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2006 DIGILAW 403 (HP)

SARWAN KUMAR v. BHAG SINGH

2006-12-20

RAJWANT SANDHU

body2006
Order This case relates to the recommendation of the learned Divisional Commissioner Kangra Division dated 09.06.2006 made by him in revision petition No. 276/98. 2. Brief facts of the ease ate that Shri Duni Chand, father of the present petitioner was recorded as non-occupancy tenant of Shri Madhu Sudan etc. in the jamabandi for the year 1994-95, comprised in khata/khatauni No. 108 min/196, Mauza Kahthwari/Nagrota, Tehsil Kangra. After the death of Shri Duni Chand, Shri Bhag Chand, son in law of Shri Duni Chand was entered as non-occupancy Tenant on the basis of a registered Will executed by Shri Duni Chand on 12.11.1993. Accordingly, mutation No. 228 was attested on 23.02.1998. Shri Sarwan Kumar, present petitioner assailed this order in appeal before the Collector, Sub-Division, Kangra and claimed that on the death of the tenant, the tenancy could only devolve as per the provisions of Section 45 of the H.P. Tenancy and Land Reforms Act, 1972 and a tenant could not transfer the tenancy rights by way of will to any person other than a person eligible as per Section 45 of the Act ibid. The learned Collector, Kangra rejected the appeal vide order dated 06.10.1998 holding that there is no restriction under Section 45 on transfer of tenancy through will. Aggrieved by this order of the Collector, dated 6.10.1998, Shri Sarwan Kumar was filed a revision petition before the learned Divisional Commissioner, Kangra who recommended the matter to this Court vide order dated 9.6.2006, upholding that it cannot be inferred from the will that Shri Duni Chand transferred tenancy rights to Shri Bhag Chand through this will- Also, the lower Courts had not appreciated the law correctly and wrongly devolved tenancy rights on the basis of a Will ignoring Section 45 of the Act. Hence, this revision petition before this Court. 3. The record of the Courts below was called for and examined. The arguments advanced by the learned Counsel for both the parties were heard. The learned Counsel for the petitioner reiterated the grounds taken in the revision petition and argued that Smt. Khino Devi was the original tenant over the land and after her demise, her husband, Shri Duni Chand succeeded to the tenancy. According to him, since the landowners belonged to protected category, the tenancy continued. The learned Counsel for the petitioner reiterated the grounds taken in the revision petition and argued that Smt. Khino Devi was the original tenant over the land and after her demise, her husband, Shri Duni Chand succeeded to the tenancy. According to him, since the landowners belonged to protected category, the tenancy continued. He argued that succession of Shri Duni Chand had to devolve upon the petitioner who was his son in accordance with Section 45 of the H.P. Tenancy and Land Reforms Act, 1972. He contended that the learned Commissioner had correctly appreciated the facts of the case and recommended that orders of both the Assistant Collector, Ilnd Grade as well as the Collector in this matter should be set aside. He prayed that the recommendation made by the learned Commissioner be accepted. 4. The learned Counsel for the respondent, on the other hand, argued that Shri Duni Chand had already become an owner of the land by acquiring proprietary rights by virtue of the enactment of the H.P. Tenancy and Land Reforms Act, 1972. He contended that Shri Duni Chand, therefore, had the right to will away his land to the respondent. He further contended that the learned Collector had correctly held that even as per Section 45 of the Act ibid, there is no bar on execution of a will in respect of the tenancy rights. 5. Having heard the arguments advanced and carefully perusing the record and that the moot pomt involved in the entire controvetsy is whether Shri Duni Chand had acquired property rights over the land in dispute by way of automatic vestment on coming into operation of the H.P. Tenancy and Land Reforms Act, 1972 and if so, to what extent. It is not clear as to whether all the owners of the land under tenancy belonged to the protected category. The tenancy could continue after the appointed day of 4th October, 1975 only qua the share of the owners belonging to the protected category. Though, I agree with the learned Commissioner that the intent of Section of the Act ibid is that succession of tenant has to devolve as per the provisions stated therein and nor by a will, but the status of Shri Duni Chand has to be clearly established before the mutation of inheritance could be attested. Though, I agree with the learned Commissioner that the intent of Section of the Act ibid is that succession of tenant has to devolve as per the provisions stated therein and nor by a will, but the status of Shri Duni Chand has to be clearly established before the mutation of inheritance could be attested. In view of this position, I accept the recommendation, made by the learned Divisional Commissioner, Kangra. The order dated 23.02.1998 of the Assistant Collector, Ilnd Grade on mutation No. 228 and that of the Collector, Sub-Division, Kangra dated 06.10.1998 are set aside. The case is remanded to the Land Reforms Officer, Kangra to ascertain the status of Shri Duni Chand as tenant/owner of the suit land and thereafter the mutation of inheritance regarding the land may be attested afresh. 6. Announced in the open Court today the 20-12-2006 at Dharamshala. 7. Record of the Courts below be returned and the case file of this Court be consigned to the record room after due completion. Order accordingly. -e