Smt. Kannu vs Smt. Chanu and Another

R.S. Pathak, C.J.—This is a Defendant''s revision petition against the findings of the learned Subordinate Judge (II), Simla, on certain preliminary objections raised by the Defendant in a suit for declaration and injunction.

The Respondents filed a suit alleging that they and one Jawalia were joint owners in possession of land according to their respective shares, that on the death of Jwalia on November 13, 1973, his share devolved on them and his brothers'' widows in accordance with Section 8 of the Hindu Succession Act, 1956, that on January 14, 1974, the Respondents applied u/s 35 of the Himachal Pradesh Land Revenue Act, 1953, to the Revenue Officer, Simla, for sanctioning the mutation of Jwalia''s property in their favour but that on the statement of certain interested persons an erroneous mutation entry was made in favour of the Petitioner. It was alleged that the Petitioner was not related to Jwalia and a supposed will, relied on by the Revenue Officer in the mutation order, had not been produced or proved. The will, it was said, was invalid. It was asserted that ever since the death of Jwalia the Respondents as his successors remained in cultivatory possession of the land, and the Petitioner was threatening to interfere with their possession. The Respondents prayed for declaration and an injunction, and valued the suit, both for the purposes of jurisdiction and court fee for both the reliefs, at Rs. 200/- each, paying a court fee Rs. 40/- thereon. The reliefs claimed in the plaint were:

It is therefore prayed that a decree for declaration to the effect that the mutation of inheritance No. 245, attested on 19th June, 1974, in favour of the Defendant is void, illegal and inoperative against the rights of the Plaintiffs by the cancellation of the same and the Plaintiffs are the only heirs of Shri Jwalia deceased u/s 8, Schedule Class II (vi) of the Hindu Succession Act, 1956, and the Defendant has no right or claim to inherit the property of Jwalia deceased metioned in the aforesaid mutation, and secondly a decree for perpetual injunction restraining and prohibiting the Defendant permanently from interfering into the possession of the Plaintiffs in any manner whatsoever over the land mentioned in the mutation with costs be passed in favour of the Plaintiffs and against the Defendant, and any other relief which the court in the circumstances of the case deems fit and proper be passed in favour of the Plaintiffs and against the Defendant.

The Petitioner filed her written statement and, inter alia, pleaded that the suit was not properly valued for the purposes of court fee and jurisdiction, that the plaint was bad for not containing material particulars and that the court had no jurisdiction to try the suit.

The learned Subordinate Judge held in favour of the Respondents on all three points on June 7, 1975.

The Petitioner now applies in revision.

It seems to me on a determination of the substance of the allegations contained in the plaint that the Respondents have in the main prayed for a declaration that they are the sole heirs of Jwalia in respect of the property. The declaration that the Petitioner has no right or claim to inherit the property is embraced therein. The decree for a perpetual injunction restraining the Petitioner from interfering with the possession of the Respondents over the land is a consequential relief. Then a second declaration has been prayed for. It is a declaration to the effect that the mutation entry is void. The relief for cancellation of the mutation entry is a consequential relief thereto. The two declaration and their respective consequential reliefs must be considered as falling u/s 7(iv)(c) of the Himachal Pradesh Court Fees Act. That will provide the basis for determining the value of the suit for the purposes of court fee. The value of the suit for the purposes of jurisdiction follows likewise. The finding of the learned Subordinate Judge in respect of the valuation for the purposes of court fee and jurisdiction is liable to be modified accordingly.

On the point whether the plaint is bad for want of material particulars, I am unable to hold that the finding of the learned Subordinate Judge in that regard suffers from any jurisdictional error and can be interfered within this revision petition.

On the last point that the learned Subordinate Judge had no jurisdiction to entertain the suit, I am of opinion that the objection was rightly over-ruled. It is contended by the Petitioner that the civil court was barred from entertaining the suit by Section 171(2)(vi) of the Himachal Pradesh Land Revenue Act, 1953. That provision prohibits a civil court from exercising its jurisdiction in the matter of the correction of any entry in a record of rights, annual record or register of mutations. My attention has been invited to Sections 35, 37, 45 and 46 of the Act. II'' regard be had to the essential substance of the pleadings in the plaint, it is apparent that the principal relief sought by the Respondents was a declaration of their title to the land. If that is a relief which can be entertained by a civil court, the mere circumstance that a subsidiary relief claimed in the suit is ordinarily triable by a Revenue Court, will not oust the jurisdiction of the civil court. In any event, the Respondents are not claiming the correction of !the entry in the register of mutation they ac praying for its cancellation altogether. My attention has also been invited to Section 129 of the Act, but that provision relates to the determination of a question of title in a partition proceeding. It may be noticed that in the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953, Section 111 details the different groups of suits which are cognizable by a Revenue Court alone and by no other kind of court. A suit for declaration of title, such as the present case, does not fall within any of those groups. Reference was made by learned Counsel for the Petitioner to Sajawal and Ors. v. Sodagar Singh and Ors. 1913 (14) P.L.R. 307. There the case clearly fell within the jurisdiction of a Revenue Court.

The revision petition is allowed in so far only that the finding of the learned Subordinate Judge in respect of the valuation of the suit for the purposes of court fee and jurisdiction is set aside and the case is remanded with the direction to compute the valuation in accordance with the observations made above. In the circumstances, the parties will bear their own costs.