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2001 DIGILAW 329 (JK)

Parkash Singh v. Naseeb Singh

2001-12-18

H.K.SEMA, S.K.GUPTA

body2001
1. We have heard Mr. S.D. Sharma, learned counsel for the appellant, as well as Mr. S.C. Mansotra, learned Advocate for the respond-ent-1. 2. This Letters Patent Appeal is directed against the order dated: 10-11-2000 propounded by the learned Single Judge. By the aforesaid order, the learned Single Judge allowed the Civil Rule and held as under:- I am of the opinion that the view expressed by the Special Tribunal is not in accordance with the spirit of the Agrarian Reforms Act. Benefit has been given to a person who is serving in the Army and if on his share somebody is in cultivation, then the cultivation is to be treated as his personal cultivation. This is the plain meaning of the section 2(12)(g) and this has to be given effect to. In this view of the matter, the petitioner would be deemed to be in possession and is entitled to the same share as is being enjoyed by his brother. Agrarian Reforms Act is not to be interpreted in a manner, which has to cause prejudice in any manner, to a person and favour to other person.� 3. Aggrieved by the aforesaid order of the learned Single Judge, the appellant/respondent impugned its correctness in this appeal. It was contended by the appellant/respondent that a tiller, cultivating the land personally on 1st September, 1971 and onwards, is only entitled for the conferment of rights under Sections 4 and 8 of the Agrarian Reforms Act, 1976 (hereinafter referred to as Act). That Sher Singh father, and uncle Kehar Singh never remained tiller of land in question on the crucial date of Kharif 1971 and onwards. It was only the appellant/ respondent who happened to be cultivating the land independently and in his own right as tenant continuously prior to, during Kharif 1971 and onwards. This is also evidenced from the Revenue Record. His further submission is that he has been confirmed, the right under Section 4 of the Act vide Mutation No. 209 as prospective owner. 4. This is also evidenced from the Revenue Record. His further submission is that he has been confirmed, the right under Section 4 of the Act vide Mutation No. 209 as prospective owner. 4. The respondent/writ petitioner, on the other hand, in controverting the contention of the appellant, submitted that the cultivation by one brother or a member of the family is taken as personal cultivation of all, irrespective of the fact whether one is minor, incapacitated or in the Army and laid emphasis on the provisions of Section 2(12) (b) (c) (e) and (g) read with Section 5 of the Act. That their predecessors-in-interest, namely Sher Singh and Kehar Singh, were tenants of one Nath and others, the owners. The appellant/respondent has no separate contract of tenancy with Nath and others. The petitioner and the respondent cannot have separate and exclusive tenancy till the life time of the father and the uncle, who died on 05-01-1972 and 05-01-1974 respectively. It is further contended by the respondent/writ petitioner that the cultivation of land by the appellant/respondent even in Kharif 1971 was for and on behalf of all the members, notwithstanding that the father was incapacitated because of old age to cultivate, and the respondent/writ petitioner was in Army in the year 1971 as contemplated under Section 2 (12) (b) (c) (e) and (g). To support his contention, Mr. Mansotra relied -upon the decision dated: 15-12-1999 of a co-ordinate Division Bench of this Court in Anchal Dass Vs. State of J&K and others, in LPA(W) No. 279/96. The above referred judgment is not applicable to the facts of this case being clearly distinguishable. 5. Tracing the history of the case from record, it appears that the disputed land was owned by Nath and others as per record. The appellant/respondent was tiller of the land prior to and during Kharif 1971 and had been paying rent to the owners till date to the extent of l/4th share of the produce. There, however, did not subsist any contract of tenancy between Sher Singh, Kehar Singh and owners of the land. The question of possession at a relevant point of time during Kharif 1971 is a question of fact. This fact has been verified at site by three Tehsildars on three Mutations on different dates that the appellant/respondent is the tiller of the land. The question of possession at a relevant point of time during Kharif 1971 is a question of fact. This fact has been verified at site by three Tehsildars on three Mutations on different dates that the appellant/respondent is the tiller of the land. The landlords had also affirmed during enquiry before the Tehsildars, in presence of the villagers and the parties, that Parkash Singh, appellant/ respondent, alone was paying rent of the disputed land during Kharif 1971 and thereafter. The appellant/respondent was, thus, declared as prospective owner vide Mutation No. 209. There is a consistent finding of fact by the Revenue Courts at different level that the appellant/respondent has acquired the status of prospective owner in the disputed land independently and in his own fight. The argument put across by the respondent/writ petitioner that he was entitled to the share of land, being brother of Parkash Singh, is not well founded. The position emerging from record and consistent finding of fact of the Revenue Courts at different stages stating that appellant/respondent was cultivating the land, belonging to Nath and others, as tenant and, therefore, he alone was entitled to right under Sections 4 and 8 of the Agrarian Reforms Act, the provisions of Section 2 sub-section (12) (b) (c) (e) and (g), are not attracted. Further plea of inheritance taken by the respondent/writ petitioner is also misplaced as the appellant/respondent has acquired the property in his own right. Such a plea is available only in case of proprietary land of a family. If it is only the joint family property, it has to be devolved by inheritance. This is, admittedly, not the position in this case. As per record, the father of the respondent/writ petitioner was never cultivating the land in Kharif 1971. The respondent/writ petitioner has no claims over the disputed land and consequently, the provisions of Section 2(12)(e) read with Section 41 are not applicable. It is not the question of inheritance on the basis of which Mutation No. 209 was attested in favour of the appellant/respondent declaring him to be the prospective owner on26-11-1993, but it was because of the appellant/respondent cultivating the land as tiller indpendently in his own right as tenant prior to, during Kharif and afterwards. Thus, the question of inheritance or succession of late Sher Singh could not arise in the matter. 6. Thus, the question of inheritance or succession of late Sher Singh could not arise in the matter. 6. In the facts and circumstances of the case, we are clearly of the view that the learned Single Judge has misconducted the provisions of the Act in interpreting by constructing the provisions of the statute and the would be to start with literal interpretation. The "literal meaning" is the ordinary, plain meaning we give to the words. A logical corollary of the rule of literal interpretation is that a statute may not be extended to meet a case for which the provision has clearly and undoubtedly not been made; and the application of the rule necessarily involves that addition to or modification of words used in statutory provisions is not generally permissible. To ascertain the meaning of the clause, we must look at the whole Chapter, at what precedes and what succeeds and not merely at the clause itself. It, therefore, follows that a tiller, a defined in explicit terms in Section 2(17) of the Act, cultivating the land personally on 1st of September, 1971 and onwards is only entitled for conferment of right under Sections 4 and 8 of the Act. Such cultivation by the appellant/respondent was in his own right and not that he had inherited this land in any capacity from his father. In the result, we allow the appeal, set aside and quash the order dated 10-11-2000 formulated by the learned Single Judge. As a consequence, the writ petition shall also stand dismissed.