1. Appellant/plaintiff (for short ‘plaintiff’) filed Civil Suit No. 74 of 2003 before the learned Civil Judge (Senior Division), Chamba (for short ‘trial Court’) seeking following reliefs:-

“1. Decree for declaration to this effect that change of ownership right in favour of defendants vide mutation No.1196 dated 28-10-94 and subsequent revenue entries regarding 1 and measuring 1.18 Bighas comprised in Khasra No.349 Kh/kh. No.286/337 situated in Mohal Sultanpur Parg, Sach Tehsil and District Chamba is wrong, illegal, null and void upon the rights of plaintiff.

2. In alternative Decree for possession of land comprising of Khasra No.349 but if on the basis of Wong mutation, entries, the plaintiff is dispossessed during pendency of suit and not found in possession, in such eventuality suit for possession of land measuring 118 Bighas comprised in Khasra No.349 Kh/kh. No.286/337 as recorded in the jamaband for the Year 1991-92 si tua ted in Mohal Sultanpur Parg. Sach Tehsil and District Chamba-HP.

3. Any other relief to which the plaintiff may be found entitled under the law.”

2. Learned trial Court partly decreed the suit of the plaintiff and relief in the following terms was allowed:-

“15. As sequel to my findings on issues No. 1 to 7, suit of the plaintiff is partly decreed in favour of the plaintiff against the defendants declaring change of ownership right in favour of the defendants vide mutation No. 1196 dated 29-10-1994 and subsequent entries in favour of defendants to be illegal, null and void and not binding on plaintiff. It is hereby ordered that SDO (C), Chamba before passing order of review shall afford an opportunity of being heard to the plaintiff and thereafter he would pass an appropriate order with regard to modification, or cancelling allotment in favour of the plaintiff under the .P. Nautor Land Rules, 1968. As there is no iota of evidence that plaintiff has been dispossessed during the pendency of the suit relief of possession is declined and suit to this extent is partly dismissed. In the peculiar circumstances of the case, the parties are left to bear their own costs. A decree sheet be drawn and the file, after its needful be consigned to records.”

3. The respondents-defendants herein (for short ‘defendants’) assailed the judgment and decree passed by learned trial Court before the learned Additional District Judge, Fast Track Court, Chamba, H.P. in Civil Appeal No. 11 of 2006 (for short ‘First Appellate Court’). Learned First Appellate Court allowed the appeal of the defendants and dismissed the suit of the plaintiff vide judgment and decree dated 20.01.2007.

4. By way of instant appeal, a challenge has been laid by the plaintiff to the judgment and decree dated 20.01.2007 passed by learned 1st Appellate Court in Civil Appeal No. 11 of 2006.

5. This appeal was admitted by this Court on 24.04.2008 on the following substantial questions of law:-

1. Whether there has been misreading of evidence oral as well as documentary by the learned appellate Court

2. Whether the allotment/Patta issued in favour of the plaintiff, Ex. P.4, could have been cancelled without proving or establishing any breach of terms and conditions of the grant

6. I have heard Mr. N.K. Thakur, learned Senior Advocate assisted by Mr. Divya Raj Singh, Advocate and Mr. Kunal Thakur, learned Deputy Advocate General for the respondents and have also gone through the record carefully.

7. Plaintiff claimed ownership and possession of suit land on the basis of ‘Patta’ Ext. P-4 granted in his favour under Himachal Pradesh Nautor Land Rules, 1968 (for short ‘1968 Rules’). Records-of-rights were accordingly updated and entries to this effect were carried continuously from 1975-76 to 1991-92 in such records.

8. Plaintiff had averred in the plaint that mutation No. 1196 dated 28.10.1994 was attested by defendant No.2 surreptitiously at his back and based on that the suit land was wrongfully shown in records of rights to be owned and possessed by defendants. It was contended that once the rights of plaintiff were recorded in the record-of-rights, defendants had no power to cancel that. As per plaintiff, it was only the Civil Court which had the jurisdiction to declare the entries in the record-of-rights as null and void.

9. Plaintiff had filed the suit in June, 2003 by alleging that he had attained knowledge about the attestation of mutation No. 1196 only in the month of January, 2003. Thereafter, he had issued notice under Section 80 of the Code of Civil Procedure to the defendants. The notice having remained un-addressed, the suit was filed for the reliefs, as noticed above.

10. Defendant through their written statement challenged the locus-standi of the plaintiff to file the suit. Objections as to the jurisdiction of Civil Court, non-joinder and mis-joinder of parties, want of cause of action etc. were also raised. On merits, it was submitted that the suit land, at the time of making of grant in favour of plaintiff, fell within the jurisdiction of municipal limits of Chamba, as such, could not be granted under 1968 Rules. Additionally, it was submitted that plaintiff had failed to put the suit land to the use for which it was granted and also that he had misled the Collector regarding his status as a landless person. The mutation No. 1196 dated 19.02.1994 was sought to be justified on the aforesaid grounds.

11. Learned trial Court had framed the following issues:-

1) Whether the mutation No. 1196 dated 28-10-1994 is illegal, null and void as alleged OPP.

2) Whether the subsequent entries made on the basis of mutation are wrong as alleged OPP.

3) Whether the land was never occupied and claimed by the plaintiff as alleged, if so, its effect OPP.

4) Whether the land fallen within the area of Municipal Committee was not subject to allotment by the plaintiff by grant of 'Patta' as alleged OPD.

5) Whether the allotment was made in favour of the plaintiff as he mislead the Collector that he was landless, whereas, he was not so as alleged OPD.

6) Whether the suit is not maintainable in the present form as alleged OPD.

7) Whether this Court has got no jurisdiction to decide the case of alleged OPD.

8) Relief.

12. Issues No. 1, 2 and 4 were decided in affirmative, whereas, remaining issues were decided in negative. A relief, in terms, as noticed above, was allowed in favour of the plaintiff.

13. Learned trial Court granted relief to plaintiff on the premise that plaintiff was not heard before the attestation of mutation No. 1196 dated 28.10.1994.

14. Noticeably, learned trial Court also returned specific finding of fact that at the time of grant of ‘Patta’ in favour of the plaintiff, the suit land was within the municipal limits of Chamba town. Learned first appellate court also concurred with such finding of fact and accordingly held the grant of ‘Nautor’ in favour of plaintiff to be bad in law. Thus, denial of opportunity of hearing to the plaintiff before the attestation of mutation No. 1196 was held to be of no value as the initial allotment made in favour of the plaintiff was held to be patently wrong and illegal.

15. The concurrent finding of fact that suit land, at the time of its grant in favour of plaintiff, fell within the municipal limits of Chamba has not been assailed in the instant appeal. Nothing has been contended on behalf of the appellant at the time of hearing of the appeal assailing such finding. That being so, it becomes imperative to evaluate the effect thereof on the merits of the claim of the plaintiff.

16. Plaintiff had applied for grant of ‘Nautor land’ under 1968 Rules. The order allowing his application was passed by the SDO(C) Chamba on 24.03.1972 and the ‘Patta’ Ext.P-4 was accordingly issued.

17. Rule 3(a) of 1968 Rules read as under:-

“3(a) “Nautor Land” means the right to utilize with the sanction of the competent authority, waste land owned by the Government, outside the towns, outside the reserved and demarcated protected forests and outside such other areas as may be notified from time to time by the State Government in this behalf for any of the purposes, mentioned in the Rule 5.”

18. Rule 16 of the aforesaid Rules empower SDO(C) of the concerned Sub Division to grant ‘Nautor’ land. It is in exercise of aforesaid power that SDO(C) Chamba had purportedly granted suit land in favour of plaintiff by way of ‘Patta’ Ext. P-4.

19. As per definition of ‘Nautor land’ provided in 1968 Rules, the waste land which could be utilised with the sanction of competent authority, was mandatorily required to be outside the towns, outside the reserved and demarcated protected forests, and outside such other areas as might have been notified from time to time by the State Government. Exceptions were carved out for grant of Nautor land in demarcated protected forest as also in reserved forests, however, no such exception was there for grant of Nautor land inside the town.

20. Since the 1968 Rules did not authorize the grant of Nautor land inside the towns, the order passed by the SDO(C) Chamba on 24.03.1972 allowing the application of plaintiff for grant of Nautor land, was clearly without jurisdiction. The 1968 Rules no-where vested SDO(C) with power or jurisdiction to grant ‘Patta’ of Government land under the aforesaid Rules within the territorial limits of town. There is no dispute that Chamba town had Municipality. The suit land has also been concurrently held to be part of municipal area of Chamba.

21. Thus, the order dated 24.03.1972 passed by SDO(C) allowing the grant of Nautor land in favour of the plaintiff was without jurisdiction, it was nonest, a nullity and non-existent in the eye of law. Consequentially, such order could not have made a valid transfer of rights in favour of the plaintiff. Patta Ext.P-4 issued in pursuance to order dated 24.03.1972 was also having no legal sanctity. In these circumstances, no right, title or interest was transferred in suit land in favour of the plaintiff.

22. Reference can be made to judgment in Ajudh Raj and others vs. Moti s/o Mussadi (1991) 3 SCC 136 in which Hon’ble Apex Court while dealing with the provisions of Himachal Pradesh Abolition of Big Landed Estate and Land Reforms Act, 1953 held as under:-

“5. The principle for deciding the question of limitation in a suit filed after an adverse order under a Special Act is well-settled. If the order impugned in the suit is such that it has to be set aside before any relief can be granted to the plaintiff the provisions of Article 100 will be attracted if no particular Article of the Limitation Act is applicable the suit must be governed by the residuary Article 113, prescribing a period of three years. Therefore, in a suit for title to an immovable property which has been the subject matter of a proceeding under a Special Act if an adverse order comes in the way of the success of the plaintiff, he must get it cleared before proceeding further. On the other hand if the order has been passed without jurisdiction, the same can be ignored as nullity, that is, non-existent in the eye of law and it is not necessary to set it aside; and such a suit will be covered by Article 65. In the present case the controversial facts have been decided in favour of the plaintiffappellant and the findings were not challenged before the High Court. The position, thus, is that the plaintiff was the owner in cultivating possession of the land and the defendant Moti was merely a labourer without any right of a tenant or sub- tenant. The question is as to whether in this background it is necessary to set aside the order passed in favour of the respondent under Section 27(4) of thebefore the suit can be decreed or whether the plaintiff can get a decree ignoring the said order as void, in which case the suit undoubtedly will be governed by Article 65.

6. The provisions of Section 27(4) of theas also the other provisions are limited in their scope. The preamble indicates that the object of the is to provide for the abolition of the big landed estates and to reform the law relating to tenancies in the Himachal Pradesh. The expressions 'tenant', 'sub-tenant' as also other similar expressions have to be understood in the sense they have been used in the other statutes dealing with the relationship of landlord and tenant in agricultural lands. Section 27 of theprovides for a transfer by the law of the right title and interest of the land owner to the State Government under sub-section (1) Subsection (2) is by way of an exception with respect to land under the personal cultivation of the land owner. Sub-section (4) directs that the right, title and interest of the land owner thus acquired, shall be transferred by the State, On payment of compensation, to the tenant who cultivates such land. Under this provision, the order in the present case was passed in favour of Moti. If Moti was not a tenant or sub-tenant he was not entitled to the benefits under the subsection. If the land was in cultivating possession of the plaintiffs, as held in the present suit, the Compensation Officer did not have the jurisdiction to pass any order in defiance of subSection (2) and the land did not vest in the State at all. Further, for the additional reason that Moti was not a tenant of the land the order passed in his favour under Section 27(4) was again without jurisdiction. In absence of the conditions necessary for the exercise of power under Section 27(4) the Officer lacked jurisdiction to act and it was not necessary for the civil court to formally set aside his order before passing a decree. What necessitated the plaintiff to come to the civil court was the challenge to his title, and the suit must be held to be covered by Article 65, and, therefore, not barred by shorter periods of limitation either under Article 100 or Article 113.

23. In absence of existence of any lawful transfer of rights in favour of plaintiff, the revenue entries recorded in his favour were inconsequential. He could not derive any benefit merely on the basis of entries in records of rights which had no legal basis.

24. Substantial question of law as framed at Serial No. 2 above is accordingly answered. The Patta Ext. P-4 being non-existent in law did not require any cancellation.

25. Alternatively, assuming Patta Ext. P-4 to be lawful, still the plaintiff was bound to fail for the reason that learned trial Court and also learned First Appellate Court took notice of an order dated 12.02.1974, Ext.D-5, passed by the SDO(c) Chamba whereby, the grant of Nautor land allowed in favour of the plaintiff vide ‘Patta’ Ext.P-4 was reviewed and cancelled.

26. Ext.D-5 came to be placed on record by defendant’s witness, DW-2 Sh. Bhuvneshwar Kumar, who had placed on record copies of file No.1496/T.N. The same number i.e. 1496/ T.N. was available on order Ext.D-5. The statement of this witness was recorded on 28.12.2005 and on the same day, the document was marked as Ext.D-5. Thus, plaintiff had the notice of order Ext.D-5 atleast w.e.f. 28.12.2005, but he did not choose to assail the said order at any stage of the proceedings of Civil Suit No. 74 of 2003. It is trite that mutation or entries in the record-of-rights are not determinative of rights of the parties. The challenge to mutation No. 1196, in absence of challenge to order Ext.D-5 at the instance of plaintiff, was meaningless.

27. The finding of learned trial court that recording of mutation No. 1196 was not sustainable, in absence of grant of opportunity of being heard to the plaintiff, cannot be sustained on the basis of what has been held hereinabove on either of the counts. Firstly, the plaintiff had acquired no right, title or interest on the basis of an order without jurisdiction and secondly/alternatively plaintiff had failed to assail the order Ext.D-5.

28. However, the finding of learned trial court in respect of possession of plaintiff on suit land was based on evidence available on record. Plaintiff as his own witness had asserted his possession on the suit land and was further supported by his witness PW-2. Records of rights also contained consistent entries as to possession of plaintiff from 1975-76 to 1991-92. Though these entries have been held to be having no legal basis yet these could be looked into for collateral purposes as there was no reason for plaintiff to have not occupied the land immediately after grant of Patta Ext P-4 in his favour, especially when the cancellation order Ext. D-5 was not passed immediately thereafter. Further, there is nothing on record to suggest an inference that order Ext. D-5 was passed by associating the plaintiff or he subsequently was made aware of such order. On the other hand the findings recorded by learned first appellate court on the possession of plaintiff were result of surmise only.

29. In view of findings recorded above, substantial question of law at Serial No. 1 becomes redundant.

30. Accordingly, the Regular Second Appeal filed by the plaintiff is dismissed with no orders as to costs. All pending application(s), if any, are also disposed of.