title qua the suit land. However, significantly, when despite grave rt statutory infractions for reasons aforestated occurring qua the mandate of Section 113 of the Act, infractions whereof occurred during the life time of Mehru whereupon the revenue officers concerned stood concomitantly barred to on his demise attest the mutation of inheritance qua his legal heirs vis.a.vis the suit land also barred them to confer proprietary rights upon the tenants inducted upon the suit land by Mehru induction whereof whom occurred within three years of his standing conferred proprietary rights qua the suit land besides barred the competent Registering Authority to accept the apposite sale deed executed by the legal heirs of deceased Mehru vis.a.vis. Krishan Kumar, yet the aforesaid misdemeanours visibly occurred whereas ::: Downloaded on - 15/04/2017 21:21:23 :::HCHP ...13...
initiation of motion by the Revenue Officer concerned for materializing the consequences of infraction of the .
provisions of Section 113 of the Act was enjoined to erupt, conspicuously when for reasons aforestated, infraction of its mandate evidently surgesforth.
of Furthermore the persons who stood inducted as tenants vis.a.vis. the suit land by Mehru during his life time continued rtto hold its possession whereupon they recorded its alienation vis.a.vis. the plaintiffs. However, one Krishan Kumar an alinee of the legal heirs of Mehru despite a sale deed qua the suit land standing executed vis.a.vis. him by the legal heirs of Mehru did not obtain possession of the suit land. An incisive scanning of the records unveils of under Ext.PA comprising a registered deed of conveyance executed vis.a.vis. the suit land by defendants No. 2 and 3 with the plaintiffs the latter acquiring title to the suit land. However, the relevant mutation whereby proprietary rights stood conferred upon the suit land vis.a.vis. the vendors of the plaintiffs stood subjected to an assault before the District Collector by one Krishan Kumar alinee of the legal heirs of one ::: Downloaded on - 15/04/2017 21:21:23 :::HCHP ...14...
Mehru whereupon he under an order pronounced on 14.1.1997 comprised in Ext.PB set-aside mutation 818 .
recorded on 28.2.1994 whereby proprietary rights stood attested vis.a.vis. the vendors of the plaintiffs. Also thereunder the suit land was ordered to be vested in the of State of Himachal Pradesh. In sequel thereto mutation No. 855 ordering for the vestment of the suit land rt vis.a.vis. the State of Himachal Pradesh stood attested, imperatively hence the title of the plaintiffs qua the suit land has come under a cloud whereupon they stand constrained to institute a suit for setting aside mutation No. 855 whereby the suit land was ordered to be mutated vis.a.vis. the State of Himachal Pradesh.
8. The learned First Appellate Court had while meteing deference to Section 115 of the Act, which stands extracted hereinafter:-
"115. Bar Of Jurisdiction. :- Save as otherwise expressly provided in this Chapter, every order made by the Collector, Commissioner or Financial Commissioner shall be deal, and no proceeding or order token or made under this Chapter, shall be called in question by any Court or before any officer or authority."::: Downloaded on - 15/04/2017 21:21:23 :::HCHP
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recorded a conclusion of the order of the Collector comprised in Ext.PB whereupon the suit land when for .
reasons aforestated begetting infraction of the mandate of Section 113 of the Act hence stood ordered to be vested in the State of Himachal Pradesh, attracting the of relevant bar constituted therewithin significantly when it stood pronounced on culmination of proceedings rt embarked upon by him as a Revenue Officer under Chapter III of the Act whereupon Ext.PB stood statutorily rendered to be unamenable for standing questioned in any Civil Court on anvil thereof he concluded qua hence the Civil Court holding no jurisdiction to try the suit of the plaintiffs wherein it stands assailed, contrarily it concluded of the relevant jurisdiction for assailing it standing vested under Section 61 of the Act in the Commissioner. The tenacity of the aforesaid conclusion formed by the learned First Appellate Authority stands assailed, by the learned counsel for the plaintiffs on the ground that the reasons propounded by the Collector for attracting qua the suit land the statutory bar constituted in Section 115 of the Act, suffering from legal ::: Downloaded on - 15/04/2017 21:21:23 :::HCHP ...16...
enfeeblement. To strengthen his submission he espouses qua a plethora of judicial verdicts relaxing the rigour of .
the relevant bar against a Civil Court trying the suit of the plaintiffs when evident display emerges qua non adherence, by the relevant statutory authority constituted of under the Act vis.a.vis the principles of natural justice, principles whereof when imminently stand infracted rt herebefore comprised in the plaintiffs' not participating in the relevant proceedings which culminated in the pronouncement of Ext.PB, rendered them to be condemned unheard also hence constituted transgression of the principle of audi alteram partem. The aforesaid submission would hold vigour in case Ext.PB dehors the non participation of the plaintiffs in the proceedings which occurred before the Collector concerned, only when the vendors of the plaintiffs also did not record their participation therein. However, a perusal of the relevant record makes a vivid disclosure of the vendors of the plaintiffs recording their active participation in the relevant application instituted before the Collector whereupon a relief stood ventilated for setting aside ::: Downloaded on - 15/04/2017 21:21:23 :::HCHP ...17...
mutation No. 808 of 22.7.1992 attested qua the suit land vis.a.vis. the tenants inducted thereon during the life time .
of Mehru. Since the vendors of the plaintiffs' actively participated in the proceedings embarked upon by the Collector on the aforesaid application instituted of therebefore by the Vendee from the legal heirs of Mehru wherefromwhom he precedingly vis.a.vis the plaintiffs rt acquired title to the suit land, fosters an inevitable sequel of theirs also concerting to validate the relevant mutation preeminently when in course thereof they under Ext.PA alienated the suit land vis.a.vis. the plaintiffs. Since alienation of the suit land occurred during the pendency of the aforesaid application preferred by the vendee of the legal heirs of deceased Mehru rather aggravatingly enjoined them to seek impleadment of the plaintiffs' in the apposite application preferred by one Krishan Kumar before the Collector. However, the vendors of the plaintiffs omitted to do so. Dehors the factum of the vendors of the plaintiffs making the aforesaid omission yet cast an onerous obligation upon them to thereat concert to validate Ext.PA. Since they recorded their ::: Downloaded on - 15/04/2017 21:21:23 :::HCHP ...18...
active participation in the proceedings embarked upon by the Collector concerned upon an application preferred by .
the vendee of the legal heirs of Mehru palpably hence their active participation therein is to be construed qua theirs hence discharging their obligation vis.a.vis. the of plaintiffs qua theirs efficaciously concerting to validate Ext.PA also hence their participation therein being rt construable to be also participation on behalf of the plaintiffs, conspicuously when they had qua the suit land received sale consideration from the latter whereupon hence they are to be construed to be making a pro active concert to validate it moreso, when their title qua the suit land was under a cloud in sequel whereto the relevant order pronounced by the Collector comprised in Ext.PB, is amenable to a construction of it standing not rendered behind the back of the plaintiffs dehors their non participation in the proceedings culminating in making Ext.PB nor it stands infected with any vice of its infracting the principle of audi alteram partem. Erection of the aforesaid inference reiteratedly stands founded upon the trite factum of the vendors of the plaintiffs recording ::: Downloaded on - 15/04/2017 21:21:23 :::HCHP ...19...
their participation therein whereupon they are construed to be also defending therein the interest of the latter.
.
Consequently, the statutory bar as envisaged under Section 115 of the Act, as relied upon by the learned First Appellate Court to non suit the plaintiffs stands aptly of attracted. Since grave pervasive infraction of the mandate of Section 113 of the Act, for reasons aforesated rt surgesforth herebefore also when its attraction vis.a.vis.
the plaintiffs evidently is anchored upon sinewed evidentiary material, the mere factum of non participation of the plaintiffs in the relevant proceedings may not erode its vigour imperatively when flagrant evident transgression of the mandate of law occurs also when hence the relevant evident statutory infraction would be unamenable to suffer any erosion even by participation of the plaintiffs in the relevant proceedings. Consequently, the mere factum of their non participation therein cannot give them any leverage to contend of hence the principles of natural justice standing infracted also they hold no empowerment to thereupon contend of the statutory bar as stood invoked by the learned First Appellate Court for ::: Downloaded on - 15/04/2017 21:21:23 :::HCHP ...20...
non suiting them being unattractable qua them, tritely when an evident flagrant transgression of the mandate of .
law occurs also when evident vicarious representation for defending therein the interest of the plaintiffs' entwined with the interest in the suit land of their vendors of manifestly emerges, obviously comprised in the vendors of the plaintiffs recording their participation in the rt relevant proceedings whereupon the effect of non participation therein of the ultimate victim of statutory consequences arising from attraction of the statutory bar qua the suit land would not stain the relevant proceedings nor the verdict recorded in culmination thereof would stand stained with any vice of its infracting the principles of natural justice nor would the relevant statutory bar against the Civil Court trying the lis, suffer any emasculation.
9. In view of the above discussion, I find no merit in this appeal, which is accordingly dismissed and the judgment and decree rendered by the learned Additional District Judge is maintained and affirmed.
Substantial questions of law are answered against the ::: Downloaded on - 15/04/2017 21:21:23 :::HCHP ...21...
plaintiffs. Decree sheet be prepared accordingly. No costs.
.
4th October, 2016. (Sureshwar Thakur) ™ Judge.
of rt ::: Downloaded on - 15/04/2017 21:21:23 :::HCHP