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2015 DIGILAW 1885 (HP)

Kulbhushan v. Prem Singh

2015-12-15

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan J. RSA No. 571 of 2004 This appeal under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 1.10.2004 passed by learned District Judge, Kangra at Dharamshala in Civil Appeal No. 9-N/XIII/04, whereby the judgment and decree dated 23.10.2003 passed by learned Sub Judge (2), Nurpur, District Kangra, H.P. in Civil Suit No. 28 of 1999 has been reversed. 2. The facts of the case are that late Sh. Prem Singh, original respondent/plaintiff filed a suit for declaration along with consequential relief of permanent injunction on the ground that the land comprised in Khata No. 79 min, Khatauni No. 171, Khasra Nos. 766, 1567/767, 1575/1107, Plots-3 area measuring 0-61-51 HM, situate in Tikka Chauki, Mauja Milakh Tehsil Nurpur, District Kangra, H.P. was owned and possessed by the plaintiff/respondent and the mutation No. 191 dated 9.7.1998 was illegal, wrong, without jurisdiction, null and void and not binding on the rights of the plaintiff. It was further pleaded that the defendant on the basis of mutation No. 191 had started interfering in the ownership and possession over the suit land and proclaiming himself to be owner of the same and threatening to take forcible possession of the suit land. According to the plaintiff, the suit land was originally owned by Kamla Devi Wd/o Rai Singh and she was the last owner of the suit land and the plaintiff was tenant at ‘Will’ at the time of coming into force the H.P. Tenancy and Land Reforms Act and on the appointed date the aforesaid act, he has become full owner of the suit land, but the landlord Kamla Devi being a widow, the proprietary rights of the plaintiff remained suspended under Section 104 of the H.P. Tenancy and Land Reforms Act. It was further pleaded that said Kamla Devi, the last owner of the suit land, died in the beginning of 1998 and the plaintiff at the time of her death, had become owner of the suit land. As per plaintiff, the defendant vide mutation of inheritance No. 191 dated 9.7.1998 was shown as owner of the suit land and in place of Kamla Devi. It was alleged that the defendant was claiming ownership over the suit land on the basis of will executed by late Kamla Devi. As per plaintiff, the defendant vide mutation of inheritance No. 191 dated 9.7.1998 was shown as owner of the suit land and in place of Kamla Devi. It was alleged that the defendant was claiming ownership over the suit land on the basis of will executed by late Kamla Devi. According to the plaintiff, he asked the defendant to admit his claim several times, but in vain. 3. The defendant contested and resisted the suit by filing written statement, in which he had taken preliminary objections with regard to maintainability, locus standi, estoppel, cause of action and jurisdiction. On merits, the description of the suit land was admitted. It was denied that the plaintiff is owner of the suit land. It was admitted that the plaintiff is tenant under the defendant and the defendant being ex-serviceman has filled LR-V form before LRO Nurpur for the resumption of land from the plaintiff. It was admitted that earlier the suit land was owned by late Kamla Devi. It was denied that the plaintiff had become owner of the suit land after coming into force the H.P. Tenancy and Land Reforms Act. As per defendant, he being ex-serviceman has every right to get his share resumed under the provisions of LR-V after his retirement. It was denied that late Kamla Devi had lost her proprietary rights in the suit land. According to defendant, late Kamla Devi had executed a registered will in his favour and on the basis of that Will he became owner of the suit land. As per defendant, the plaintiff had no cause of action. It is denied that the defendant was interfering in possession of the plaintiff. 4. From the pleadings of the parties, the learned trial Court on 3.4.2000 framed the following issues:- “1. Whether the plaintiff is owner in possession of the suit land, as alleged? OPP 2. Whether the plaintiff is entitled for the relief of permanent injunction, as prayed for? OPP 3. Whether the suit is not maintainable? OPD 4. Whether the jurisdiction of civil court is barred under Specific Statute, as alleged? OPD 5. Relief.” 5. After recording evidence and evaluating the same, the learned trial Court dismissed the suit. OPP 2. Whether the plaintiff is entitled for the relief of permanent injunction, as prayed for? OPP 3. Whether the suit is not maintainable? OPD 4. Whether the jurisdiction of civil court is barred under Specific Statute, as alleged? OPD 5. Relief.” 5. After recording evidence and evaluating the same, the learned trial Court dismissed the suit. Aggrieved by the judgment and decree passed by the learned trial Court, plaintiff preferred an appeal before the learned lower Appellate Court, who vide judgment and decree dated 1.10.2004 allowed the appeal, constraining the defendant/appellant to file the present appeal. 6. On 3.11.2005, this Court admitted the appeal on the following substantial question of law:- “Whether a widow, who succeeds her husband, as land owner is not entitled to resume the tenanted land, under Section 104 of the H.P. Tenancy and Land Reforms Act.” RSA No. 500 of 2004 7. This Regular Second Appeal under Section 100 of the Code of Civil Procedure is preferred by the appellant/defendant against the concurrent findings of fact recorded by the learned Courts below whereby the suit of the plaintiff/respondents for declaration and injunction came to be allowed. 8. The brief facts of the case are that Giano alias Gian Chand, predecessor-in-interest of the respondents filed a suit for declaration against the appellant claiming that he was owner in possession of the land comprised in Khata No. 79 min, Khatauni No. 169, Khasra No. 774, 840, measuring 0-52-95 HM, situated in Tikka Chauki, Mauza Milakh, Tehsil Nurpur, District Kangra, H.P. (hereinafter referred to as the ‘suit land’). It was averred that prior to settlement the land comprised in Khasra No.564 and 565 was owned by one Smt. Kamla Devi Wd/o Rai Singh and the same was in possession of the respondent as tenant at ‘Will’ as per jamabandi for the year 1966-67. During the settlement, Khasra No. 774 and 840 were carved out from khasra Nos. 565 and 564 and remained in possession of the plaintiff/respondent as tenant at Will. Originally Smt. Kamla Devi Wd/o Rai Singh was the last owner of the suit land and the plaintiff was tenant at ‘Will’ and being a tenant at the time of enforcement of H.P. Tenancy and Land Reforms Act, on the appointed date, had become full owner of the suit land by operation of the said Act. Originally Smt. Kamla Devi Wd/o Rai Singh was the last owner of the suit land and the plaintiff was tenant at ‘Will’ and being a tenant at the time of enforcement of H.P. Tenancy and Land Reforms Act, on the appointed date, had become full owner of the suit land by operation of the said Act. The proprietary rights of the plaintiff remained suspended under Section 104(8) of the said Act till her death, but the plaintiff continued to be in possession of the suit land as tenant under Smt. Kamla Devi, who died in the year 1998. The suit land remained in possession of the respondent/plaintiff. The entry of the appellant/defendant as owner of the suit land on the basis of inheritance mutation No. 191 dated 9.7.1991 is wrong, illegal, null and void and against the fact Smt. Kamla Devi was not competent to ‘Will’ away the property nor she executed any ‘Will’ in favour of the defendant. The mutation of inheritance could not effect her right as she was not owner of the suit land and was only to sold the property till her death and was only having life interest in the property in the shape of receiving rent from the plaintiff. The appellant in the last week of December, 1998 started interfering in the rights of the ownership and possession of the plaintiff an wanted to take the forcible possession of the suit land. On 28.12.1998 the appellant with his men came at the spot and started proclaiming to be the owner and wanted to take forcible possession of the suit land, but he was not allowed to do so. The appellant had been asked to admit the rights of the respondent/plaintiff, but from 3.1.1999 he refused to do so and filed the suit. 9. The suit was resisted and contested by the appellant by filing written statement wherein preliminary objections regarding maintainability, locus-standi, estoppel, plaintiff/respondent having no cause of action and jurisdiction were taken. On merits, it was averred that the respondent was tenant under the appellant and the appellant filed an application in LR-V form for the resumption of the land, which was pending before LRO, Nurpur. On merits, it was averred that the respondent was tenant under the appellant and the appellant filed an application in LR-V form for the resumption of the land, which was pending before LRO, Nurpur. The mutation sanctioned in favour of the appellant is legal and according to the wish of Kamla Devi as she had not lost her right during her life time and after her death, same were vested in favour of the appellant through valid registered ‘Will’. It was further averred that the appellant was not interfering in possession of the respondent at all. 10. The respondent filed replication in which he reasserted and reaffirmed the averments made in the plaint and denied the claim of the appellant made in the written statement. 11. On the pleadings of the parties, following issues were framed by the learned trial Court on 3.3.2000: 1. Whether the plaintiff is owner in possession of the suit land as alleged? OPP 2. Whether the plaintiff is entitled for relief of permanent injunction as alleged? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the jurisdiction of Civil Court is barred under specific statue, as alleged? OPD 5. Relief. 12. The learned trial Court after recording and evaluating the evidence decreed the suit by holding the plaintiff to be the owner in possession of the suit land and is entitled to remain as owner in possession in future as well. The mutation No. 191 dated 9.7.1998 is wrong, illegal and is not binding upon the rights of the plaintiff. Aggrieved by the judgment and decree passed by the learned trial Court, the defendant/appellant filed an appeal before the learned Additional District Judge (1), Kangra at Dharamshala, who vide judgment and decree dated 5.8.2004 dismissed the same. 13. Aggrieved by the judgment and decree dated 5.8.2004 passed by the learned lower Appellate Court, the appellant/defendant has come in second appeal before this Court. 14. On 3.11.2005, this Court admitted the appeal on the following substantial question of law: “Whether a widow, who succeeds her husband, as land owner is not entitled to resume the tenanted land, under Section 104 of the H.P. Tenancy and Land Reforms Act.” I have heard the learned counsel for the parties and have gone through the records of the case. 15. 15. Since both the appeals have been admitted on a common question of law, I proceed to determine the same. 16. The H.P. Tenancy and Land Reforms Act, 1972 was enacted “to unify, amend and consolidate the laws relating to tenancies of agricultural lands and to provide for certain measures of land reforms in Himachal Pradesh. “This Act received the assent of the President of India on 2nd February, 1972 and came into force at once. It was eventually amended by the Amendment Act of 1976 with retrospective effect. This Amendment Act received the assent of the President on 20th April, 1976 and is “deemed to have come into force from the date of the commencement” of the principal Act. This principal Act, as amended, is hereinafter referred to either as “the impugned Act” or “the Act”. 17. Before this Act came into force different enactments of land reforms were in force in the old area of Himachal Pradesh as well as in the new area which was added to Himachal Pradesh a result of reorganization of the erstwhile State of Punjab in the year 1966. 18. As per the Statement of Objects and Reasons attached to Bill No. 32 of 1972, by which the Act was brought into force, the Act was enacted for the following purposes: “Statement of objects and Reasons: As a result of the re-organisation of the erstwhile State of Punjab in November, 1966, some areas were integrated in Himachal Pradesh under section 5 of the Punjab Re-organisation Act, 1966. There are different enactments regarding tenancy and agrarian reforms in force in new and old areas of the Pradesh. In the areas as comprised in Himachal Pradesh immediately before 1st November, 1966, the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 is in force which is a progressive legislation about the security of tenures of tenants and their other rights. In the areas added to Himachal Pradesh under Section 5 of the Punjab Re-organisation Act, 1966, however, occupancy tenants have been vested with proprietary rights under two Acts on the subject namely, the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953, and the Pepsu Occupancy Tenants (Vesting of Proprietary Rights) Act, 1954. In the old areas the occupancy tenants have to apply for ownership under section 11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act. In the old areas the occupancy tenants have to apply for ownership under section 11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act. It has, therefore, been considered necessary to unify the various laws relating to tenancies as in force in the Pradesh and to provide for measure of land reforms to remove disparities. Restrictions have been imposed to purchase land by the non-agriculturists to avoid concentration of wealth in the hands of non-agriculturists moneyed class. The Bill is to achieve the above objects.” 19. The impugned Act is thus obviously enacted under the subject mentioned in Entry No. 18 of the State List of Schedule VII which speaks of “land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization.” This Act is put in Ninth Schedule of the Constitution at Entry No. 138 by the Constitution (40th Amendment) Act, 1976 on 27th May, 1976 in the following terms: “138. Himachal Pradesh Tenancy and Land Reforms Act, 1972 (Himachal Pradesh Act 8 of 1974).” Rules under the Act were framed in the year 1975 and they came into force on 4.10.1975. 20. It is not in dispute that the aforesaid Act is an agrarian reforms Act, since it seeks to consolidate various enactments of agrarian reforms. 21. This Court in the instant case is primarily concerned with the provisions of Section 104, contained in Chapter X of the Act, pertaining to conformant of proprietary rights upon the tenants other than the occupancy tenants and sub sections 3, 8 and 9 of Section 104 which are relevant for the purpose of determination of the issue in question read thus:- “104. (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: Provided that if a tenancy is created after the commencement of this Act, the provision of this sub-section shall apply immediately after the creation of such tenancy. (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; or (b) is permanently incapable of cultivating land by reason of any physical or mental infirmity; or (c) is a serving member of the Armed Forces; or (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 (l) 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 their life time; (b) in case of persons mentioned in clauses (c) and (d) of sub-sector (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. Provided that nothing contained in this section shall apply to such land which is either owned by or is vested in the Government under any law, whether before or after the commencement of this Act, and is leased out to any person.” 22. At the outset, it may be observed that by virtue of Section 104 of the Act all the tenants other than occupancy tenants were conferred proprietary rights by extending the benefit of this Act to the actual tillers of the soil, save and except for the limited protection offered under Section 104 (8) itself. The owners were divested of their lands which then vested in the non-occupancy tenants by conformant of proprietary rights, which was automatic under the Act. 23. The owners were divested of their lands which then vested in the non-occupancy tenants by conformant of proprietary rights, which was automatic under the Act. 23. The legislature obviously contemplated that there would be some hardship and therefore, it postponed/suspended the effect of conferment of proprietary rights in favour of the tenants by carving out exceptions in sub section 8 of Section 104 supra in favour of the tenants of the special categories mentioned therein “during the period mentioned for each of the category of such land owners.” Therefore, the widow of the owner, who falls in the special category cannot be placed at a higher pedestal or conferred a better or greater right, than her late husband, the erstwhile landlord by introducing the concept of succession which is totally ill-founded. The question is not with regard to succession to the land by the legal heirs/representatives of the landlord, but of conferment of proprietary rights in favour of the non-occupancy tenants by virtue of Section 104 of the Act, thereby divesting the original owner of its ownership and vesting it in the non-occupancy tenant. 24. In view of the aforesaid discussion, it can conveniently be said that the widow, who succeeds her husband as a land owner cannot have a higher or greater right than the land owner himself had in the property and is entitled to retain the property only for a period as mentioned in sub-section 8 of Section 104 during her life time and thereafter the same shall automatically vest in the non-occupancy tenant. Even during this period the widow will have no right to alienate, encumber, transfer or create charge etc. over the property and will enjoy the restricted right conferred under the aforesaid provisions. The widow has been given no right of resumption as this right is only available to land owners as mentioned in clause (c) and (d) of sub-section (8) of Section 104 of to the extent mentioned in first proviso to clause (d) and (dd) of sub-section (1) of Section 34. The question of law is accordingly answered against the appellants and accordingly these appeals are dismissed, leaving the parties to bear their costs.