PREM LAL v. SARBAN — 1985 DIGILAW 19 (HP)

JUDGMENT V. P. Gupta, J.-—Aggrieved from the judgment and decree, dated 11-10-1972 passed by the Additional District Judge Chamba, the plaintiff has filed this appeal. 2. 1 he facts in brief are that Naginder s/o Ludar was recorded in the revenue records as a tenant of the disputed land measuring 40 bighas and 8 biswas (fully detailed in the plaint). He died on 26-2-1964. The plaintiff is the son of Rasalu, brother of Naginder while Smt. Lakhnu original defendant ^now deceased) was the sister of Naginder. With the coming into force of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 (hereinafter the Act), the ownership of the lands of various land owners who held land, the land revenue of which exceeded Rs, 125 per year, vested in the State Government. The disputed land was recorded in the ownership of the State Government and it is admitted that the State Government became its owner under section 27(1) of the Act, 3. Proceedings under section 27 (4) of the Act were started for transferring the proprietary rights to Naginder (deceased) who was a tenant of the suit land and ultimately on 30-5-1966 a certificate of conferment of proprietary rights (Ex, P-5) was issued by the Compensation Officer, Chamba in favour of Naginder (deceased) under section 2/(4) of the Act, In this certificate (Ex. P-5) it is stated that Naginder had been granted the certificate and shall on and from the date of the grant of the certificate be deemed to be the owner of the disputed land. 4. After the death of Naginder mutation No. 37 (Ex. P-l) was entered on 3-4-1964 regarding tenancy rights of Naginder (deceased) and it was sanctioned in favour of the plaintiff on 14-6-1964. On the basis of the certificate (Ex. P-5) another mutation No. 76 was entered on 23-8-1966 by which Naginder (deceased) was entered as an owner of the disputed land vide order, dated 25-80966. Thereafter mutation No. 77 (Ex. P-3) regarding the inheritance of Naginder (deceased) was sanctioned in favour of Smt. Lakhnu (deceased defendant) on 19-11-1966. The plaintiff was not satisfied with the orders passed on mutation No. 77 (Ex. P-3) and he filed a revenue appeal No. 22/2-8/1966 before the Collector Chamba, This appeal was accepted vide order, dated 15-9-1967 (Ex. Thereafter mutation No. 77 (Ex. P-3) regarding the inheritance of Naginder (deceased) was sanctioned in favour of Smt. Lakhnu (deceased defendant) on 19-11-1966. The plaintiff was not satisfied with the orders passed on mutation No. 77 (Ex. P-3) and he filed a revenue appeal No. 22/2-8/1966 before the Collector Chamba, This appeal was accepted vide order, dated 15-9-1967 (Ex. P-4) and the case was remanded to the revenue officer for a re decision, but the revenue officer again sanctioned the mutation of inheritance of Naginder (deceased) in favour of Smt. Lakhnu defendant (now deceased; vide orders dated 22-1U-1967 (Ex. P-3) 5. The plaintiff filed the present suit in the court of Senior Sub-Judge Chamba on 23-5-1968, alleging that Naginder was an occupancy tenant of the disputed land after his death the plaintiff was entitled to inherit him. The mutation sanctioned in favour of the defendant (Smt. Lakhnu) was illegal and she could not inherit the estate of Naginder, It was also alleged that the certificate regarding the conferment of proprietary rights should not have been issued in favour of Naginder on 30-5-1966 because Naginder had died 4/5 years prior to the institution of the suit. The amount of compensation determined by the Compensation Officer was deposited by the plaintiff. The plaintiff on these allegations claimed a declaration that mutation No. 77 had been sanctioned wrongly in favour of the defendant (Smt. Lakhnu) and that the plaintiff may be declared to be an owner and in possession of the disputed land. 6. The defendant filed a written statement and contested the plaintiffs suit. It was alleged that the plaintiffs suit for a mere declaration was not competent and that proprietary rights had rightly been conferred in favour of Naginder. The defendant being the sister of Naginder (deceased) was entitled to inherit his estate and was in possession of the same. It was also pleaded that the Himachal Pradesh Government was a necessary party and mutation No. 77 was rightly sanctioned. 7. On the pleadings of the parties, the following issues were framed:— 1. Whether the Himachal Pradesh Government is a necessary party? O. P. D. 2. Whether the plaintiff cannot challenge the decision of the Compensation Officer 1 O. P. D. 3. Whether the suit of the plaintiff as laid cannot proceed without prayer for possession? O. P. D, 4. 7. On the pleadings of the parties, the following issues were framed:— 1. Whether the Himachal Pradesh Government is a necessary party? O. P. D. 2. Whether the plaintiff cannot challenge the decision of the Compensation Officer 1 O. P. D. 3. Whether the suit of the plaintiff as laid cannot proceed without prayer for possession? O. P. D, 4. Whether the order of the Compensation Officer awarding proprietary rights to Naginder deceased when he was dead, is valid 7 O. P. D. 5. Whether Smt. Lakhnu defendant was an heir of tin land in question at the time of the demise of Naginder? O. P. D. 6. Whether mutation No. 77, dated 22-10-1967 has validly been made? O. P. D. 7. Relief. 8. The learned Senior Sub-Judge vide his judgment and decree, dated 30-1-1969 decided all the issues against the defendant and as a result of these findings decreed the plaintiffs suit with costs, 9. Feeling aggrieved from this judgment and decree of the Senior Sub-Judge, an appeal was filed in the Court of District Judge Chamba by the defendant. This appeal was accepted by the Additional District Judge on 11-1O1972 with the result that the plaintiffs suit was dismissed with costs throughout. The learned Additional District Judge held that the plaintiffs suit could not proceed and Naginder had become the owner of the land under section 27 of the Act. After the death of Naginder these proprietary rights were inherited by Smt. Lakhnu sister of Naginder under the Hindu Succession Act as a preferential heir as against the plaintiff Prem Lai. Issues Nos. 3 to 6 were decided in favour of the defendant. The present respondents are the legal representatives of Smt. Lakhnu (original defendant). 10. I have heard the learned Counsel for the parties. 11. Miss Kamlesh Sharma, the learned Counsel for the plaintiff-appellant contends that Naginder was admittedly an occupancy tenant and he died on 26-2-1964 The mutation of his inheritance was sanctioned in favour of the plaintiff under section 67 of the Act and the amount of compensation was also paid by the plaintiff. The certificate for conferment of proprietary rights was issued on 30-5-1966, when Naginder had already died. The plaintiff was the successor in interest of Naginder and had inherited the tenancy rights of Naginder on 27-2-i 964 and the certificate could be issued in plaintiffs name only. The certificate for conferment of proprietary rights was issued on 30-5-1966, when Naginder had already died. The plaintiff was the successor in interest of Naginder and had inherited the tenancy rights of Naginder on 27-2-i 964 and the certificate could be issued in plaintiffs name only. She further contends that Naginder (deceased) never became an owner of the disputed property during his life-time and the learned Additional District Judge has not appreciated the oral and the documentary evidence correctly. 12. Shri Chhabil Dass, the learned Counsel for the defendant-respondents contends that under section 27 of the Act, Naginder (deceased) became an owner of the disputed land on 26-1-1955 because under section 27 (4) the vesting of the proprietary rights in the cultivating tenant was automatic. He contends that there are three modes of acquisition of proprietary rights and those modes are given in sections 11, ) 5 and 27 of the Act. According to the learned Counsel after the death of Naginder, Smt. Lakhnu being his sister was a preferential heir to the property under the Hindu Succession Act. He supports the judgment of the learned Additional District Judge and contends that the mutation of inheritance of Naginder in favour of Smt. Lakhnu was rightly sanctioned. It is also contended that the plaintiff was not in possession of the disputed land and the suit was rightly dismissed by the Additional District Judge. 13. I have considered the contentions of the learned Counsel for the parties and have gone through the records of the case. 14. It is an admitted fact that Naginder s/o Ludar was a tenant of the suit land and was cultivating the same. He died on 26-2-1964 (Ex. P-2). 15. The plaintiff is the brothers son of Naginder (deceased) and Smt. Lakhnu (defendant) was the sister of Naginder (deceased). In case of inheritance of tenancy rights of Naginder (deceased), the plaintiff is a preferential heir under section 67 of the Act, but in case of inheritance of ownership rights of Naginder (deceased) Smt. Lakhnu being the sister of Naginder ^deceased) will be a preferential heir The main question for consideration in this appeal is as to whether Naginder (deceased) was occupying the disputed land as a tenant or as an owner on 26-2-1964. 16. In the Jamabandis for the year 1963-64 (Ex. P-7 and P-9) the plaintiff is entered in the column of possession as a tenant. 16. In the Jamabandis for the year 1963-64 (Ex. P-7 and P-9) the plaintiff is entered in the column of possession as a tenant. In the khasra girdawari from Rabi 1965 to kharif 1967 (Ex. P-8j the plaintiff is again shown in possession as a tenant. In the khasra girdawari for kharif 1967 (Ex. P-10) one Ramji Dass is shown in possession without payment of rent, but in Rabi 1968 (Ex, P-10), the possession is entered to be of Smt. Lakhnu on the basis of mutations Nos. 76 and 77 17. Now admittedly Naginder was a tenant of the disputed land. Upon his death his tenancy rights were interited by the plaintiff, as is proved from mutation No. 37 (Ex P-l) sanctioned on 14-6-1964. It proves that proprietary rights had not been acquired by Naginder (deceased) and he was not entered as an owner at the time of his death. It, however, appears that proceedings under section 27 (4) of the Act for conferment of proprietary rights on cultivating tenants were in progress, and vide orders of the Compensation Officer it was decided to grant proprietary rights to Naginder who was also a cultivating tenant. The amount of compensation also seems to have been determined by the Compensation Officer. The compensation was also deposited in pursuance to the orders of the compensation Officer with the result that a certificate was issued in favour of Naginder (deceased) on 30-5-1966 (Ex. P-5). 18. There is no evidence to prove as to whether any orders regarding conferment of proprietary rights had been passed by the Compensation Officer prior to 26-2-1964. 19. Under section 26 of the Act the State Government is empowered to make rules to carry out the purposes of Chapter III of the Act, which deals with the by tenants, A tenant can acquire proprietary rights acquisition of proprietary rights/under section 11 of the Act. Section 11 (6) specifically states that on and from the date of the grant of the certificate under sub-section (5) of section 11, the tenants shall become the owners of the land comprised in the tenancy and the right, title and interest of the land owner in the said land shall determine. Section 11 (6) specifically states that on and from the date of the grant of the certificate under sub-section (5) of section 11, the tenants shall become the owners of the land comprised in the tenancy and the right, title and interest of the land owner in the said land shall determine. Therefore, under section 11 although a tenant has a right to acquire the interest of the land owner such an interest can only be acquired on and from the date of the grant of the certificate which is granted to a tenant when the whole of the compensation amount or the first instalment of the compensation amount is deposited by the tenant in the government treasury. Under section 15 of the Act, the State Government can also acquire the rights of the land owners, and the State Government has to notify in the gazette a date from which the State Government is to become the owner of the land. Besides these two modes, the third mode of acquiring rights of ownership is provided in section 27 of the Act which reads as follows;— "27. (1) Notwithstanding anything contained in the foregoing provisions of this Chapter, a land owner who holds land, the annual land revenue of which exceeds Rs. 12!> per year the right, title and interest of such owner in such land shall be deemed to have been transferred and vested in the State Government free from all encumbrances. (2) Nothing contained in sub-section (1) shall apply in respect of such land which is under the personal cultivation of the land owner. (3; The land owner whose rights are acquired under sub-section (1) by the State Government, shall be entitled to receive compensation which shall be determined by the Compensation Officer having regard to sections 17 and 18 of this Act, in accordance with the provisions of Schedule but in the case of such occupancy tenant who is liable to pay rent in terms of land revenue or the multiple of land revenue, the compensation payable to his land owner shall be computed in accordance with Schedule I. (4) The right, title and interest of the land owner acquired under sub-sections (1) or (2) shall be transferred by the State Government on the payment of compensation in accordance with Schedule I to such tenant who cultivates such land. (5) The State Government shall give rehabilitation grant according to the rules framed under this Act, to such small land owner whose right, title and interest have been extinguished and who does not have any other means of livelihood." 20. The rules framed under the Act are known as the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms (Mode of Payment of Compensation and Grant of Aroprietary Rights) Rules, 1953 (hereinafter the rules). In these rules vesting date is defined in rule 2 (d) as follows: . “ Vesting date in relation to any land means the date on which the right, title and interest of the land owner in that land stands transferred and vested in the State Government under the provisions of section 27 of the Act. This date will either be 26th January, 1955 (i. e. the date on which the Act came into force) or any subsequent date on which the annual land revenue of the land held by a land owner exceeds Rs. 125." 21. Rules 3 to 11 of the rules deal with the payment of compensation to the land owner under section 27 (3) of the Act and rules 12 to 19 deal with the grant of proprietary rights to the cultivating tenants and the method in which the compensation is to be paid by such cultivating tenants. For the purposes of the present case it is necessary to refer to the various provisions of rules 12 to 18 of the rules. 22. Under rule 12, after the final attestation of the mutation of the land of the land owner vested in the State Government under section 27 of the Act, the revenue officer is required to start tenantwise files for the purposes of assessment and determination of the amount of compensation to be paid by each tenant to the State Government for the grant of proprietary rights to him in respect of the land held by him in his tenancy in form G’ which will be the first page of the file. The relevant excerpts from the jamabandi pertaining to the vesting date and also from the latest jamabandi, where necessary, should be placed on each file. 23. The relevant excerpts from the jamabandi pertaining to the vesting date and also from the latest jamabandi, where necessary, should be placed on each file. 23. Under rule 13, the Compensation Officer shall get the particulars entered in his register in form H and after making enquiries will invite objections within a month in regard to the conferment of proprietary rights on the cultivating tenants under sub-section (4) of section 27 of the Act as also to the amount of compensation proposed to be paid by the tenant to the State Government. 24. Under Rule 14, the Compensation Officer after making enquiries and deciding the objections, if any, is to determine finally the amount of compensation payable by the tenants to the Government in accordance with the provisions of sub-section (4) of section 27 of the Act The tenant can pay the amount of compensation as determined by the Compensation Officer either in lump sum or in such number of instalments not exceeding two as may be determined by the Compensation Officer during the period not exceeding one year and such compensation or such instalments of compensation shall be paid on such date or dates as may be fixed by the Compensation Officer in this behalf. 25. Under Rule 15, the Compensation Officer after having finally determined the amount of compensation payable by the tenant to the State Government shall give his final decision and issue notice in from J directing the tenant to deposit the same in Government treasury etc. within a period of three months in the manner laid down in sub-rule (2) of Rule 15. At the time of the deposit of the compensation the treasury challan dully filled in and verified by the Compensation Officer is to be presented in triplicate and one copy of such challan is to be retained by the treasury, the duplicate copy is to be forwarded to the Compensation Officer concerned by the treasury and the triplicate is to be returned to the tenant. 26. Under Rule 16, after receipt of the duplicate copy from the treasury or the production of the triplicate copy by the tenant the Compensation Officer is to issue a certificate of ownership of land in favour of the tenant concerned in form K and copy thereof is to be sent to the Tehsildar concerned for making necessary entry in the revenue records. 27. 27. Under Rule 17, the entries regarding recovery of compensation or instalments are to be made in the relevant register and if an instalment of compensation is not paid on the fixed date then interest is to be charged. 28. Under Rule 18, the failure on the part of the tenant to deposit the amount of compensation or the first instalment thereof as the case may be, within the prescribed period of three months under sub-rule (1) of Rule 15, shall be a sufficient ground for the Compensation Officer to cancel the proceedings relating to conferment of proprietary rights on the tenant. 29. In the present case is an admitted position that the State Government became an owner of the disputed land under section 27 (1) of the Act. The State Government was to transfer these rights on payment of compensation to such tenants who cultivated such land. Naginder (deceased) being a cultivating tenant of the disputed land was entitled to get the proprietary rights on payment of compensation, 30. It is also an admitted position that the whole of the amount of compensation had been paid which fact is also proved from Ex. P-5. The plaintiff states that this amount of compensation was paid by him because he was entered as a tenant and had interited the rights of Naginder (deceased) vide mutation No. 37 (Ex. P-l). He further states that he was told by the Patwari that he should make the deposit of compensation because the mutation had been sanctioned in his name and he made the deposit in the name of Naginder (deceased). 31. Smt. Lakhnu defendant (DW 1) states that an amount of Rs. 275 was paid by her through the plaintiff to acquire the proprietary rights. She further states that this amount was paid about 2/3 years ago (that is, in 1965/66), but she did not obtain any receipt from the plaintiff at the time of the payment of money. 32. Shri Jummo (DW 4) states that Smt. Lakhnu gave money to the plaintiff for depositing the compensation amount. In cross-examination he states that a receipt was demanded from the plaintiff but subsequently he was informed by the defendant that the plaintiff had not given the receipt. The statement of Smt. Lakhnu (DW 1) and Shri Jummo (DW 4) to the effect that the defendant paid money to the plaintiff cannot be believed. 33. In cross-examination he states that a receipt was demanded from the plaintiff but subsequently he was informed by the defendant that the plaintiff had not given the receipt. The statement of Smt. Lakhnu (DW 1) and Shri Jummo (DW 4) to the effect that the defendant paid money to the plaintiff cannot be believed. 33. Thus from the evidence of the parties it is proved that the amount of compensation was paid by the plaintiff in Naginders name. 34. The payment of compensation by the plaintiff in Naginders name was justified in view of the fact that the file for conferment of proprietary rights and for assessment and determination of the amount of compensation must have been started in the name of Naginder under Rule 12 of the rules because Naginder was a cultivating tenant. After the death of Naginder on 26-21964 the mutation of interitance of his tenancy rights was sanctioned in plaintiffs favour on 14-6-1964 (Ex. P-l). The plaintiff was asked by the Patwari to deposit this amount. 35. The mere fact that the certificate (Ex. P-5) was issued in the name of Naginder (deceased) is not a proof of the fact that the compensation amount was paid by Naginder. The plaintiff being a successor-in-interest of Naginder was entitled to deposit the amount of compensation for getting proprietary rights. Although files for grant of proprietary rights in favour of the tenants are to be started, but the tenants can acquire such proprietary rights on payment of compensation amount only and in case a tenant fails to pay/deposit the amount of compensation then the proceedings relating to conferment of proprietary rights upon the tenants are liable to be cancelled under Rule 18 of the rules. In case a tenant fails to deposit/pay the compensation amount then he will not be granted proprietary rights. In such a situation the tenant will retain his original character as a tenant and he cannot be divested of his tenancy rights. A tenant can be granted proprietary rights only from the date of the grant of certificate or at the earliest from the time when he deposits the compensation amount. Even in the certificate (Ex. P-5) it is mentioned that such ownership rights are from the date of the grant of the certificate. 36. A tenant can be granted proprietary rights only from the date of the grant of certificate or at the earliest from the time when he deposits the compensation amount. Even in the certificate (Ex. P-5) it is mentioned that such ownership rights are from the date of the grant of the certificate. 36. Keeping in view the various facts and circumstances of this case, it is held that Naginder was not an owner of the disputed land on 26-24964 but was occupying the disputed land as a tenant at the time of his death. As Naginder was occupying the disputed land as a tenant on 26-2-1964, therefore, the plaintiff had rightly inherited his tenancy rights under section 67 of the Act and was, therefore, entitled to the grant of proprietary rights in the disputed land. The certificate (Ex. P-5) issued on 30-5-1966 in favour of Naginder (deceased) should in fact have been issued in favour of the plaintiff who was a cultivating tenant of the disputed land on the aforesaid date. The Additional District Judge is clearly in error in holding that Naginder was an owner of the disputed property on 26-2-1964 and Salt. Lakhnu (defendant) being the sister of Naginder «deceased was entitled to inherit him. 37. The plaintiff was also in possession of the disputed land as is proved from the khasra girdawari (Ex. P-8). Therefore, the plaintiff is entitled to file the suit in the present form, 38 In view of the above discussion issues Nos, 3 to 6 are decided against the defendant-respondent, As a result of the above findings the judgment and decree of the learned Additional District Judge is set aside and the judgment and decree of the learned Senior Sub-Judge Chamba, dated 30-1-1969 is restored. The present appeal is accepted and the plaintiffs suit is decreed against the defendant. In the facts and circumstances of the case the parties are left to bear their own costs throughout. Appeal allowed.