JUDGMENT : Deepak Gupta, J. 1. This Letters Patent Appeal is directed against the judgment dated 31.5.2007, delivered by a learned Single Judge of this Court, whereby he dismissed the petition filed by the present petitioner. 2. The facts necessary for disposal of the case are that prior to the enforcement of H.P. Tenancy and Land Reforms Act and Rules framed thereunder, the predecessor in interest of the petitioner was shown as tenant in land comprised in Khata-Khatauni No. 113/min/272, Khasra No. 674, measuring 4-12-0 bighas. This land was jointly owned by Durga Singh with other co-sharers. Durga Singh had 5/48 share in the land. The remaining land was held by the other co-sharers. Durga Singh was serving in the Army and therefore, in terms of Section 104(8)(c) the proprietary rights in respect of the land which was owned by him could not be vested in the tenant. However, mutation No. 1788 was attested in favour of the tenant on 7.1.1977, but on appeal this order was set aside and the matter was remanded. Thereafter the mutation was rejected on the ground that one of the landowners was a member of the armed forces. 3. The petitioner then filed a civil suit that she has become owner of the suit land in view of the provisions of H.P. Tenancy and Land Reforms Act and the tenancy rights have vested in her w.e.f. 4.10.1975. The suit was partly decreed in favour of the petitioner and it was held that she was owner-in-possession of the suit land. However, no declaration was granted in her favour on the ground that the Civil Court had no jurisdiction to pass such an order. 4. Aggrieved by the said judgment and decree, the petitioner filed an appeal, which was decided in her favour and she was declared to be owner-in-possession to the extent of 43/48th share of the suit land. She was, however, not granted ownership in respect of remaining 5/48 share, which was owned by Durga Singh but she was found to be in possession of the same. Durga Singh filed an appeal in this court which was registered as RSA No. 219 of 1991. She was, however, not granted ownership in respect of remaining 5/48 share, which was owned by Durga Singh but she was found to be in possession of the same. Durga Singh filed an appeal in this court which was registered as RSA No. 219 of 1991. This case was decided on 4.3.1997 and it was held that since the Civil court had no jurisdiction to go into the question of tenancy the suit was ordered to be returned to the plaintiff under Order 7 Rule 10 CPC. The petitioner then filed an application under Section 104 of the H.P. Tenancy and Land Reforms Act before the Land Reforms Officer, Kullu praying that proprietary rights be conferred in her favour. 5. Durga Singh after his discharge from the Army filed an application under Rule 21(1) of the H.P. Tenancy Land Reforms Rules on 16.12.1988. In this application, he prayed that he may be allowed to resume half share of the suit land. The application was contested by the petitioner on the ground that on the appointed day i.e. 4.10.1975 when the Act and Rules came into force the share of the respondent was only 5/48 and the protection was available to Durga Singh only in respect of the land which he owned on the appointed day. It was pointed out that though finally the Civil Court held that it had no jurisdiction the clear cut finding had been given that the share of Durga Singh was only 5/48 share. The case of Durga Singh was that in a family partition entered into between the co-owners, half of the land had fallen to his share and therefore, he being owner of half share had a right to resume the said land. All the Revenue Courts held in favour of Durga Singh and against the present petitioner. Even the writ petition filed by the petitioner was dismissed by the learned Single Judge. 6. The main grievance of the appellant/petitioner is that all the Revenue Courts have wrongly relied upon the entries made in the jamabandi 1989 wherein Durga Singh is shown to be owner of half share of the suit land. It is submitted that the Revenue Authorities have failed to appreciate that on the appointed day, Durga Singh had only 5/48 share in the land. It is submitted that the Revenue Authorities have failed to appreciate that on the appointed day, Durga Singh had only 5/48 share in the land. It is contended that vestment of proprietary rights is automatic and only in case of protected categories the vestment is either delayed or put on hold till the land owner is suffering from the disability. It is claimed that the tenant had become owner of 43/48 share on the appointed day and therefore, no revenue entries could have changed that land. The main contention is that the co-owners who did not enjoy the protection of Section 104(3) could not have transferred their share in the land in favour of Durga Singh who was entitled to protection in terms of Section 104(8)(c) of the H.P. Tenancy and Land Reforms Act. It is further contended that the family settlement whereby the share of the other brother was transferred in the name of Durga Singh was made only with a view to jeopardise the rights of the petitioner who was already litigating the matter in Court and this could not be permitted. 7. To appreciate the rival contention of the parties, it would be appropriate to refer to certain provisions of the H.P. Tenancy and Land Reforms Act. Relevant portion of Section 104 of the Act reads as follows:- "104. Right of tenant other than occupancy tenant to acquire interests of landowner. 7. To appreciate the rival contention of the parties, it would be appropriate to refer to certain provisions of the H.P. Tenancy and Land Reforms Act. Relevant portion of Section 104 of the Act reads as follows:- "104. Right of tenant other than occupancy tenant to acquire interests of landowner. (1) Notwithstanding anything to the contrary contained in any law, contract, custom or usage for the time being in force, on and from the commencement of this Act, if the whole of the land of the landowner is under non-occupancy tenants, and is such a landowner has not exercised the right of resumption of tenancy land at any time since January 26, 1955, under any law as in force:- (i) Such a landowner shall be entitled to resume before the date to be notified by the State Government in the Officials Gazette and in the manner prescribed, either one and a half acres of irrigated land or three acres of un-irrigated land under tenancy from one or more than one tenants for his personal cultivation and the right, title and interest (including contingent interest, if any) of the tenant or tenants, as the case may be, therefrom shall stand extinguished free from all encumbrances created by the tenant or tenants to that extent: (ii) in case the landowner holds less than one and a half acres of irrigated land or three acres un-irrigated land in his personal cultivation, he shall be entitled to resume tenancy land only to make up the land under his personal cultivation to the extent of one and a half acres of irrigated land or three acres of un-irrigated land, as the case may be, subject to the other conditions laid down in this section; (iii) the right, title and interest in the rest of the tenancy land of the landowner, who is entitled to resume land under clause (i) and (ii), shall vest in the tenant free from all encumbrances with effect from the date to be notified by the State Government in the Official Gazette; (iv) xxx xxx xxx (v) xxx xxx xxx (vi) xxx xxx xxx (2) xxx xxx xxx (3) All rights, title and interest (including a contingent interest, if any) of a landowner other than a landowner entitled to resume land under sub-section (1) shall be extinguished and all such rights, title and interest shall with effect from the date to be notified by the State Government in the Official Gazette vest in the tenant free from all encumbrances: (4) xxx xxx xxx (5) The landowner whose rights, title and interest are extinguished under this section, shall be entitled to receive an amount of the rate of ninety six times the land revenue plus rates and cesses payable either in lump-sum or in such number of instalments not exceeding ten during a period not exceeding five years as may be prescribed. (6) xxx xxx xxx (7) xxx xxx xxx (8) Save as otherwise provided in sub-section (9), nothing contained in sub-section (1) to (6) shall apply to a tenancy of a landowner during the period mentioned for each category of such landowners in sub-section 9 who:- (a) is a minor or unmarried woman, or if married, divorced or separated from husband or widow; (b) is permanently incapable of cultivating land by reason of any physical or mental infirmity; (c) is a serving member of the Armed Forces. (d) is the father of the person who is serving in the Armed Forces upto the extent of inheritable share of such a member of the Armed Forces on the date of his joining the Armed Forces, to be declared by his father in the prescribed manner. (9) In the case of landowners, mentioned in clauses (a) to (d) of sub-section (8), the provisions of sub-sections (1) to (6) shall not apply:- (a) in case of a minor during his minority and in case of other persons mentioned in clauses (a) and (b) of sub-section (8) during the life time; (b) in case of persons mentioned in clauses (c) and (d) of sub-section (8), during the period of their service in the Armed Forces subject to resumption of land by such persons to the extent mentioned in first proviso to clauses (d) and (dd) of sub-section (1) of Section 34." 8. A bare perusal of the aforesaid provisions clearly show that unless the tenant is entitled to resume the land on the appointed day, vestment of ownership rights in the tenant is automatic. Sub-clause (iii) of Section 104 clearly lays down that the tenancy rights, title and interest in the tenanted land other than which can be resumed shall vest in the tenant free from all encumbrances from the appointed day. Sub-section (3) also clearly lays down that all rights, title and interest of a landowner other than a landowner entitled to resume land under sub-section (1) shall be extinguished and all such rights, title and interest shall with effect from appointed day vest in the tenant free from all encumbrances. The landowner is only entitled to get compensation in terms of sub-section (5) of Section 104 of the Act. 9. The landowner is only entitled to get compensation in terms of sub-section (5) of Section 104 of the Act. 9. This matter has been considered by a learned Single Judge of this Court earlier also in Daulat Ram and Others vs. State of Himachal Pradesh and Others, 1979 Sim. L.C. 215. The relevant portion of the judgment reads as follows:- "Under the provision of this sub section the right of the landowner in the land held by a tenant shall stand extinguished and his such rights, title and interest shall vest in the tenant free from all encumbrances created by the landowner with effect from 1-10-1973 on payment of compensation. Therefore, the provision of law does not leave any room for doubt that a person who is entered as a tenant he is to become the owner of the land with effect from 1-10-1973 on payment of compensation or from the date of the publication of the rules, as already stated above. So there is no question of laying any condition or imposing a fetter on the rights of ownership. The right which are to vest they are without any fetters and the law enjoins to confer absolute ownership in the land. Therefore, if any fetter is laid that would be in contravention of this statutory provision, and any such condition which is against the statutory provision would be void." 10. On the appointed day Durga Singh had only 5/48 share in the land in question. He alone could claim the protection under sub section (8) and was entitled to resume the land. This naturally means that the appellant who was tenant on the entire land was conferred the proprietary rights on the rest of 43/48 share. She became owner-in-possession of the land and mutation was also sanctioned in her favour. The vestment of proprietary rights has to take place on the appointed day and is automatic. It is not disputed that the appellant was a tenant on the entire land. What the landowners have done is that they have chosen an ingenious method of depriving the tenant of the benefit of the rights vested in the tenant under the Act? They by means of a so called family settlement have given half of the tenanted land to Durga Singh who enjoys protection being an army personnel. What the landowners have done is that they have chosen an ingenious method of depriving the tenant of the benefit of the rights vested in the tenant under the Act? They by means of a so called family settlement have given half of the tenanted land to Durga Singh who enjoys protection being an army personnel. We are of the considered view that this could not have been permitted to be done. No Act or provision of law can be interpreted in a manner which will defeat the spirit of the Act. As per the Act the tenant acquires the proprietary rights over the tenanted land unless the same can be resumed. In the present case Durga Singh at best could have resumed 5/48 share. The landowners by partition inter see themselves could not have defeated the rights of the tenant and deprived her of the benefit of the Act. 11. It has been contended by Mr. G.D. Verma, learned Senior Advocate for the respondent that since the tenancy was indivisible the proprietary rights could not vest in the tenant. This argument is totally without force because if sub clause (iii) of Section 104 is looked into it clearly indicates that the tenant shall acquire the proprietary rights in respect of the tenanted land except that which can be resumed. In this case, admittedly, the appellant continued in possession of the entire land. Since the option to resume the land was exercised by Durga Singh only on his retirement at best he could get 5/48 share in the land and nothing more since this was his share on the appointed day. He could claim resumption on the basis of 5/48 share in the land only. He could not have claimed a right higher than that what he had on the appointed day. 12. It would be pertinent to mention that a learned Single Judge of this Court in Jethu through Km. Guddi and Others vs. Gobind Singh, 1995 (2) Sim. L.C. 296 held as follows:- "17.......the exchange was effected in the year 1975 when H.P. Tenancy and Land Reforms Act had already come into being and the tenancy rights had acquired much importance. These rights had been recognised to be legally sufficient to acquire the proprietary rights of the landlords under whom those tenancy rights had been created......" 13. L.C. 296 held as follows:- "17.......the exchange was effected in the year 1975 when H.P. Tenancy and Land Reforms Act had already come into being and the tenancy rights had acquired much importance. These rights had been recognised to be legally sufficient to acquire the proprietary rights of the landlords under whom those tenancy rights had been created......" 13. The learned Single Judge further went on to hold as follows:- 21. It has been contended on behalf of the plaintiff-respondent that from the date of exchange the tenancy stood extinguished. I fail to understand under what provision of law this inference could be derived at. The factum being argued that the tenancy stood extinguished from this date only mean that prior to this date tenancy rights were there which were being enjoyed by none else but by the defendants or their predecessors. There is no law on the basis of which through an exchange the tenancy rights could be terminated. Such rights could be terminated through the process of law and not by creating exchange by the landlord. If it was so, the tenancy could be brought to end by this method by the landlords ignoring the statutory provisions in this behalf." (Emphasis supplied) 14. In view of the above discussion, we are of the considered view that the Revenue Authorities as well as the learned Single Judge did not properly appreciate the legal position. We accordingly, allow the appeal, set aside the judgment of the learned Single Judge and the orders of the Revenue Authorities and hold that the appellant has become owner-in-possession of 43/48 share of the suit land and Durga Singh can claim resumption of the suit land only on the basis of his 5/48 share and nothing more. No order as to costs.