1 2026:HHC:19448 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 307 of 2007 Reserved on: 21.4.2026 Date of Decision: 25.5.2026 Kashmiri Lal & ors. ...Appellants Versus Ashok Kumar & ors. ...Respondents Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Appellants : Mr Ajay Kumar, Senior Advocate, with Mr Rohit Thakur. For Respondents No.1 to 3 : Ms Vishali Lakhanpal, Advocate. Respondents No.3A, 4 and 6 proceeded against ex-parate. Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 26.3.2007 passed by the learned Additional District Judge, Fast Track Court, Una, H.P. (learned Appellate Court) vide which the judgment and decree dated 19.8.1998, passed by the learned Senior Sub Judge, Una, H.P. (learned Trial Court) were upheld. 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2026:HHC:19448 (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned trial Court for convenience). 2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court for seeking a declaration that she is the owner in possession of the suit land, mentioned in head note of the plaint, the entries of possession in the defendant’s name and the order dated 16.5.1988, passed by Naib Tehsildar (Settlement), Mehatpur, in Case No.338 of 1988 are wrong and not binding upon the plaintiff’s rights. A consequential relief of permanent prohibitory injunction for restraining the defendant from interfering with the suit land was also sought. In the alternative, relief of possession by way of demolition of construction, if any raised during the pendency of the suit, was claimed. It was asserted that the plaintiff is the owner-in-possession of the suit land, and the defendant has no right, title or interest in it. The defendant’s name was recorded in the column of possession based on an order dated 16.5.1988 passed by learned Naib Tehsildar (Settlement), Mehatpur, in Case No. 338 of 1988. The revenue officer had no right to pass such an order. The defendant started interfering with the suit land based on the 3 2026:HHC:19448 revenue entries in his favour. The plaintiff requested the defendant not to interfere with the suit land, but in vain. Hence, the suit was filed to seek the relief mentioned above. 3. The suit was opposed by filing a written statement taking preliminary objection regarding lack of maintainability and cause of action, the suit being bad for non-joinder of necessary parties, and the suit having not been properly valued for the purpose of Court fees and jurisdiction. The contents of the plaint were denied on the merits. It was asserted that the suit land is an evacuee property. It was auctioned in 1974 in favour of defendant No.1. The defendant constructed his abadi on the suit land and invested ₹ 30,000/- to renovate the abadi. The Mortgage Deed in favour of the plaintiff, if any, is illegal, null and void, and Ram Kumar had no right to alienate the defendant’s abadi to the plaintiff. The plaintiff has concealed the material facts from the Court and is not entitled to any relief. Hence, it was prayed that the suit be dismissed. 4. A replication denying the contents of the written statement and affirming those of the plaint was filed. 4 2026:HHC:19448 5. The following issues were framed by the learned Trial Court on 28.11.1989: - 1. Whether the suit is bad for non-joinder of necessary parties as alleged? OPD. 2. Whether the plaintiff is the owner in possession of the suit land as alleged? OPP. 3. Whether the suit is valued properly for the purpose of Court fee and jurisdiction? OPP. 4. Whether the defendant is owner-in-possession of land measuring 1 Kanal 10 Marlas on account of purchase as alleged? OPD-1. 5. Whether the defendant is a tenant-at-will over the rest of the suit land as alleged? OPD. 6. Whether the suit is not maintainable in the present form? OPD. 7. Whether the plaintiff has got no enforceable cause of action? OPD. 8. Relief. 6. The parties were called upon to produce the evidence, and the plaintiff examined herself (PW1) and Om Prakash (PW2). The defendant examined his Power of Attorney, Kashmiri Lal (DW1), and Hariom (DW2). 7. The learned Trial Court held that the entry made in the copy of Jamabandi for the year 1959-60 in the defendant’s favour as a non-occupancy tenant on the payment of ₹100/- was a stray entry. The other revenue entries were in favour of the 5 2026:HHC:19448 plaintiff, and the plaintiff had to be treated as the owner in possession of the suit land. The suit land was not connected to the land reflected in the revenue record. The defendant had no right to interfere with the suit land. Hence, the learned Trial Court decreed the suit. 8. Being aggrieved by the judgment and decree passed by the learned Trial Court, the defendant filed an appeal which was decided by the learned Additional District Judge, Fast Track Court, Una, District Una, H.P. (learned Appellate Court). The learned Appellate Court concurred with the findings recorded by the learned Trial Court that the defendant had failed to show any right over the suit land. Rajinder Kumar, the husband of the plaintiff, was recorded to be in possession before consolidation. These entries continued. A stray entry was made in favour of the defendant in the copy of Jamabandi for the year 1959-60 (Ex.D1), showing him to be in possession of the land as a tenant under Shri Ram. The land recorded in the copy of Jamabandi is not connected to the suit land. The Learned Trial Court had rightly decreed the suit. Hence, the appeal filed by the defendant was dismissed. 6 2026:HHC:19448 9. Being aggrieved by the judgment and decree passed by the learned Appellate Court, the defendant has filed the present appeal, which was admitted on the following substantial questions of law on 20.7.2007: - 1. Whether, in the facts and circumstances of the case and in the face of the pleadings of the plaintiffs and the evidence led by the parties, the present suit was maintainable and the Civil Court had no jurisdiction to try the same in view of the provisions of the Himachal Pradesh Tenancy and Land Reforms Act, 1972? 2. What is the effect of the judgment rendered by the learned First Appellate Court in Civil Appeal No. 172/98, decided on 26.3.2007, between the same parties on this case? 10. I have heard Mr Ajay Kumar, learned Senior Advocate, assisted by Mr Rohit Thakur and Ms Vishali Lakhanpal, learned counsel for respondents No.1 to 3. 11. Mr Ajay Kumar, learned Senior Advocate for the appellant, submitted that the plaintiff had challenged the order passed by Naib Tehsilar (Settlement), Mehatpur and the Civil Court had no jurisdiction to hear and entertain the suit. The learned District Judge (Ex.P6) had passed a contradictory decree in Civil Appeal No.172 of 1998, decided on 26.3.2007. Therefore, he prayed that the present appeal be allowed and judgments and decrees passed by the learned Courts below be set aside. 7 2026:HHC:19448 12. Ms Vishali Lakhanpal, learned counsel for the respondent, submitted that the learned Courts below have concurrently held that the plaintiff is the owner in possession of the suit land and the defendant has no right, title or interest over it. These are concurrent findings of fact and should not be disturbed while deciding the regular second appeal. Hence, she prayed that the present appeal be dismissed. 13. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. Substantial Question of Law No.1: 14. Assistant Collector 2nd Grade, Mehatpur, passed an order in File No.338 of 1988, decided on 19.8.1989, holding that the plaintiff should be recorded as the owner-in-possession instead of being in possession. The order shows that no application for claiming the right as a non-occupancy tenant was filed; rather, an application for correction of revenue entry based on the spot position was filed, which was investigated, and the order was passed. Therefore, the submission that the present suit is barred by virtue of the H.P. Tenancy and Land Reforms Act is not acceptable. Further, the order was passed by 8 2026:HHC:19448 the Assistant Collector, 2nd Grade and not by the Land Reforms Officer. It was laid down by this Court in Krishan Chand Vs. Jeet Ram, Latest HLJ (2009) 2978, that only the Assistant Collector of the First Grade is competent to confer proprietary rights upon the tenant, and an order passed by the Assistant Collector, 2nd Grade, is nullity and the jurisdiction of the Civil Court to go into the question will not be barred. It was observed: - 7. In Besru vs. Shibu, 1999(1) Shim.L.C. 343, this Court has held: - "10. Admittedly, in the present case, no attempt was made by the Assistant Collector 2nd Grade to serve the plaintiff in accordance with the law. As such, the mutation is void ab initio, being violative of the principles of natural justice. It can be held so far, another reason why it was not passed by the competent authority. From Rule 29 of the Rules, it is clear that only an Assistant Collector of the Ist Grade was the competent Land Reforms Officer to hold an inquiry under Section 104 of the Act. It is further fortified by the Notifications dated 27th/29th September, 1995, whereby all the Tehsildars in Himachal Pradesh were conferred with powers of Assistant Collector of Ist Grade for purposes of Chapter X of the Act under which Section 104, pertaining to acquisition of proprietary rights by the tenants, fails. By another Notification of the same date, Tehsildars conferred with the powers of Assistant Collector, Ist Grade, were appointed Land Reforms Officers for carrying out the purposes of Chapter X of the Act within their respective jurisdiction with immediate effect. So far, the present case is concerned, from the perusal 9 2026:HHC:19448 of the mutation, it is clear that it was attested by the Assistant Collector 2nd Grade, who had no jurisdiction to do so. Had the plaintiff been served in accordance with law and the competent authority held proper inquiry, the mutation conferring proprietary rights on the defendants would not have been passed in view of the Bar under sub-section (8)(a) of Section 104 of the Act." 8. By Notification No.1-8/68-Rev.1 issued by the competent Authority under Section 86 of the Act, it is only the Assistant Collector, Ist Grade, who is empowered to take up proceedings of conferment of proprietary rights. Notification reads:- "No.1-8/68-Rev.1- In exercise of the powers vested in him under sub-section (1) of section 86 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 (Act No.8 of 1974) and all other powers enabling him in this behalf, the Governor, Himachal Pradesh, is pleased to confer on all the Tehsildars in Himachal Pradesh, all the powers exercisable by an Assistant Collector of First Grade, for the purposes of Chapter IX of the aforesaid Act, within their respective jurisdiction, with immediate effect." It is undisputed that the provision of conferment of proprietary rights by tenants is contained in Chapter IX of the Act as aforesaid. These proceedings are, therefore, void ab initio, having been conducted by an officer who is not empowered to exercise the power to grant proprietary rights or to perform any other ancillary act. The very basis set up by the defendants for claiming ownership is, therefore, without any basis. This question would have concluded the entire controversy; however, since the appeal has been admitted on other questions, I am taking them up for consideration. 10 2026:HHC:19448 15. This position was reiterated in Khushi Ram versus Rajni Devi 2010 (2) Shim. LC 421 and it was observed: - “8. Now, when the plaintiff-respondent was in possession of the suit land and there were entries in revenue papers, continuing since 1967-68, Ex.P-3, showing the plaintiff in possession of the suit land, on payment of rent in kind, Assistant Collector 2nd Grade ought not to have entertained the application for correction of entries, in view of the provisions of Section 104 of the H.P. Tenancy and Land Reforms Act, 1972, which provides that on and with effect from the appointed day, i.e. 3.10.1975, a person recorded as non- occupancy tenant, would become owner, unless land owner exercises right to resume the tenanted land, and sub section (4) of Section 104 of the aforesaid Act says that if any dispute arises as to whether a person is a tenant under a land owner or not, the onus of proof shall be on the land owner to prove that the person recorded as tenant, is not a tenant. Assistant Collector 2nd Grade ought not to have passed the impugned order, as he had no jurisdiction in the matter. Jurisdiction of even Civil Courts is barred to entertain or determine this kind of dispute, by virtue of Section 112 of the H.P. Tenancy and Land Reforms Act, 1972. Such a question, as per rule 29 of the H.P. Tenancy and Land Reforms Rules, 1975, is required to be determined only by the Land Reforms Officer, exercising powers of Assistant Collector 1st Grade.” 16. Further, no person had challenged the order passed by the Assistant Collector Second Grade, and the submission that the Civil Court had no jurisdiction because the jurisdiction was barred under the provisions of the H.P. Tenancy and Land 11 2026:HHC:19448 Reforms Act cannot be accepted. Hence, this substantial question of law is answered accordingly. Substantial Question of Law No.2: 17. It was submitted that the learned Additional District Judge had held in Civil Appeal No.172 of 1998, decided on 26.3.2007 (which was the subject matter of RSA No. 284 of 2007 before this Court) that the abadi of the defendant exists on the suit land, and a contradictory finding was recorded in the present proceedings. This submission cannot be accepted. The present suit has been filed regarding land measuring 8-11, Khewat No.270 min, Khatauni No. 483 min, Khasra No.7/14/2- (6-3), 15/1(1-18), as entered in the Jamabandi for the year 1983- 84, whereas the previous suit was filed regarding the land measuring 05 Kanal 04 Marla, comprised in Khewat No.267, Khatauni No.480 min, Khasra No.R7/15/2, 214, 16/1 (2-10) as entered in the copy of Jamabandi for the year 1983-84. It is apparent that both these parcels of land have different areas and are represented by different Khasra numbers. Therefore, the finding recorded in one proceeding would not affect the other, and this substantial question of law is answered accordingly. 12 2026:HHC:19448 Final order: 18. In view of the above, the present appeal fails, and it is dismissed. 19. Pending application(s), if any, also stand(s) disposed of. 20. Records of the learned Courts below be sent down forthwith. (Rakesh Kainthla) Judge 25th May, 2026 (Chander)