GULABI Vs. RUKMANI

JUDGEMENT

(1.) The dispute between the parties is in respect of land measuring 15 -13 Bighas comprised in Khasra Nos. 28 and 29 situate in village Ratahal, Tehsil Ghumarwin, District Bilaspur (hereinafter called the suit land). The original plaintiff Ruwalu, husband and pre -decessor -in -interest of appellant Gulabi, claiming himself to be non -occupancy tenant over the suit land filed suit for possession against respondents -defendants on the allegations that they trespassed into the suit land on 11 -4 -1964 for which they were convicted and directions were issued to them to hand over possession of the suit land to Ruwalu, but they were acquitted by the Sessions Court and the High Court further ordered to put them in possession, as such, they had been in possession of the suit land from 15 -6 -1968 and recorded as such in the revenue record - Ruwalu died during the pendency of the suit and his widow Gulabi was brought on record as plaintiff. The trial Court decreed the suit. But in the appeal filed by respondents -defendants 1 and 2 Rukmani and Gangu, the Additional District Judge, Shimla Sessions Division at Bilaspur passed decree and judgment dated 15 -11 -1988 setting aside the decree and judgment of the trial Court dated 28 -3 -1984 solely on the ground that the Civil Court has no jurisdiction in the matter. Hence, the present regular second appeal.

(2.) This Court has heard learned Counsel for the parties and gone through the record. This Court finds that the Additional District Judge has referred to wrong provisions of law which are not applicable to the present case, as such he has come to wrong conclusion. The suit was filed as far back as on 3 -1 -1969 when the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 (hereinafter called the Act of 1953) was in operation in the areas of old Himachal where the suit land is situated. The provisions of Himachal Pradesh Tenancy and Land Reforms Act, 1972, referred to by the Additional District Judge, have come into force on 21 -2 -1974. Section 62 of the Act of 1953 is the relevant provision for restoring the possession to a tenant who was dispossessed or ejected otherwise than in execution of a decree or in pursuance of any order under section 57 on his filing an application within one year from the date of his dispossession or ejectment, It is : - "If a tenant has been dispossessed without his consent from his tenancy or any part thereof otherwise than in execution of a decree or than in pursuance of any order under section 57 he may, within one year from the date of his dispossession or ejectment, make an application for recovery of possession or for compensation, or for both." Section 64 of the Act of 1953 provides bar to civil suits in the following terms : - "No person whose application has been dismissed under section 62 may institute a suit in a civil court to contest his liability to ejectment, or to recover possession or occupancy rights, or to recover compensation." Section 65 of the Act of 1953 further provides bar to relief by suit under section 9 of the Specific Relief Act, 1877. It is : - "Possession of a tenancy or of any land comprised in a tenancy shall not be recoverable under section 9 of the Specific Relief Act, 1877, by a tenant dispossessed thereof." Besides these provisions, Clause (d) of sub -section (1) of section 110 of the Act of 1953 states that if application under section 62 for recovery of possession is disposed of by the Revenue Officer, no court shall take cognizance of any dispute or matter in respect of the subject -matter of the said application. It is : - "110. (1) The following applications and proceedings shall be disposed of by Revenue Officers as such, and no Court shall take cognizance of any dispute or matter with respect to which any such application or proceeding might be made or had : - (a) .................. (b) .................. (c).................. (d) applications under section 62 for recovery of possession or for compensation or for both ; (e) .................."

(3.) In view of these provisions, the question arises -whether the suit of Ruwalu for restoring him possession as non -occupancy tenant was maintainable in Civil Court when he had failed to file an application under section 62 of the Act of 1953 ? The question has already been answered in Chuhary v. Sirtu, 1968 Delhi Law Times 412 by Full Bench of Delhi High Court (Himachal Bench at Shimla), to which this Court is successor. The reference before the Full Bench was : - "Whether a Civil Suit filed by a tenant dispossessed without his consent from his tenancy or any part thereof is barred having regard to the provisions of Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 - Distinguishing the judgment of Punjab High Court in Bhag Singh v. Javahar Singh, (1965) 67 PLR 226, mainly on the basis that there is material difference between sections 50, 50 -A of the Punjab Tenancy Act and section 62 of the Act of 1953, the learned Judges observed that : - "It is quite clear that the problem which the Punjab High Court was concerned with is materially different from the problem which arises in the case in hand. Section 62 of the Act does not provide for a suit in any Court, but merely enables a tenant, who is forcibly dispossessed, to apply within one year of his dispossession to recover possession or compensation, or both. Section 64 bars suit in a Civil Court at the instance of a person whose application under section 62 has been dismissed. It is obvious that the plaintiff before us does not fall within the category of section 62 because no application under section 62 was dismissed either at her instance or at the instance of her husband Bhutu. The appellants learned Counsel, however, places reliance on section 110(l)(d). This provision, in our view, does not seem to exclude the jurisdiction of the Civil Courts either expressly or by necessary intendment so far as the present controversy is concerned. It is undoubtedly true that according to this provision, an application under section 62 has to be disposed of by Revenue Officers as such, and as is clear from the language of section 62, such application has to be made within one year from the date of dispossession or ejectment. But the Civil Courts jurisdiction is barred only from taking cognizance of to repeat the exact words, "any dispute or matter with respect to which any such application or proceeding might be made or had". To put more simply, it seems to us that the jurisdiction of the Civil Courts would only be barred regarding disputes or matters with respect to which an application might be made or a proceeding might be had. The language appear to us to prescribe the possibility of making an application or initiating proceedings in present at the time when cognizance of the Civil Court is invoked for the adjudication of any dispute on matter envisaged by section 62 Now it is indisputable that an application under section 62 could only be made within one year of Bhutus dispossession The present suit admittedly was instituted long after such period of one year. Therefore, section 110 (1) (d) on its plain reading, would not oust the jurisdiction of the Civil Courts in so far as the present suit is concerned. It is idiomatic that the exclusion of jurisdiction of Civil Courts is not to be readily inferred It can be excluded only if either there is express language used to that end or such a conclusion flows by necessary intendment. The provisions excluding such jurisdiction have, on accepted principles, to be strictly construed In the case in hand, the express language does not seem to us to exclude the Civil Courts jurisdiction as just explained. In regard to the argument of necessary intendment it is noteworthy that section 62 merely provides for an application to a Revenue Officer and there is no procedure prescribed in regard to the nature of the enquiry to be held in its disposal. The right of a tenant to get back possession is an important right to property and it is not easy to impute to the law maker an intention to deprive a tenant of a right to approach the Civil Court for adjudication of such an important right, when all that is provided to him is an application to a Revenue Officer. Had the remedy provided to the tenant been that of a suit in a Revenue Court, similar to the scheme of the Punjab Tenancy Act, the argument in support of exclusion of the Civil Courts jurisdiction would perhaps have possessed some cogency, but in the absence of any such provision of a suit, we find it extremely difficult to uphold the objection to the Civil Courts jurisdiction in taking cognizance of a case like the present. It appears to us that all that the provisions reproduced above deprive a tenant of is, his right to institute a civil suit during the period of one year when he has the right to approach the Revenue Officer for relief for wrongful dispossession or ejectment. The express bar of a suit under section 9, Specific Relief Act, as provided in section 65 of the Act, would also seem to lend some support to the view we are taking, because after excluding the summary remedy under the Specific Relief Act, the tenant has been provided with a summary under section 62 available to him for a period of one year. Thereafter, however, we find no cogent and rational reason, and certainly none has been placed before us, to deprive the aggrieved tenant of his right to approach the ordinary Civil Courts for relief against dispossession or ejectment."