NATHI v. NED CHAND — 1996 DIGILAW 263 (HP)

JUDGMENT R. L. Khurana, J. This Regular Second Appeal has been directed by the plaintiff Suit. Nathi against the judgment and decree dated 24-2-1989 of the learned District Judge, Mandi, Camp at Kuilu, affirming the judgment and decree dated 296-1985 of the learned Sub-Judge First Class, Kullu, passed in Civil Suit No. 52 of 1^85/77 of 1982. 2. The subject matter of the dispute between the parties is the land measuring 3-7-0 Bighas comprising of khasra No 1199 and 1356, khata No. 268-min, and khatoni No. 654 of Phati Kashawari Kothi Kais, Tehsil and District Kullu, specifically described in the plaint and hereinafter referred to as the land in dispute. 3. One Bhole Ram was in possession of the land in dispute as a non-occupancy tenant. He died about thirteen years before the filing of the suit, out of which the present appeal has arisen, that is, sometime in the year 1969. After his death, the necessary mutation of inheritance of his tenancy rights qua the land in dispute came to be sanctioned in favour of the parties in equal shares being the widow and son, respectively. 4. The plaintiff filed a suit for declaration and injunction that she is the exclusive owner and in possession of the land in dispute by way of inheritance from her husband Bhole Ram. The defendant is not the son of Bhole Ram It was averred that the defendant is the son of Smt. Lihati, wife of Khekh Ram Alternatively, it was averred that the defendant is the illegitimate son of the deceased Bhole Ram and as such not entitled to succeed to the estate of deceased Bhole Ram. The mutation sanctioned in favour of defendant is wrong, null and void. It was further pleaded that on the basis of such wrong mutation in his favour, the defendant has started interfering with the possession of the plaintiff over the land in dispute. 5. The defendant while resisting the suit claimed to have inherited the land in dispute from Bhole Ram deceased being his son to the exclusion of the plaintiff it was pleaded that Smt. Lihati was the legally wedded wife of the deceased Bhole Ram. He asserted himself to be the owner and in possession of the land in dispute. 6 On the basis of the pleadings, the parties were put to trial on the following issues :— 1. He asserted himself to be the owner and in possession of the land in dispute. 6 On the basis of the pleadings, the parties were put to trial on the following issues :— 1. Whether the plaintiff is the son of Shri Bhole Ram deceased ? If so its effect on the suit property ? O. P. P. 2. Whether defendant No 1 is the widow of Shri Bhole Ram, if so its effect ? O. P. D. 3. Whether the suit is time barred ? O. P. D. 4. If issue No. 1 is not proved, whether the suit is not maintainable ? O. P. D. 5. Whether the suit is properly valued for the purpose of court fee ? O. P. P. 6. Whether the suit land was mortgaged to Smt Khelu by the defendant No. i ? If so its effect ? (X P. D. 2 6A. Whether the defendant No. 3 is a bona fide purchaser of the land in dispute as alleged ? If so its effect ? O. P. D 3 7. Relief. 7 The learned Sub-Judge answered issues No. 1 and 2 in the negative and decided the same against the defendant. Similarly, issues No. 4 and 5 were also answered in the negative and decided against the plaintiff. Under issue No. 3, the parties were held to be the owners and in possession of the land in dispute to the extent of half share each by way of succession from the deceased Bhole Ram 8. The appeal preferred by the plaintiff before the learned District Judge against the judgment and decree of the learned Sub-Judge was dismissed vide the impugned judgment and decree dated 24-2.-1989. The judgment and decree of the learned Sub-Judge dismissing the suit of the plaintiff were affirmed. The learned District Judge, however, came to the conclusion that the plaintiff was not proved to be the widow of the deceased Bhole Ram. The judgment and decree of the learned Sub-Judge dismissing the suit of the plaintiff were affirmed. The learned District Judge, however, came to the conclusion that the plaintiff was not proved to be the widow of the deceased Bhole Ram. The learned District Judge further came to the conclusion that even if the plaintiff is held to be the widow of the deceased, she was not entitled to succeed to the tenancy rights of the deceased qua the land in dispute in the presence of the defendant, the son of the deceased The mutation of inheritance sanctioned in favour of the parties to the extent of half share each was held to be bad and the defendant was held to be in exclusive possession of the land in dispute by way of inheritance from the deceased Bhole Ram. 9. Feeling aggrieved by and being dissatisfied with the impugned judgments and decrees of the two courts below, the plaintiff has come up before this Court by way of the present regular second appeal, which stands admitted on the following questions of law :— 1. When the status of plaintiff-appellant as widow of Shri Bhola Ram had not been disputed by the defendant respondent in the pleadings and when no issue had been framed as to whether the plaintiff-appellant was lawfully wedded wife of deceased, Shri Bhola Ram, whether the learned lower appellate Court was justified in adverting on the question of the status of appellant ? 2 When the share of plaintiff-appellant on the basis of mutation of inheiitanct was not under challenge, was the lower appellate Court justified in declaring defendant-respondent to have exclusively inherited the estate of Shri Bhola Ram, deceased ? 10. I have heard the learned Counsel for the parties and have also gone through the record of the case. 11. The plaintiff in para 1 of her plaint has specifically averred that she is the widow of the deceased Bhole Ram. Such pleadings have not been denied by the defendant in his written statement. 10. I have heard the learned Counsel for the parties and have also gone through the record of the case. 11. The plaintiff in para 1 of her plaint has specifically averred that she is the widow of the deceased Bhole Ram. Such pleadings have not been denied by the defendant in his written statement. A bare reading of the written statement filed by the defendant shows that without denying the plaintiff to be the widow of the deceased Bhole Ram, his case is that he being the son of the deceased Bhole Ram, is entitled to succeed to the tenancy rights of the deceased qua the land in dispute under the relevant tenancy law to the exclusion of the plaintiff This non-denial of the relationship of the plaintiff with the deceased Bhole Ram by the defendant resulted in non-framing of an issue in this regard by the trial Court. 12. It is only during the course of evidence that the defendant denied the plaintiff to be the widow of the deceased. 13. It is well settled that no quantum of evidence can be looked into which is in variance of the pleadings. Therefore, in the absence of necessary pleadings on the part of the defendant, the evidence led by him to show that the plaintiff is not the widow of the deceased Bhole Ram, cannot be looked into. 14. The learned District Judge in para 12 of his judgment has observed :- "The close perusal of the pleadings show that plaintiff has specifically alleged to be the widow of late Sh. Bhole Ram in paras 1, 4 and 8 of the plaint. She has further asserted that Smt Lihati, mother of the defendant was not legally wedded wife of said Sh. Bhole Ram, In the written statement the defendant has alleged himself to be the son of said 3h, Bhole Ram, but has said nothing about the relationship of plaintiff with him (Bhole Ram deceased) Thus, considering the pleadings in this perspective, though, specific allegations with respect to plaintiff being widow of late Sh. Bhole Ram had been made but there had been no specific denial to this effect and as such, Order 8, Rules 3 and 5 of the Code of Civil Procedure of this fact is to be deemed to have been impliedly admitted by the defendant. Bhole Ram had been made but there had been no specific denial to this effect and as such, Order 8, Rules 3 and 5 of the Code of Civil Procedure of this fact is to be deemed to have been impliedly admitted by the defendant. In view thereof the plaintiff was not legally required to adduce any evidence...........," 15. After having observed to the said effect, the learned District Judge was not required to determine and go into the question if the plaintiff is the widow of the deceased. He should have proceeded to determine the controversy on the assumption that the plaintiff is the widow of the deceased Bhole Ram, Instead, the learned District Judge proceeded to examine the evidence led in the case in arriving at the conclusion that the plaintiff is not proved to be the widow of the deceased. 16. Rule 3 of Order 8t Code of Civil Procedure provides that it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages. Sub-rule (1) of Rule 5 of Order 8 further provides : — "Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be takem to be admitted except as against a person under disability : Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission ” 17. The object of the rule is to narrow the issues to be tried in the case and to enable either party to know what the real point is to be discussed and decided. The rule enacts what is called the rule of traverse in English Law and provides that allegation in the plaint wit! be deemed to have been admitted by the defendant unless in the written statement it is denied specifically or by necessary implication or it is stated that it is not admitted. 18. The rule enacts what is called the rule of traverse in English Law and provides that allegation in the plaint wit! be deemed to have been admitted by the defendant unless in the written statement it is denied specifically or by necessary implication or it is stated that it is not admitted. 18. in Smt. Kubja and others v. Smt Phulo and others, 1977 PLJ 77 (HP), there was a specific allegation in the plaint that both the parties belonged to the same family and that the disputed land situated in pargana Kaijun, formerly belonged to their common ancestor. Such allegations, in the written statement were denied in a vague manner and it was pleaded that the defendants had no knowledge about it, Such vague and evasive reply by the defendants was not considered by this court to be a denial of fact and relying on the ratio laid down by the apex Court in Sadat and Co.9 Bombay v. East India Trading Co., AIR 1964 SC 538, the same was considered as an admission of those facts on the part of the defendants. 19. In view of the fact that the relationship of the plaintiff with the deceased Bhole Ram having not been denied by the defendant either specifically or by necessary implication, it will, therefore, have to be presumed that such relationship stands admitted by the defendant. A bare reading of the pleadings contained in para 1 of the written statement also leads to the necessary implication that the plaintiff is admitted to be the widow of the deceased Bhole Ram. The learned first appellate Court has as such erred in going into the question an 20. Insofar as the question—whether the defendant is the son of Bhole Ram deceased—is concerned, the two courts below have concurrently held in favour of the defendant. Such concurrent findings on a question of fact are not open to challenge in this Second Appeal, under section 100, Code of Civil Procedure. 21. Next arises the question with regard to the succession of tenancy rights of the deceased Bhole Ram qua the land in dispute, 22. Admittedly, the deceased Bhole Ram was a non-occupancy tenant, that is, tenant-at will. 21. Next arises the question with regard to the succession of tenancy rights of the deceased Bhole Ram qua the land in dispute, 22. Admittedly, the deceased Bhole Ram was a non-occupancy tenant, that is, tenant-at will. It is also admitted that the necessary mutation of inheritance in respect of such tenancy rights of the deceased has been sanctioned in favour of the parties to the extent of half share each on 29-5-1981 The deceased Bhole Ram died on 18-5-1969 (as is evident from copy of judgment Ex DC). In view of the fact that the plaintiff is the widow and the defendant is the son of the deceased Bhole Ram, the points in controversy are as to who would succeed to the tenancy rights of the deceased and whether the mutation sanctioned on 29-5-1981 in favour of the parties is correct and valid. It may be stated that both the parties are disputing the corrections of such mutation, inasmuch as both are claiming to have succeeded to the tenancy rights of the deceased to the exclusion of each other. 23. The case of the defendant is that the succession to tenancy rights of the deceased Bhole Ram, who died in the year 1969, that is, before the coming into force of the H. P. Tenancy and Land Reforms Act, 1972, would be governed by section 59 of the Punjab Tenancy Act, 1887. 24. There is no denying that the land in dispute forms part of the area which was a part of erstwhile State of Punjab, prior to coming into force of the Punjab Re-organisation Act, 1966, and that the Punjab Tenancy Act, 1887, was applicable to such area. 25. Section 59, Punjab Tenancy Act, 1887, reads :— "59. 24. There is no denying that the land in dispute forms part of the area which was a part of erstwhile State of Punjab, prior to coming into force of the Punjab Re-organisation Act, 1966, and that the Punjab Tenancy Act, 1887, was applicable to such area. 25. Section 59, Punjab Tenancy Act, 1887, reads :— "59. (1) When a tenant having a right of occupancy in any land dies, the right shall devolve.— (a) on his male lineal descendants, if any, in the male line of descent ; and (b) failing such descendants, on his widow, if any, until she dies or remarries or abandons the land or is under the provisions of this Act ejected there from ; and (c) failing such descendants and widow, or his widowed mother, if any, until she dies or remarries or abandons the land or is under the provisions of this Act ejected there from ; (d) failing such descendants and widow or widowed mother, or, if the deceased tenant left a widow or widowed mother, then when her interest terminates under Clause (b) or (c) of this sub-section, on his male collateral relatives in the male line of the descent from the common ancestor of the deceased tenant and those relatives: Provided, with respect to Clause (d) of this sub-section, that the common ancestor occupied the land. Explanation.—For the purpose of Clause (d) land obtained in exchange by the deceased tenant or any of his predecessors-in-interest in pursuance of the provisions of sub-section (1) of section 58-A shall be deemed to have been occupied by the common ancestor if the land given for it in exchange was occupied by him. (2) As among descendants and collateral relatives claiming under sub-section (1), the right shall, subject to the provisions of that sub-section, devolve as it were land left by the deceased in village in which the land subject to the right is situate. (3) When the widow of deceased tenant succeeds to a right of occupancy, sh? shall not transfer the right by sale, gift or mortgage or by sub lease for a term exceeding one year, (4) If the deceased tenant has left no such persons as are mentioned in sub-section (1) on whom his right of occupancy may devolve under that sub-section, the right shall be extinguished " (Emphasis supplied) 26. shall not transfer the right by sale, gift or mortgage or by sub lease for a term exceeding one year, (4) If the deceased tenant has left no such persons as are mentioned in sub-section (1) on whom his right of occupancy may devolve under that sub-section, the right shall be extinguished " (Emphasis supplied) 26. The words a tenant having a right of occupancy used in section 59, quoted above, are significant. Section 5 of the Act defines the term "a tenant having right of occupancy". 27. Admittedly, the deceased Bhole Ram, was not a tenant having a right of occupancy. In other words, he was not an occupancy tenant According to the parties, the deceased was a tenant-at-will, that is, a non-occupancy tenant. 28. In Karnail Singh v. Magistrate 1st Class, Hoshiarpur, 1967 PLJ 9, the High Court of Punjab had the occasion to examine the meaning of the word "Gair Maurusi" being used in the revenue record in order to show the status of the person recorded as in possession of a particular land. It was observed that though no part of the word "Gair Maurusi" brings within its dictionary meaning any reference to tenancy, by practice this expression has been used for tenants-at-will in all revenue records It was further observed that all that such an entry means is that the cultivator is neither an owner nor an occupancy tenant of the land in question 29. Since the deceased was not an occupancy tenant, that is, a tenant having a right of occupancy within the meaning of section 5 of the Punjab Tenancy Act, 1887, the provisions contained in section 59 thereof would not be applicable, as such provision apply only to succession to the tenancy of tenant having a right of occupancy. 30. The learned District Judge, while holding that the plaintiff in her capacity of being the widow of the deceased Bhole Ram, would not be entitled to succeed to th tenancy rights held by the deceased, has relied on the provisions of section 8 of the Punjab Security of Land Tenures Act, 1953. The said section reads :— "Continuity of tenancies. The learned District Judge, while holding that the plaintiff in her capacity of being the widow of the deceased Bhole Ram, would not be entitled to succeed to th tenancy rights held by the deceased, has relied on the provisions of section 8 of the Punjab Security of Land Tenures Act, 1953. The said section reads :— "Continuity of tenancies. The continuity of tenancy shall not be affected by— (a) the death of the landlord, or (b) the death of the tenant, except when the tenant leaves no male lineal descendants or mother or widow, and (c) any change therein under the same landowner : and for the purposes of sections 17 and 18 of this Act, such tenancy shall be the last area so held." 31. Be it stated that the above provisions do not deal with the mode/ order of succession It only provides for the continuity of a tenancy. For the purpose of succession to the tenancy rights one has again to fall bank on either the provisions contained in section 59, Punjab Tenancy Act 1887, or such other law as may be in force at the relevant time when the succession opened. The learned District Judge, therefore, committed an error in applying the mode/order of succession under section 8 of the Punjab Security of Land Tenures Act, 1953, while coming to the conclusion that the plaintiff, as the widow of the deceased, could not have succeeded to the tenancy rights. Such findings being bad are liable to be set aside. 32. Had the intention of the legislature being to make the provisions of section 39, Punjab Tenancy Act, 1887, applicable to succession in the case of tenants at-will as well, the use of words “a tenant having a right of occupancy” could have been omitted and substituted by the word “a tenant’. The H. P. Abolition of Big Landed Estates and Land Reforms Act, 1953, was applicable to the areas forming part of Himachal Pradesh prior to reorganisation of the States in 1966. Section 67 thereof deals with the succession to right of tenancy. In the said section the word "a tenant" has been used. The H. P. Abolition of Big Landed Estates and Land Reforms Act, 1953, was applicable to the areas forming part of Himachal Pradesh prior to reorganisation of the States in 1966. Section 67 thereof deals with the succession to right of tenancy. In the said section the word "a tenant" has been used. The effect thereof is that succession to tenancy rights either of a tenant having a right of occupancy or a tenant-at-will, is governed thereby Similar provisions were incorporated in section 45 of the H. P. Tenancy and Land Reforms Act, 1972 which come into force in the whole of the State of Himachal Pradesh with effect from 21-2-1974 and whereby the H. P. Abolition of Big Landed Estates and Land Reforms Act, 1953, the Punjab Tenancy Act, 1887 and the Punjab Security of Land Tenures Act, 1953 in their application to respective areas of Himachal Pradesh were repealed, 33. Having held that the succession of tenancy rights of a tenant-at-will would not be governed by section 59, Punjab Tenancy Act, 1887, the question which arises for determination is as to how the succession in such a case is to be regulated, 34. Admittedly, save and except section 59, Punjab Tenancy Act, 1887 there is do other provision in the said Act governing succession to the tenancy rights of a tenant at-will In the absence of such a provision in the relevant tenancy laws as in force at the relevant time, succession to the tenancy rights of a tenant-at-will prior to the coming into force of the H. P. Tenancy and Land Reforms Act, 1972, in the areas to which the provisions of Punjab Tenancy Act, 1887, were applicable, would, therefore, be governed by the general law of succession, viz, Hindu Succession Act, 1956. Under section 8 of the said Act widow and son(s) succeed to the estate of the deceased in equal shares. 35. Therefore, in view of the fact that parties are widow and son respectively of the deceased Bhole Ram, they are entitled to succeed to his tenancy rights qua the land in dispute in equal shares. The mutation of inheritance sanctioned in favour of the parties on 29-5-1981 is as such valid, legal and binding. 36. Consequently, the appeal is allowed. The impugned judgment and decree of the first appellate Court are set aside. The mutation of inheritance sanctioned in favour of the parties on 29-5-1981 is as such valid, legal and binding. 36. Consequently, the appeal is allowed. The impugned judgment and decree of the first appellate Court are set aside. The parties are held to be the owners and in possession of the land in dispute in equal shares by way of succession from the deceased Bhole Ram. The parties are left to bear their own costs. Appeal allowed.