Research › Search › Judgment

Himachal Pradesh High Court · body

2010 DIGILAW 679 (HP)

Shiam Singh v. Chaman Lal

2010-04-05

SURJIT SINGH

body2010
JUDGMENT Surjit Singh, J. 1. This Regular Second Appeal was admitted vide order dated 22.8.1996 on the following substantial questions of law: 1. Whether the suit is entertainable in the civil court when the matter of conferment of proprietary rights was finally determined by the Compensation Officer under the provisions of H.P. Abolition of Big Landed Estates and Land Reforms Act? 2 Whether it was permissible for civil court to determine the legality and validity of the order of compensation officer merely on the ground of sufficiency, validity for regularity of service, as if sitting as a court of appeal? 3 Whether the suit assailing the order of the Compensation Officer is barred by the principles of constructive res judicata as envisaged under Section 11 of the Code of Civil Procedure? 4 Whether the suit for declaration seeking to avoid the order of conferment of proprietary rights could be assailed in the civil court after a lapse of about 13 years. Whether suit was governed by the provision of Article 100/113 of Section 65 of the Limitation Act. Whether the approach of the learned Lower Appellate Court is wrong in applying provisions of Section 65 of the Limitation Act? 5 When the revenue entries which are lawfully substituted, could be ignored from consideration to come to the conclusion that the persons other than recorded as tenants were also having some interest in the land. Whether such approach of the court below is against the provisions of the H.P. Land Revenue Act? 2. Facts, which have led to the filing of the present appeal and which are relevant for answering the aforesaid questions and deciding the appeal, may be noticed. There used to be three brothers, named Prem Singh, Kushal Singh and Nand Lal. They all were recorded as joint tenants on land, measuring 13 bighas, 4 biswas, 12 biswansi, situate in village Panjethi, Illauq Pachhiat, Tehsil Sadar, District Mandi, as per description given in para 1 of the plaint. Owner of the land was Tarlok Nath temple. Earliest Jamabandi entry, recording the three brothers as joint tenants under the aforesaid land owner, pertains to the year 1947-48, copy whereof is Ext. P-10. In the next Jamabandis for the years 1951-52 (copy Ext. P-1) and 1955-56 (copy Ext. Owner of the land was Tarlok Nath temple. Earliest Jamabandi entry, recording the three brothers as joint tenants under the aforesaid land owner, pertains to the year 1947-48, copy whereof is Ext. P-10. In the next Jamabandis for the years 1951-52 (copy Ext. P-1) and 1955-56 (copy Ext. P-6) also, all the three brothers were recorded as joint tenants, but the land is recorded in exclusive possession of Nand Lal as co-tenant and not in his individual capacity. On the strength of this entry, said Nand Lal applied to the Compensation Officer, under the H.P. Abolition of Big Land Estates and Land Reforms Act, 1953 for conferment of proprietary rights in respect of the above described land, on him. That application was allowed and the proprietary rights were conferred upon said Nand Lal, vide order dated 6.12.1973, and mutation was also attested on the basis of said order, on 3.1.1976, in favour of said Nand Lal. The other two brothers came to know about the said order dated 6.12.1973 and mutation dated 3.1.1976, some time in the year 1986. They immediately filed a suit, seeking declaration that they were joint owners in possession of the suit land with Nand Lal, their third brother, and by way of further relief they prayed for a decree of joint possession. 3. Nand Lal had died before the institution of the suit and his estate was inherited by his legal heirs, who were impleaded as defendants and they are now appellants in the present appeal. 4. Defendants took the plea that their predecessor-in-interest Nand Lal was exclusive tenant on the suit land and the proprietary rights had rightly been conferred upon him to the exclusion of Prem Singh and Kushal Singh, the other two brothers, who also died during the pendency of the litigation and are now represented by their legal representatives. They are respondents herein. 5. Following issues were framed on the pleadings of the parties: 1. Whether the plaintiffs are joint non-occupancy tenants of the suit land as alleged? OPP 2. Whether the proprietary right conferred on the deceased Nand Lal was wrong, null and void? OPP. 3. Whether the plaintiffs are entitled to joint possession to the extent of 1/3rd share, each, of the suit land, as alleged? OPP. 4. Whether the suit of the plaintiffs is not legally maintainable, as alleged OPD 5. OPP 2. Whether the proprietary right conferred on the deceased Nand Lal was wrong, null and void? OPP. 3. Whether the plaintiffs are entitled to joint possession to the extent of 1/3rd share, each, of the suit land, as alleged? OPP. 4. Whether the suit of the plaintiffs is not legally maintainable, as alleged OPD 5. Whether the suit of the plaintiff is time barred? OPD 6. Whether this Court has no jurisdiction to try the present suit? OPD 7. Whether the deceased Nand was exclusive non-occupancy tenant in possession of the suit land which title and possession is with defendants No. 1 to 5 now? OPD 8. Whether the interest of guardin adlitem i.e. defendant No. 6, is adverse to the interest of idol Trilok Nath? OPD 9. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD 10. Relief 6. Learned trial Court, at the end of the trial, held that Nand Lal was the exclusive tenant in cultivating possession of the suit land and the order of Compensation Officer, conferring proprietary rights upon said Nand Lal, was valid and lawful. Consequently, issues No. 1, 2 and 3 were found in favour of the defendants. Other issues, except issue No. 9, based on preliminary objections of the defendants, were also found in their favour. Therefore, the suit was dismissed. 7. Plaintiffs filed appeal in the Court of District Judge, who reversed the findings and the decree of the learned trial Court and incidentally decreed the suit. 8. Defendants-appellants aggrieved by the judgment and decree of the first appellate Court have preferred this appeal, which was admitted on the aforesaid substantial questions of law. 9. I have heard the learned Counsel for the parties and gone through the record. 10. With regard to substantial question of law No. 1, it was submitted on behalf of the appellants that Civil Courts jurisdiction, to test the validity of the order of Compensation Officer, conferring proprietary rights, was barred, by virtue of the provision of Sub-section (4) of Section 12 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953. From a bare reading of Section 12, which is reproduced below for ready reference, it is clear that finality attaches to an order of Compensation Officer only with regard to the quantum of compensation and not with regard to conferment of proprietary rights. 12. From a bare reading of Section 12, which is reproduced below for ready reference, it is clear that finality attaches to an order of Compensation Officer only with regard to the quantum of compensation and not with regard to conferment of proprietary rights. 12. (1) The amount of compensation payable by a tenant for acquisition of the right, title and interest of the landowner in the land of the tenancy shall be determined by the Compensation Officer in accordance with the provisions of the Schedule. (2)(a) Any person aggrieved by an order of the compensation officer under Sub-section (1) may, within forty-five days from the date of the order, appeal to the District Judge. (b) Where any such appeal is preferred to the District Judge, he shall cause to be published in the prescribed manner a notice requiring the land owner or the tenant as the case may be, to appear before him and after giving the parties a reasonable opportunity of being heard shall give his decision. (c) As against the decision of the District Judge an appeal shall lie within such period as may be prescribed to the Judicial Commissioner whose decision shall be final and shall not be liable to be called in question in any court or before any authority. (3) No decision of the District Judge or the Judicial Commissioner under Sub-section (2) shall be invalid by reason of any defect in the form of notice or manner of its publication. (4) Every decision of the Compensation Officer under this section shall, subject to the provision of Sub-section (2), be binding on all persons claiming an interest in the holding concerned, not withstanding any such person not having appeared or participated in the proceedings before the Compensation Officer, the District Judge or the Judicial Commissioner, as the case may be. Therefore, the first substantial question of law, on which the appeal has been admitted, is answered against the appellants. 11. Coming to substantial question of law No. 2, in view of the answer to substantial question of law No. 1, this question does not survive, when it is held that Civil Courts jurisdiction is not barred in a matter of the present nature, but it is barred only when the dispute is with regard to the quantum of compensation determined by the Compensation Officer. 12. 12. So far as substantial question of law No. 3 is concerned, jurisdiction of Compensation Officer extends to the determination of compensation and settling the same between the land owner and the tenant. He does not have the jurisdiction to determine the rights of different persons, who claim to be tenants and as such entitled to conferment of proprietary rights on payment of compensation. Hence, there is no question of the finding, if any, of Compensation Officer that Nand Lal was the exclusive tenant, operating as res judicata in the present litigation. 13. Coming to substantial question of law No. 4, a reading of Section 46 of the H.P. Land Revenue Act shows that if any person considers himself aggrieved as to any right of which he is in possession by an entry in a record-of-rights or in a periodical record, he may institute a suit for declaration of his right under Chapter VI of the Specific Relief Act, 1963. 14. It is well settled that for a suit for declaration, referred to in Section 46, limitation begins to run not from the date of the entry affecting the right of the person concerned, but from the date when he feels aggrieved by the entry and it is the satisfaction of such person as to when does he feel aggrieved. Defendant cannot be heard to say that he( the plainatiff) felt aggrieved by the entry at some earlier point of time or when the entry was actually made. 15. Learned Counsel for the appellants submitted that the plaintiffs-respondents were out of possession of the suit land and, hence, their suit was not covered by the provision of Section 46 of H.P. Land Revenue Act. Submission is misconceived. Section 46 does not speak of physical possession of the subject matter or the land with respect to the entry of which a person is aggrieved, but the right of the plaintiff. The person should be in possession of the right and not the land, with respect to the entry of which he is aggrieved. Predecessors-in-interest of the plaintiffs, namely Prem Singh, Kushal Singh and Nand Lal were the real brothers. They were recorded as joint tenants, though Nand Lal was being recorded in exclusive possession as Hissedaar (one of the co-sharers/co-tenants). 16. It is well settled proposition of law that possession of a co-sharer is the possession of all. Predecessors-in-interest of the plaintiffs, namely Prem Singh, Kushal Singh and Nand Lal were the real brothers. They were recorded as joint tenants, though Nand Lal was being recorded in exclusive possession as Hissedaar (one of the co-sharers/co-tenants). 16. It is well settled proposition of law that possession of a co-sharer is the possession of all. A co-sharer in exclusive possession holds the property for himself and also on behalf of the co-sharers not in physical possession. Such a co-sharer is an agent of other co-sharers, who are out of possession, in regard to their shares in the joint property. In view of this legal position, plaintiffs are to be presumed to be co-sharers with the defendants. This is especially so when the defendants-appellants have not taken the plea of ouster of the plaintiffs-respondents. Question is answered accordingly. 17. So far as substantial question of law No. 5 is concerned, all the three brothers were recorded as joint tenants in the Jamabandi for the year 1947-48, copy Ext. P-10. In the subsequent Jamabandis for the years 1951-52, copy Ext.P-1 and 1955-56, copy Ext.P6 also, all of them were recorded as joint tenants and the physical possession was recorded with Nand Lal, not in is individual capacity, but as a co-sharer (co-tenant). This possession of Nand Lal was for himself and on behalf of his other two brothers, as their agent, as explained hereinabove, while dealing with substantial question of law No. 4. This entry was changed in the Misal Hakiat, copy Ext. P-5. Per oral evidence, this Misal Hakiat was prepared on the basis of settlement carried out in the year 1968 or 1969. In this document, names of Prem Singh and Kushal Singh, the other two brothers, i.e. the predecessors of the plaintiffs, were omitted. There is absolutely no evidence, leave alone any documentary evidence, in the form of record prepared in the settlement process, supporting the change in the entries. When a state of things is shown to have been in existence for a sufficient long time, the presumption is that such a state of things continues, unless contrary is proved. 18. In the absence of any material supporting the change effected in the Misal Hakiat, copy Ext. P5, there cannot be any escape from the finding that the change recorded in the Misal Hakiat was unauthorized, baseless and, hence, not binding upon the plaintiffs. 18. In the absence of any material supporting the change effected in the Misal Hakiat, copy Ext. P5, there cannot be any escape from the finding that the change recorded in the Misal Hakiat was unauthorized, baseless and, hence, not binding upon the plaintiffs. It was on the basis of this unauthorized changed entry in the Misal Hakiat (copy Ext. P5) that Nand Lal applied to the Compensation Officer, under the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953, for determination of compensation and conferment of proprietary rights, in respect of the suit land , upon him, and then the order dated 6.12.1973 was passed and mutations, copies Exts. P8 and P9, were attested. Nand Lal being a joint tenant, though in exclusive possession, as a co-sharer, cannot be heard to say that on the basis of order dated 6.12.1973, he alone is the owner of the suit land. Order dated 6.12.1973 having been obtained by him, when he was only a co-tenant, enures for the benefit of all the co-tenants. Consequently, this substantial question of law is also answered against the appellants-defendants. 19. As a result of the above discussion and answers to substantial questions of law No. 1 to 5, appeal is dismissed.