The appellate court dismissed a suit for partition alleged to be barred by Section 171 of the Himachal Pradesh Land Revenue Act, 1954, noting absence of jurisdictional bar violation and no substantial question of law.
Appeal dismissed, parties to bear own costs, pending application disposed of.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
R.S.A. No. 79 of 2017
Decided on : 4.10.2017.
Ajudhia Devi and others …Appellants/Plaintiffs
Versus
Dhian Singh ..Respondent/Defendant.
Coram The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting ?1 No
For the Appellants : Mr. Neel Kamal Sharma, Advocate. For the Respondent : Mr. G.D. Verma, Senior Advocate, with Mr. B. C. Verma, Advocate.
Tarlok Singh Chauhan, Judge (oral)
Every litigation must come to an end at some stage.
1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes
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by Section 171 of the Himachal Pradesh Land Revenue Act, 1954 (hereinafter referred to as the ‘Act’).
I have heard learned counsel for the parties and have also gone through the material placed on record.
“171. Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers. – Except as otherwise provided by this Act –
(1) A Civil Court shall not have jurisdiction in any matter which the State Government or a Revenue Officer is empowered by this Act, to dispose of or take cognizance of the manner in which the State Government or any
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Revenue Officer exercise any powers vested in it or him by or under this Act, and in particular –
(2) A Civil Court shall not exercise jurisdiction over any of the following matters, namely –
(i) any question as to the limits of any land which has been defined by a Revenue Officer as land to which this Act does or does not apply;
(ii) any claim to compel the performance of any duties imposed by this Act or any other enactment for the time being in force on any Revenue Officer, as such;
(iii) any claim to the officer of kanungo, or village officer, or in respect of any injury caused by exclusion from such office, or to compel the performance of the duties or a division of emoluments thereof;
(iv) any notification directing the making or revision of a record-of-rights;
(v) the framing of a record-of-rights or periodical record or the preparation, signing or attestation of any of the documents included in such a record;
(v-a) order regarding complete re-measurement of an estate or sub-estate under section 33-A of this Act;
(vi) the correction of any entry in a record of rights, periodical record or register of mutations;
(vi-a) correction of clerical errors under section 38-A of this act;
(vii) any notification of the undertaking of the general reassessment or a district or tehsil having been sanctioned by the State Government;
(viii) the claim of any person to be liable for an assessment of land revenue or of any other revenue assessed under this act;
(ix) the amount of land revenue to be assessed on any estate or to be paid in respect of any holding under this act;
(x) the amount of, or the liability of any person to pay, any other revenue assessed under this Act, or any cess, charge or rate to be assessed on an estate or holding under this Act on any other enactment for the time being in force;
(xi) any claim relating to the allowance to be received by a land owner who has given notice of his refusal to be
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liable for an assessment, or any claim connected with, or arising out of, any proceeding taken in consequence of the refusal of any person to be liable for an assessment under this Act;
(xii) the formation of an estate out of waste land;
(xii-a) formation of Sub-Division of an estate or merger of sub-estates or estates etc. under section 34-A of this Act;
(xiii) any claim to hold free of revenue any land, mills, fisheries or natural products of land or water;
(xiv) any claim connected with, or arising out of, the collection by the State Government, or the enforcement by the Government of any process for recovery of land, revenue or any sum recoverable as an arrear of landrevenue;
(xv) any claim to set aside, on any ground other than fraud, a sale for the recovery of an arrear of land revenue or any sum recoverable as an arrear of land-revenue;
(xvi) the amount of, or the liability of any person to pay any fee, fines, costs or other charges imposed under this Act;
(xvii) any claim for partition of an estate, holding or tenancy, or any question connected with, or arising out of proceedings for partition not being a question as to title in any of the property of which partition is sought;
(xviii) any question as to the allotment of land on the partition of an estate holding or tenancy or as to the distribution of land subject by established custom to periodical redistribution, or as to the distribution of landrevenue on the partition of an estate or holding or on a periodical redistribution of land, or as to the distribution of rent on the partition of a tenancy;
(xix) any question connected with or arising out of or relating to any proceeding for the determination of boundaries of estates subject to river action under sections 108, 109, 110 and 111 respectively of Chapter VIII;
(xx) any claim to set aside or disturb a division or appraisement of produce confirmed or varied by a Revenue Officer under this Act;
(xxi) any question relating to the preparation of a list of village cesses or the imposition by the State Government of conditions on the collection of such cesses;
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(xxii) any proceeding under this Act for the communication of the dues of a superior land-owner; (xxiii) any claim arising out of the enforcement of an agreement to render public service in lieu of paying landrevenue;
(xxiv) any claim arising out of the liability of an assignee of land-revenue to pay a share of the cost of collecting or reassessing such revenue, or arising out of the liability of an assignee to pay out of assigned land revenue, or of a person who would, be liable for land revenue, if it had not been released, compounded for, or redeemed, to pay on the land revenue for which he would, but for such release, composition or redemption, be liable, such a percentage for the remuneration of a village officer as may be prescribed by rules for the time being in force under this Act;
(xxv) any question, as to any land or any right to, or title or interest in, the land which is an encroached land or in relation to which any person claims that it has vested or is deemed to have vested in him and that he cannot be ejected therefrom under sub-section (1) of section 163; and
(xxvi) the ejectment of any person under section 163 or the recovery of damages or fine payable under subsection (1) of that section.”
[Emphasis supplied]
Dhulabhai vs. State of Madhya Pradesh, AIR 1969 SC 78 on an appreciation of various decision had culled out the seven propositions on the question of ouster of Civil Court’s jurisdiction to entertain and decide the suit as follows:
“(1) Where the statute gives a finality to the orders of the special tribunals the civil court’s jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
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(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.
Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.
(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies.
(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the
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particular Act. In either case the same of the particular Act must be examined because it is a relevant enquiry. (7) An exclusion of the jurisdiction of the civil Court is not readily to be inferred unless the conditions above set down apply.”
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“ 15……The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one.”
“12. The phrase ‘substantial question of law’, as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying “question of law”, means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of substantial question of law by suffixing the words of general importance as has been done in many other provisions such as Section 109 of
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the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta & Anr. Vs. T. Ram Ditta, AIR 1928 Privy Council 172, the phrase “‘substantial question of law” as it was employed in the last clause of the then existing Section 110 of the C.P.C. (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. Vs. The Century Spinning and Manufacuring Co., Ltd., (1962) Supp.3 SCR 549, the Constitution Bench expressed agreement with the following view taken by a Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju, ILR 1952 Madras 264:-
“When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative view, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law.”
and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:-
“The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty
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or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.”
down the guidelines on the test of as to what is the substantial question of law, which reads thus:
“14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be “substantial”, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.”
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October 4, 2017. (Tarlok Singh Chauhan) (GR) Judge
2 issues framed by the court
Whether Section 171 of the Himachal Pradesh Land Revenue Act, 1954 bars the Civil Court's jurisdiction in partition-related disputes.
Whether the dismissal of earlier remedies precludes the civil suit.
Colour shows how this judgement treated each authority
Dhulabhai vs. State of Madhya PradeshExplained¶59
Dhulabhai vs. State of Madhya Pradesh, AIR 1969 SC 78 · Who else cites this
Dalip Singh vs. State of H.P.Relied on¶9
Dalip Singh vs. State of H.P. 1992 (1) Shim. L.C. 320
Santosh Hazari vs. Purushottam Tiwari (deceased)Explained¶73
Santosh Hazari vs. Purushottam Tiwari (deceased) by LRs (2001) 3 SCC 179 · Who else cites this
1 provisions across 1 enactments
Ajudhia Devi and others
Dhian Singh
Tarlok Singh Chauhan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
