Shri Pritam Chand and Others vs Shri Krishan Kumar and Others

P.K. Palli, J.—A very short question is involved in the second appeal and it relates to the jurisdiction of the Civil Court to try the present suit. The parties, hereinafter in the judgment, would be referred to as ''Plaintiffs'' and ''Defendants''.

The Plaintiffs sought a decree for declaration and injunction from the Court to the effect that they are the tenants in respect of the land in question and are non-occupancy tenants on payment of ''Batai''. It is said that revenue entries are not projecting them correctly and the entries showing the Defendants to be the owners in possession, are wrong. A further injunction is sought that the Defendants be restrained from interfering with the peaceful possession of the Plaintiffs over the suit land.

In defence, the suit was resisted on the ground that the Plaintiffs are not proved to be tenants of the land in dispute and it is the Defendants who are owners in possession. An application made earlier by the pre-decessor-in interest of the Plaintiffs for the correction of the revenue entries, stands dismissed.

After contest, the suit was decreed and on Defendants'' appeal, the learned first appellate Court reversed the judgment and decree given by the learned trial Court and held that the jurisdiction of the Civil Court was barred.

The learned first appellate Court has not given any decision on merits and in view of the Full Bench decision reported in 1991 (1) ShimLC 223, Chuhniya Devi v. Jindu Ram and Ors. connected matters, proceeded to hold that since the questions involved in the suit were connected with the conferment of the proprietary rights u/s 101 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972, therefore, the Civil Court had no jurisdiction to try the suit. The learned Court further held that the present suit did not fall within the ambit of Section 46 of the H.P. Land Revenue Act.

The learned Counsel appearing for the Plaintiffs contends that the learned first appellate Court has gone wrong in holding that the Civil Court had no jurisdiction to try the suit and has wrongly applied the ratio of the Full Bench decision to non-suit the Plaintiffs Learned Counsel has further heavily relied upon decisions reported as Shri Raja Durga Singh of Solan Vs. Tholu, , Babu Ram (deceased) and Others Vs. Shri Pohlo Ram (deceased) and Others, Babu Ram (deceased) and Ors. v. Shri Pohlo Ram (deceased) and Ors.and 1992 (1) Shim LC 153, Birbal v. Udhami and Ors.

After hearing the learned Counsel for the parties and after having gone through the case law cited at the Bar, I am of the opinion that this appeal deserves to be allowed.

The learned first appellate Court proceeded on the assumption that the Plaintiffs in the present case were entitled for the declaration of proprietary rights in their favour and consequently, the suit involved a question connected with it. It may be noticed that the Defendants who claim themselves to be the owners in possession of the suit land, at no point of time accepted the Plaintiffs to be the tenants of the suit land. In this situation, the ratio of the Full Bench decision could not be made applicable to the present case. Here in the present case, the status of the Plaintiffs-tenants has been specifically denied by the landlords except on a small piece of land. The legislature has barred only such types of cases 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. In the present case, the facts are totally different. It would thus be seen that the learned first appellate Court fell into an error in holding that the Civil Court''s jurisdiction to try the present suit was barred.

In my considered view, on reading of the law cited at the bar, the jurisdiction of the Civil Court to try the present suit could not be said to be barred as the Defendants have specifically denied the right, title and interest of the Plaintiffs as tenants over the suit land. The impugned judgment and decree is consequently ordered to be set aside.

Since the learned first appellate Court has not examined the merits of the appeal, the case is remitted back to the learned Court for fresh decision in accordance with law. The parties, through their learned Counsel, are directed to appear before the learned first appellate Court on 29th May, 1996. The Registry is directed to send the records to the Court immediately. Parties are left to bear their own costs.