NEK RAM Vs. REHMAD

JUDGEMENT

(1.) This appeal of the defendant is directed against the concurrent judgments and decrees of the two Courts below, whereby the suit of the plaintiff -respondent has been decreed. The judgment of the lower appellate Court is that of Shri V.K. Ahuja, Addl. District Judge, Sirmaur District at Nahan dated 25 -10 -1989 and that of the trial Court is that of Shri. B.D. Sharma, Sub Judge, Sirmaur Camp at Sarahna dated 31 - 05 -1989. The trial Court had decreed the suit of the plaintiff for declaration as well as for grant of permanent injunction restraining the defendant - appellant from interfering in the suit land. The appeal of the defendant having been dismissed, he has come up in the second appeal.

(2.) I have heard the learned counsel for the parties and gone through die record. It is not necessary to go into the facts inasmuch as one of the issues framed in this case is Issue No.6 to the effect that whether this Court has so jurisdiction to try the present suit as alleged? The onus to prove this issue was on the defendant The trial Court dealt with this issue as follows: "To rebut the plea of the defendant that the Court has so jurisdiction to the present suit, it would be revenant to place reliance cr. A.IR 1981 page 18 wherein it has been held that where there is a dispute about the status of tenancy, the Civil Cert jurisdiction is not excluded. Admittedly, the dispute between the parties in this is with regard to their status pertaining to the tenancy of the suit land and thus in view of the law laid down in the above authority, I hold that the jurisdiction of this Court is not ousted. This issue is decided against the defendant."

(3.) In appeal, s perusal of the judgment of the lower appellate Court shows that this aspect of the case has not been gone into at all by the learned lower appellate Court, though this issue goes to the root of the case. 3 A. The jurisdiction of the Civil Court is barred under Section 115 of the I H.P. Tenancy and Land Reforms Act, 1972. What has happened in the present case is that the Assistant Collector, 2nd Grade, Pachhad vide his order dated 10 -2 -1977, in exercise of powers vested in him under the Act, sanctioned all mutations regarding the suit land in favour of the plaintiff. Against that order, the defendant Nek Ram went up in appeal under Section 114 of the H.P. Tenancy Act. That appeal was disposed of by Shri S.K. Dash, Divisional Collector, Rajgarh on 10 -1 -1983, vide his order, certified copy of which is placed as Ex.P -7 on the record. Admittedly, a second appeal lay against that order under Section 114(2) of the said Act. However, instead of filing any appeal as provided under the said Act, the plaintiff approached the Civil Court by way of present suit necessitating the framing of issue regarding jurisdiction of the Civil Court in the matter.