Moti Ram vs Sudershan Kumar & Others

Jyotsna Rewal Dua, J

The appellant was plaintiff before the learned Courts below. His suit has been concurrently dismissed by both the learned Courts below. Instant is

his second appeal.

Parties are hereinafter referred to as they were before the learned trial Court.

The gist of the case filed by the plaintiff and the defence as set up by defendant No.1 is as under:Â​

2(i) The suit land was comprised in Khata No. 113 min, Khatauni No. 176, Khasra No. 25, 141, KitaÂ2 measuring 0Â35Â96 hectares situated at

Mohal Balla, Mauza Ghorab, Tehsil and District Kangra, H.P. Plaintiff’s case was that he alongwith proforma defendants No.2 & 3 occupied the

suit land as ‘non occupancy tenants’ and had become owners thereof by operation of law. Defendant No.1 was the landlord, serving in Indian

Army. He retired from army in the year 1991 and applied for resumption of the suit land. His application was allowed vide order dated 16.12.1994,

passed by Land Reforms Officer (LRO in short) Kangra. On the basis of this order, mutation Nos.419 & 420 were attested on 29.05.2001, whereby,

portion of suit land measuring 0Â​08Â​28 hectares denoted by Khasra No.141/1 was ordered to be resumed in favour of defendant No.1.

2(ii) Plaintiff further alleged that the resumption order dated 16.12.1994 and mutation Nos.419 & 420 attested on 29.05.2001 were never implemented

on the spot. These orders remained only in papers. Defendant No.1 never possessed any part of the suit land. With the above gist of submissions,

plaintiff filed the suit for declaration that he being non occupancy tenant over the above described suit land had become its owner by operation of

law and that the resumption order dated 16.12.1994 as well as mutation Nos. 419 & 420 attested on 29.05.2001, on the basis of the resumption order

are all illegal, null & void.

2(iii) The defence put forth by defendant No.1 was that he was the original landlord and served in the Indian Army. He retired from Army in the year

1991. In accordance with provisions of Himachal Pradesh Tenancy & Land Reforms Act, 1972, he exercised his right of resumption of land by filing

LRÂV Form No.4157 before the Land Reforms Officer (LRO) Kangra. Vide order dated 16.12.1994, LRO Kangra, allowed the proceedings

whereby land measuring 0Â08Â28 hectares denoted by khasra No.141/1, was ordered to be resumed by defendant No.1. For implementing this order,

mutation Nos.419 & 420 were sanctioned and attested on 29.05.2001. Under Mutation No. 420, defendant No.1 was shown to the exclusive owner in

possession of 0Â​08Â​28 hectares of land in khasra No.141/1, whereas remaining suit land measuring 0Â​27Â​68 hectares depicted by khasra No.25 and

850/41 was shown in the ownership and possession of the plaintiff and the proforma defendants. Defendant No.1 also asserted that subsequent to

passing of the aforesaid orders, he had entered into possession of 0Â​08Â​28 hectares of the suit land and was also cultivating the same.

After going through the pleadings, evidence and hearing the parties, learned Trial Court dismissed the suit on 20.05.2019. The judgment & decree

was affirmed by the learned First Appellate Court on 12.03.2020. Aggrieved, the plaintiff has filed this regular second appeal.

I have heard learned counsel for the appellant, carefully gone through the impugned judgments & decrees and am of the considered view that the

same do not call for any interference for the following reasons:Â​

4(i) Admitted factual position is that defendant No.1 was the original landlord. He was serving in Indian Army and superannuated from the service in

the year 1991. After his retirement, defendant No.1 exercised his right to resume the land in accordance with provisions of Section 104 of H.P.

Tenancy and Land Reforms Act, 1972, by filing LRÂV Form No.4157 before the Land Reforms Officer Kangra. It is also not in dispute that LRO

Kangra, passed an order on 16.12.1994 in Case No.1990 allowing defendant No.1 to resume land measuring No. 0Â08Â28 hectares out of the suit

land total measuring 0Â​35Â​96 hectares.

4(ii) The resumption order dated 16.12.1994 was challenged by the plaintiff and profroma defendants by filing an appeal on 20.04.2011. Their appeal

was dismissed by the ADC, Kangra at Dharamshala on 28.12.2011 being barred by limitation. No further challenge against the order has been made

by the plaintiff/profroma defendants before the competent Revenue Court/Authorities. The order, thus, attained finality before the Revenue Court.

4(iii) Mutation Nos.419 & 420, which were attested on 29.05.2001, on the basis of resumption order dated 16.12.1994, were also questioned by the

plaintiff in an appeal filed on 30.09.2001 before the Sub Divisional Officer (C) Kangra. The appeal was dismissed by the Collector Sub Division,

Kangra on 12.05.2008. The order was not agitated any further.

In case the plaintiff was aggrieved against the resumption order dated 16.12.1994 and the attestation of mutation Nos.419 & 420 on 29.05.2001, then

he was required to lay challenge to the orders dismissing his appeals, before the competent Revenue Courts/Authorities in accordance with law. The

plaintiff failed to do so and allowed the orders to become final.

4(iv) In the instant civil suit, plaintiff seeks declaration that resumption order dated 16.12.1994 and consequent attestation of mutation Nos.419 & 420

on 29.05.2001 are illegal, null & void. Plaintiff does not plead that he was unaware about passing of these orders. Therefore, present suit filed in the

year 2012 challenging order passed in 1994 was certainly barred by limitation provided under Article 58 of The Limitation Act as it was not filed within

three years after the passing of order dated 16.12.1994 or even within three years after the attestation of mutations on 29.05.2001. The grounds for

seeking the declaration are also not forthcoming. It is not the case of the plaintiff that the Land Reforms Officer Kangra while passing resumption

order violated fundamental principles of judicial procedures or that the provisions of the Act were not complied with. It is not the case of the plaintiff

that principles of natural justice were violated while passing the aforesaid orders. In Chuhniya Devi Vs. Jindu Ram 1991 (1) Sim.L.C. 223, it was held

that Civil Court has no jurisdiction to adjudicate the cases of conferment of proprietary rights under H.P. Tenancy and Land Reforms Act. The

conclusions drawing in Chuhniya Devi’s case (supra) are as under:Â​

“64. We have attempted to do it in the present case and have come to the conclusion that the Legislature has envisaged a complete code

in the provisions of the H.P. Tenancy and Land Reforms Act, 1972, inter alia, for effectuating its purpose of land reforms and has ruled out

determination of any question connected therewith by the civil court.

The Answer.

Our answer, therefore, is:

(a) that an order made by the competent authority under the H.P. Land Revenue Act, 1954, is open to challenge before a civil court to the

extent that it relates to matters falling within the ambit of Section 37 (3) and Section 46 of that Act;

(b) the civil court has no jurisdiction to go into any question connected with the conferment of proprietary rights under Section 104 of the

H.P. Tenancy and Land Reforms Act, 1972, 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.â€​

Various precedents elaborating Chuhniya Devi’s judgment were considered in C.R. 182/2015 titled Sadhu Singh & Ors. Vs Surjeet Singh, decided

on 24.09.2018 by a Coordinate Bench of this Court, culling out following points:Â​

“19. The principles, which can be deduced out of the aforesaid cases clearly, are as follow:

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)

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 ofNatural Justice or is contrary to the provisions of the Rules or the Act, for which, the

foundation 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. (Refer:

Joginder’s and Tajdin’s cases)

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).

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)

Chuhniya Devi’s case will have no applicability where the orders passed by the revenue authorities are not challenged.

(Gaurju’s case).

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.â€​

Intervention of the Civil Court can only be to a limited extent as explained in the above judgments. Challenge as a whole, is not permissible before the

Civil Court. Plaintiff was required to lay foundation in the pleadings and to show as to how and on what basis, he was challenging the order of LRO

and claiming that defendant No.1 had no right over the suit land. Pleadings are missing on the material aspects in the instant case.

4(v) Plaintiff’s next contention is that the impugned orders were never given effect on the spot and that defendant No.1 never remained in

possession of the land allowed to be resumed to him under order dated 16.12.1994. After adverting to the oral evidence led by the parties, both the

learned Courts below held that their oral evidence qua the possession was evenly balanced. Plaintiff alongwith his witnesses Pawna Devi (PW2)

deposed regarding possession of plaintiff and proforma defendants over the suit land whereas defendant No.1 alongwith his witnesses Madan Lal

(DW2) deposed regarding defendant No.1’s possession over 0Â08Â28 hectares of the suit land. Revenue record i.e. jamabandi of the suit land

(1995Â96) as well as latest jamabandi for the year 2015Â16 depicted that defendant No.1 was in exclusive ownership and possession over 0Â08Â28

hectare of suit land (resumed in his favour). The presumption of truth attached to the revenue record has not been rebutted by the plaintiff by leading

cogent and reliable evidence.

For the foregoing reasons, I find no ground to interfere with the impugned judgments and decrees. Both the learned Courts below have properly

appreciated the oral and documentary evidence in dismissing the suit filed by the plaintiff. Neither there is any error in the concurrent findings

recorded by the learned Courts below nor there is any question of law much less substantial question of law arising in this appeal, hence, this second

appeal is dismissed in limine. Pending application(s), if any, also stand disposed of accordingly.