Devta Shri Ajmal vs Shri Dilu and Others

R.L. Khurana, J.—The Defendant Devta Shri Ajmal of village Soyal, has directed the present Regular Second Appeal against the judgment and decree dated 20-1-1990 of the learned District Judge, Mandi Division, campt at Kullu, modifying the judgment and decree dated 13-5-1986 of the learned Sub-Judge Ist Class, Kullu.

The subject-matter of dispute between the parties is the land measuring 21 Bighas 5 Biswas comprising of khasra Nos. 1213, 3715, 3715/1. 3746 and 37 4 of Phati and Kothi Kais, Tebsil and District, Kullu, specifically described in the plaint and hereinafter referred to as the land in dispute.

The Plaintiffs sought a declaration as to their title as owners of the land in dispute and permanent injunction for restraining the Defendant from interfering in any manner with their ownership and possession qua the land in dispute. It was averred that the land in dispute was previously owned by the Defendant The same was under the tenancy of Tulsu the predecessor-in-interest of the Plaintiffs. After the death of the said Tulsu, the Plaintiffs- succeeded to such tenancy rights. The continued to remain in possession of the land in dispute as tenants at will till the coming into force of the H P Tenancy and Land Reforms Act, 1972. On the coming into force of the said Act they have acquired proprietary rights thereto and are now coming in possession of the same as awners. It has further been pleaded that the Collector has wrongly refused to confer proprietary rights qua the land in dispute on the Plaintiffs vide mutation No. 3208 dated 10-12-1984, though proprietary rights with regard to Anr. 3 Bighas 12 Biswas of land were conferred on them Such order of the Collector is bad and against law and facts. On the basis of such wrong order, the Defendant has started interfering with the Plaintiffs'' possession over the land in dispute.

The Defendant while resisting the denied the possession of the Plaintiffs over the land in dispute It was averred that the matter stands finally decided by the Land Reforms Officer and Collector under the H.P. Tenancy and Land Reforms Act, 1972 The land in dispute was never let out to the Plaintiffs. The same has never been under cultivation. There is wild growth of forest consisting of Deodar and Kail trees. It was further pleaded that the Defendant being a Deity is a perpetual minor. Therefore, no proprietary rights qua the land in dispute can be conferred under the H P Tenancy and Land Reforms Act, 1972.

The learned trial Court came to the conclusion that the Plaintiffs are in possession of the land in dispute as tenants at will. The Defendant was held to be a perpetual minor. It was further held that the jurisdiction of the Civil Court with regard to conferment of proprietary rights was barred u/s 112 H. P Tenancy and Land Reforms Act, 1972. Consequently, vide judgment and decree dated 13-5-1986 while the relief of declaration was declined, a decree for injunction was passed in favour of the Plaintiffs and against the Defendant,

Both the parties felt aggrieved by the judgment and decree dated 13-5-1986 of the learned trial Court. The Defendant assailed the findings of the learned trial Court by way of an appeal before the learned District Judge The Plaintiffs, on the other hand, filed cross objections assailing the findings on the issues found against them. The learned District Judge on 20-1-1990 dismissed the appeal of the Defendant. He, however, allowed the cross-objections filed by the Plaintiffs The judgment and decree dated 13-5-1986 of the learned trial Court was modified and in addition to the injunction granted, the Plaintiffs were also declared to be the owners of the land in dispute.

The Defendant has now approached this Court by way of the present second appeal assailing the findings of the two Courts below.

Ext. P-4 is the copy of jamabandi for the year 1958-59 wherein Tulsu, the predecessor-in-interest of the Plaintiffs is recorded to be in possession of the land in dispute as well as land measuring 3 Bighas 12 Biswas comprising of khasra Nos. 1309. 1402, 3218 and 3492 as non-occupancy tenant. To the similar effect are the entries in jamaqandi Ext. P-3 pertaining to the year 1975-76 However, a perusal of the remarks column of Ext. P-3 shows that vide mutation No. 3208 proprietary rights qua the land measuring 3 Bighas 12 Biswas (detailed above) were conferred on the Plaintiffs,

Ext D-1 is the copy of mutation No. 3203. A persual of the same shows that proprietary rights qua the land in dispute were declined since the Plaintiffs were not found to be in possession of the land in dispute.

It would not be out of place to mention certain admitted facts coming on the record of the case. On the coming into force of the H.P. Tenancy and land Reforms Act, 1972, hereinafter referred to as the Act, a mutation being No. 3028 was entered to record the conferment of proprietary rights on the Plaintiffs in respect of 24 Bighas 17 Biswas of land (which included the land in dispute) owned by the defendant. The Assistant Collector II Grade attested such mutation on 29-4-1981. The Defendant assailed the order dated 29-4-1981 by way of an appeal before the Collector, Kullu u/s 14(1) of the Act. Such appeal was allowed by the Collector and the order of the Assistant Collector was set-aside and a fresh enquiry was directed by remanding the case to the Assistant collector II Grade. The Plaintiff''s filed a further appeal against the order of the Collector before the Commissioner u/s 114(2) of the Act. This appeal of the Plantiff''s was dismissed by the Commissioner. The order of the Collector was thus upheld.

The Assistant Collector II Grade during the course of fresh enquiry came to the conclusion that the Plaintiff''s were in possession as tenants only in respect of the land measuring 3 Bighas 12 Biswas out of total land measuring 24 Bighas 17 Biswas regarding which mutation No. 3208 was entered. The Plaintiff''s were specifically found to be not in sanctioned in favour of the plaintiff''s only in respect of land measuring 3 Bighas 12 Biswas on 25-4-1984. This order of the Assistant Collector II Grade (Land Reforms Officer) was challenged by the Plaintiff''s by way of and appeal u/s 114(1) of the Act before the Collector. The appeal so filed by the Plaintiff''s was dismissed by the Collector on 10-12-1984 vide order, copy of which is Ext. P-1. No further appeal was carried before the Commissioner as provided u/s 114(2) of the Act. Instead, the suit for declaration and injunction out of which this appeal has arisen came to be filed.

Section 115 of the Act reads:

Bar of jurisdiction - Save as otherwise expressly provided in this Chapter, every order made by the Collector, Commissioner or Financial Commissioner shall be final, and no proceeding or order taken or made under this Chapter, shall be called in question by any Court or before any officer or authority.

As stated above, the order Ext. P-1 passed by the Collector was never assailed by the Plaintiff''s by was of an appeal before the Commissioner as provided u/s 114(2) of the Act. Such order has thus became final. Besides the same cannot be called into question by way of a civil suit in view of the specific bar contained in Section 115 of the Act.

The suit of the Plaintiff''s is, therefore, liable to be dismissed on this short ground alone since they have sought to call into question the order passed by the Collector in appeal u/s 114(1) of the Act. The two Courts below as such have erred in holding the suit as maintainable.

The learned Counsel for the Plaintiff''s contended that even if the suit of the plaintiff''s qua relief declaration may not be maintainable and within the jurisdiction of the Civil Court, their suit in respect of relief of injunction is maintainable. It has further been contended that since the Plaintiffs are in possession of the land in dispute, they are entitled to protect their possession till evicted in due process of law

There is no denying that the predecessor-in- interest of the Plaintiffs was being recorded as in possession of the land in dispute. Such entries came to be changed in favour of the Defendant in pursuance to the order dated 5-4-1984 of the Assistant Collector II Grade, which order also came to be upheld in appeal by the Collector vide Ext. P-1 Therefore, no reliance can be placed on the revenue entries in favour of the Plaintiffs for the period prior to the order dated 25-4-1984. The two Courts below have erred in placing reliance on Ext P-3 and P-4 while coming to the conclusion that the Plaintiffs are in possession of the land in dispute.

The oral evidence led by the Plaintiffs with regard to their possession over the land in dispute cannot be relied upon, therefore, the Plaintiffs cannot be said to be in possession of the land in dispute. They are as such not entitled to the relief of injunction. Since the Plaintiffs are not in possession of the land in dispute, their suit for injunction is not maintainable as well

Resultantly, the present appeal is allowed. The judgments and decrees of both the Courts below are set aside and the suit of the Plaintiffs for declaration and injunction is dismissed with costs quantified at Rs. 1,100.