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2000 DIGILAW 102 (HP)

DURGA SINGH v. STATE OF H. P.

2000-05-10

K.C.SOOD

body2000
JUDGMENT Kuldip Chand Sood, J.—Judgment and decree of the learned Additional District Judge, Mandi, dated January 17, 1994, is under challenge in this appeal. 2. In order to appreciate the controversy, necessary facts may be noticed thus: 3. Durga Singh, appellant, applied for the grant of nautor land in the year 1969. He was granted land measuring 4-14-6 bighas comprised in Khasra Number 675/322/1, situate in mauza Sanyardh of Tehsil Sadar, in District Mandi by way of Nautor under the Himachal Pradesh Nautor Rules, 1968, hereinafter referred to as Nautor Rules. The grant was made by the S.D.O. (C) Mandi vide his orders dated November 1, 1973. The appellant was put in possession of this land on March 24, 1974 as is apparent from the copy of Rojnamcha Ext. PA. 4. Right-holders, feeling dis-satisfied with the grant of nautor to the appellant, filed an appeal before the Deputy Commissioner under Rule 28 of the Nautor Rules. This appeal was accepted and grant was cancelled by the Additional Deputy Commissioner, Mandi vide his orders dated February 16, 1978. Feeling dis-satisfied with the order of the Additional Deputy Commissioner,. an appeal was filed by the appellant before the Divisional Commissioner, Kangra. The Divisional Commissioner Kangra vide his orders dated October 13, 1982 dismissed the appeal (Ext. I). A revision petition under Rule 30 of the Nautor Rules against the orders of Divisional Commissioner was dismissed by the Financial Commissioner, H.P. on April 23, 1985. Still not satisfied, the appellant filed a review petition before the Financial Commissioner, against his orders in the revision petition which was also dismissed on April 30, 1985 (Ext. J). 5. The untiring appellant still unsatisfied, filed a suit before the learned Senior Sub Judge, Mandi on May 1, 1986 seeking declaration that the orders of the Additional Deputy Commissioner dated February 16, 1978 cancelling the grant of Nautor in his favour and consequent orders in appeal, revision and review dated October 13, 1982, April 23, 1985 and December 30, 1985, respectively, passed by the Divisional Commissioner and Financial Commissioner, are wrong, illegal, null and void as also without jurisdiction and not binding on the plaintiff who is lawful owner in possession of the suit land. In consequence, the appellant prays that the defendants be restrained from interferring with his possession over the suit land in any manner or forcibly dispossessing him under the impugned orders of the Revenue Authorities. This suit was dismissed by the learned Senior Sub Judge, Mandi on December 5, 1987. Feeling aggrieved, appellant filed an appeal before the learned District Judge which was dismissed by the learned Additional District Judge, Mandi on January 17, 1994. Not satisfied, the appellant has preferred the present appeal against the judgment and decree of learned Additional District Judge, as noticed earlier. 6. The second appeal was admitted on February 4, 1994 on the following substantial question of law: "Whether the evidence of the appellant-plaintiff with regard to separation from his father stands rebutted by a legal evidence as envisaged under Section 50 of the Evidence Act? 7. I have heard Mr. Harish Behal, learned counsel for the appellant and Mr. R.M. Bisht, learned Assistant Advocate General and gone through the record. 8. The challenge of the appellant to the orders of cancellation of grant of Nautor in his favour is on the grounds: (a) The order of cancellation is null and void as the grant could only be cancelled in case of violation of breach of any term or condition of the grant; (b) The grant was cancelled by the Additional Deputy Commissioner as affirmed by the Divisional Commissioner and the Financial Commissioner on the ground that appellant was living with his father at the relevant time had land in his own name and, therefore, the appellant was not entitled to the grant of nautor. 9. The State resists the suit. The allegations are controverted. It is pleaded that the appellant obtained the order of grant by misrepresenting the true facts. The appellant, in fact, was living at the relevant time with his father who had adequate land with him and under the rules, the appellant, therefore, was not entitled to such grant. 10. On the pleadings of the parties, the following issues were settled by the learned trial court : 1. Whether the orders dated 16.2.1978, 13.10.1982, 23.4.1985 and 30.12.1985 are wrong, illegal, null and void and without jurisdiction, as alleged? OPP. 2. Whether the suit is not maintainable in the present form as alleged? OPD. 3. Whether the suit is bad for non-joinder of necessary party? OPD. 4. Whether the orders dated 16.2.1978, 13.10.1982, 23.4.1985 and 30.12.1985 are wrong, illegal, null and void and without jurisdiction, as alleged? OPP. 2. Whether the suit is not maintainable in the present form as alleged? OPD. 3. Whether the suit is bad for non-joinder of necessary party? OPD. 4. Whether no notice under Section 80, CPC was served upon the defendants? OPD. 5. Whether this Court has no jurisdiction to try the present suit? OPD. 6. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD. 7. Relief. 11. Learned trial court found that the order of cancellation was legal and within the four-corners of law. The objection of the State that Civil Courts do not have the jurisdiction is over-ruled. The other objections of the State were also over-ruled. Learned First Appellate Court found that order of cancellation is valid and justified and, accordingly, dismissed the appeal of the appellant. 12. In order to appreciate the controversy, relevant Nautor Rules which govern the grant in nautor land may be noticed: "5. Purpose for which nautor land may be granted.— Nautor land may be granted only for one or more of the following purposes, namely:— (a) Horticulture. (b) Agriculture, including raising of fodder, growing of vegetables, growing of any special grasses, herbs, shrubs and trees for domestic use or for cash income and dairy farming. (c) Construction of:— (i) Any building subservient to agriculture; (ii) thrashing floor; (iii) water mill; and (iv) water channel. (d) construction of a building for residence. (e) Consolidation of Holdings. (f) For genuine public purposes like construction of Dharamsala, etc. 6. The maximum limit of grant.—Maximum limits to grant nautor land shall be as under:— (i) For horticultural purposes: 20 bighas. (ii) (a) For Agricultural : 20 bighas. (b) For raising of fodder, growing of vegetables, growing of any special grasses, herbs, shrubs and trees for domestic use or for cash income and dairy farming. (iii) For water mills the land actually required for taking out a water channel for the water mill shall be sanctioned in addition as actually needed or, in the alternative, only the right to take out the water channel through Government land shall be allowed if grant of nautor land be against public interest in any case). (iv) For a thrashing floor: 2 bighas. (iv) For a thrashing floor: 2 bighas. (v) For a building subservient to agriculture or construction of a residential house: 1 bigha. Provided that if an applicant already holds some land under him, the grant of nautor land under sub-rule (i) and (ii) above shall be restricted only to the extent by which his total holding falls short of 20 bighas, except in the case of Pangi and Bharmaur areas of Chamba Distt. Pandrabis and Dodra Kwar areas of Shimla District and the whole of Lahaul and Spiti and Kinnaur Districts where dhanks and ghasnis, if any, comprised in his holding shall be excluded there—from while calculating this limit of 20 bighas, and (ii) severally or collectively. The grants for other purposes, can be obtained in addition thereto. Provided further that a person who is granted nautor for a house site shall not become by virtue of this grant, right holder in the revenue estate in which such grant is made and it shall7 not entitle him to acquire nautor under these Rules. Explanation.—In the case of a joint holding i.e. holding held jointly by more persons than one, the respective proportionate share of each joint holder, as entered in the revenue records shall be taken to be holding, for the purposes of the limits within which nautor land may be granted, in respect of each joint holder. 7. Eligibility for nautor land-Save for the widow and the children of a member of an armed force or semi-armed force, who has laid down his life for the country (whose widow and children were eligible for grant anywhere within the Tehsil subject to the condition mentioned in the wajib-ul-Arj in respect of areas where the land applied for is situated) no one who is not the resident in the estate in which the land applied for is situated, shall be eligible for the grant. Every resident of the estate in which the land applied for lies will be eligible in the following orders of preference: (a) Such persons who have less than ten bighas of land under self cultivation on 1.1.1974, whether as owners, or as tenants, or as lessees, either individually or collectively, or have an income of less than Rs. 2,000 per annum from all sources including lands. 2,000 per annum from all sources including lands. Provided that in this category a dependent of one who has laid down his life for the defence of the country will get preference over his counterparts. (b) Scheduled Castes and Scheduled Tribes applicants; and (c) The dependents of those who have laid down their lives for the defence of the Country Service, for the defence of the country will mean service in a uniformed force as well as in the capacity of civilian, so long as the death occurs on a front be it military or civil. (d) Services personnel in the armed forces Ex-Servicemen. (e) Panchayats. (f) Others : Provided that a bonafide landless resident of Spiti shall be eligible for the grant of land in Nautor within the Spiti Sub Division. 8. Where the father is alive, his son or daughter and where the husband is alive, his wife, shall not be eligible to apply for nautor land except as follows: Exceptions : (a) if a son or a daughter or a wife proved that the father or the husband, as the case may be, has disinherited or separated him or her, or has renounced the world such a son or daughter or wife, as the case may be, will be eligible for nautor land. (b) If a serving member of the Armed Forces or his son happens to have applied for nautor land in the life time of his father, he will be eligible for nautor land to the extent of his inheritable share in the fathers landed property on the date of the sanction of the nautor land that falls short of the ceilings prescribed under these rules." 13. Under sub-rule (a) of Rule 7, it may be noticed, only those residents of the Estate are eligible for the grant of Nautor who have less than ten bighas of land underself-cultivation on January 1, 1974 whether as owner(s) or tenant(s) or lessee(s) either individually or collectively or have an income of less than rupees 2,000/- per annum from all sources including land. Rule 8 mandates that a son or daughter is not eligible to apply for nautor land unless son or daughter, as the case may be, has been dis-inherited or separated by his or her father. The case of the plaintiff/appellant is that he was separated by his father. 14. Rule 8 mandates that a son or daughter is not eligible to apply for nautor land unless son or daughter, as the case may be, has been dis-inherited or separated by his or her father. The case of the plaintiff/appellant is that he was separated by his father. 14. A bare reading of Rule 8 shows that a person who has not been separated or has not been dis-inherited by his father, is not eligible to apply for the grant of nautor land. Natural corollary is that person is not eligible for the grant of land in Nautor unless he was separated by his father from the family or has been dis-inherited before the filing of the application for the grant of Nautor land. 15. There is concurrent finding of fact both of the trial court as well as the first Appellate Court that appellant has failed to prove that he was separated by his father before he made the application for the grant of land in Nautor in the year 1969. 16. It is admitted position that the applicant applied for the grant of nautor in the year 1969 when his father, Shri Khem Singh, was alive. There is also no dispute that Khem Singh was, at that time, owner of about 37 bighas of land as found by the learned Additional Deputy Commissioner in his impugned order Ext. K and concluded by the learned first Appellate Court after perusing Jamabandis Ext. Dl (1968-69), Ext. D2 (1973-74), Ext. D5, D6 (1969-70), Exts. D7, D8 and D9 (1974-75), Ext. D10 (1969-70) and Exts. PC, PD, PE and PF (1982-83). 17. Appellant rely on the entry in the Parivar Register, extract of i(vhich is placed on the record as Ext. PH. Perusal of Ext. PH shows that Durga Singh, appellant, is shown as member of the family of Khem Singh. It does not show separation of Durga Singh appellant from his father nor does it show that appellant is living separately from his father. The document carry a note that register has been up-dated till March 29, 1978. However, there is a entry in red ink to the effect that Durga Singh filed an affidavit dated December 28, 1972 the effect that he is living separately from his father and brothers since 1968. The document carry a note that register has been up-dated till March 29, 1978. However, there is a entry in red ink to the effect that Durga Singh filed an affidavit dated December 28, 1972 the effect that he is living separately from his father and brothers since 1968. Now the affidavit is admittedly dated December 28, 1972 and appears to have been placed on the record of the Panchayat by the appellant to create evidence to show that he has been living separately from his father and brother since 1968. This apart, the Evidence Act does not apply to affidavits and, therefore, an affidavit of a person in his own favour will not be acceptable evidence. It will also not be evidence within the meaning of the expression "Evidence" under explanation to Section 3 of the Evidence Act. 18. Learned Additional District Judge noticed that oral evidence led by the appellant is unsatisfactory and not worthy of reliance. It is evidence of Beer Singh (PW 3) Secretary, Gram Panchayat Talihar that the plaintiff has been living separately from his father but admits that appellant started living separately only after the filing of the affidavit dated December 28, 1972 with Panchayat. In other words, the appellant was not living separately from his father in the year 1968 when he applied for the grant of Nautor. Had there been separation in the year 1968, as the appellant would have us believe, a report would have been made with the revenue Patwari and the Panchayat. PW 2 Shri Gopal Singh states that there was a division in the family in the year 1968-69 when all the three brothers separated from the joint family. To similar effect is evidence of PW 4 Devki Nandan. The courts below have not believed that part of the testimony of these witnesses. There is no reason to reappraise this evidence. Had there been any division in the family, it would have been reported to the Patwari Halqa and share of all the brothers would have been separately shown in the revenue record. It is to be noticed that this is not even the case of the appellant himself. According to the appellant, he alone separated from the joint family in the year, 1968. There is no satisfactory or acceptable evidence of the factum of separation. It is to be noticed that this is not even the case of the appellant himself. According to the appellant, he alone separated from the joint family in the year, 1968. There is no satisfactory or acceptable evidence of the factum of separation. As noticed by the learned first Appellate Court, the plaintiff/ appellant was shown living jointly with his father in the Parivar Register even after 1973-74 which itself raise serious doubt to the entry made in the Parivar Register. On the basis of the affidavit of the appellant, learned first Appellate Court has noticed, that entry in Ext. PH about separation of the appellant from the joint family seems to be the result of manipulation and connivance with the Pradhan and Secretary of the Gram Panchayat, Talihar. In an application for the grant of land in Nautor by Beer Singh, brother of the appellant, the Deputy Commissioner in his orders (Ext. DA) dated April 21, 1972 noticed that brother of appellant Beer Singh was not entitled to the grant of land in Nautor as his father was holding more than 35 bighas of land and recorded that the present appellant and his brother should not be granted any nautor land in view of the holding of the father. It was after this order of April 21, 1972 that the appellant, with a view to circumvent the order of the Deputy Commissioner, filed an affidavit with the Gram Panchayat, Talihar to create evidence of his such grant. 19. It maisiting the spot. The Additional Deputy Commissioner, Many be pertinent to notice that the grant was cancelled by the Additional Deputy Commissioner, Mandi, after giving appellant an opportunity to be heard and after vdi, after satisfying himself that the appellant had not separated from his father, cancelled the grant. This order was upheld by the Deputy Commissioner in appeal and in revision by the Financial Commissioner. 20. There is no doubt that the appellant has failed to prove on the record that he was separated from his joint family when he applied for the grant of nautor. 21. So far the substantial question of law that the respondents have not been able to rebut the evidence of the appellant as envisaged under Section 50 of the Evidence Act is not applicable at all. Section 50 relates to the opinion of relationship. It reads: "50. 21. So far the substantial question of law that the respondents have not been able to rebut the evidence of the appellant as envisaged under Section 50 of the Evidence Act is not applicable at all. Section 50 relates to the opinion of relationship. It reads: "50. When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person, who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact : Provided that such opinion shall not be sufficient to prove a marriage in proceeding Indian Divorce Act, or in prosecutions under Sections 494, 497 or 498 of the Indian Penal Code." 22. The scope of Section 50 of the Evidence Act is limited to the extent that if the court is to form an opinion as to the relationship of one person to another, the opinion expressed by conduct as to the existence of such relationship must be one who is a member of the family or otherwise has special means of knowledge on the subject of relationship. 23. That issue in this appeal is not the relationship but the factum of partition or separation of the appellant from the joint family of his father. No question of law muchless substantial question of law is involved in this appeal. 24. In view of the concurrent findings of Courts below, on the fact that the appellant has not been able to prove separation from the joint family of his father, there is no scope for interference in the second appeal under Section 100 of the Code of Civil Procedure. 25. No other point is urged before me. 26. In result, the appeal fails and is discussed with costs. Appeal dismissed.