Kuldip Chand Sood, J: - Judgment and decree of the learned Additional District Judge; Kullu, dated March 27, 1993 in Civil suit No.41 of 1989 is under challenge in this second appeal.

2. This appeal was admitted on March 14, 1996 on the following substantial questions of law:

1. Whether the court below erred in holding that Civil Courts jurisdiction is not barred in such matters in view of the decision of Full Bench of H.P. High Court in Chunihaya -v- Jindu Ram and others reported in 1991(1), Simla Law Cases page 223.

2. Whether the court (lower appellate Court) has misintrepreted the law.

3. Whether the learned lower appellate court has misread and misappreciated the evidence on record both oral and documentary which resulted in setting aside the judgment and decree of learned trial court.

4. Whether the learned lower appellate court erred in holding that the appellants are not tenants over the suit land and that the proprietary rights have been wrongly conferred.

5. Whether the findings are based on mere conjectures and surmises.

3. In order to appreciate the controversy and the questions involved, necessary facts may be noticed. One Smt. Kali was the owner in possession of the land comprised in khasra number 876 measuring 2-2 bighas situate in village Phati Khokhan, Kothi Khokhan of Tehsil and District Kullu, ("suit land" for short). Smt. Kali transferred this land to the original plaintiff Jindi during her life time. Shri Govind, original defendant, is son of real brother of the plaintiff. The case of the plaintiff is that defendant Govind, exercising his influence, in connivance with his relatives in the Revenue Department, and taking undue advantage of the poverty and illiteracy of the plaintiff, got his name recorded in the column of possession in the revenue record behind the back of the plaintiff. It is the further case of the plaintiff that defendant exercising his influence in the Department of Revenue, further got a mutation number 1565, conferring proprietary rights on him, and attested on July 16, 1983. This mutation was attested behind the back of the plaintiff and against law. Defendant was never inducted as tenant in the suit land nor was he ever in occupation of this land. The mutation conferring proprietary rights on the defendant was against the law and facts and is non-est. The plaintiff is not bound by such mutation. It is inconceivable, pleaded plaintiff, that she would induct son of her real brother as tenant. The defendant managed to secure the wrong entries in column of cultivation, due to his influence. Mutation conferring propnetary rights having been attested behind the back of the plaintiff has no legal sanctity. According to the plaintiff, she came to know about the attestation of mutation only on May 28, 1986 when the defendant threatened to dispossess her. In this background, plaintiff prayed for a declaration that defendant v/as never inducted as tenant nor he occupied or possessed the suit land or any part thereof in any capacity and the revenue entries to the contrary are wrong. Consequently, the plaintiff is not bound by the mutation conferring proprietary rights on the defendant. Plaintiff also prayed for restrain on the defendant from interfering with her possession over the suit land. In the alternative, the plaintiff prayed that in case defendant forcibly dispossesses her during the pendency of the suit, then a decree for possession on the basis of title may be passed in her favour.

4. Defendant resisted the suit. Allegations were controverted. Jurisdiction of the Court to try the suit was disputed. On merits, it was admitted that the plaintiff, on transfer of the suit land by Kali, became owner of the same. The case of the defendant was that father of the defendant was non-occupancy tenant of the suit land and after the death of his father, he stepped into the shoes of his father and became tenant and had acquired proprietary rights under Section 104 of the H.P. Tenancy and Land Reform