GHANAYA Vs. NANKA

JUDGEMENT

(1.) The plaintiffs-appellants were Bhentdars in possession of 3/8th share of land in Khata No. 1/26 Min. to 28 Min. comprised in 22 plots admeasuring 27 Bighas 9 Biswas in village Bated, Tehsil Arki, Mahasu District. The defendants were the owners of this land and subsequently obtained proprietary rights in respect thereof on 9-10-1967 under the provisions of section II of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, hereinafter referred to as the Act'.

(2.) Prior to the defendants acquiring the proprietary rights the plaintiffs had mortgaged their interest in the said land to the defendants for a sum of Rs. 200.00 taken as a loan but had redeemed that mortgage and, it is contended, obtained physical possession of half the land at the time of the redemption and the other half after some months as at the time of redemption the defendants' wheat crop was standing on the land and was still to be harvested. It is alleged that after the plaintiffs came into possession they were prosecuted by the defendants under section 447 of the Indian Penal Code but that prosecution resulted in the plaintiffs' acquittal. About the same time the defendants moved an application to the Assistant Collector First Grade at Solan under section 62 of the said Act but that application was dismissed on 8-7-1960. The defendants went up in appeal to the Collector, Mahasu and their appeal was allowed giving them possession in terms of section 62 of the said Act. The plaintiffs in their turn then went up in appeal to the Financial Commissioner, Himachal Pradesh, but that appeal was dismissed. Thereafter the plaintiffs filed the present suit and in their plaint challenged the legality and vires of the order of the Collector, Mahasu and the Financial Commissioner, Himachal Pradesh on the grounds that (1) that the petition under section 62 of the said Act moved by the defendants was not competent as there was no relationship of landlord and tenant existing between the plaintiffs and the defenadnts at the time when the petition under section 62 was moved or at any time, (2) that the revenue officers failed to comply with the provisions of the said Act in passing the impugned orders, (3) that the nature of the proceedings before the revenue officers being summary in character the plaintiffs had a right to get a declaration about their claim to the property by establishing the claim in a civil Court, (4) that as a result of the proceedings under the Himachal Pradesh Consolidation of Holdings Act in respect of the land in suit the plaintiffs had been awarded some other land in lieu of the land in suit and in the circumstances the Financial Commissioner's order cannot be operative qua the land that the plaintiffs had received in lieu of the land in suit. and (5) that the defendants cannot be regarded as persons who could rightly obtain proprietary rights in the land in suit. The defendants in their written-statement traversed the contentions of the plaintiffs and, inter alia, pleaded that the suit in the form it had been filed was not maintainable, that the suit was barred under the provi- sions of the said Act and the civil Courts had no jurisdiction to try the suit, that in fact the order of the Financial Commissioner, Hiniachal Pradesh, or the Collector, Mahasu could not be challenged in this Court and the suit was barred by time.

(3.) On the pleadings of the parties the following issues were framed :-