1. The present appeal is directed against the judgmentand decree dated 30.03.2005, passed by learned Additional District Judge (Fast Track Court), Una, District Una, H.P., vide which the appeal filed by the appellants (defendants before the learned Trial Court) was dismissed and the judgment and decree passed by the learned Sub Judge Ist Class, Amb, District Una, H.P. were upheld.(Parties shall hereinafter be referred to in the similar manner in which they were arrayed before the learned Trial Court for convenience.)

2 Briefly stated, the facts giving rise to the present appeal are that the plaintiffs filed a civil suit before the learned Trial Court seeking a declaration that plaintiff no.1 is exclusive owner in possession of the land described in head note “a”, plaintiffs No. 2 to 5 are exclusive owners in possession of the land described in head note “b” and plaintiffs No. 1 to 5 are owners in possession of the Gair Mumkin land described in head note “c”. The allotment of the land in paras “a” and “b” to the defendants by Consolidation authorities and entry showing the defendant no.3 as

The present appeal is directed against the judgment and decree dated 30.03.2005, passed by learned Additional District Judge (Fast Track Court), Una, District Una, H.P., vide which the owner of the land mentioned in para “c” of the plaint are wrong, illegal, null and void having no right, title or interest of the plaintiffs. A permanent prohibitory injunction for restraining the defendants from taking the forcible possession of the suit land in any manner, selling, cutting, removing the valuable trees and grass or changing its nature was also sought.

3. The pedigree table showing the relationship of the partiesis as under:

4. The land of the parties was declared surplus after the enforcement of the H.P. Land Ceiling on Land Holdings Act, 1972. Plaintiff No.1 and Bachittar Singh, the predecessor-in-interest of plaintiffs No.2 to 5, declared the entire holdings including the tenancy land in Village Suhin, except the Gain Mumkin Land as surplus. The Collector, Una, passed an order dated 02.04.1975 declaring the entire holding of the plaintiff surplus in village Shuin except Gair Mumkin Land. Plaintiff No.1 exchanged the land mentioned in headnote “A”, and Bachittar Singh, the predecessor-in-interest of plaintiffs No.2 to 5 exchanged the land mentioned in headnote “B” with the State Government. Defendant No. 3 had surrendered his entire land in Village Suhin to the State Government. The revenue entries wrongly reflected, defendant no.3 as a co-sharer to the extent of 3203 shares. The consolidation Authorities wrongly allotted the land based on the wrong revenue entries. The defendants started interfering with the possession of the plaintiff. Hence, the suit was filed for seeking the relief mentioned above.

5. The suit was opposed by defendants no.1 and 2 by filing a written statement taking preliminary objections regarding lack of maintainability& jurisdiction, the suit being for non-joinder and mis-joinder of parities, suit being collusive, andthe plaintiffs being estopped by their act and conduct to file the present suit and bar of jurisdiction. The contents of the plaint were denied on merits. However, it was admitted that the land of the parties was joint with other co-shares before the commencement of the H.P. Land Ceiling on Land Holdings Act, 1972. It was asserted that parties declared their land surplus. No appeal was preferred against the order declaring the land as surplus. The plaintiff declared the whole land surplus in the village surplus except the lands which were exempted under the Ceiling Act. The plaintiffs retained their land in the village of Lohara. Defendant No.1 reserved land in village Suhin and Lohara. The defendant felt hardship and applied for the review of the order of the Collector. The Collector reviewed the order and allotted the land to defendants no.1 and 2 in Village Suhin in lieu of land in Village Lohara. The exchange was duly approved by the Collector. Defendants No.1 and 2 became the exclusive owners of the land allotted to them. The plaintiffs and defendant No.3 have no right, title or interest in the land of defendants no.1 and 2. The suit was filed in collusion with defendant no. 3. The land was properly partitioned by the Consolidation Authorities. The plaintiffs are estopped from filing the present suit. The Civil Court has no jurisdiction to hear and entertain the present suit. Hence, it was prayed that the suit be dismissed.

6. Defendant No.4 filed a separate written statement taking preliminary objections regarding lack of maintainability, locus standi and jurisdiction, the suit being bad for non-joinder of necessary parties, the suit being barred by limitation,the plaintiffs being estopped by their act and conduct to file the present suit and the suit having been filed incollusion with defendant no.3. The contents of the plaint were denied on merits. It was asserted that the parties had their joint holdings in Village Tibbi also. The parties declared their land surplus as per their choice and convenience according to their entitlement as per the H.P. Ceiling on Land Holdings Act. The plaintiffs have declared entire shareholding including the Gair Mumkin land in Village Suhin and Tibbi. They have been left with no rights or interests. The plaintiffs are estopped to file the present suit. The jurisdiction of the Civil Court is barred; therefore, it was prayed that the suit be dismissed.

7. Replications denying the contents of the written statements and affirming those of the plaint were filed.

8. The learned Trial court framed the following issues on 10.02.1992:

"1. Whether the plaintiffs are exclusive owners in possession of the suit land as alleged OPP

2. Whether the plaintiffs are co-sharers with the defendants qua the Gair Mumkin land as alleged OPP

11. Whether the suit is within time OPD

12. Whether the plaintiffs have not locus standi and cause of action to file the present suitOPD.

13. Relief."

9. The parties were called upon to produce evidence.

Plaintiffs examined Nirmala Devi (PW-1). The defendants examined Gian Chand (DW-1), Jagdish (DW-2), Ramesh Chand (DW-3), and Kushal Singh (DW-4).

10. Learned Trial Court held that an exchange had taken place and plaintiff No.1 obtained Khasra Nos. 286,453,497,506,584 and predecessors of plaintiffs no. 2 to 5 obtained Khasra Nos. 184 min, 185 min and 185min. The land was shown to the joint among the co-owners in the revenue record. The entries were wrongly relied on by the Consolidation Authorities to partition the land. The jurisdiction of the Civil Court is not barred because the Consolidation Authorities had proceeded on the basis of the wrong record. Hence, the learned Trial Court answered issues no. 1 to 4 and 11 in affirmative, issues no. 5 to 10 and 12 in negative and decreed the suit of the plaintiff.

11. Being aggrieved with the judgment and decree passed by the learned Trial Court, the defendants filed an appeal before the learned First Appellate Court. The learned First Appellate Court held that the exchange was duly proved.The revenue entries were wrongly recorded and the Consolidation Authorities had wrongly proceeded based on the wrong record. Hence, the Civil Court had jurisdiction to hear and entertain the present suit. There was no infirmity with the judgment and decree passed by the learned Trial Court and the appeal was dismissed.

12. Feeling aggrieved and dissatisfied with judgments and decrees passed by the learned Courts below, the present appeal has been filed, asserting that the learned Courts below failed to properly appreciate the material placed before them. The land was partitioned by the Consolidation Authorities and the jurisdiction of the Civil Court to hear and entertain the present suit was barred. The plaint ought to have been returned to the plaintiffs for presentation before the Appropriate Court. Additional issue 12-A was framed but no findings were returned by the learned Trial Court. The findings returned by the learned First Appellate Court Court on this issue are wrong. The findings should have been called from the learned Trial Court. The presumption attached to the revenue record was not rebutted and learned Courts below erred in decreeing the suit. The State of H.P. was not impleaded as a party and it was a necessary party because the exchange was claimed with the State of H.P. Hence, it was prayed that the present appeal be allowed and judgments and decrees passed by the learned Courts below be set aside.

13. The appeal was admitted on the following substantial questions of law framed on 01.12.2005:-

"1. Whether both the courts below have committed grave illegality and irregularity in holding that the Civil Court has the jurisdiction to entertain the suit assailing the actions of the authorities exercising powers under H.P. Consolidation of Holdings Act, HP Ceiling on Land Holdings and Prevention of Fragmentation Act by ignoring the bare provisions of the Statute and misapplying the law

2. Whether the Lower Appellate Court has committed a grave error of procedure in not remitting the additional issue No.12-A to the trial court for returning findings by observing that the findings on such issue were covered under issue No.10 Was not it incumbent for the lower Appellate Court to have remitted the issue and called for the findings from the trial court to prevent failure of justice

3. Whether both the courts below have fallen in error of law and jurisdictions in not dismissing the claim of the plaintiffs-respondents when State of Himachal Pradesh being a necessary party was not joined in suit Was not the suit bad for non-joinder of necessary parties

4. Whether both the courts below have acted in excess of their jurisdiction in granting the relief of declaration and injunction in favour of the plaintiffs-respondents without recording any specific findings about the actual physical possession over the land in a suit"

14. I have heard Mr. Bhupender Gupta, learned Senior Advocate assisted by Ms. Rinki Kashmiri, Advocate for the appellants/defendants and Mr. Ajay Sharma, learned Senior Advocate with Mr. Athrav Sharma, Advocate for respondents no. 2, 3, 5 and 6.

15. Mr. Bhupender Gupta, learned Senior Counsel for the appellants/defendants submitted that the learned Courts below erred in holding that the Civil Suit had jurisdiction to hear and entertain the present suit. The land was partitioned by the Consolidation Authorities and the jurisdiction of the Civil Court to hear and entertain the dispute arising out of the consolidation is barred under Section 57 of the H.P. Consolidation of Land Holdings Act. The learned First Appellate Court erred in recording the findings on additional issue No.12-A and not remitting the matter to the learned Trial Court. The State of H.P. was a necessary party because the exchange was stated to have been effected with the State; therefore, he prayed that the present appeal be allowed and judgments and decrees passed by the learned Courts below be set aside.

16. Mr. Ajay Sharma, learned Senior counsel for for respondents no. 2, 3 5 and 6 supported the judgments and decrees passed by the learned Courts below and submitted that no interference is required with the same.

17. I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.

Substantial Question of Law No.1.

18. Learned Courts below proceeded on the basis that the entries in the revenue record were incorrect and the Consolidation Authorities erred in relying upon them. The Civil Court had the jurisdiction to hear the present suit in view of the wrong committed by the Consolidation Authorities. The learned Trial Court relied upon the judgment of this Court in Sant Ram vs. Bhagwan Lal1994(2) CLJHP 403. The learned First Appellate Court relied upon judgments of this Court in Lajpat Rain (deceased) through his LRs Smt. Maya Devi and others vs. Taro Devi and others 1999 (1) SLJ 511 in support of their conclusions. It is not necessary to deal with these judgments as the matter has been decided by this Court subsequently. It was laid down by the Hon'ble High Court in Baldev Singh vs. Siri Ram 2008(1) S.L.C. 421that where the matter arose from the consolidation proceedings, the jurisdiction of the civil court is barred. It was observed:-

"17. Otherwise also, the consolidation proceedings are conducted under the statute i.e. Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971, which is a complete Code, self-explicit and comprehensive and provides a complete mechanism to the aggrieved party to agitate the matter before the authorities mentioned thereunder by way of appeal or revision. Section 57 of the Act aforesaid bars the jurisdiction of the civil Court as regards the matter arising under the Act.

18. As is evident from the record, the plaintiff did not agitate the initial wrong entries despite acquiring knowledge in the year 1974. Further, after delivering the possession to the defendant during the consolidation proceedings at the time of repartitioning of the land in question in accordance with the published scheme under the Act, he did not assail it before the authorities mentioned thereunder. Thus, the plaintiff was rightly non-suited on the grounds of limitation by both the Courts below. Further, it is a matter arising out of the consolidation proceedings, therefore, in my opinion, the jurisdiction of the civil Court is also barred. Further, the earlier entries got eclipsed by the subsequent entries made during the consolidation proceedings, in favour of the defendant which were not assailed under the said Act. Thus the initial entry Ex.PG has lost its importance in view of the subsequent entries made under a statute."

19. Similarly it was held by this Court in Rakesh Kumar v. Roshan Lal, 2018 SCC OnLine HP 400that if no efforts were made to challenge the order passed by consolidation authority as being without jurisdiction, there is a complete bar of the jurisdiction of the Civil Court regarding any matter arising out of the consolidation proceedings. It was observed:-

“15. In SadaNand versus Smt.Tulfu and others, 1999(3) Shim.

L.C. 226, this Court held that once the orders under the Consolidation Act have attained finality and there was no effort made by the plaintiff to challenge the orders so passed as being without jurisdiction, then as per Section 57 of the Act, there was a complete bar of the jurisdiction of the Civil Court with respect to any matter arising out of the consolidation proceedings or with respect to any other matter in regard to a suit or application could be filed under the provisions of that Act.

16. A somewhat similar question came up before this Court in Mohinder Singh and others versus Nikku Ram 2016 (5) ILR (HP) 1199 wherein this Court held that the basis on which a suit is filed out of the consolidation proceedings, then the same is not maintainable. It shall be apt to reproduce the relevant observations as contained in paras 13 and 14 of the report which read thus:-

“13. Section 57 of the Consolidation Act reads as under:

"57. Jurisdiction of civil court barred as regards matters arising under this Act-No person shall institute any suit or other proceedings in any civil court with respect of any matter arising out of the consolidation proceedings or with respect of any other matter in regard to which a suit or application can be filed under the provisions of this Act."

14. As I have already discussed above, it is not in dispute that the case of the plaintiffs on the basis of which they filed the civil suit is arising out of the consolidation proceedings. It is also a matter of record that the plaintiffs were already agitating the issue before the authorities as prescribed under the Consolidation Act and the suit was filed without disclosing this fact in the plaint. Be that as it may, the fact of the matter still remains that under the provisions of Section 57 of the Consolidation Act, the jurisdiction of the Civil Court is barred with respect to any matter arising out of consolidation proceedings. In this view of the matter, in my considered view, the learned trial Court rightly returned the plaint under the provisions of order 7 Rule, 10(2) of CPC by holding that the suit so filed by the plaintiffs was barred by the provisions of Section 57 of the Consolidation Act. Similarly, the learned Appellate Court also rightly upheld the findings so returned by the learned trial Court. There is no infirmity with the findings so returned by both the learned Courts below. The judgment of this Court in the case Leetho Versus Chamelo and others, 2001 2 SLJ 1802, is distinguishable and has no bearing in the present case. In the above case, this Court was dealing with the interpretation of Section 171 (2) (xvii) of the H.P. Land Revenue Act, 1953 and while interpreting the said provisions it was held by this Court that the statutory provisions of Section 171 (2) (xvii) of the H.P. Land Revenue Act, 1953 puts a bar that Civil Court shall not exercise jurisdiction over any claim of partition of an estate, holding or tenancy, or any question connected with, or arising out of proceedings for partition, but qualifies that a question as to title should not be involved in any of the property of which partition is sought. Thus, on the basis of the language of the said provision, it was held by this Court that there was no absolute bar and the moment the question of title is raised, the Civil Court gets the jurisdiction. In my considered view, the findings returned by this Court in the abovementioned case do not have any bearing in the present case because in the abovementioned case, this Court was dealing with the provisions of the H.P. Land Revenue Act and the interpretation given by this Court was based on the language of the statute itself. Similarly, the judgment passed by this Court in ParmeshwariDass&Ors. Vs. Roshal Lal & Ors,2009 1 Cur LJ 225 in RSA No. 114 of 1999 is also of no assistance to the appellant because in that case it was held by this Court that the revenue entries recorded therein were a nullity and it was on these bases that this Court is relying upon the judgment of the Hon'ble Supreme Court in Dhruv Green Field Limited v. Hukam Singh and others, 2002 6 SCC 416 [LQ/SC/2002/765] held that civil court had jurisdiction as the action complained was a nullity. In the present case, it is an admitted fact that it was the appellants who invoked the jurisdiction of the competent authority under the Consolidation Act and subsequent proceedings arising thereof were still pending by way of appeal before the competent authority which appeal was also filed by the present appellant under the provisions of the Consolidation Act when the suit was also simultaneously filed.”

17. Bearing in mind the ratio of the aforesaid cases, it would be noticed that what the plaintiffs have in fact assailed in the suit is virtually the proceedings, or else the instant suit would otherwise be barred by the principle of res judicata in view of the judgment rendered by a learned Division Bench of this Court in Rulia and others versusRoop Lal and others 1992 (1) Shim. L.C. 132.

18. That apart, the pleadings, in this case, are categoric and specific to the effect that it was the predecessor-in-interest of the defendants, who in connivance with the consolidation staff got his name entered in the revenue records as an owner to the extent of one share out of 71 shares fraudulently and thereafter filed partition proceedings on the ground that he was one of the co- sharers.

19. Obviously, the sum and substance of the suit filed by the plaintiffs is nothing but to assail the orders passed by the Consolidation Officer which proceedings were contested by the plaintiffs as admitted by plaintiff no. 1 himself while entering into the witness box as PW-1. Therefore, this Court has no hesitation to conclude that the suit so instituted by the plaintiffs was barred under Section 57 of the Act.”

20. This Court had distinguished the judgment of Lajpat Rai in Rakesh Kumar (supra) by holding as under:

“12. The facts of the aforesaid case are clearly distinguishable as the consolidation proceedings in that case had commenced in the year 1977, whereas, the entries in the revenue records (jamabandi) had been changed in the alleged manner in the year 1972-73. It was in that background that the Court held that a suit for declaration and injunction was still maintainable even in teeth of the bar engrafted in Section 57 of the Act.”

21. The learned Courts below proceed based on the premise that entries recorded in jamabandi(Ext. P-17) were incorrect as they were contrary to the order passed by the Consolidation Authorities.

22. Learned Trial Court held that plaintiff no.1 and predecessor-in-interest of plaintiff no. 2 to 5 moved an application before the authorities and obtained the land mentioned in paras “a” and “b” of the headnote in exchange. They surrendered the land given in exchange for Village Lohara and they became exclusive owners.Reliance was placed upon the orders (Ext.P-9 and P10). Ext.P-9 is an order passed by the Collector Una, in Land Ceiling Act No. 662 of1974 in respect of Raghubir Singh, plaintiff no.1. The order reads that Raghubir Singh had filed an application for reviewing the order dated 14.08.1975, Raghubir Singh claimed that the land in Village Suhin was near his Abadi land and he wanted to retain the land in Village Suhin with him and surrender the land located at Village Lohara, Tehsil Amb. The request was genuine; therefore, Khasra No. 286, 453, 497, 506, 584 measuring 93 Kanal 18 Marla were allowed to be retained with Raghubir Singh and land bearing Khsara No. 5699, 5565, 5778 min, 5144 min, measuring 93 Kanal 18 marla situated in Village Lohara was ordered to be taken instead of land located in Village Suhin. Similar is the order (Ext.P-10) although it is not legible. This order was passed by the Collector in Land Ceiling Case No. 662 of 19974. It reads that Bachittar Singh was permitted to retain the land Khasra Nos. 194 min, 185 min and 180 min, measuring 69 Kanals 5 marlas. Significantly, the order dated14.08.1975, the review of which was sought and granted by means of these orders was not placed on record. The order(Ext. P9& Ex. P10) only shows thatRaghubir Singh and Bachittar Singh were permitted to retain the land in Villiage Suhin and surrender the land in Village Lohara. Thus, learned Courts below wrongly concluded that there was an exchange of the land and they became the exclusive owner in possession of the suit land.

23. There was no exchange of land. It appears from the order that initially the land in Village Lohara was retained and the land in Village Suhin was surrendered. However, this was sought to be reviewed and the land in Village Suhin was retained and land in Village Lohara was surrendered. Hence, the status of the ownership would not be changed by this surrender. The status would remain the same and it is difficult to conclude based on material on record that there was an exchange or that the land was exclusively allotted to Raghubir Singh and Bachittar Singh. The order dated 02.08.1975 would have thrown a light as to what exactly had happened and in the absence of the same, it is difficult to speculate based on the review order to conclude that the land was allotted exclusively to Raghubir Singh and Bachittar Singh. Hence, the very premise of the learned Courts below that revenue entries were incorrect and Consolidation Authorities had proceeded on the basis of incorrect revenue entries conferring the jurisdiction on the Civil Court is incorrect and both the learned Courts below erred in returning the holding that Civil Court had jurisdiction to question the orders passed by the authorities exercising the powers under H.P. Consolidation of Holding Act. Hence, this substantial question of law is answered accordingly.

Substantial question of law No.2

24. The learned trial Court framed additional issue 12-A on 09.03.1994 regarding the rejection of the plaint. However, this issue escaped the attention of the learned Trial Court while passing the judgment. Learned First Appellate court held that the issue was a legal one and could be disposed of without any evidence. This was correct. Rejection of the plaint was sought on the ground that the jurisdiction of the Civil Court was barred. The learned Trial Court had held that the civil court had jurisdiction and it was not necessary to remit the matter to the learned Trial Court for a decision on the same. Issue No.12-A related to the rejection of the plaint under Order 7 Rule 11 and the rejection of the plaint is not dependent upon the evidence. Once the learned Trial Court had held that it had the jurisdiction, it had rejected the plea of the defendants that the plaint was liable to be rejected because the jurisdiction was barred. Thus, a finding was recorded by the learned Trial Court that it had the jurisdiction meaning thereby the plaint was not liable to be rejected.Therefore, it was not necessary to remit the matter to the learned Trial Court. No prejudice was caused to the defendants as the issues related to the jurisdiction and rejection of the plaint were virtually the same issues and there was no failure of justice. Hence, this substantial question is answered in a negative.

Substantial question No.3.

25. The plaintiffs claimed that they had surrendered the land. This order was reviewed. The Consolidation Authorities had wrongly partitioned the land. Their claim was duly supported by the orders passed by the Consolidation Authorities. They did not claim any relief against the State of H.P. They were aggrieved by the fact that the land was wrongly partitioned during the consolidation operation. It was not necessary to join the State of H.P. to adjudicate such a claim. Hence, the suit is not bad for nonjoinder of State of H.P. and this substantial question of law is answered in negative.

Substantial question No.4.

26. The learned Trial Court held that in para 10 the plaintiffs were admittedly in possession of the suit land and they were declared exclusive owners in possession of the suit land. This finding was upheld by the learned First Appellate Court.Therefore, it cannot be said that no specific findings were recorded regarding the possession of the plaintiff and this substantial question of law is answered in the affirmative.

Final order:-

27. This Court held in Rakesh Kumar (supra) that the plaint cannot be ordered to be returned when the Consolidation Proceedings have already come to an end and the Court has no option but to dismiss the suit. In the present case, the present Consolidation proceedings have come to an end. Hence, the plaint cannot returned and the suit has to be dismissed for want of jurisdiction.

28. In view of the above, the present appeal is allowed. Judgments and decrees passed by the learned Courts below are ordered to be set aside and the suit of the plaintiff is ordered to be dismissed. The record of the case be remitted back to the learned Courts below. Pending miscellaneous applications, if any, also stand disposed of.