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2016 DIGILAW 96 (HP)

KHALIFA RAM v. BHARU

2016-01-22

NARINDER CHAUHAN

body2016
ORDER : 1. The revision petition has been preferred by Shri Khalifa Ram (now deceased), against the order dated 26-05-1992, passed by the Ld. Commissioner, Mandi Division, in Case No. 320/ 1989, whereby Ld. Commissioner has dismissed the revision petition filed before him, by upholding the order of the Ld. Collector (ADM), Mandi, dated 31.5.1989 who held that the share of Smt. Bharu a widow who was alive would remain intact as long as she was alive being covered under the protected category specified in section 104(8) of the H.P. Tenancy & Land Reforms Act, 1972. 2. Brefily stated, the facts of the case are that the land comprised in Khata/Khatauni No. 101/165, Kita 3, area measuring 6-19-19 bighas, situated in mauza Mandal, Illaqa Balh, Tehsil Sadar, Distt. Mandi, was recorded in the joint ownership of Smt. Molaki etc. including Smt. Mastu widow of Shri Mohan. Shri Khalifa Ram (now deceased) petitioner was recorded as non-occupancy tenant in the aforesaid land. After the death of Smt. Mastu, the A C IInd Grade, conferred the proprietary rights upon the tenant (Khalifa Ram under section 104(3) of the H.P. Tenancy & Land Reforms Act, 1972, vide mutation of 474 dated 8-8-1986. 3. Feeling aggrieved with the above order dated 8.8.1986, passed by the A.C. IInd Grade on mutation no. 474, Smt. Molaki and Smt. Bharu, collectively filed appeal before the Sub-Divisional Collector, Sadar Mandi which was later on transferred to the Distt. Collector, Mandi as the same lies before him as per the provisions of the Act. The appeal was preferred on the grounds that after death of Smt. Mastu, they also succeeded her share being her daughter including others as per mutation No. 473; that they were widows ladies and came under the protected category and property right of the land of widow' could not be passed to the tenant under section 104(K) of the Act. Further, it was contended that the mutation was attested behind their back without affording them an opportunity of being heard. During the pendency of appeal before the Collector, (ADM), Mandi, after hearing the parties and perusal of the mutation, party allowed the appeal No. 38 of 1989, vide order dated 31-05-1989 observing that ".... Further, it was contended that the mutation was attested behind their back without affording them an opportunity of being heard. During the pendency of appeal before the Collector, (ADM), Mandi, after hearing the parties and perusal of the mutation, party allowed the appeal No. 38 of 1989, vide order dated 31-05-1989 observing that ".... It is also revealed that appellants were not present at the time of attestation of mutation There is also nothing to establish that information regarding this mutation was sent to the appellant. Thus, I am convinced that the provision of section 104(8) of the H.P. Tenancy & Land reforms Act has not fully been complied with by the A.C. IInd Grade at the time of attestation of impugned mutation when appellant Molaki was also alive. Thus during the life time proprietary rights could not be devolved on tenants in view of the above provisions which safe-guard the interest of minor, disables, ex-serviceman and widow etc. As such I think conferment of proprietary rights on tenants is not mechanically automatic, the A.C. IInd Grade should have had kept all this provision in mind. Now since Molaki has expired and her share after her death righty devolves on the tenant. But same cannot be upheld in case of Smt. Bharu a widow who is still alive. In view of above discussion I accept the appeal partially. As far as share of Smt. Bharu is concerned would remain intact as long as she alive. 4. Dissatisfied with the above order dated 31/5/1989, of the Collector (ADM), Mandi, Shri Khalifa Ram assailed the same before the Commissioner, Mandi Division mainly on the ground that under the provisions of Section 104(8), of the H.P. Tenancy & Land Reforms Act, the benefits in case of minor or widow' are granted once to one such landowner and after his death the other widows cannot claim such benefits; that since such benefits were extended to Smt. Mastu widow, therefore, after the death, her so called legal heirs i.e. respondent no. 1 though may' be a widow, cannot claim such benefit and this proposition of law has completely' been ignored and over looked by the Collector. The Ld. Commissioner, vide order dated 26.5.1992, passed in Revision petition no. 320/89, dismissed the same by holding the order of the Ld. 1 though may' be a widow, cannot claim such benefit and this proposition of law has completely' been ignored and over looked by the Collector. The Ld. Commissioner, vide order dated 26.5.1992, passed in Revision petition no. 320/89, dismissed the same by holding the order of the Ld. Collector(ADM), dated 31.5.1989 and also held that "....the petitioner Khalifa Ram does not seem to have challenged the mutation no.473 vide which ownership of Smt. Mastu was succeeded by her daughter. The petitioner challenged the mutation no. 474 attested on 8.8.1986 vide which the proprietary rights of the owners were conferred upon the petitioner Khalifa Ram including Smt. Bharu, widow. Under section 104(8&9), the provisions of Sub-sections 1 to 6 shall not apply to a tenancy of a landowner during the life time of a widow. As Smt. Bharu is a widow, proprietary rights of her share should not have been conferred upon tenant Shri Khalifa Ram during her life time..." Hence, this is a second revision petition filed before this court on the similar grounds. 5. During the pendency' of the revision petition before the court, petitioner, Khalifa Ram and Respondent no.l, Smt. Bharu, have expired, and their legal heirs have been brought on record to succeed them as per Miscellaneous Application no. 165/2010 and 185/2005, respectively. 6. Arguments on behalf of the petitioner were heard through their counsel who also filed written arguments. Ld. Vice counsel for the respondents, who failed to argue the case, was directed to intimate the original counsel to file written arguments within 15 days, but till date no such submissions have been received. Therefore, I proceed to decide the revision petition on the basis of record and submissions made by the Ld. Counsel for the petitioners. 7. In written submissions, filed on behalf of petitioner through their counsel, it has been submitted that Smt. Bharu, Respondent No. 1 expired on 23.5.2005 and her legal heirs have been brought on record and none of the legal heirs fall under the protected categories as specified under section 104 of the Act and the tenant confer ownership rights automatically w.e.f. 3.10.1975. In this regard, Ld. Counsel cited Bishamber Nath v. Hari Cliand, 1993 (3) SL 2906. Therefore, it has been urged that the petitioners be conferred proprietary rights and mutation to this effect may be ordered to be attested in their favour. 8. In this regard, Ld. Counsel cited Bishamber Nath v. Hari Cliand, 1993 (3) SL 2906. Therefore, it has been urged that the petitioners be conferred proprietary rights and mutation to this effect may be ordered to be attested in their favour. 8. Having considered the arguments advanced by the Ld. Counsel for the petitioners and on perusal of the record of the court below and orders passed by them, there appears no necessity to discuss the provisions section 104(8) which protects the rights of minors, widows etc., because the ld. Collector (ADM), Mandi and the Ld. Commissioner, Mandi Division, vide orders dated 31.5.1989 and 26.5.1992, respectively have categorically elaborated the provisions of the aforesaid sub-section which had not been taken into mind by the A.C. IInd Grade, while attesting mutation no. 474 on 8.8.1986, by conferring proprietary rights upon the tenant. Since, Smt. Bharu, who falls under the protected line has also expired and none of her LRs falls under the protected categories as specified under section 104(8) & (9) of the Act. Therefore, now the share of Smt. Bharu can be mutated in favour of the tenants by conferring proprietary rights as per the provisions of the Act, 1972. In view the above position, the revision petition stands allowed. 9. Order be communicated to the parties. The record of the courts below be returned and file of this court be consigned to the record room after due completion.