Devinder Gupta, J.
1. This Regular Second Appeal has arisen out of the judgment and decree passed on July 30, 1982, by Additional District Judge, Solan and Sirmaur Districts at Solan, dismissing the appeal of defendants-appellants and thereby confirming the judgment and decree of Sub-Judge 1st Class, Nalagarh, dated January 9, 1980, decreeing the suit of the plaintiff-respondent.
2. The plaintiff filed a suit claiming a decree for declaration to the effect that he was in possession of land measuring (a) 46 kanals 15 marlas situate in village Rajpura, Tehsil Nalagarh and (b) 35 kanals 2 marlas situate in village Rangoowal in Tehsil Nalagarh as a tenant under defendants-appellants and that the order passed on July 6, 1977 by the Land Reforms Officer, Nalagarh, in proceedings initiated by defendants under Section 30 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 (Act No. 8 of 1974) (hereinafter referred to as the Act) was illegal, void, without jurisdiction and ineffective and inoperative upon his rights to remain in possession of the land and to enable him to acquire proprietary rights under the provisions of the Act and by way of consequential relief plaintiff prayed for grant of a decree for injunction restraining the defendants from causing any interference in his possession on the basis of the void order of Land Reforms Officer.
3. The basis of the suit was that the aforementioned land was owned and possessed by defendant-appellant No. I and plaintiff had been inducted as a tenant upon the same for the last more than 12 years on payment of rent. The land situate in village Rajpura had been gifted, on the basis of aregistered deed of gift dated September 7; 1970, by defendant-appellant No. 1 in favour of his daughters defendants-appellants Nos. 2 and 3. The plaintiff continued in possession of the entire property as a tenant under the defendants but with a view to defeat his rights in acquiring proprietary rights under the provisions of the Act, defendant No. 1 with a mala fide intent by treating the gift to have been repudiated and considering himself to be the owner-landlord moved an application under Section 30 of the Act before the Land Reforms Officer seeking to resume the land as a disabled, person incapable to cultivate the land and procured an order in his favour though provisions of Section 30 were not attracted in his case. According to the plaintiff, the Land Reforms Officer on erroneous assumption of facts and without complying with the provisions of the Act assumed jurisdiction not vesting in him and passed the order dated July 6, 1977, which was claimed to be illegal, void and without jurisdiction and not affecting his rights to have the benefit of acquisition of proprietary rights. It was alleged that neither defendant No. 1 was disabled, nor was he incapable to cultivate the land.
4. The suit was resisted by the defendants by filing a joint written statement. They did not dispute the possession of the plaintiff over the property as a tenant initially under defendant No. 1 but denied that any valid gift ever came into being. It was averred that defendant No. 1 was under a disability and provisions of Section 30 of the Act did apply as he had been declared to be physically and mentally infirm by a Medical Officer and the Land Reforms Officer rightly passed the order under Section 30 of the Act, which order had become final as no appeal was preferred by the plaintiff under the provisions of the Act. Defendants also questioned the jurisdiction of the Civil Court to entertain the suit of the nature for declaring the order to be void which had become final and conclusive and averred that jurisdiction of the Civil Court was barred in the matter arising out of dispute between the landlord and tenant.
5. The trial Court went into the merits of the case and held that the Civil Court had jurisdiction to entertain and try the suit. Italso held the order passed by the Land Reforms Officer to be illegal, void and without jurisdiction. On merit, the trial Court also found that defendant No. 1 was not a person who was physically and mentally infirm. It also found that as plaintiff was already in occupation of the property as a tenant on the coming into force of the Act and on the date when the rules framed under the Act came into force, therefore, by virtue of provision of Section 104(3) of the Act, the plaintiff would be deemed to have acquired proprietary rights and proceedings initiated by the Land Reforms Officer thereafter and the order passed by him under Section 30 of the Act were illegal, void and without jurisdiction. As a consequence, the trial Court decreed the suit. The lower appellate Court while dismissing the appeal concluded that the plaintiff had automatically become the owner of the property on and from the date when the rules framed under the Act came into force, which was a date notified by the State Government. Proceedings initiated by the Land Reforms Officer under Section 30 of the Act thereafter were illegal, void and without jurisdiction and the Civil Court had undoubtedly jurisdiction to entertain and decide the suit.
6. The defendants have filed the present appeal in this Court against the judgment and decree of the lower appellate Court by raising the following substantial questions of law foradjudication :--
'(i) Whether the order of the Land Reforms Officer dated 6-7-1977 which had not been challenged in appeal or revision and which had become final under the provisions of H. P. Tenancy and Land Reforms Act, could be declared invalid by the Civil Court?
(ii) Whether jurisdiction of the Civil Court is excluded under the provisions of the H, P. Tenancy and Land Reforms Act to try and determine matters within the competence of the authorities appointed under that Act?
(iii) Whether in the facts and circumstances of this case, the Civil Court is competent to adjudicate pleas which had not been raised in the pleadings and hold that the respondenthad become owner and the application forresumption was not maintainable?'
7. Having heard the learned counsel for the parties and also having gone through the record, I am of the opinion that the appeal deserves dismissal for the reasons stated hereinafter. The status of the plaintiff, as a tenant on the suit land prior to the commencement of the Act, is not disputed by the defendants appellants as it was only on that basis that they moved the application under Section 30 of the Act seeking resumption of the land in question. The substantial questions of law have to be decided in the light of this assumption that the plaintiff was a tenant in possession of the suit land as on the date of coming into force of the Act.
8. The Act came into force on February 21, 1974. Sub-Section (3) of Section 104 of the Act provides that all rights, title and interest of a landowner, other than a landowner entitled to resume under Sub-Section (1) of Section 104 of the Act, shall stand extinguished and all such rights, title and interest shall, with effect from the date to be notified by the State Government in the Official Gazette, vest in the tenant free from all encumberances and in cases of tenancy which is created after the Commencement of the Act, provisions of this subsection shall apply immediately after the creation of tenancy. R. 27 of the Himachal Pradesh Tenancy and Land Reforms Rules, 1975 (briefly the Rules), provides that all rights, title and interest in the tenancy land of the landowners, who had already under their personal cultivation three acres unirrigated or 1 1/2 acres irrigated land shall vest in the non-occupancy tenant with effect from the commencement of these rules. The rules came into force on and from October 3, 1975. Reading the aforementioned provisions, the conferment of proprietary rights under the Act is automatic from the date of issue of notification by the State Governmeni in the Official Gazette, that is, October 3, 1975 and the vestment of ownership is free from all encumbrances. See Daulat Ram etc. v. The State of Himachal Pradesh etc., ILR 1978 HP 742.
9. No dispute was ever raised by thedefendants under Sub-Section (8) of Section 104 of the Act. Had defendant No. 1 been permanently incapable of cultivating the land by reason of any physical or mental infirmity, it was for the defendants to have taken appropriate proceedings before the Land Reforms Officer under Section 104 of the Act, which was not done in the present case. The only dispute which was raised by the defendants was for resumption of land by moving an application under Section 30 of the Act on May 17, 1976, on the ground that defendant No. 1 was permanently incapable of cultivating the land by reason of his physical and mental infirmity and, therefore, he had a right to resume land under Section 30 of the Act for which a notice had been served by him upon the plaintiff. The application was supported by a medical certificate in which defendant No. I was certified by the Chief Medical Officer, Solan, to be a person physically incapaciated to undertake any work involving physical exercise with defective hearing as well as defect in orientation of speech. Notice of this application was served upon plaintiff, who appeared before the Land Reforms Officer and made a statement that he was in occupation of the property as a tenant for the last more than 12 years and had received the notice but had disputed the fact that defendant No. 1 was permanently incapable of cultivating the land or that he was having physical or mental infirmity. He had also denied the right of defendant No. 1 to resume land. The Land Reforms Officer on the same day, that is July 6, 1977 without further inquiry and without taking any evidence and without adjudicating the dispute which had arisen before him passed an order accepting the application of defendants. It was recorded in the order that as the plaintiff had accepted the receipt of notice under Section 30 of the Act, therefore, the application was being allowed. The Land Reforms Officer did neither adjudicate as to whether defendant No. 1 was a person who was having any physical or mental infirmity by reason of which he was permanently incapable of cultivating the land or whether he was entitled to resume the land. He simply allowed the application without making any further directions. In the light of the aforementionedmaterial on record, it has to be seen as to whether the suit of the nature, which was brought by the plaintiff, was entertainable in a Civil Court or not.
10. Section 30 of the Act, as contained in Chapter IV, inter alia, provides as under :--
'30. Leases.-- (1) A landowner who-
(a) xx xx xx (b) is permanently incapable of cultivating land by reason of any physical or mental informity; or
(c) xx xx xx (d) xx xx xx may lease land owned by him for such period during which his inability or disability to cultivate it personally lasts:
xx xx xx Provided further that where such inability or disability ceases, the landowner shall be entitled; to apply to get back the possession o the land from the lessee within one year from such cessation in the manner provided hereafter;
(2) Any landowner referred to in subsection (I) may by giving in writing to his lessee or to his lessees' agent, a notice of his intention to resume the lease immediately after the harvest of the crop then current.
(3) The landowner may, instead of, or in addition to giving the notice in the manner mentioned in Sub-Section (2), apply to a Revenue Officer to cause the notice to be served on the lessee and the Revenue Officer, on receiving the cost of service from the landowner, shall cause notice to be served as soon as may be.
(4) If the lessee fails to vacate his possession as aforesaid in accordance with the notice, the Revenue Officer may, on application by the landowner, put the landowner in possession of the area under the lease immediately after the harvesting is over and the Revenue Officer may at the cost of the tenant, for this purpose, use such force as may be necessary.'
S. 57 of the Act, inter alia, provides as under :--
'Application and proceedings cognizable by Revenue Officers.-- (1) The following applications and proceedings shall be disposed of by Revenue Officers as such, and no Court shall take cognizance of any dispute or matter with respect to which any such, application or proceeding might be made or had:--
First Group
xx xx xx xx xx xx Second Group
(g) xx xx xx (h) applications under Section 30 for resumption of leased land;'
Third Group
(2) Except as otherwise provided in this Act or by any rule made by the Financial Commissioner in this behalf,--
(a) xx xx xx (b) An Assistant Collector of the Second Grade, not being a Naib-Tehsildar, may dispose of any of the applications mentioned in the second and third groups of that subsection; and
(c) xx xx xx xx xx x.' Section 61 of the Act provides for filing of an appeal or revision against the order passed by the Land Reforms Officer.
11. Rule 11 of the Rules defines temporary disablement as follows:--
'11. Temporary disability for the purpose of Section 30. -- For the the purpose of clause (d) of Sub-Section (1) of Section 30, a landowner who is-
(a) temporary an (idiot) or a lunatic; or
(b) a person incapable of cultivating by reason of blindness or other physical infirmity;
(c) prosecuting studies in recognised institution and does not exceed 25 years in age and whose father or mother, as the case may be, either suffers from any of the disqualifications mentioned in clause (a) or (b) of the said sub-section or has died; or
(d) under detention or imprisonment, shall be treated as temporary disabled.'
12. The learned counsel for the appellants urged before me that the Act provides for the machinery for adjudication of the disputes of the nature, which have been raised in the suit and as the application under Section 30 of the Act was decided on merits, after hearing the plaintiff, the order has become final as no appeal was preferred against the same, therefore, neither the Civil Court had jurisdiction to entertain the suit, nor the matter could be reagitated in view of the bar provided in Explanation VIII to Section 11 of the Civil P. C. In support of his contention, the learned counsel sought support from a Full Bench decision of this Court dated September 21, 1990 in RSA No. 338 of 1988 (Chuhniya Devi v. Jandu Ram), in which one of the questions answered by the Bench was as to whether the Civil Court had jurisdiction in respect of an order of conferment of proprietary rights under Section 104 of the Act. The question was answered in the following words:--
'the Civil Court has no jurisdiction to go into any question connected with the conferment of proprietary rights under Section 104 of the H. P. Tenancy and Land Reforms Act, 1972, except in a case where it is found that the statutory authorities envisaged by that Act had not acted in conformity with the fundamental principles of judicial procedure or where the provisions of the Act had not been complied with.'
13. The Supreme Court in Richpal Singh v. Dalip, AIR 1987 SC 2205 held that when there was admitted position, the relationship of landlord and tenant was accepted, the remedies and rights of the parties should be worked out under the Scheme of the Act.
14. The jurisdiction as to the nature of the suit 18 to be determined on the basis of averments made in the plaint and not on thebasis of any defence or the result of the suit or on merits of the claim. It is the substance of the plaint and the true nature of object of suit, which has to be seen while determining the question as to whether the Civil Court has jurisdiction or not. On a review of various decisions of the Privy Council and Supreme Court, a constitutional Bench of the Supreme Court in Dhulabhai etc. v. State of Madhya Pradesh, AIR 1969 SC 78 has laid down the following seven propositions of law regarding exclusion of jurisdiction of Civil Court:
'(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.
(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 intend-ment 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) Question 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 particular Act. In either case the scheme 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.'
15. There is no provision in the Act making the order passed by the Revenue Officer under Section 30 of the Act to be final and conclusive just like and order passed by the Land Reforms Officer under Section 104 of the Act which is final and conclusive under Section 112 of the Act. There cannot be an implied exclusion of the jurisdiction of Civil Court. In order to bring about implied bar there should be a provision giving finality to the order of the tribunal or authority having all the remedies available to a party before Civil Court.
16. Assuming for argument's sake that there is exclusive jurisdiction with the Revenue Officers to decide the question and their decision under Section 30 of the Act is final yet the Civil Court's jurisdiction to examine the order with reference to fundamental provisions of statute, non-compliance with which would make the proceedings illegal and without jurisdiction, still remains. The trial Court as a matter of fact was wrong in having gone into the merits of the case as it was not the Court exercising powers under the Act as a Court of appeal or revision. The jurisdictionof civil court is limited. It cannot sit as a court of appeal from a decision of Revenue Officer exercising powers under the Act in view of the provisions of Section 57(1) of the Act, If can, however, set aside an order of Revenue Officer if it ib found thai the revenue officer acted without jurisdiction or acted in violation of the principles of natural justice or without complying with the provisions of the Act, that is, not in good faith.
17. Copies of the proceedings before the Revenue Officer have been produced, and proved on record. Ex. P-8 is the copy of statement of plaintiff dated July 6, 1977, in which the plaintiff stated that he was in occupation of the entire property as a tenant for the last 14/15 years. Gopal Chand, defendant No. 1, had made a gift of his property situate in village Rajpura in favour of his daughters defendants 2 and 3. Gopal Chand is literate and is a valid by profession and he had no right to get the land resumed. Ex. P-9 is the copy of the statement of Krishna Devi daughter of Gopal Chand. She tendered the medical certificate issued by Chief Medical Officer and stated that her father Gopal Chand was not physically and mentally fit. She admitted the plaintiff to be a tenant on the land. Ex. PW 5/A is the medical certificate issued by the Chief Medical Officer, Solan, in which Gopal Chand, defendant No. 1, is shown to be physically incapacitated to undertake any work involving physical exercises and having defective hearing as well as disorlentation of speech. Ex. P-10 is the copy of the order passed by the Revenue Officer describing himself to be the Land Reforms Officer. From the bare perusal of the copy of the order, it will be seen that there is no adjudication of any of the disputes which had been raised before him. The only fact which is mentioned in the order is of recording of statements of the parties and that plaintiff had received the notice. By this order, the application of the defendants was allowed. The order on the face of it shows that the Revenue Officer did not act in conformity with the fundamental principles of judicial procedure. The order was passed without complying with the basic requirements of Section 30 of the Act. The matter squarely falls within the first principlelaid down by the Supreme Court in Dhula-bhai's case (supra) and as such the civil court, in the present case, had undoubtedly jurisdiction to entertain the suit of the nature.
18. Both the courts below were right incoming to the conclusion that the order passed by the Land Reforms Officer on July 6, 1977, was illegal, void and without jurisdiction and was inaffective and inoperative on the rights of plaintiff and were also right in granting a decree for injunction in his favour.
19. In the result, the appeal fails and is dismissed. Parties are left to bear their own costs.