SECOND APPEAL 220 of 2006 on 2 November 1975

1. Whether the plaintiffs are the owners in possession of the suit land?OPP.possession of the suit land?OPP.

2. Whether the Civil Court has got no jurisdiction to try the suit?OPD. jurisdiction to try the suit?OPD.

3. Whether the plaintiffs have no locusstandi to file the suit, as alleged/OPDstandi to file the suit, as alleged/OPD

4. Whether the suit is not maintainable inthe present form?OPD. the present form?OPD.

5. Whether the defendants were tenantsover the suit land and have becomeowners after the enforcement of H.P.Tenancy and Land Reforms Act, asalleged?OPD. over the suit land and have becomeowners after the enforcement of H.P.Tenancy and Land Reforms Act, asalleged?OPD.

6. Whether the plaintiffs are estopped by their acts and conduct to file this suit?OPDacts and conduct to file this suit?OPD

7. Whether the suit is barred by time?OPD.

8. Relief.

5. On an appraisal of evidence, adduced before the learnedtrial Court, the learned trial Court decreed the suit of theplaintiffs/respondents herein. In an appeal, preferred therefrom bythe defendants/appellants before the learned First AppellateCourt, the latter Court dismissed the appeal and affirmed thefindings recorded by the learned trial Court.

6. Now the defendants/appellants herein, have instituted theinstant Regular Second Appeal before this Court wherein theyassail the findings recorded in its impugned judgment and decree,by the learned first Appellate Court. When the appeal came upfor admission on 24.04.2007, this Court, admitted the appealinstituted by the defendants/appellants against the judgment anddecree, rendered by the learned first Appellate Court, on thehereinafter extracted substantial questions of law:-

1. Whether the issue regarding limitation has beenwrongly and illegally decided by the Courtsbelow?wrongly and illegally decided by the Courtsbelow?

2. Whether the courts below have wrongly andillegally decided the issue regardingjurisdiction?

Substantial question of Law No.1 &2.

7. Prior to the contested reflections occurring in Ex.P-2 and inEx.P-3, exhibit(s) whereof respectively comprise a copy of khasraGirdawari appertaining to the year 1974 to 1979 and a copy ofjamabandi appertaining to the year 1975-1976, the plaintiffs werecontinuously reflected in the apposite revenue records to be owners ofthe suit khasra numbers. Since at the time contemporaneous to themaking of Ex.P-2 in the year 1974, the provisions of Section 104 of theH.P. Tenancy and Land Reforms Act came into force, whereunder nonoccupancy tenants were bestowed with automatic vestment ofproprietary rights upon the suit land, thereupon under mutationsrespectively comprised in Ex. D-5 and in Ex. D-6, the defendants wereconferred proprietary rights upon the suit land. The plaintiffs' on thescore of theirs being void ab initio hence instituted the instant suit forripping apart their tenacity. Apparently, as aforestated the revenuerecords prior to the making of all the aforesaid contested exhibits, makea graphic depiction therein in respect of the plaintiffs being reflectedtherein to be owners in possession of the suit land. However, all the

aforesaid reflections borne therein would stand eroded of their tenacity,if all the subsequent contested entries recorded in the contentiousexhibits aforesaid, stand proven by cogent evidence to be recordedtherein, in accordance with law or if formidable evidence makesevincings of the authorities concerned in making entries in all theaforesaid contested exhibits, theirs adhering to the procedure prescribedby law besides also no infraction standing begotten of the principles ofnatural justice. In case the aforesaid evidence is amiss, thereupon, withthe revenue entries existing in the relevant records prior to coming intobeing of the contested entries, hence enjoying a statutory presumption oftruth, they would thereupon acquire conclusivity, rendering worthlessany espousal of the defendants that they hold no tenacity or areuncreditworthy. Contentious exhibits P-2 and Ex. D-1 stood preparedsubsequent to 1973 whereupto the plaintiffs were recorded in theapposite revenue records, to be owners in possession of the suit land.Ex. P-2 comprises a copy of the khasra girdawari appertaining to thesuit land, in respect of years 1974-1979, wherein, the defendants areshown to be tenants over the suit land, reflections whereof sequelledrecording of mutations respectively comprised in Ex.D-5 and in Ex. D-6, whereunder, proprietary rights in respect of the suit land stood conferred upon the defendants. The aforesaid exhibits borne on Ex. P-2and on Ex. D-1, for hence withstanding the test of legal scanning, wereenjoined to, from the record contemporaneous to their preparation,unravel of the Patwari concerned in preparing them, had prior theretoensured that compliance(s) by all concerned stood meted vis-a-vis themandated procedure prescribed under clause 9.8, page 197 of the H.P.Land Records Manual, provisions whereof stand extracted hereinafter,whereupon alone the relevant contentious entries would acquiresolemnity also would hence efficaciously rebut the efficacy of entries borne in the prior thereto revenue records :- “The crops will be entered in the khasragirdwari, as the inspection proceeds, in thecolumn provided for the purpose. The changein rights, rents and possession will be noted inthe appropriate column in pencil. And, wherethe boundaries or area of a field have changedin such a manner as to require a correction ofthe field map, the patwari will make a roughmeasurement, sufficient for the crop entries.All changes in rights, rents and possession shallbe recorded by the Patwari in pencil and byputting a cross in pencil in column 12, 16, 20,24 and 28 of khasra girdawari in accordance with Govt. instructions issues vide letter No.10-5/73-II, dated 4.9.1980. As per theseinstructions, the Patwari will give informationof such changes to the Tehsildar/Naib Tehsildaras the case may be. The Tehsildar/NaibTehsildar will inquire and give reasonableopportunity of being heard to the parties. Theinquiry should be completed within threemonths and the entires will be made in Khasragirdawari according to the orders passed by theRevenue Officers after entering in his diary.”

In the afore-extracted provisions of clause 9.8 occurring at page 197 ofthe H.P. Land Records Manual, a peremptory mandate is cast upon theRevenue Officer concerned, to before permitting incorporation in therelevant record(s), any change(s) in respect of the person(s) cultivatingthe suit property, theirs making an inquiry, during course whereof, areasonable opportunity is evidently afforded to all the aggrieved vis-a-vis the change(s) being ultimately ordered to be incorporated in theapposite revenue records. The relevant revenue recordscontemporaneous to the preparation of contested Ex. P-2 and Ex.D-1,holding therein all the aforesaid evincings, are neither existing hereatnor obviously any echoings occur therein in respect of the Revenue

Officers concerned begetting compliance therewith, comprised in theirsprior to theirs ordering for the apposite change(s) being made withrespect to the suit land, theirs holding an in-depth inquiry, during coursewhereof, a reasonable opportunity of being heard stood afforded to theaggrieved. Absence of apt records contemporaneous to the making ofthe apposite contested subsequently prepared revenue records withoccurrence(s) therein of the aforesaid bespeakings, renders anyincorporation in any record (s) of any entry reflective of the defendantsholding possession of the suit land, in the capacity of theirs beingtenants under the plaintiffs, to be hence wanting in legal sanctity. Inaftermath, infraction of the mandatory procedure held in the aforestatedcanons existing in the H.P. Land Records Manual, renders the relevantcontentious incorporation(s) aforesaid therein being construable to bevoid ab initio also renders the attestation(s) subsequent thereto, ofmutations, respectively comprised in Ex. D-5 and D-6, whereunderproprietary rights stood conferred upon the defendants, being likewiseconstruable to stand ingrained with a gross infirmity. The furtherconcomitant effect of the aforesaid inference, is that the presumption oftruth enjoyed by contested Exts. P-2, Ex.D-1, Ex. D-2, Ex.-3, Ex.D-4,Ex. D-5 and Ex. D-6 stands eroded. Contrarily, the presumption of truth enjoyed by the apt revenue records prepared prior to 1974, wherein, theplaintiffs are reflected to be owners in possession of the suit land, cantenably be imputed a sacrosanct aura of validity.8.The aforesaid inference(s) apparently fall within the ambitof exceptions carved out by the Hon'ble Full Bench of this Court in acase titled as Chuhniya Devi versus Jindhu Ram, 1991(2) S.L.J. 1082,vis-a-vis the ouster of jurisdiction of civil Courts in respect of mattersfalling within the domain of Section 112 of the Himachal PradeshTenancy and Land Reforms Act, exceptions whereof stand extractedhereinafter:- “64. …............................................

(a) that an order made by the competent authorityunder the H.P. Land Revenue Act, 1954, is open tochallenge before a civil court to the extent that itrelates to matters falling within the ambit ofsection 37(3) and section 46 of the Act; and (b) the civil court has no jurisdiction to go into anyquestion connected with the conferment ofproprietary 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 authoritiesenvisaged by that Act had not acted in conformitywith the fundamental principles of judicialprocedure or where the provisions of the Act hadnot been complied with.”

9. Conspicuously, also when within the ambit of the aforeextracted relevant portion of the decision of the Full Bench of this Courtrendered in Chhuhniya Devi's case (supra), the preparation of thecontested exhibits aforestated is evidently stained with a vice of theirsinfracting the statutory mandate of the afore extracted provisions held inthe Himachal Pradesh Records Manual, thereupon, with the aptstatutory procedure being evidently infracted also with the principles ofnatural justice being also transgressed, concomitantly renders both theaforesaid contested exhibits to be nonest besides fillips an inevitableinference of the Civil Court concerned holding within the ambit ofSection 37(3) and of Section 46 of the H.P. Tenancy and Land ReformsAct, 1972, the apposite jurisdiction to test the legality of all theaforesaid contested exhibits also its holding jurisdiction to test thelegality of the reflections inconsonance therewith occurring in the revenue records prepared by the Revenue Officer(s) concerned inrespect of the suit khasra number(s). Moreover, with all the aforesaidcontested exhibits, for reasons aforestated, standing stained with aninfirmity of theirs respectively grossly infracting the mandatorystatutory provision(s) encapsulated in the H.P. Land Records Manual,thereupon, any reliance placed thereon by the Revenue Officer(s)concerned, while theirs in the exercise of powers conferred underSection 104 of the Himachal Pradesh Tenancy and Land Reforms Act,hence proceeding to record mutations comprised in Ex. D-5 and D-6,whereunder proprietary rights in respect of the suit land, stoodconferred upon the defendants, is rendered vitiated, especially when inthe proceedings appertaining to the recording of the aforesaidmutation(s), no bespeakings occur in respect of the Revenue Officer(s)concerned while attesting mutations conferring proprietary rights uponthe defendants, theirs determining the legality of the recording of theaforesaid contested exhibits by the Revenue Officer(s) concerned,besides thereupon with the bedrock of exhibits D-5 and of Ex. D-6,whereunder proprietary rights in respect of the suit land stood conferredupon the defendants standing, as a natural sequel thereof hence eroded,concomitant sequel thereof is of the entries incorporated in consonance therewith in the revenue records, also likewise acquiring stains ofvitiation. The effect of the aforesaid discussion, is that the bar ofjurisdiction encapsulated in Section 112 of the H.P. Tenancy LandReforms Act, provisions whereof stand extracted hereinafter, againstany orders or proceedings held under the provisions of the H.P. TenancyLand Reforms Act, being unquestionable in any Civil Court or beforeany other authority, being unattractable vis-a-vis the plaintiffs' suit.Provisions of Section 112 of the H.P. Tenancy and Land Reforms Actread as under:

“112. Bar of jurisdiction.- Save as otherwise expressly provided in this Chapter, the validity ofany proceedings or orders taken or made underthis Chapter shall not be called in question in anyCivil Court or before any other authority.”

10. At this stage, the learned counsel appearing for the

appellants by placing reliance upon a judgment of the Hon'ble ApexCourt, rendered in a case titled as Azhar Hasan and others versusDistrict Judge, Saharanpur and others, (1998)3 SCC 246, wherein it ispostulated that any question(s) relating to conferment of proprietaryrights under the U.P. Zamindari Abolition and Land Reforms Act, 1950, or any question(s) relating to fictitiousness of execution of any saledeed, falling within the domain and jurisdiction of revenue Courtsconcerned, rather than within the jurisdiction of Civil Court(s)concerned, makes an espousal before this Court that the plaintiffs' suitchallenging contested exhibits P-2, D-1, D-2, D-3 and D-4, in sequelwhereto, mutations comprised in Ex. D-5 and Ex. D-6 stood attested,when thereupon attracts the bar encapsulated in Section 112 of the H.P.Tenancy and Lands Reforms Act, hence, warranted its dismissal.However, in making the aforesaid submission, the learned counselappearing for the appellants has slighted the effect of the afore extractedbinding/conclusive exceptions thereto carved by a Full Bench of thisCourt, in a verdict pronounced in Chhuhniya Devi's case (supra) alsohas slighted the effect of the evidence aforestated, in consonancetherewith evidently existing on record, corollary whereof is that thejudgment of this Court pronounced in Chhuhniya Devi's case (supra)hereatacquiring conclusive and binding effect, besides it holds forcevis-a-vis the judgment of the Hon'ble Apex Court reported in AzharHasan's case (supra), especially when unlike in Chhuhniya Devi's case(supra) wherein stand carved certain exceptions to the rigour of theousting mandate enshrined in Section 112 of the H.P. Tenancy and Land Reforms Act, also with evident satiations upsurging vis-a-vis exceptionscarved therein in respect of ouster of jurisdiction of Civil Courts inrespect of “dispute” falling with the domain of Section 112 of the H.P.Tenancy and Land Reforms Act, thereupon, with an ensuing validatoryeffect being bestowed upon the ultimate testing by the Civil Court(s) ofthe legality of the apposite orders pronounced by the Revenue Officer(s)concerned, while exercising powers under the provisions of the H.P.Tenancy and Land Reforms Act, whereas, with no delineationsoccurring in the judgment supra of the Hon'ble Apex Court, that theverdict of the Hon'ble High Court concerned with which it stood beset,had alike this Court in Chhuhniya Devi's case (supra) hence carvedexceptions to the rigour of the play thereat of the statutory provisionsousting the jurisdiction of Civil Courts concerned, for facilitating thelatter to hence test the legality of the statutory orders or proceedingsmade by the statutory authorities concerned. In aftermath, the verdict ofthe Hon'ble Apex Court rendered in Azhar Hasan's case (supra) is bothdistinguishable besides inapplicable vis-a-vis the factual scenarioavailable hereat, also is unattractable or inapplicable hereat,conspicuously in the face of the verdict pronounced by this Court inChhuhniya Devi's case (supra) wherein the aforesaid exceptions to the relevant jurisdictional ouster of Civil Court(s), garnering enlivenedforce, in the face of it standing not shown to be reversed by the Hon'bleApex Court.

11. The learned counsel appearing for the appellants byplacing reliance upon verdicts recorded by this Court in cases titled asBrij Bihari Lal versus Smt. Sarvi Devi and others, 2011(3) Him.L.R.1515 and Malkiat Singh and another versus Hardial Singh,1994(Suppl.)Sim.L.C. 77, canvasses that with no evidence existing onrecord in portrayal of the exceptions to the rigour of the mandate ofSection 112 of the H.P. Tenancy and Land Reforms Act, hence,begetting satiation, thereupon with the exceptions engrafted inChhuhniya Devi's case (supra) not concomitantly begetting compliancerenders per incuriam, the verdict recorded by the learned courts below.However, the aforesaid submission lacks vigour, as the aforesaiddiscussion does evidently bring forth the graphic fact of the recordscontemporaneous to the preparation of contested Ex. P-2, Ex. D-1, Ex.D-2 and of Ext. D-3 in sequel whereto mutations, comprised in Ex. D-5and in Ex. D-6 stood attested, neither standing adduced on record norobviously any bespeakings emanating therein in respect of relevantcompliance(s) being meted by the Revenue Officer(s) concerned vis-a- vis the mandate of clause 9.8 of the H.P. Land Records Manual, alsowhen absence of the aforesaid evidence has visited all the aforesaidcontested exhibits with a vice of vitiation besides with a vice of theirsinfracting the principles of natural justice, thereupon, dehors anyspecific pleadings in respect thereof nor direct evidence in respect ofcompliance in respect of exceptions carved in Chhuhniya Devi's case(supra) vis-a-vis the rigour of the ousting mandate held in Section 112of the H.P. Tenancy and Land Reforms Act, respectively being notprevalent hereat, rather inferential evidence being prevalent hereat, yetthe vigour of the aforesaid vitiation(s) staining them remains uneffaced. 12.The mutations comprised in Ex. D-5 and Ex.D-6,whereunder proprietary rights qua the suit land stood conferred upon thedefendants, stood attested in the year 1982. Also the suit of the plaintiffassailing the apposite revenue entries/mutations aforesaid, whereby,proprietary rights qua the suit land stand conferred upon the defendants,stood instituted before the learned trial Court in the year 1991. Thelearned counsel appearing for the appellants has contended with vigourthat the fact “of” the apposite period of limitation warranting attractionhereat, for hence the declaratory suit of the plaintiff claiming a decreethat all contested entries/orders be quashed and set aside, being

construable to fall within the apposite statutorily enjoined period oflimitation, standing, comprised in the provisions of Article 100 of theLimitation Act, wherein, a period of three years stands prescribed,period whereof commencing since the conferment of proprietary rightsqua the suit land upon the defendants under contentious order(s) madeby the Authority(ies) concerned, whereas, with the suit of the plaintiffsstanding instituted inordinately, therefrom, hence, much beyond theaforesaid apposite period of limitation, thereupon, the suit of theplaintiff being barred by limitation. However, the aforesaid submissionaddressed before this Court by the learned counsel appearing for theappellants lacks vigour, as evidently the apposite entries quaconferment of proprietary rights upon the defendants qua the suit landexist much prior to the filing of the suit or say in the year 1982, yetthereupon, the mere factum of their existence thereat would not thereatengender any cause of action, vis-a-vis the aggrieved plaintiff, northereupon the belatedly therefrom instituted suit of the aggrievedplaintiff, attracts the bar of limitation nor hence the date of attestationof the relevant mutations, comprise(s) the commencement of accrual ofcause of action vis-a-vis the aggrieved, rather the commencement of theperiod of limitation prescribed therein stands engendered “on”

occurrence of rearing(s) of cause of action(s) vis-a-vis the aggrievedplaintiffs, “occurrences whereof”, taking place in contemporaneity ofevident threatenings, for dispossessing the plaintiffs from the suit landbeing meted by the defendants, especially when thereby they concertedto enforce the apposite orders. Moreover, the period qua limitationcommences when the right to sue accrues, nowat in the instant case thesaid right to sue, evidently accruing to the plaintiffs in the year 1991,whereat the defendants threatened to forcibly dispossess them from thesuit land, also hence concerted to enforce the contentious orders, onaccrual whereof the suit standing promptly instituted by the plaintiffsagainst the defendants, renders it to fall within limitation, significantlywhen thereat the contentious orders were concerted to be enforced.

13. The above discussion unfolds the fact that the conclusionsas arrived by the learned first Appellate Court as well as by the learnedtrial Court are based upon a proper and mature appreciation of evidenceon record. While rendering the findings, the learned first AppellateCourt as well as the learned trial Court have not excluded germane andapposite material from consideration. Consequently, the substantialquestions of law are answered in favour of the plaintiffs/respondents andagainst the defendants/appellants.

14. In view of the above discussion, there is no merit in theinstant appeal, which is accordingly dismissed. The impugnedjudgments and decrees are maintained and affirmed. All pendingapplications also stand disposed of. No order as to costs. Records besent back.

9 th May, 2018

(priti)

( Sureshwar Thakur )Judge