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2002 DIGILAW 38 (HP)

PRAN NATH KHANNA v. STATE OF H. P.

2002-03-01

M.R.VERMA

body2002
JUDGMENT M.R. Verma, J. - This second appeal has been preferred by the plaintiffs-appellant (hereinafter referred to as the appellant) against the judgment and decree dated 1.6.1994 passed by the learned District Judge, Sirmaur at Nahan, whereby the first appeal of the appellant against the judgment and decree dated 23.11.1991 passed by the learned Sub Judge 1st Class (II), Paonta Sahib has been dismissed. 2. Brief facts leading to the presentation of this appeal are as follows. The appellant instituted a suit for declaration that he is owner in possession of the land comprising Khata Khatauni No. 378/522, Khasra No. 126 min, measuring 9.1 bighas and Khata Khatauni No. 12/17, Khasra No. 130/2, measuring 12 biswas, situate in village Devi Nagar, Teh. Paonta Sahib, Distt. Sirmaur, (hereinafter referred to as the suit land) and for permanent prohibitory injunction restraining the defendant-respondent (hereinafter referred to as the respondent) from interfering with his possession over the suit land. It has been averred in the plant that one Rainasury who was the Mohatmin of Mandir Thakurdwara Daiji Sahiba, Paonta Sahib had created a lease for 99 years in favour of the appellant in respect of the suit land on 14.5.1962. The purpose of lease was to instal an industry by the plaintiffs over the suit land. The annual rent, as per the lease deed, was fixed at Rs. 289/-. As per the terms and conditions of the lease deed, the appellant was free to use the suit land in any manner and was authorised to transfer the same on rent etc. and has been in peaceful, uninterrupted and continuous possession thereof since the execution of the lease deed. I has further been claimed that the appellant acquired proprietary rights in the suit land by virtue of the provisions of H.P. Tenancy and Land Reforms Act, 1972 on and with effect from 3.10.1975 and the respondent has no right, title and interest in the suit land. It is further claimed that one Bhagta alias Jagir Singh, who is recorded as tenant in the Misal Hakiyat for the year 1959-60 and in the jamabandi for the years 1963-64 had already relinquished the tenancy and surrendered the possession of the suit land after having received money from the appellant. It is further claimed that one Bhagta alias Jagir Singh, who is recorded as tenant in the Misal Hakiyat for the year 1959-60 and in the jamabandi for the years 1963-64 had already relinquished the tenancy and surrendered the possession of the suit land after having received money from the appellant. Therefore, the entries in the revenue record showing him in possession of the suit land are not correct and at the time of mutation regarding vestment of the suit in favour of the respondent, the appellant was in possession of the suit land as a tenant and as such, the entry showing the respondent as owner of the suit land is illegal, void abi nitio and not binding on the appellant. In the alternative, it is claimed that in case it is found that the vestment of the suit land in the respondent under the provisions of Section 27(1) of the H.P. Abolition of Big Landed Estates and Land Reforms Act is correct, in that event, the proprietary rights of the suit land ought to have been conferred upon the appellant under Section 27(4) of the said Act, as he had stepped into the shoes of the tenant and the respondent cannot claim the ownership of the suit land and the entry showing it to be the owner thereof is illegal and fraudulent. The entries in the revenue record showing the appellant as tenant of the suit land had been changed in an unjust and fraudulent manner and the appellant has been recorded as "Kabij". This change has been brought about at the back of the appellant and without any notice to him. On the strength of this change, an illegal and ex parte order of ejectment has been passed by the Assistant Collector, 1st Class, Paonta Sahib under Section 163 of the H.P. Land Revenue Act, which is also illegal, as the appellant was not afforded any opportunity of being heard. The appellant being in possession, his possession deserves to be protected by restraining the respondent from interfering in his possession. Hence the suit. 3. The appellant being in possession, his possession deserves to be protected by restraining the respondent from interfering in his possession. Hence the suit. 3. The respondent contested the suit and in the written statement raised the preliminary objections that the suit is not maintainable : that it is bad for want of service of notice under Section 80 of the Code of Civil Procedure : that the appellant is estopped from filing the present suit; that the Court has no jurisdiction to entertain the suit; that the suit is bad for non-joinder of necessary parties and that the suit is barred by res judicata under Section 11 of the Code of Civil Procedure. On merits, while admitting that the suit land was once owned and possessed by Mandir Thakurdwara Dei Ji Sahiba and Ramanuj was its Manager, it has been averred in the written statement that said Ramanuj had no power to transfer the land in suit in any manner to any other person. Thus, he could not execute the lease deed in favour of the plaintiffs. Therefore, the lease deed executed in favour of the appellant is against law having no binding force. It has, thus, been claimed that the lease deed, on the basis of which the appellant has laid his claim to the suit property, being illegal, the appellant has no cause of action to institute the present suit and is thus, an encroacher over the suit land belonging to the respondent. Therefore, legal action under Section 163 of the H.P. Land Revenue Act was duly taken against him and he was ordered to be ejected from the suit land. The respondent, thus, denied the claim of he appellant in toto. 4. The appellant filed replication, wherein the grounds of defence as taken in the written statement, were denied and the claim as made out in the plaint was reaffirmed. 5. On the pleadings of the parties, the learned trial Judge framed the following issues :- 1. Whether a valid lease deed dated 14.5.1962 was created in favour of the plaintiffs by the Mandir Deiji Sahiba through its Mohatmim, as alleged ? OPP 2. Whether the plaintiffs has become owner of the suit land by operation of law ? OPP 3. Whether the order dated 15.3.1975 passed by A.C. 1st Grade is null and void ? OPP 4. Whether the suit is not maintainable ? OPD 5. OPP 2. Whether the plaintiffs has become owner of the suit land by operation of law ? OPP 3. Whether the order dated 15.3.1975 passed by A.C. 1st Grade is null and void ? OPP 4. Whether the suit is not maintainable ? OPD 5. Whether suit is bad for want of notice under Section 80 CPC ? OPD 6. Whether the plaintiffs is estopped for filing the present suit ? OPD 7. Whether the jurisdiction of the court is barred under law ? OPD 8. Whether the suit is bad for non-joinder of necessary parties ? OPD. 9. Whether the suit is barred by res-judicata under Section 11 CPC ? OPD 10. Relief. 6. Vide judgment dated 23.11.1991, the trial Court decided issue Nos. 1 and 2 against the appellant and issues No. 3 was decided in favour of the appellant. Issue Nos. 4 to 6, 8 and 9 were decided against the respondent and issue No. 7 was decided in favour of the respondent. As a consequence, the suit for declaration was dismissed, but the respondent was restrained from interfering in the possession of the plaintiffs over the suit land, unless and until he is dispossessed through due process of law. 7. Being aggrieved by the judgment and decree of the trial Court insofar as it went against him, the appellant preferred an appeal in the Court of the learned District Judge, Sirmaur at Nahan. The respondent also preferred Cross-Objections in the said appeal. Learned District Judge, after hearing the parties, dismissed the appeal as also the cross-objections by the impugned judgment. Hence the present appeal. 8. This appeal was admitted for hearing on the following substantial questions of law : 1. Whether the civil court was competent to try the suit in the facts and circumstances of case when the appellant was in possession of the property and the provisions of the H.P. Tenancy and Land Reforms Act, and the H.P. Abolition of Big Landed Estates and Land Reforms Act have been misconstrued ? 2. Whether in view of the fact that transfer was hit by Section 68 of the H.P. Abolition Act and the appellant was in possession of. the property since 16.5.1962, he had become owner thereof and the plaintiffs was entitled to declaration in this behalf of his ownership ? 9. 2. Whether in view of the fact that transfer was hit by Section 68 of the H.P. Abolition Act and the appellant was in possession of. the property since 16.5.1962, he had become owner thereof and the plaintiffs was entitled to declaration in this behalf of his ownership ? 9. I have heard the learned Counsel for the appellant and (he learned Assistant Advocate General for the respondent and have also gone through the records. Substantial Question No. 1 10. The precise claim of the appellant which gives rise to this question is that once the lease had been created in his favour in the year 1962, he had stepped into the shoes of the then tenant Bhagta and after the passing of the H.P. Tenancy and Land Reforms Act, being a tenant, automatically became owner of the suit land by operation of law i.e. Section 104 of the H.P. Tenancy and Land Reforms Act. In the alternative, his claim is that in case the suit land stood vested in the State Government by virtue of the provisions of Section 27( 1) of the H.P. Abolition of Big Landed Estates and Land Reforms Act, 1953. the proprietary rights in the suit land were liable to be transferred to him under the provisions of Section 27(4) of the said Act on account of his having stepped into the shoes of the previous tenant Bhagta and that the Courts below failed to appreciate these aspects of the dispute. 11. The said claim as put forth by the appellant is unsustainable in view of the provisions of the aforesaid Acts on the basis of which the appellant is claiming to be the owner of the suit land. 12. The relevant portion of Section 27 of the H.P. Abolition of Big Landed Estates and Land Reforms Act, 1953, reads as under: "27(1) Not with standing anything contained in the foregoing provisions of this Chapter, a landowner who holds land, the annual land revenue of which exceeds Rs. 125 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).................. (3).................. 125 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).................. (3).................. (4) The right, title and interest of the land owner acquired under sub-section (1) or (2)shall be transferred by the State Government on the payment of compensation in accord with Schedule I to such tenant who cultivates such land." 13. It is clear from a bare reading of the aforesaid provisions that the right, title and interest of a landlord who held land, the annual land revenue whereof exceeded Rs. 125/- per year stood transferred and vested in the State Government free from all encumbrances by virtue of the provisions of the sub-section, (1) supra on and with effect from the date of the enforcement of the Act i.e. 26.1.1955. The right, title and interest of the land owner acquired by the State I Government under sub-section (1) supra were to be transferred to such tenant who used to cultivate such land on payment of compensation as provided in sub-section (4) supra. 14. There is no dispute that the suit land was initially owned by Mandir Thakurdwara Dei Ji Sahiba and vested in the State Government by virtue of the provisions of Section 27 supra. At the time of vestment, the appellant admittedly was not in the cultivating possession of the suit land as a tenant, therefore, was not entitled for transfer of the suit land in his favour under the provision of sub-section (4) of Section 27 supra. 15. It is admitted case of the appellant that the suit land was leased in his favour vide lease deed dated 14.5.1962 which was executed by Ramanuj, the then Mohatmim of the said Mandir. Since the suit land stood vested in the State Government on 26.1.1955 and the Mandir had ceased to have any right, title or interest whatsoever therein, therefore, the Mandir and its Mohatmim had no right to lease the suit land. Therefore, the lease deed was void abi nitio and a nullity and did not create an enforceable tenancy or right in the suit land in favour of the appellant. Therefore, the lease deed was void abi nitio and a nullity and did not create an enforceable tenancy or right in the suit land in favour of the appellant. Thus, not being a tenant, the appellant was and is not entitled to the conferment of ownership rights in the suit land even by virtue of the provisions of Section 104 of the H.P. Tenancy and Land Reforms Act, 1972 under which only a tenant can claim the right to acquire interests of the land owner. 16. In view of the above position, both the courts below have rightly held that the appellant is not the owner of the suit land. Substantial Question No. 2 17. This question in fact does not arise for determination in this appeal. In view of the provisions of Section 68 of the H.P. Abolition of Big Landed Estates and Land Reforms Act, any transfer of the interest of a tenant, except as permitted by the proviso to a clause (c) of Section 1 of Section 54 of the Act shall be void. The lease in this case was admittedly executed on behalf of the Mandir by its Mohatmim on 14.5.1962 and the appellant, as per his own saying, entered in possession of the suit land. However, as already noticed, the respondent became owner of the suit land on 26.1.1955 by virtue of the provisions of section 27(1) of the H.P. Abolition of Big Landed Estates and Land Reforms Act. Therefore, Mandir orbits Mohatmim was neither the owner nor tenant at the relevant time. Thus the appellant at the time of the institution of the suit had not been in possession of the suit land for 30 or more years, therefore, the appellant cannot claim to have acquired the title in the suit land by virtue of adverse possession as is now sought to be made out. 18. For the reasons stated hereinabove, the impugned judgment and decree do not suffer from any illegality or infirmity and do not call for any interference. 19. As a result, the appeal is dismissed, leaving the parties to bear their own costs.