Rolia and Others vs Roop Lal and Others

Bhawani Singh, J.—This appeal, under Paragraph 32 of the Himachal Pradesh Courts Order, is directed against the decision of District Judge in C.A. No. 98-B/13 of 1977, which confirms the judgment of Sub-Judge, Ghumarwin, dated 28-2-1976.

Laturia was the father of Rulia, Nika, Jiwanu. Shiv Dai and Bhadru, defendants before the trial Court, while Paras Ram and Badri (Plaintiffs) and Bakshi Ram (proforma defendant) are the real brOrs. . They were recorded tenants in possession of the land in dispute comprised in Khasra No. 561, measuring 2-18 bighas, situate in village Kothi, Pargana Tiun, District Bilaspur. Proceedings, under the Abolition of Big Landed Estates and Land Reforms Act (hereinafter referred to as ''the Act''), were initiated for assessing compensation with respect to the tenancy land by the Compensation Officer. During these proceedings, Laturia, set-up a mortgage deed and claimed thereby that the land in question had been mortgaged to him with possession by writing of 20-2-1912 (corresponding to May 2, 1955), as such, the tenants had lost their right to become owners by virtue of the provisions of the Act. This plea prevailed with the Compensation Officer, before whom a mortgage deed was also produced, and the claim raised by the tenants was thus rejected on 25-6-1986. The tenants also failed before the appellate Court, which upheld the findings of the Compensation Officer that on account of the mortgage, the tenants had lost their rights to get the proprietary rights in the suit land.

Suit for declaration that the plaintiffs are in possession of the suit land as non-occupancy tenants was filed before the Sub-Judge, Ghumarwin, in which relief of permanent injunction against the landlords not to interfere in the tenancy land, has also been sought. Shri Baisakhi Ram has not been joined as plaintiff but as proforma-defendant No. 6, presumably for the reason that the mortgage set-up by the landlords has been executed by him alone and as such, segregated by the plaintiffs.

Defendants resisted this suit and raised numerous pleas. Among them fall the pleas of res- judicata and the loss of lenacy right by the plaintiffs after the execution of the mortgage deed by Baisakhi Ram, one of the tenants, living jointly with the plaintiffs. In bis written statement, Baisakhi Ram has also denied the execution of the mortgage deed relating to the suit land.

Out of the pleadings of the parties, the following issues were framed by the trial Court:

Whether the suit is barred by res- judicata, as alleged? OPP.

Whether the plaintiff and proforma-defendant are tenants over the suit land under defendants No. 1 to 5, as alleged? OPP.

Whether Defendants No. 1 to 5 are interfering with plaintiff''s possession since 10-4-69, as alleged?

Whether Laturia had mortgaged the suit property with the plaintiffs as alleged. If so, its effect on the plaintiffs rights? OPD.

Relief

Issue No. 1 was decided against the defendants and it was held that the previous litigation created no bar to prefer and prosecute the present suit. It was also decided that the plaintiffs and the proforma defendant were tenants in possession over the suit land and relating to the defence of mortgage-deed created by Baisakhi Ram in favour of Laturia, it was held that the same had not been proved. The relief of permanent injunction, sought by the plaintiffs, was also allowed.

The matter came before the District Judge, however, without success. Hence this second appeal before this Court.

On 20-4-1990, the following order was passed when it came for hearing before the Chief Justice (Hon''ble Mr. P.C. Balakrishna Menon):

Two questions arise for determination in this second appeal:

Whether the suit is maintainable inspite of the bar u/s 12(2) of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953, and

Whether the decision of the Compensation Officer which was affirmed by the District Judge acting as the appellate authority u/s 12(2) of the aforesaid Act is res-judicata on the question of relationship of landlord and tenant between the parties.

These points are covered by the decision of a Division Bench of the Delhi High Court (Himachal Bench) reported as Balak Ram v. Kanheya 1968 DLT 384 . I am, however, of the view that the decision requires reconsideration in the light of the decision of the Sapreme Court in Dhulabhai and Others Vs. The State of Madhya Pradesh and Another, This second appeal is accordingly ordered to be posted for hearing before a Division Bench.

This is how the matter has come before this Bench.

Referring to the questions raised for decision in this case, Shri Chhabil Dass, learned Counsel for the appellants, contended that the jurisdiction of Compensation Officer is not only confined to the determination of compensation but also to inquire into and settle the dispute of relationship of landlord and tenant between the parties. According to the learned Counsel, this jurisdiction is exclusive to the Compensation Officer and it is only after settling it that he can proceed further to determine the compensation Settlement of this kind of dispute, obviously, requires him to go into the matter after hearing the parties in a proper manner before giving a clear finding as to the status of the parties This finding is conclusive and debars parties to reagitate the same before a civil court on the principle of res-judicata On the other hand, Shri Bhupinder Gupta, learned Counsel for the Respondents, submitted that the Act did not empower the Compensation Officer to decide finally about the existence of relationship of landlord and tenant since his approach is cursory in Character, therefore, the decision arrived at cannot prevent parties to take the matter to the civil court.

Before we deal with these questions, reference to certain decisions, which deal with the principles governing the exclusion of civil courts jurisdiction when a special law not only creates authorities but also gives them powers to decide the specified disputes under it, is necessary.

In The Queen v. The Commissioners for Special Purposes of the Income Tax LR (1888) 21 QBD 313 Lord Esher M.R., observed that:

When an inferior court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body It may in effect say that if a certain state of facts exists and is shown to such Tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that State of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is Anr. State of things which exist. The legislature may entrust the Tribunal or body with a jurisdiction which includes the jurisdiction to determine whether the preliminary State of facts exists as well as the jurisdiction, on finding that it does not exist, to proceed further or to do something more. When the legislature are establishing such a Tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, or otherwise there will be none. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the Tribunal cannot give them selves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction.

In AIR 1940 105 (Privy Council) it was stated to be settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It was also considered to be well settled that even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory. Tribunal has not acted in conformity with the fundamental principles of judicial procedure and while considering the question whether Section 188 of the Sea Customs Act excluded the jurisdiction of the civil courts, it was clarified that the determination of this question roust rest on the terms of the particular statute which is under consideration and decisions on other statutory provisions are not of material assistance, except in so far as general principles of construction are laid down.

The House of Lords approved the following observations of Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesfer (1859) 6 CN (NS) 336 while deciding Nevilley v. London Express Newspaper Limited 1919 AC 368:

Where the statute creates a liability not existing at common law and gives also a particular remedy for enforcing it....with respect to that class it has always been held, that the party must adopt the form of remedy given by the statute.

Mask & Co. (supra) came for discussion in Firm I.S. Firm and Illuri Subbayya Chetty and Sons Vs. The State of Andhra Pradesh, Gajendragadhkar, J. as he then was who spoke on behalf of the five Judges Bench, made the following observations:

Lord Thakerton who delivered the opinion of the Board, however, proceeded to add that it is also well settled that even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in confirmity with the fundamental principles of judicial procedure It is necessary to add that these observations, though made in somewhat wide terms, do not justify the assumption that if a decision has been made by a taxing authority under the provisions of the relevant taxing statute, its validity can be challenged by a suit on the ground that it is incorrect on the merits and as such, it can be claimed that the provisions of the said statute have not been complied with Non-compliance with the provisions of the statute to which reference is made by the Privy Council must, we think, be non-compliance with such fundamental provision of the statute as would make the entire proceedings before the appropriate authority illegal and without jurisdiction. Similarly, if an appropriate authority has acted in violation of the fundamental principles or judicial procedure, that may also tend to make the proceedings illegal and void and this infirmity may effect the validity of the order passed by the authority in question It is cases of this character where the defect or the infirmity in the order goes to the root of the order and makes it in law invalid and void that these observations may perhaps, be invoked in support of the plea that the civil court can exercise its jurisdiction notwithstanding a provision to the contrary contained in the relevant statute.

In Dhulabhai and Others Vs. The State of Madhya Pradesh and Another, this question again cropped up for decision. The apex court had gone into the matter quite exhaustively and after referring to large number of decisions touching this question, it laid down the following principles regarding the exclusion of jurisdiction of civil court, though in view of the provisions of the Madhya Bharat Sales Tax Act, 1950, it held that suit for refund of the amount of tax illegally collected was not barred by Section 17 of the Act:

(1) Where the statute gives a finality to the orders of the special Tribunals the civil courts'' jurisdiction must be held to be excluded if there is adequate remedy to do what the civil court would normally do in a suit Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.

(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court Where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.

(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.

(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.

(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies.

(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant inquiry.

(7) An exclusion of jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply.

In Raja Ram Kumar Bhargava (Dead) by Lrs. Vs. Union of India (UOI), ; Raja Ram Kumar Bhargava (dead) by LRS v. Union of India the Court after considering cases like AIR 1940 105 (Privy Council) K.S. Venkataraman and Co. Vs. State of Madras, Dhulabhai and Others Vs. The State of Madhya Pradesh and Another, and The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Others, said that:

Generally speaking, the broad guiding considerations are that wherever a right, not preexisting in common law, is created by a statute and that statute itself provided a machinery for the enforcement of the right, both the right and the remedy having been created uno flatu and a finality is intended to the result. If the statutory proceedings, then, even in the absence of an exclusionary provision the civil courts'' jurisdiction is impliedly barred if, however, a right pre-existing in common law is recognised by the statute and a new statutory remedy for its enforcement provided, without expressly excluding the civil courts'' jurisdiction, then both the common-law and the statutory remedies might become concurrent remedies leaving open an element of election to the persons of inherence. To what extent, and on what areas and under what circumstances and conditions, the civil courts'' jurisdiction is preserved even where there is an express clause excluding their jurisdiction, are considered in Dhulabhai''s case.

In State of Tamil Nadu Vs. Ramalinga Samigal Madam, the question pertained to the construction of Section 64 of the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948, which provision said:

64-C. Finality of orders passed under this Act.--(1) Any order passed by the Government or other authority under this Act in respect of matters to be determined for the purposes of this Act, shall, subject only to any appeal or revision provided by or under this Act, be final.

(2) No such order shall be liable to be questioned in any court of law.

Section 11 of the Act provided that every ryot in an estate shall be entitled to a ryotwari patta in respect of all ryoti lands which, immediately before the notified date, were properly included or ought to have been properly included in his holding.

The Court has noticed in paragraph 9 that the Counsel for the appellant had fairly conceded that there was nothing in the Act which expressly barred the civil court''s jurisdiction Such exclusion was sought to be inferred by the implication contained in Section 64-C which accorded finality to any order. The court examined the scheme of the Act and the relevant provisions thereof including Section 64-C and concluded that the civil court''s jurisdiction to adjudicate on the real nature of the land was not ousted u/s 64-C by reason of the Settlement Officer''s decision to grant or refuse to grant a patta u/s 11 read with the proviso to Section 3(d) of the Act. That proviso said that where a person was found prima facie entitled to a ryotwari patta, he would not be dispossessed from any land in the estate in respect of which it was considered that he was entitled to it, pending the decision to the matter by the Settlement Officer as to whether he was actually entitled to the patta or not.

In Commissioner of Income Tax, Bangalore Vs. J.H. Gotla, Yadagiri, Sabyasachi Mukharji J., (as he then was), while speaking for the court, observed:

...the task of interpretation of a statutory provision is an attempt to discover the intention of the Legislature from the language used....It is well to remember the warning administered by Judge Learned Hand that one should not make a fortress out of dictionary but remember that statutes always have some purpose or object td accomplish and sympathetic and imaginative discovery is the surest guide to their meaning....

...If the purpose of a particular provision is easily discern ble from the whole scheme of the Act...then bearing that purpose in mind, we should find out the intention from the language used by the Legislature....

The result, therefore, is that before deciding such a question one way or the other, statutory provisions have to be examined. Of course, burden is heavy on the party who pleads for the exclusion of the civil court''s jurisdiction since this kind of challenge cannot be easily accepted. Therefore, keeping in view the principles laid down in pronouncements, some of which have been noticed above, it is necessary to examine the provisions of the Abolition Act.

The object of the Act is to provide for the abolition of big landed estates and to bring in reforms in law concerning the tenancies in this State. It was applicable in the old areas of the State while in the new areas cases were governed by the Punjab Act. In order to unify and consolidate these laws, the Himachal Pradesh Tenancy and Land Reforms Act, 1972 was enacted, which applies throughout the State. Adverting to Abolition Act, it has 148 Sections under 10 Chapters and two Schedules. In this case, we are concerned with the acquisition of proprietary right by tenants under Chapter 111 whereunder Sections 9 to 27 fall Section 9 postulates the appointment of the Compensation Officer to carry out the purposes of this Act including partitions, operations in holdings, assessment of compensation and settlement of disputes between the landowners and their tenants. The Compensation Officer is to be guided by such instructions, not inconsistent with the provisions of the Act, as the State Government may from time to time issue. u/s 10, the State Government can give effect to the provisions of the Act and for that purpose exercise control and superintendence over the Compensation Officer It can also issue instructions for their guidance and to cancel or revise any of the orders, acts or proceedings of such Compensation Officers, other than those orders in respect of which an appeal lies under the Act. Then, Section 11 deals with the rights of tenants to acquire ownership rights by moving an application to the Compensation Officer, who determines compensation u/s 12 thereof. Since extensive submissions were made relating to this provision, it is desirable to quote it in extenso:

(1) The amount of compensation payable by a tenant for acquisition of the right, title and interest of the landowner in the land of the tenancy shall be determined by the Compensation Officer in accordance with the provisions of the Schedule.

(2) (a) Any person aggrieved by an order of the Compensation Officer Under Sub-section (1) may, within forty-five days from the date of the order, appeal to the District Judge.

(b)Where any such appeal is preferred to the District Judge, he shall cause to be published in the prescribed manner a notice requiring the land-owner or the tenant as the case may be, to appear before him and after giving the parties a reasonable opportunity of being heard shall give his decision.

(c) As against the decision of the District Judge an appeal shall lie within such period as may be prescribed to the Judicial Commissioner whose decision shall be final and shall not be liable to be called in question in any court or before any authority.

(3) No decision of the District Judge or the Judicial Commissioner Under Sub-section (2) shall be invalid by reason of any defect in the form of notice or manner of its publication.

(4) Every decision of the Compensation Officer under this Section shall, subject to the provision of Sub-section (2) be binding on all persons claiming an interest in the holding concerned, notwithstanding any such person not having appeared or participated in the proceedings before the Compensation Officer, the District Judge or the Judicial Commissioner, as the case may be.

Section 19 provides that after the determination of the amount of compensation, the Compensation Officer will cause to be published in the prescribed manner in the village or the estate a notice requiring all persons claiming an interest in the total compensation in respect of the lands of any tenancy, to file before him a statement within a period of six months from the date of publication of the notice. It also empowers him to extend the period in suitable cases, otherwise, a claim preferred beyond this period ceases to be enforceable Section 20 provides for reference to civil court of any case(s) where a dispute(s) arises between persons claiming compensation and the Compensation Officer will make the payment to them in accordance with their respective shares that may be settled by the civil court u/s 21 of the Act Section 25 gives powers of civil court under the CPC to the Compensation Officer for administering oaths, taking evidence and of enforcing the attendance of witnesses and compelling the production of documents and material objects while Section 26 empowers the State Government to make the Rules to carry out the purposes of the Chapter. It says:

(1) The State Government may make rules to carry out the purposes of this Chapter.

(2) In particular and without prejudice to the generality of the foregoing provisions, such rules may provide for:

(a) all matters expressly required or allowed to be prescribed;

(b) the procedure to be followed by the Compensation Officers in the discharge of their duties and functions;

(c) the manner of determining the compensation payable by the tenant to the landowner under Sections 12 and 13;

(d) the manner in which the compenastion is to be deposited by a tenant in the treasury;

(e) the manner in which the compensation is to be paid to the landowner;

(f) the principle and manner of determining rehabilitation grants;

(g) fees, if any, to be paid on application or petitions under this Chapter;

(h) transfer of proceedings from one Compensation Officer to Anr. ;

(i) manner of publication of notices; and

(j) generally, for the guidance of Compensation Officers and other persons in matters connected with the enforcement of the provisions of this Chapter.

Section 27 is Anr. important Section whereunder the right, title and interest of a landowner who holds land, the annual land revenue of which exceeds Rs. 125 per year, are deemed to have been transferred and vested in the State Government free from all encumbrances. This provision is again quoted below:

(1) Notwithstanding anything contained in the foregoing provisions of this Chapter, a landowner who holds land, the annual land revenue of which exceeds Rs. 125 per year, the right, title and interest of such owner in such land shall be deemed to have been transferred and vested in the State Government free from all encumbrances.

(2) Nothing contained in Sub-section (1) shall apply in respect of such land which is under the personal cultivation of the landowner.

(3) The landowner whose rights are acquired under Sub-section (1) by the State Government, shall be entitled to receive compensation which shall be determined by the Compensation Officer having regard to Sections 17 and 18 of this Act, in accordance with the provisions of Schedule-III, but in the case of such occupancy tenant who is liable to pay rent in terms of land revenue or the multiple of land revenue, the compensation payable to his landowner shall be computed in accordance with Schedule-I.

(4) The right, title and interest of the landowner acquired under Sub-section (1) and (2) shall be transferred by the State Government on the payment of compensation in accordance with Schedule-I to such tenant who cultivates such land.

(5) The State Government shall give rehabilitation grant according to the rules framed under this Act, to such small landowner whose right, title and interest have been extinguished and who does not have any other means of livelihood.

The other provisions, to which reference was made by the parties, are Sections 92, 95, 97, 104, 105, 106 and 107 under Chapter VIII. Section 92 says:

Nothing in this Act shall affect the right of any person to establish his claim in respect of any land or part thereof by due process of law in the court having jurisdiction.

And Section 95 reads as follows:

The order of the Compensation Officer deciding objections regarding entries in the Compensation Assessment Roll shall be deemed to be a decree of the civil court and shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decisions.

Section 97 enjoins that except a court or authority before whom an appeal under this Chapter is pending against an order or decree of the Com-pensation Officer, no court or authority shall, notwithstanding anything contained in any law, issue any injunction against any person in respect of any proceedings pending before the Compensation Officer under Chapter VIII, which has the effect of staying the proceedings.

Section 104 envisages an appeal to the District Judge from any order of the Compensation Officer and a Second Appeal from the decision of the District Judge to the Judicial Commissioner. Section 105 empowers the Judicial Commissioner to call for the record for satisfying himself that the order of the District Judge deciding the appeal u/s 104 was according to law, and pass such order with respect to the case as he may think fit. Section 106 prescribes a period of limitation for appeal and provides that it would start from the date of the order or appeal and would be 45 days when the appeal lies to the District Judge and 90 days when it lies to the Judicial Commissioner.

Section 107 provides for the Application of Indian Limitation Act, 1908 in the computation of the period of limitation for an appeal from an order under the Act.

Rule 3 of the rules, framed under the Act, prescribes the form which can be used for moving an application u/s 11 of the Act for the grant of ownership rights and on receipt of this application, the Compensation Officer causes it to be entered in a register in the prescribed form. After making necessary inquiries, he proceeds further in determine the amount of compensation payable by a tenant to the owner in accordance with the provisions of Sections 12 and 13 of the Act. Under Rule 4, objections are invited as soon as compensation amount is determined and any one objecting to the same has to refer the same within the prescribed period and the Compensation Officer has to determine the compensation amount finally after deciding the objections, if any, received. The tenant is called upon to deposit the amount of compensation in the treasury or the sub-treasury within the prescribed period.

After referring to the provisions aforesaid, we, now, turn to answer the questions raised by the parties in this case.

We have noticed some of the important provisions of the Act, in the preceding part of this judgment which was replaced by the Himachal Pradesh Tenancy and Land Reforms Act, 1972, to unify, amend and consolidate the laws relating to tenancies of agricultural lands and to provide for certain measures of land reforms in Himachal Pradesh. The Bill was introduced with the following statement of objects and reasons:

As a result of the re-organisation of the erstwhile State of Punjab in Nov., 1966, some areas were integrated in Himachal Pradesh u/s 5 of the Punjab Re-organisation Act, 1966. There are different enactments regarding tenancy and agrarian reforms in force in new and old areas of the Pradesh. In the areas as comprised in Himachal Pradesh immediately before 1st November, 1966, the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 is in force which is a progressive legislation about the security of tenures of tenants and their other rights In the areas added to Himachal Pradesh u/s 5 of the Punjab Re-organisation Act, 1966, however occupancy tenants have been vested with proprietary rights under two Acts on the subject namely, the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953, and the Pepsu Occupancy Tenants (Vesting of Proprietary Rights) Act. 1954. In the old areas the occupancy tenants have to apply for ownership u/s 11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act.

It has, therefore, been considered necessary to unify the various laws relating to tenancies as in force in the Pradesh and to provide for a measure of land reforms to remove disparities.

Restrictions have been imposed to purchase land by the non-agriculturists to avoid concentration of wealth in the hands of non-agriculturists moneyed class.

The Bill is to achieve the above objects

The Act of 1972 faced similar challenge in RSA No. 338 of 1988 Chuhniya Devi v. Jindu Ram and Ors. connected matters and by decision of September 21, 1990, the Full Bench, speaking through V.K. Mehrotra. J, (as be then was), held, inter alia, after exhaustive examination of the Act, as under:

the civil court has no jurisdiction to go into any question connected with the conferment of proprietary rights u/s 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.

In this Act, it is important to notice that power to deal with appeals and revisions has been conferred on the revenue authorities except in certain cases specifically provided for. Under the Abolition Act, the jurisdiction to hear appeals and revisions is of District Judge and the Judicial Commissioner.

The object of the Abolition Act is to make the actual tiller of the land to be the owner thereof. So, every attempt to interpret these provisions must aim at fulfilment of this object rather than to frustrate it. Going by this object, the Act has created a hierarchy of authorities to deal with the matter. There is the Compensation Officer to carry out the purposes of the Act, including partitions operations in holdings, assessment of compensation and settlement of disputes between the landowners and the tenants. In the discharge of his functions, he is guided by such instructions of the State Government that may be issued from time to time, provided they are not inconsistent with the provisions of the Act. "Settlement of disputes between the landowners and their tenants" obviously means all kinds of disputes including the one as to their inter-se relationship as landowners and tenants. This is quite implicit. And, to say that he has no such jurisdiction, since his approach is cursory, would not only defeat these provisions but also the object of the Legislature intending to make the tenants owners of the land. In case the landlord feels aggrieved by the decision of the Compensation Officer, he can move the Court of District Judge and that of the Judicial Commissioner, as prescribed The argument that his jurisdiction is confined only to the settlement of compensation is thoroughly untenable for the reason that the Compensation Officer or the superior authorities have to go into the matter of dispute between the parties before they proceed to the next stage of determining the compensation. So also the submission that in case the Legislature intended to give jurisdiction and finality on the question of the status of the parties, it should have expressly said so. Permitting reference of dispute between the owners, as to their share of compensation, to a civil court means that the determination of the question of relationship between the landlord and the tenant has been excluded from the jurisdiction of the civil court by necessary implication. We have already noticed that u/s 9, the power of the Compensation Officer includes the "settlement of disputes", between the landowners and their tenants. Determination of dispute between the landlords and the tenants, in case it is raised before the Compensation Officer, precedes the determination of compensation.

It is difficult, to appreciate the argument of Shri Bhupinder Gupta, learned Counsel for the Respondents, that the approach of the Compensation Officer while examining the relationship between the landlords and the lenants is cursory since it is neither borne out from the statutory scheme nor practically feasible when a case of dispute appears before the Compensation Officer whose decision is subject to appeal and revision before the judicial authorities. Section 12(2)(b) postulates giving of decision by the District Judge in appeal after giving the parties a reasonable opportunity of being heard. Clause (c), Sub-clause (2) of Section 12, envisages a further appeal to the Judicial Commissioner from the decision of the District Judge and provides that the decision of the Judicial Commissioner shall be final and shall not be liable to be called in question in any court or before any authority. Clause (4) of Section 12 further provides that every decision of the Compensation Officer under this Section shall, subject to the provisions of Sub-section (2) be binding on all persons claiming an interest in the holding concerned, notwithstanding any such person not having appeared or participated in the proceedings before the Compensation Officer, the District Judge or the Judicial Commissioner, as the case may be.

Section 25 gives powers of civil court under the CPC to the Compensation Officer for administering oath, taking evidence and of enforcing the attendance of the witnesses and compelling the production of documents and material objects, which also supports the view that in order to settle the disputes between the parties, which may include the dispute of relationship between the landlord and the tenant, the Compensation Officer has been empowered with these essential powers of the civil court to enable him to conduct inquiry by administering oath, taking evidence, enforcing the attendance of witnesses and compelling the production of documents and material objects.

Section 97 further indicates that no court or authority shall notwithstanding anything contained in any law, issue any injunction against any person in respect of any proceedings pending before the Compensation Officer under Chapter VIII, which has the effect of staying the proceedings, thereby establishing that the Legislature did not want any interference in the smooth and quick conduct of the proceedings.

Shri Bhupinder Gupta referred to Section 92 to contend that every kind of dispute, including the one relating to the relationship of landlord and tenant, can be taken to the civil court. We have already held that Under Sections 12(2)(c) and 12(4) of the Abolition Act, the decision of the Compensation Officer, District Judge and the Judicial Commissioner is final. Therefore, the matter cannot be reagitated before the civil court. In view of this conclusion, Section 92 cannot be pressed into service to examine this matter again by a civil court. However, we feel, it may apply to cases which are not covered by the provisions aforesaid or where it is found that the statutory authorities envisaged by the 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.

We now proceed to notice two cases, namely, Daulat Ram and Another Vs. Huma Nand and Others, and Balak Ram v. Kanehya 1968 DLT 384. In the earlier case, the Judicial Commissioner of Himachal Pradesh has taken the same view which we have taken of the matter before us (See : paras 10, 11, 12 and 13 at pp. 389, 390, 391 and 392). We quote these paras in extenso:

The first point, to be considered is, whether the Compensation Officer had jurisdiction to decide that issue. It was contended, on behalf of the appellants, that the Abolition Act empowers a Compensation Officer to determine compensation only and that he has no jurisdiction to decide other matters, though incidentally, he may have to decide them, for exercising jurisdiction to determine compensation. This contention does not appear to be sound Section 9 of the Abolition Act empowers a Compensation Officer, besides assessing compensation, to effect partitions and to settle disputes between the land-owners and their tenants. Section 14 authorizes him to demarcate the area, surrendered by a tenant, and deliver possession of the same to the land-owner. Section 103 empowers a Compensation Officer to enquire into the validity of any transfer in respect of any land, made in favour of or by or on behalf of the land-owner. It is clear that a Compensation Officer has been invested with jurisdiction, under the Abolition Act, to decide various matters, in addition to the determination of compensation Section 9 of the Abolition Act gives him jurisdiction to decide disputes, between a land-owner and his tenant. This will cover the dispute whether the person, applying u/s 11, for acquiring the right, title and interest of the land-owner, is or is not a tenant. A Compensation Officer, under the Abolition Act, has jurisdiction to decide, in an application u/s 11 of the Abolition Act, whether the applicant is or is not a tenant.

The next point, to be considered is whether the Abolition Act contemplates a fair enquiry before the Compensation Officer. Rule 4 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Rules, makes it obligatory for the Compensation Officer, after the receipt of the application, u/s 11 of the Abolition Act and the ex parte determination of compensation, to serve a notice on all concerned, giving them one month''s time, to prefer objections. If any objections are filed, the Compensation Officer is to hear them. In disposing of the objections, the Compensation Officer can exercise the powers of a civil court, under the Code of Civil Procedure, for the purpose of taking evidence and of enforcing the attendance of witnesses and compelling the production of documents, vide Section 25. The order of the Compensation Officer is subject to an appeal to the District Judge and a second appeal to the Judicial Commissioner. The intention of the Legislature was that enquiry before the Compensation Officer should be fair and thorough.

The Compensation Officer had jurisdiction to decide whether Daulat Ram appellant was a tenant or not. After a full and thorough enquiry, conducted in accordance with the relevant provisions of law, the Comprnsation Officer had come to the conclusion that Daulat Ram appellant had failed to prove that he was a tenant. That conclusion was affirmed, on appeal, by the District Judge. Daulat Ram appellant did not lodge any appeal to the Judicial Commissioner, against the decision. Sub-section (4) of Section 12 of the Abolition Act makes the decision of the Compensation Officer binding on all persons concerned Section 12(2)(c) lays down that the decision of the Judicial Commissioner shall not be liable to be called in question in any court. It was held by their Lordships in Kesoram Cotton Mills Ltd. Vs. Gangadhar and Others, with respect to Section 9(4)(c) of the Madras Act, which provides that the decision of the Tribunal shall not be liable to be questioned in any court, that, that Sub-section, read with Sub-section (6) of Section 9 makes the decision of the Settlement Officer, as well, immune from challenge in a Civil Court. On the same reasoning, it is to be held that Section 12(2)(c) read with Section 12(4) of the Abolition Act, bars the jurisdiction of a civil court to question the correctness of the decision of the Compensation Officer. The civil court''s jurisdiction to try the question, whether Daulat Ram appellant was a tenant or not was barred by reason of the provisions of Section 12(2)(c) and Section 12(4) of the Abolition Act.

Another contention, urged, on behalf of the appellants, remains to be examined. It was contended that Section 92 of the Abolition Act, which lays down that nothing in the Act shall affect the right of any person to establish his claim in respect of any land or part thereof by due process of law in the Court, having jurisdiction, overrides Section 12(2)(c) and Section 12(4) and that the Civil Court was competent to try the plea of Daulat Ram appellant about the tenancy, under that Section, in spite of the fact that the Compensation Officer had given a decision against him. In my opinion, Section 92 is a general provision, and does not override the special provision contained in Section 12(2)(c) and Section 12(4) Section 92 will be applicable to those cases, which are not covered by Section 12 or any other specific provision of the Abolition Act or where a person, adversely affected, by the order of the Compensation Officer, was under some disability and was not properly represented or had no notice of the proceedings and had no opportunity to present his case Section 92 is not intended to permit persons, whose rights were adjudicated by a competent Tribunal, in a lawful enquiry, to have those rights re-opened and again heard in Anr. suit. This Section does not destroy the finality, attached to the order of the Compensation Officer, or the District Judge or the Judicial Commissioner, by the provisions of Section 12(2)(c) and Section 12(4). The plea of Daulat Ram appellant had been tried and rejected by the Compensation Officer. The decision was affirmed by the District Judge. Daulat Ram cannot avail himself to the provisions of Section 92.

However, this view was not accepted by the Division Bench in Balak Ram''s case (supra) and in the view of the court, reliance could not aptly be placed by the Judicial Commissioner on the decision of the Supreme Court in Addanki Tiruvenkata Thata Desika Charyulu v. State of Andhra Pradesh AIR 1954 SC 807 since there were material differences between the provisions under these Acts. While dealing with the question, it was observed that:

...The binding effect as contemplated by Section 12(2)(c) and 12(4) of the Abolition Act would seem to us to be confined to the determination of the amount of compensation and not to the question of the status of the alleged tenant That the law maker did not intend the question of title to be finally determined by the Compensation Officer, may also be spell out from Section 20 of the Abolition Act which postulates reference to civil court by the Compensation Officer of any dispute between the rival claimants to compensation. If an ancillary dispute in regard to title of the rival claimants to the apportionment of compensation has been intended to be finally settled by the civil court, it is not easy to comprehend an intendment on the part of the law-maker to deprive a party of his right to have the question of title to the land itself finally determined by the civil court. Neither any principle nor any other binding precedent in support of such deprivation has been brought to our notice and the submission has been confined mainly to the ratio of the decision in Daulat Ram''s case This decision, speaking with great respect, does not seem to us to construe Section 12 of the Abolition Act correctly. As observed earlier, the decision in this case followed the decision of the Supreme Court in Addanki''s case which dealt with Section 29 of the Madras Estates (Abolition and Conversion into Ryotwari) Act, which has already been reproduced. It is quite clear that Section 9(4)(c) of the Madras Abolition Act in terms expressly barred the jurisdiction of all courts of law from questioning the correctness of the appellate decision. This clause read with Section 9(6) can, in our view, rightly be held, to the extent of the question stated in Section 9(1), to confer exclusive jurisdiction on the Settlement Officer and to preclude the civil courts from trying or re-trying the same question. Now, the question posed in Section 9(1) of that Act relates to the determination whether any inam village in the jurisdiction of the Settlement Officer is or is not an inam estate. The Supreme Court after referring to various decisions, which we have already noticed, and quoting certain passages therefrom, expressed its opinion on the scope and effect of Section 9 of the Madras Abolition Act in the following words:

Where therefore persons appearing in opposition to the proceeding initiated before the Settlement Officer u/s 9 question the character of the property as not falling within the description of an ''inam village'' he has of necessity to decide the issue, for until he holds that this condition is satisfied, he cannot enter on the further enquiry which is the one which by Section 9(1) of the Act he is directed to conduct. On the terms of Section 9(1) the property in question being an ''inam village'' is assumed as a fact on the existence of which the competency of the Settlement Officer to determine the matter within his jurisdiction rests and as there are no words in the statute empowering him to decide finally the former, he cannot confer jurisdiction on himself by a wrong decision on this preliminary condition to his jurisdiction Any determination by him of this question, therefore, is (subject to the result of an appeal to the Tribunal) binding on the of the prely for the purposes Act. but, no further under the correctness of that finding may be questioned in any subsequent legal proceeding in the ordinary courts of the land where the question might arise for decision The determination by him of the second question whether the ''inam village'' is an inam estate is, however, within his exclusive jurisdiction and in regard to it the jurisdiction of the civil courts is clearly barred....

Finally, in para 15, the Bench concluded that:

(15). On this ratio, the decision of the Compensation Officer on the question of the applicant u/s 11 being a tenant, cannot be conclusive so as to exclude the jurisdiction of civil courts to examine or reexamine whether or not he is a tenant In the Madras Abolition Act the question whether an inam village is an inam estate alone was to be held to be excluded from the jurisdiction of civil courts, but the finding whether the property in question is an inam village was not held to be solely within the exclusive jurisdiction of the Settlement Officer so as to deprive the ordinary civil courts of their jurisdiction to decide this question if properly raised before them. The Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Rules, also do not seem to us to contemplate any exclusive jurisdiction in the Compensation Officer to determine the question of the status as a tenant of the application u/s 11 of the Abolition Act. Looking at Section 92 of the Abolition Act, in the background of the foregoing discussion, in our view, the right of the land holder to establish in a competent civil court that the person claiming to be his tenant is not a tenant, cannot be deemed to have been taken away or lost to him by virtue of Sections 9, 11 and 12 or any other Section in Part III of the Abolition Act.

We have considered the opinion rendered by the Division Bench of the Delhi High Court in Balak Ram''s case (supra) in the light of the statutory provisions as well as the principles laid down in various decisions touching the question of the exclusion of the civil court''s jurisdiction, referred to above. We are unable to accept the view of the Delhi High Court as the correct view. Instead, the view taken by the Judicial Commissioner is more consistent with the view we have taken of the matter. Further, we do not see any marked distinction between the provisions of the Madras Estates (Abolition and Conversion into Jyotwari) Act and the Abolition Act.

The observations contained in the Full Bench decision of this Court (supra) that "the scheme of the Abolition Act is obviously different from the Land Reforms Act, 1972" need not detain us from coming to the conclusion to which we have arrived in this case since the Abolition Act was neither specifically under consideration before the Full Bench nor was there an elaborate discussion of the provisions thereof before the Bench. We may notice here that the Tenancy and Land Reforms Act replaced the Abolition of Big Landed Estates and Land Reforms Act Under the latter Act, the forum for appeal and revision are Collector, Commissioner and the Financial Commissioner whereas under the former, they are the District Judge and the Judicial Commissioner. It may be true that under the later Act specific provision has been made to make the decisions final and put beyond challenge before a civil court under every essential topic but this express prohibition does not mean that prohibition against challenge cannot be read by implication by looking into the provisions, in-built thorough mechanism and the intention of the Legislature. Even under the later Act, disputes as to share of profit alike the former Act, have been made determinable by a civil court, say, for instance, Sections 104, 108 and 109.

The second question involved in this case does not present much difficulty in view of our conclusion that the judicial authorities under the Abolition Act are competent to decide the dispute of relationship of landlord and tenants between the parties finally Therefore, the same matter cannot be reagitated before a civil court. The general principles of res-judicata are also applicable We have only to turn to Section 11 of the CPC The question is no longer res-integra in view of the Division Bench decision of this Court in R.S.A. No. 31 of 1972 Behari and Ors. v. Kaka and Ors. decided on November 29, 1984. This was a case u/s 27(4) of the Abolition Act and the question for determination was whether a co-sharer who has the tenancy right in an agricultural land can become and be treated as a tenant-at-will of the whole or a portion of the said land under the other co-sharers so as to entitle him to claim proprietary rights in that land u/s 27(4) of the Act. The Compensation Officer, after recording evidence and hearing the parties, made an order on September 14, 1965 granting proprietary rights in the suit land to the appellants to the exclusion of the Respondents on the finding that the Respondents were not in cultivatory possession of any portion of the suit land as tenants and that the appellants were, in fact, in cultivatory possession of whole of the suit land The Respondents took the matter in appeal to the District Judge who reversed the finding of the Compensation Officer and held that the appellants were not entitled to the grant of proprietary rights to the extent of one-third share and the Respondents were tenants of the land to that extent. This decision was further carried to the High Court in second appeal (M.S.A No. 31 of 1968) which was dismissed on March 9, 1970 Madho and Ors. v. Kaka and Ors. 1970 DLT 356.

The appellants thereafter instituted the suit, out of which, at a later stage, appeal to the High Court was carried. The Bench, instead of going into the merits of the case rejected the case by application of the principles of res-judicata. It said:

As pointed out at the commencement of the judgment, the first question of law which arises out of the dispute between the parties on merits has receded into the background in view of the second question of law, namely, whether in view of the decision finally rendered by the Courts in the previous litigation between the same parties on the identical issue, the present suit is barred by the principles of res-judicata. The short summary of facts given above is sufficient to establish that the issue directly and substantially arising in the present litigation is identical with the issue which directly and substantially arose in the course of the previous litigation. The issue was and is whether the appellants are entitled to the proprietary rights in respect of the 1/3rd share of the Respondents in the suit land. The claim to the proprietary rights herein is founded on the self-same allegations which were advanced and agitated in the course of the previous litigation and the decisions recorded in the course of the previous litigation are in terms challenged in the present suit. There is no manner of doubt, therefore, that in the course of the instant litigation the attempt--indeed the sole attempt--is to relitigate the same issue.

The Bench further said that:

At one point of time a view prevailed that Section 11 of the CPC is attracted only when the prior Court was competent to try the subsequent suit and that, therefore, even if a matter directly and substantially in issue was finally adjudicated upon by a Court of limited jurisdiction, there was no bar to the relitigation of the said issue once again in the course of a subsequent suit instituted in a civil court. This view, however, cannot hold the field any longer in view of the enactment of Explanation VIII below Section 11 of the CPC which read as under:

''An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res-judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.

It is apparent, therefore, that in the instant case, the decision on an identical issue, which was directly and substantially raised and which was heard and finally decided by the Courts in the course of the previous litigation which reached upto the High Court, would operate as res-judicata, notwithstanding the fact that the decisions were recorded by Courts of special jurisdiction, that is Courts which were conferred with the jurisdiction under the Act. Be it stated that Explanation VIII was added by Section 6 of Act No. 104 of 1976 and that it came into force on February 1, 1977. However, Section 97 of Act No. 104 of 1976 in terms provides that save as otherwise provided in Sub-section (2), the provisions of the principal Act, as amended by the said Act, shall apply to every suit, proceeding, appeal or application, pending at the commencement of the Act or instituted or filed after such commencement, notwithstanding the fact that the right, or cause of action, in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement. Sub-section (2) of Section 97 does not make any reference to Explanation VIII appended below Section 11 of the CPC Under the circumstances, Explanation VIII would be attracted in the instant case and on the basis of the said Explanation the conclusion is inevitable that the decision finally rendered on an identical issue in the course of the previous litigation by the learned District Judge and affirmed by the High Court operates as res-judicata in the course of the present litigation.

For the foregoing reasons, in our opinion without entering into the merits of the dispute, the present appeal requires to be dismissed on the short ground that in the course of the present litigation such dispute cannot be allowed to be reagitated in view of the doctrine of res-judicata which is clearly attracted on the facts and in the circumstances of the case.

Finally, the Bench observed that:

Before parting with the matter, it may be mentioned that the decision in Balak Ram v. Kanehva 1968 DLT 384 was cited on behalf of the appellants in support of their plea that the present suit is maintainable and that the principles of res-judicata are not attracted on the facts and in the circumstances of the case. All that needs to be said is that in view of the enactment of Explanation VIII below Section 11 of the Code of Civil Procedure, the said decision cannot any longer be pressed into service by the appellants.

We are in respectful agreement with this view of the Division Bench. Further, in our opinion, it is in consonance with the comity of Courts, otherwise, it may create a situation when two sets of Courts take a different view of the same issue and it may, in some cases, happen that the lowest civil court may take a diametrically opposite view from the one taken by the Judicial Commissioner. The view taken by the Division Bench of this Court is similar to that of a Division Bench of theKerala High Court in Puthen Veettil Nolliyodan Devoki Amma and Others Vs. Puthen Veettil Nolliyodan Kunhi Raman Nair and Others, . though the Calcutta High Court has a different view of the matter in Nabin Majhi Vs. Tela Majhi and Another,

In view of the aforesaid discussion, we hold that the question of relationship of landlord and tenant having once been finally decided under the Abolition Act, cannot be reagitated before a civil court since such proceedings are not only barred by reason of the provisions of Section 12(2)(c) and 12(4) of the Abolition Act but also by the principles of res-judicata.

The result, therefore, is that this appeal is allowed and the impugned judgment is set-aside. The decision recorded by the District Judge, exercising the powers under the Abolition Act, is restored. The Respondents, being in possession of the land, will retain the possession unless evicted in accordance with law.