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Himachal Pradesh High Court · body

2016 DIGILAW 1560 (HP)

Ranjit Singh v. Shyam Dutt

2016-08-02

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This petition is instituted against the judgment dated 19.6.2014 in Civil Misc. Appeal No. 17-S/14 of 2013 rendered by the Additional District Judge-1, Solan, District Solan and order dated 11.7.2013 rendered by the Civil Judge, Junior Division, Solan, District Solan in C.M.A. No. 166/6 of 2011. 2. “Key facts” necessary for the adjudication of this petition are that the petitioners have instituted a suit against the respondents for declaration and injunction claiming that they are owners in possession of the land detailed in the plaint situated at Mauza Rawi, Tehsil and District Solan. The predecessor of the petitioners, late Sh. Devi Ram has become owner of the suit land by virtue of operation of H.P. Tenancy and Land Reforms Act. Respondents were strangers to the suit property. Predecessor-in-interest of the petitioner Sh. Matha was single tenant under the predecessor-in-interest of the respondent on “Galla Batai”. The tenancy was recorded since 1925. The revenue authorities allegedly acting at the behest of the respondents avoided the attestation of mutation in favour of the petitioners. The defendants have no right of resumption of land and they did not fall under the ambit of landlord. 3. The suit was contested by the defendants. The defendants have applied for resumption of land, which was allowed by the revenue authorities as per law. The matter has attained finality upto the Financial Commissioner. The questions of resumption stands settled. CMPMO Nos. 242/2006, 244/2006, 245/2006 and 246/2006 preferred against the judgment of the Financial Commission were dismissed on 21.12.2010. 4. Petitioners had also filed an application under order 39 rule 1 and 2 read with section 151 of the Code of Civil Procedure to restrain the defendants from inferring or dispossessing them from the suit land. The application was contested by the defendants. Learned trial court dismissed the application on 11.7.2013. The petitioners filed an appeal before the learned Additional District Judge-1, Solan. He dismissed the same on 19.6.2014. 5. I have heard the learned counsel for the parties and have gone through the judgment passed by the Additional District Judge as well as order passed by the Civil Judge, (Junior Division). 6. The defendants had moved an application for resumption of land before the Land Reforms Officer. The Land Reforms Officer allowed the application on 24.11.1992. The petitioners filed an appeal before the Collector. It was dismissed vide order dated 30.12.1994. 6. The defendants had moved an application for resumption of land before the Land Reforms Officer. The Land Reforms Officer allowed the application on 24.11.1992. The petitioners filed an appeal before the Collector. It was dismissed vide order dated 30.12.1994. Order dated 30.12.1994 was assailed before the Commissioner. He dismissed the same on 13.11.1995. The Financial Commissioner dismissed the Revision Petition on 27.7.2005. The petitioners also filed CMPMOs before this Court, as discussed hereinabove. These were dismissed on 21.12.2010. The matter has attained finality. The issues raised in the application have already been discussed at length by this Court in its judgment dated 21.12.2010 rendered in CMPMO No. 242/2006 and analogous matters. Learned Single Judge has held as under: 5. Be that as it may, I myself have gone into this question as to whether the land held by the land owners as Mohtmins of temple should be included in their land holding as envisaged by Section 104 of the H.P. Tenancy and Land Reforms Act, relevant portion of which reads as follows: “104. Be that as it may, I myself have gone into this question as to whether the land held by the land owners as Mohtmins of temple should be included in their land holding as envisaged by Section 104 of the H.P. Tenancy and Land Reforms Act, relevant portion of which 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 if 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 Official 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, there from shall stand extinguished free from all encumbrances created by the tenant or tenants to that extent: Xxxxxxxxxxxx Provided further that the landowner shall not be entitled to resume from a tenant more than one half of the tenancy land: (ii)in case the landowners 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 unirrigated land, as the case may be, subject to the other conditions laid down in this section.” 6. It has been urged on behalf of the petitioners, relying upon the second proviso extracted hereinabove that a land owner is not entitled to resume land from a tenant in case he holds more than one and a half acres of irrigated land or three acres of un-irrigated land in his personal cultivation. It has been urged on behalf of the petitioners, relying upon the second proviso extracted hereinabove that a land owner is not entitled to resume land from a tenant in case he holds more than one and a half acres of irrigated land or three acres of un-irrigated land in his personal cultivation. According to the petitioners, the land which is owned by Chaturbhuj temple and is in possession of the landowners should be deemed to be land in their personal cultivation and if that area is added to their land, the land owners would not hold less than one and a half acres of irrigated land or less than three acres of un-irrigated land. 7. To appreciate the rival contentions of the parties, it would be important to go behind the sprit of the Act. The H.P. Tenancy and Land Reforms Act was promulgated as a Land Reforms Act to ensure that the land goes to the tiller. However, at the same time, the legislature was not unaware of the difficulties being faced by small land owners who themselves would become destitute or totally landless in case their entire land was given to the tenants. Therefore, a provision for resumption was made in Section 104 itself, which provided that a land owner who has in his personal cultivation less than one and a half acres of irrigated land or less than three acres of unirrigated land would have a right to resume half of the tenancy land from each of the tenants so as to make good the deficiency. Therefore, a tenant would not loose more than half of the tenanted land. 8. Furthermore, the resumption has to be made proportionately from all tenants and the resumption has to be made in such a manner that after the total land is resumed the land in the personal cultivation and holding of the land owner is either one and a half acres of irrigated land or three acres of unirrigated land. Thus, it is more than apparent that the intention of the legislature was to ensure that small land owners should also be protected and they were given a right to resume some extent of their land. 9. We are mainly concerned with the second proviso. Thus, it is more than apparent that the intention of the legislature was to ensure that small land owners should also be protected and they were given a right to resume some extent of their land. 9. We are mainly concerned with the second proviso. It has been urged by Sh.B.N. Misra, learned counsel for the petitioners that the words used in this proviso are “personal cultivation” and even if the landlord is cultivating the land of some other person like the temple in the present case, the land being in his personal cultivation has to be counted towards his holding. On the other hand Sh.Bhupinder Gupta, learned senior counsel appearing on behalf of the land owners urges that the land being held as Mohtims of the temple is not owned by the land owners and is being cultivated not personally but on behalf of the temple and therefore cannot be counted towards the holding of the land owners. 10. In my view, this proviso is actually meant for an entirely different purpose. A land owner may own a large extent of land but he may be in personal cultivation of less than one and a half acres of irrigated land or three acres of un-irrigated land. Therefore, while he is given a right to resume, the land which is owned by him but is not in his personal cultivation is not to be counted and only the land which is owned and personally cultivated by him has to be taken into account for calculating the one and a half acres of irrigated land or three acres of unirrigated of land. In case, the entire section is read as a whole it is more than apparent that the word holding in the proviso has been used in the sense of having title in the property akin to ownership. The intention of the legislature and the purpose behind the statute should normally be not lost sight of while interpreting any statute. The intention in the present case was to firstly give land to the tiller and secondly to protect the small land owner. 11. Even otherwise, I am clearly of the view that the Mohtmin of a temple does not cultivate the land of the temple in his personal capacity. It is well known that a Mohtmin is like a Manager of the temple. 11. Even otherwise, I am clearly of the view that the Mohtmin of a temple does not cultivate the land of the temple in his personal capacity. It is well known that a Mohtmin is like a Manager of the temple. His services can be dispensed with by the Deity or the Committee managing the Deity. In fact, the Mohtmin is not even entitled to the proceeds or income of the land cultivated by him and these are expected to be deposited in the temple funds. Therefore, it cannot be said that the land of the temple being cultivated by the Mohtmin is under his personal cultivation. 12. For the aforesaid reasons, I find no merit in these petitions which are accordingly rejected. No costs. 7. The petitioners have failed to make out any prima face case in their favour. Neither balance of convenience is in their favour nor they are going to suffer any irreparable loss and injury. It is reiterated that the issues raised by the petitioners time and again have already been settled upto this Court in CMPMO No. 242/2006 and analogous matters. The principles of res judicatta are also applicable in this case. The cause of action in the present case and the proceedings, which have already culminated, are the same. The filing of the suit is to drag the litigation. The matter once adjudicated upon conclusively should not be permitted to be opened to avoid vexing of the parties twice. 8. Accordingly, there is no merit in the petition and the same is dismissed, so also the pending applications, if any. No costs.