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2016 DIGILAW 2702 (HP)

Kanshi Ram v. Saju alias Roop Lal

2016-12-21

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. Plaintiff is in second appeal before this Court. He is aggrieved by the common judgment dated 19.2.2003 whereby the appeal he preferred against judgment and decree dated 21.6.1995 passed by learned Sub Judge Ist Class, Bilaspur in Civil Suit No. 16/1 of 1991 has been dismissed and the cross appeal filed by Saju alias Roop Lal (hereinafter referred to as defendant No. 1) allowed and the suit dismissed. 2. The suit land entered in Khasra No. 19, Khewat No. 1 min, Khatauni No. 4 min, measuring 5-2 bighas situate in village Rampur, Pargana and Tehsil Sadar, District Bilaspur admittedly is part of land entered in Khewat No. 1/3 min, Khatauni No. 4, Khasra Nos. 48, 49, 57, 83/52, 54, 74 min, measuring 15-13 bighas situate in Mauja Rampur, Tehsil Sadar, District Blaspur. As per entries in the jamabandi for the year 1972-73 Ext. PC Smt. Dropti (since dead) was owner thereof whereas Shri Ram Dittu, father of the plaintiff was in possession thereof in the capacity of non-occupancy tenant on payment of rent i.e. 1/4th of the produce. Shri Ram Dittu died on 6.1.1979. In terms of Section 45 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 (hereinafter referred to as ‘Tenancy Act’ in short) on the death of a tenant the tenancy rights devolved upon the following: (a) on his male linear descendants, if any, in the male line of descent; (b) failing such descendant, on his widow, if any, until she died or remarries or abandons the land or is under the provisions of this Act ejected there from; and (c) failing such descendants and widow, on his widowed mother, if any, until she died or remarries or abandons the land or is under the provisions of this Act ejected therefrom; and (d) failing such descendant and widow, or widowed mother or, if the deceased tenant left widow or widowed mother, then when her interest terminates under clause (b) or (c) of this section, on his male collateral relatives in the male line or descent from the common ancestor of the deceased tenant and those relatives. 3. The plaintiff is admittedly the son of deceased tenant Ram Dittu. 3. The plaintiff is admittedly the son of deceased tenant Ram Dittu. Therefore, his claim is that on his death the entire land measuring 15-13 bighas as aforesaid came to be occupied by him as tenant on payment of rent i.e. 1/4th of the produce. However, the suit land measuring 5-2 bighas was wrongly recorded in the name of his step mother Smt. Dalumbhi (since dead) in the capacity of non-occupancy tenant. The same according to the plaintiff could have not been inherited by said Smt. Dalumbhi the widow of original tenant Shri Ram Dittu and rather by his male linear descendant which in the present case is the plaintiff the only son of said Shri Ram Dittu. Smt. Daropti has expired on 1.1.1989. She was succeeded by defendant No. 2. The said defendant being major did not make any application for redemption of the suit land and as such lost his right, title or interest over the suit land. The plaintiff, therefore, had acquired proprietary rights in the suit land and became exclusive owner in possession thereof. The defendants were sought to be restrained permanently from causing any interference in the suit land and the revenue entries showing them to be in possession of the suit land were sought to be declared illegal, null and void and not binding on the plaintiff. In the event of the plaintiff found to be not in possession of the suit land or is dispossessed during the pendency of the suit, in the alternative the decree for possession thereof was also sought to be passed. 4. Defendant No. 1 when put to notice had contested the suit. In preliminary, he had set up the plea of ‘Will’ allegedly executed by deceased Smt. Dalumbhi in his favour. The plaintiff was stated to be not entitled to file the present suit, hence the maintainability thereof was also disputed. In view of the compromise of the plaintiff arrived at with the deceased Smt. Dalumbhi the suit was stated to be not maintainable. Smt. Dalumbhi was non-occupancy tenant under Smt. Daropti the owner thereof. After the death of said Smt. Daropti said Smt. Dalumbhi acquired proprietary rights over the suit land. The plaintiff as such was stated to have no right, title or interest in the suit land and the suit was also stated to be barred by the principle of res-judicata. Smt. Dalumbhi was non-occupancy tenant under Smt. Daropti the owner thereof. After the death of said Smt. Daropti said Smt. Dalumbhi acquired proprietary rights over the suit land. The plaintiff as such was stated to have no right, title or interest in the suit land and the suit was also stated to be barred by the principle of res-judicata. In view of the compromise arrived at between the plaintiff and said Smt. Dalumbhi and also the order dated 23.11.1983 passed by Consolidation Officer consequent upon the compromise so arrived at. On merits, it is submitted that Smt. Dalumbhi was owner in possession of the suit land. She was maternal grant mother of defendant No. 1. It is he who used to look after her. Plaintiff allegedly never maintained said Smt. Dalumbhi, therefore, the Will was rightly executed by her in favour of defendant No. 1. 5. In replication, the contentions to the contrary were denied being wrong and those in the plaint reiterated. It was further pointed out that the Consolidation Officer had no jurisdiction to decide the issue of tenancy involved either inter-se the tenants or between the tenants and landlord having not conferred with any power of Land Reforms Officer. The Consolidation Officer was also not vested with the power of Assistant Collector Ist Grade. The order dated 23.11.1983 was, therefore, claimed to be illegal, null and void. 6. On such pleadings of the parties, the following issues were framed: 1. Whether the plaintiff is owner in possession of the suit land as alleged? OPP 2. Whether the suit is not maintainable? OPD 3. Whether the suit has not been properly valued for the purpose of court fee? OPD 4. Whether the deceased Dalumbi had executed a valid will in favour of defendant No. 1 of the suit land as alleged? If so its effect? OPD 5. Relief. 7. On behalf of the plaintiff, learned Counsel representing him had tendered in evidence jamabandi for the years 1972-73 Ext.PC, 1979-80 Ext.PD, Copy of Khasra Girdawari for the period 1979 to 1980 Ext.PE, Khasra Girdawari for the period 1980 to 1984 Ext.PF, copy of order dated 23.11.1983 Ext.PG, copy of order passed by Director, Consolidation of Holdings Ext. PH, Misal Hakiyat Isatmal Ex.PI, Jamabandi for the year 1986-87 Ext.PJ, Khasra Girdawari during the period 1981 to 1989 Ext.PK and had closed the evidence. 8. PH, Misal Hakiyat Isatmal Ex.PI, Jamabandi for the year 1986-87 Ext.PJ, Khasra Girdawari during the period 1981 to 1989 Ext.PK and had closed the evidence. 8. On the other hand, defendant No. 1 had appeared in the witness box as DW1 and examined Shri Ram Prakash DW2, Kundu Ram DW3, Tulsi Ram DW4 and Amar Nath DW5. The reliance on behalf of defendant No. 1 has also been placed on the copy of mutation No. 38 Ext.D1, jamabandis for the year 1991-92 Ext.DM, 1986-87 Ext.DN, 1984-85 Ext.DO, 1983-84 Ext.DP, copy of mutation No. 39 Ext.DQ that of 38 and 29 Ext.DR and DS. He has also produced copy of Will Ext.DX, the application for correction of revenue entries filed by the plaintiff Ext.D1, the report Ext. DB, order dated 23.11.1983 Ext.DC, statement of deceased Smt. Dalumbhi Ext.DE, statement of the plaintiff Ext.DF, application for demarcation along with the proceedings Ext.DH, the report of patwari and Field Kanungo Ext.DI, copy of resolution Ext.DK, copy of mode of partition during consolidation Ext.DL and copy of jamabandi for the year 1986-87 Ext.PA, copy of Khasra Girdawari for the period 1987 to 1990 Ext.PB. 9. Learned trial Court on appreciation of the evidence available on record has decreed the suit for the declaration that the plaintiff is owner of the suit land. The revenue entries showing deceased Smt. Dalumbhi or defendant No. 1 as owner were declared illegal, null and void. The suit land, however, was held to be in possession of the defendants. The opportunity was granted to the plaintiff to file the suit for decree of possession thereof. 10. The plaintiff aggrieved by the findings to the extent of holding the defendant No. 1 Saju alias Roop Lal in possession of the suit land has assailed the judgment and decree passed by the trial Court in Civil Appeal No. 108 of 1995 whereas defendant Saju aggrieved by that part of the judgment and decree whereby the plaintiff was held owner of the suit land and declaring the entries showing deceased Dalumbhi to be owner in possession of the suit land had assailed the same in Civil Appeal No. 119 of 1995 in the lower Appellate Court. Learned Lower Appellate Court has dismissed the appeal filed by the plaintiff and allowed that filed by defendant No. 1 and declared the said defendant as owner in possession of the suit land vide judgment and decree under challenge in this appeal. 11. The legality and validity of the impugned judgment and decree has been challenged on the grounds, inter alia, that the same is neither supported by the evidence available on record nor by the provisions of law. The evidence available record has not been appreciated in its right perspective. The findings as recorded are stated to be in complete departure to the provisions mandatory in nature contained under Section 45 of the Tenancy Act. Since the provisions ibid extend a right of succession in favour of a male linear in descent, therefore, Smt. Dalumbhi could have not succeeded to the tenancy rights nor she ever came in possession of the suit land. In the jamabandi for the year 1979-80, the suit land was found to be in the joint possession of the plaintiff and Smt. Dalumbhi. The name of the plaintiff, however, came to be deleted in subsequent revenue record unlawfully. The defendant has neither pleaded nor proved that deceased Smt. Dalumbhi was inducted as tenant by the owner i.e. late Smt. Daropti. The tenancy is stated to be creation of an agreement and in the absence of any plea of creation of tenancy Smt. Dalumbhi could have not been held to be a tenant over the suit land. For want of pleadings and proof no findings could have been recorded that on the death of Smt. Daropti Smt. Dalumbhi had acquired proprietary rights over the suit land. The conferment of proprietary rights is not automatic but can only be conferred after resorting to the proceedings in accordance with law. The father of the plaintiff was recorded a tenant over the entire land measuring 15-13 bighas. The plaintiff was shown to have succeeded to the suit land along with Smt. Dalumbhi as per entries in the jamabandi for the year 1979-80. Smt. Dalumbhi was erroneously recorded as sole tenant of the suit land during the consolidation of holdings having taken place in the area vide Misal Hakiyat Isatmal Ext.PJ. The name of the plaintiff erroneously deleted from the record. Smt. Dalumbhi was erroneously recorded as sole tenant of the suit land during the consolidation of holdings having taken place in the area vide Misal Hakiyat Isatmal Ext.PJ. The name of the plaintiff erroneously deleted from the record. The alleged compromise between the plaintiff and said Smt. Dalumbhi being contrary to the legal provisions was otherwise void abinitio. The deed of confirmation Ext.DC, the statements of the parties Ext.DN to Ext. DR are contrary to the provision of law, hence inadmissible. Smt. Dalumbhi could have not executed a legal and valid Will in favour of defendant No. 1 as she never acquired right, title or interest in the suit land. Therefore, the title of the suit land cannot be passed on defendant No. 1. Learned Lower Appellate Court is stated to have carved out a case in favour of the plaintiff without there being any pleadings or proof available on record. Defendant No. 1 has no where sated while in the witness box qua the creation of tenancy in favour of Smt. Dalumbhi or acquiring tenancy rights by her over the suit land. The statement of DW Ram Parkash produced by defendant No. 1 himself that he had never seen deceased Smt. Dalumbhi to be in possession of the suit land has not been taken into consideration. Neither of the witnesses examined by defendant No. 1 has stated that deceased Smt. Dalumbhi was inducted as tenant over the suit land by the owner thereof. The judgment and decree under challenge as such has been sought to be quashed and set aside. 12. The appeal has been admitted on the following substantial question of law: 1. Whether under the provisions of H.P. Tenancy and Land Reforms Act, Smt. Dalumbi Devi could not have succeeded to the tenancy rights of the father of the appellant and her husband? 13. On hearing learned Counsel representing the parties at length and going through the evidence available on record as well as the provisions contained under Section 45 of the H.P. Tenancy and Land Reforms Act, referred to hereinabove, it would not be improper to conclude that Smt. Dalumbhi could have not succeeded to the tenancy rights on the death of Shri Ram Dittu who had been inducted as tenant over the entire land measuring 15-13 bighas by the owner Smt. Dropati as is apparent from jamabandi for the year 1972-73 Ext.PC. As per the provisions ibid it is the plaintiff left behind as male linear descendant in the line of descent on the death of his father Shri Ram Dittu could have only succeeded to the tenancy rights qua the entire land measuring 15-13 bighas. Said Shri Ram Dittu has expired on 6.1.1979. On his death since it is the plaintiff alone who would have succeeded to tenancy rights over the land in question, therefore, it is he who alone should have been shown as such in the revenue record. However, the entries in the jamabandi for the year 1979-80 Ext.PD reveal that Smt. Dalumbhi the widow of Shri Ram Dittu and step mother of the plaintiff was also shown to be in possession of the land measuring 15-13 bighas in the capacity of non-occupancy tenant. What is the basis of recording deceased Smt. Dalumbhi to be a co-tenant in the land in question, no evidence has come on record. Therefore, very foundation of the entries showing said Smt. Dalumbhi to be a cotenant is not legally sustainable. True it is, that in the application Ext.D1 filed for correction of revenue entries qua the suit land before Assistant Collector IInd Grade, Tehsil Sadar District BIlaspur the plaintiff had entered upon a compromise with deceased Smt. Dalumbhi and agreed to part with the tenancy rights over the suit land measuring 5-2 bighas in favour of his step mother Smt. Dalumbhi. The statement of Smt. Dalumbhi is Ext.DE whereas that of the plaintiff Ext. DF. The owner Smt. Daropti was also present before the Assistant Collector and in her statement Ext.DG had not objected to the arrangement arrived at mutually between the plaintiff and said Smt. Dalumbhi. Consequently, on the basis of the compromise order Ext.DC came to be passed on 23.11.1983 by Assistant Collector Ist Grade, Sadar District Bilaspur in application Ext. D1. However, in view of express provisions made under the Tenancy Act any such compromise could have been legally arrived at qua succeeding tenancy rights by the widow along with a male linear descendant i.e. the plaintiff in the case in hand is highly doubtful. D1. However, in view of express provisions made under the Tenancy Act any such compromise could have been legally arrived at qua succeeding tenancy rights by the widow along with a male linear descendant i.e. the plaintiff in the case in hand is highly doubtful. The answer to this poser in all fairness and in the ends of justice would be in negative for the reasons that there being specific provisions in Tenancy Act, referred to hereinabove, neither general law of succession could have been made applicable in the matter of succession of tenancy rights over the suit land nor any settlement contrary to the provisions under the Act was legally permissible. It is not the case of the defendant that the plaintiff parted with the possession of the suit land in lieu of the maintenance in favour of deceased Smt. Dalumbhi. Therefore, the findings recorded by learned Lower Appellate Court that he may have given the land in question to Smt. Dalumbhi towards her maintenance being beyond the pleadings and proof are not legally sustainable. True it is, that the owner Smt. Daropti in her statement Ext. DG recorded by learned Assistant Collector Ist Grade, Sadar Bilaspur had not objected to the arrangement i.e. giving of suit land by the plaintiff in favour of Smt. Dalumbhi. However, since Smt. Dalumbhi could have not succeeded to the tenancy rights under Section 45 of the Tenancy Act and there being no evidence that the plaintiff neglected to maintain her or that land was given by him to her for maintenance, the settlement so arrived at is neither legally nor factually sustainable. Therefore, the order Ext.DC passed by Assistant Collector Ist Grade on the basis of statements of Smt. Dalumbhi Ext.DE and that of the plaintiff Ext.DF is illegal, null and void. Even if it is believed that the land in question was given by the plaintiff for maintenance of deceased Smt. Dalumbhi such right should have ceased to exist on her death. True it is, that the mutation of the suit land was sanctioned and attested in favour of Smt. Dalumbhi and she came to be recorded as nonoccupancy tenant in the record of rights i.e. jamabandi Ext.PA and Khasra Girdawari Ext.PB. She was also recorded so in jamabandi Isatmal Ext.DJ. However, for the reasons recorded hereinabove such entries are not legally sustainable. She was also recorded so in jamabandi Isatmal Ext.DJ. However, for the reasons recorded hereinabove such entries are not legally sustainable. On the execution of the Will Ext.DA mutation D1 of the suit land was attested in the name of defendant No. 1, he came to be recorded owner in possession thereof in the jamabandi for the year 1991- 92 Ext.DM. However, since Smt. Dalumbhi neither could have succeeded tenancy rights on the death of her husband Ram Dittu the original tenant nor acquired any right, title or interest in the suit land could have not execute Will thereof in favour of defendant No. 1. Therefore, the order of mutation Ext.D1 and the entries in the jamabandi Ext.DM create no right, title or interest qua the suit land in his favour. These documents are, therefore, also illegal, null and void, hence not binding on the plaintiff. Therefore, Smt. Dalumbhi could have not at all succeeded tenancy rights over the suit land on the death of her husband Ram Dittu. The question of law formulated in this appeal is decided accordingly. 14. It is however, defendant No. 1 who as per the evidence available on record is in possession of the suit land. Even the evidence produced by the plaintiff also reveals that the suit land is in possession of defendant No. 1. Learned trial Court had thus rightly declared the plaintiff to be owner of the suit land. He, however, being out of possession of the suit land can only seek possession thereof by filing a separate suit. There is no force in the arguments addressed on behalf of the plaintiff that he has been dispossessed from the suit land during the pendency of the suit. Learned trial Court has, therefore, rightly decreed the suit on proper appreciation of the evidence available on record. The contentions raised by learned Counsel representing defendant No. 1 that Smt. Dalumbhi had right to maintain herself out of the estate left behind by her deceased husband Ram Dittu are without any substance for the reasons that no case to this effect was made out. Such was even not the case of Smt. Dalumbhi when compromise was arrived at between her and the plaintiff. Therefore, the law laid down by a Coordinate Bench of this Court in Smt. Namo Devi V. Rattan Chand and others, AIR 1990 HP 47 is not applicable in this case. Such was even not the case of Smt. Dalumbhi when compromise was arrived at between her and the plaintiff. Therefore, the law laid down by a Coordinate Bench of this Court in Smt. Namo Devi V. Rattan Chand and others, AIR 1990 HP 47 is not applicable in this case. The judgment of this Court in Pyare Lal v. State of Himachal Pradesh, 2012(3) Him. L.R. 1855 is also distinguishable on facts. 15. Having said so, this appeal succeeds and the same is accordingly allowed. Consequently, the judgment and decree passed by the learned Lower Appellate Court is quashed and set aside and the judgment and decree passed by learned trial Court is affirmed. No order so as to costs. The appeal stands disposed of accordingly.