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Himachal Pradesh High Court · body

2012 DIGILAW 732 (HP)

Rajesh Kumar v. Bansi Ram

2012-10-17

SURINDER SINGH

body2012
Judgment SURINDER SINGH, J 1. The present Regular Second Appeal was admitted on the following substantial question of law: “Whether the income of other family members is also to be taken into consideration for assessing the eligibility or otherwise of an applicant who has applied for the grant of Nautor under the H.P Nautor Land Rules, 1968?” 2. Admittedly, Mansha Ram the grand father of defendants No. 1 and 2 was allotted suit land measuring 8-10 bighas by way of Nautor on his application Ext. DX, on 8.11.1973. This allotment was challenged by the plaintiffs by filing appeal before the Deputy Commissioner, Bilaspur, which was allowed on 17.6.1974 on the ground that Mansha Ram was not entitled for the sanction of Nautor land as his holdings would have increased to 21 bighas 6 biswas. Against this order of rejection, said Shri Mansha Ram filed an appeal before the Divisional Commissioner, which was dismissed on 13.11.1981. Against the said order, revision was filed before the Financial Commissioner (Appeals) by him. During the pendency of the revision Mansha Ram had died and the present defendants sons of Krishan Chand were brought on record on the basis of his Will. The Financial Commissioner after hearing the parties vide order dated 13.12.1991 allowed the revision holding that at the time of the sanction of Nautor land in favour of Mansha Ram, the total holding including the grant was not exceeding 20 bighas, which could safely be said that the Sub Divisional Officer (Civil) had rightly granted the Nautor land in favour of Mansha Ram, consequently, the Patta in his favour and there was no irregularity or illegality in his order dated 8.11.1973. 3. The plaintiffs did not feel satisfied as such filed Civil Suit being Case No.190-I of 1992 in the Court of learned Senior Sub Judge, Bilaspur, contending that they being residents of village Kandrour, have a right in the suit land, which was recorded as “Charand”. The suit land has water “Bauri”, one “Pipal” tree and six mango trees standing thereon. The plaintiffs did not feel satisfied as such filed Civil Suit being Case No.190-I of 1992 in the Court of learned Senior Sub Judge, Bilaspur, contending that they being residents of village Kandrour, have a right in the suit land, which was recorded as “Charand”. The suit land has water “Bauri”, one “Pipal” tree and six mango trees standing thereon. Apart from this, a path also leads through the suit land which is being used by the right-holders for the common purpose and further that the Nautor Rules stood suspended and were not in operation at the time of allowing the revision by the Financial Commissioner and further by virtue of the said grant the holding of the grantee exceeded the permissible limit. The contesting defendants have been trying to take forcible possession of the suit land and pursuing attestation of the mutation in their names, thus sought declaration that the impugned order of Financial Commissioner was wrong and illegal, consequently prayed for injunction. 4. The contesting defendants offered resistance to the suit by raising preliminary objections of maintainability, jurisdiction and valuation, vis-avis questioned the locus-standi of the plaintiffs to file the suit. On merits, the defendants defended the order of the Financial Commissioner. According to them, the Nautor was rightly sanctioned in favour of their predecessor. Further, there was no mention of water Bauri in the report of the revenue staff who had visited the spot or existence of trees etc. at the time of its allotment. Even the sub-committee constituted under the Gram Panchayat, Chandpur also did not find such items existing on the spot. Rather, according to them, the Nautor was rightly sanctioned in favour of their predecessor and the order of the Financial Commissioner upholding the grant was legally and factually correct. 5. The plaintiffs filed replication wherein even paras of the plaint have been reaffirmed and denied the preliminary objections. 6. On the pleadings of the parties, the learned trial Court framed the following issues: 1) Whether the suit in the present form is not maintainable? OPD. 2) Whether this Court has no jurisdiction to entertain the present suit as alleged? OPD. 3) Whether the suit is properly valued for the purposes of court fees and jurisdiction? OPP. 4) Whether the suit is bad for want of proper verification as alleged and if so its effect? OPD. OPD. 2) Whether this Court has no jurisdiction to entertain the present suit as alleged? OPD. 3) Whether the suit is properly valued for the purposes of court fees and jurisdiction? OPP. 4) Whether the suit is bad for want of proper verification as alleged and if so its effect? OPD. 5) Whether the order of Financial Commissioner dated 13.12.1991 is illegal, wrong and without jurisdiction as alleged? OPP. 6) Whether there exists water sources, path and charand in the suit land for the user of the right holder of the villager including the plaintiff? OPP. 7) If issue No.6 is proved in affirmative whether the suit land could not be sanctioned in Nautor to defendants No.1 and 2 and thus the impugned order is without jurisdiction and not binding upon the plaintiffs? OPP. 8) Whether the plaintiffs are entitled to the permanent injunction as prayed for? OPP. 9) Relief. 7. The parties led their evidence in support of the issues aforesaid and after going through the evidence and upon hearing the learned Counsel for the parties, the learned trial Court answered issues No.1 and 3 in affirmative and others in negative except issueNo.7 which was held redundant, accordingly dismissed the suit finding that Mansha Ram was in possession of 11 bighas 1 biswas of land when he had moved the application Ext.DX on 1.9.1970 whereas he was granted Nautor land vide order dated 8.11.1973 (Ext.PC). There was nothing on record to suggest that even on that date the holding of said Shri Mansha Ram had increased to more than 20 bighas. The increase in the total holding of Mansha Ram after the grant of Nautor in his favour during consolidation proceedings in the year 1973-74 did not connote that he had become ineligible for the grant and by granting him 8 bighas 10 biswas his total holding remained less than 20 bighas. The learned trial Court also took note of Rule 6 of the HP Nautor Land Rules, 1968 which provides for the maximum limit of grant to the extent of 20 bighas for agriculture and came to the conclusion that the total holding in the name of the grantee has to be seen on the date of making the application and the subsequent Jamabandis Ext.PG to PJ pertaining for the year 1989-90 cannot be looked into to calculate his total holding. The learned trial Court also observed that the plaintiff did not lead any evidence to show that on the date of the application, Mansha Ram allottee was having more than the requisite land, as mentioned by him in the application itself. Further, it was also observed that there was no evidence to show that on the date of the application Mansha Ram allottee was having more than the requisite land as mentioned by him in the application itself. Further it was also observed that there was no evidence whatsoever with respect to the existence of path, water-source, trees etc. over which they had staked their claim, which was rightly not accepted in view of the reports of the field staff and the sub-committee. 8. The learned trial Court also examined the matter with respect to the income of Mansha Ram though not pleaded and considered the photocopy of the affidavit Ext.DZ wherein the income of allottee Mansha Ram was mentioned to the tune of ` 750/-from all sources. According to the plaintiffs, the findings on all issues against them were wrong and contrary to the evidence, but while deciding the appeal, the learned lower appellate Court took note of the statement of Shri Krishan Chand son of Mansha Ram who was employed as a teacher. He had examined himself as DW1 in his capacity as Special Attorney and according to him, he was getting ` 200/- per month at that time, as such, the income of Mansha Ram was taken more than ` 2000/- per year, thus held that the Nautor land could not have been granted to him as he was not eligible for such land under Rule 7 of the said Rules prescribes the eligibility. The relevant abstract of said Rule applicable in this case is extracted as under: “7. Eligibility for nautor land. Saved for the widow and the children of a member of an armed force or semi-armed force, who has laid down his life for the country (whose widow and children were eligible for grant anywhere within the Tehsil subject to the conditions mentioned in the wajib-ul-arj in respect of the areas where the land applied for is situated) no one who is not the resident in the estate in which the land applied for is situated, shall be eligible for the grant. Every resident of the estate in which the land applied for lies will be eligible in the following order of preference: (a) Such persons who have less than ten bighas of land under self cultivation on 1.1.1974, whether as owners, or as tenants, or as lessees, either individually or have an income of less than ` 2000 per annum from all sources including lands. Provided that in this category a dependent of one who has laid down his life for the defence of the country will get preference over his counterparts….” 9. This Rule does not connote that the income of the son of the grantee would also be taken into consideration. Pertinently, the learned trial Court while considering the entire evidence also came to the conclusion that there was no such evidence on record even to suggest remotely that the earnings of Shri Krishan Chand were put in a joint stock being managed by his father Mansha Ram. Thus, the salary being drawn by Krishan Chand from his employment as teacher could not have been treated as income of his father. Otherwise also, DW1 Krishan Chand deposed in the cross-examination conducted by the plaintiffs that he was residing separately from his father since 1960. On the above conclusion the learned trial Court did not interfere with the impugned order of the Financial Commissioner being legally and factually sustainable, accordingly, the suit was dismissed. 10. Feeling aggrieved and dissatisfied by the impugned judgment and decree passed by the learned trial Court, the plaintiffs successfully challenged before the learned District Judge. The learned District Judge held that Mansha Ram was in possession of the holding measuring 11 bighas 8 biswas in the revenue estate of Kandrour, whereas his son Krishan Chand was a government servant thus his salary was put in a joint stock of the family which did not make Mansha Ram eligible for the allotment of the suit land. He also observed that the Will in favour of grand-sons, i.e., the defendants is a manipulated document to grab the suit land, when it was not under challenge. 11. He also observed that the Will in favour of grand-sons, i.e., the defendants is a manipulated document to grab the suit land, when it was not under challenge. 11. Shri Bhupender Gupta, learned Senior Advocate duly assisted by Shri Neeraj Gupta, Advocate, forcefully argued that the Nautor Rules do not provide that the income of other family members can be included for assessing the eligibility of the applicant for the grant of Nautor land, more specifically when Shri Krishan Chand (DW1) stated that he was residing separately from his father since the year 1960, much before the allotment. He was not contributing anything in the income of his father. Thus, the income of family members could not have been counted for the purpose. Further that the eligibility criterion is mentioned separately and distinctively under the Rules itself and the observations with respect to the Will were also uncalled for, being beyond the scope of pleadings. 12. Contra, the learned Counsel for the respondents supported the impugned judgment and decree of learned District Judge upsetting the judgment and decree of the learned trial Court. 13. I have given my best consideration to the rival contentions of the parties. 14. Admittedly, DW1 Krishan Chand, the son of the allottee was a teacher getting a salary of ` 200/- per month, whereas Clause (a) of Rule 7 of the Nautor Rules provides that the eligible person should have an income of ` 2000/- per annum from all sources including the land. Thus, it is clear that the income of the eligible person, i.e., the applicant-allottee has to be seen at the time of making application from all sources. Rule nowhere provides that the income of the other family has to be looked into at the time of the application. Therefore, in my considered opinion, the income of other family members cannot be taken into consideration for assessing the eligibility or otherwise of an applicant, who has applied for the grant of Nautor land under the HP Nautor Rules, especially when there is no evidence of joint-ness and sharing such income. Otherwise also, Krishan Chand testified that he was living separately from his father since 1960 which has not been challenged further in his cross-examination. The Financial Commissioner in his order Ext.PB held that Mansha Ram was having his total holding not exceeding 20 bighas even after allotment of 8-10 Bighas of land. Otherwise also, Krishan Chand testified that he was living separately from his father since 1960 which has not been challenged further in his cross-examination. The Financial Commissioner in his order Ext.PB held that Mansha Ram was having his total holding not exceeding 20 bighas even after allotment of 8-10 Bighas of land. This fact coupled with the fact that the income of the son cannot be included in the income of the father-applicant when he was living separately, the judgment and decree of the learned District Judge reversing the judgment and decree of the learned trial Court, in my opinion, is wrong, thus set aside and that of the learned trial Court is restored, as consequence the appeal is allowed. The substantial question of law is answered accordingly. The suit of the plaintiffs’ stands dismissed with costs. No other point urged or pressed.