An order passed by an Assistant Collector of the Second Grade regarding the conferment of proprietary rights under the H.P. Tenancy and Land Reforms Act is void ab initio for lack of jurisdiction, thereby not barring the jurisdiction of the Civil Court to determine the legality of possession.

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.

(The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned trial Court for convenience).

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 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.

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.

A replication denying the contents of the written statement and affirming those of the plaint was filed.

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.

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).

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 plaintiff, and the plaintiff had to be treated as the owner in possession of the suit land.