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2017 DIGILAW 70 (HP)

Nimo Devi v. Durga Dass And Connected Matter

2017-01-23

NARINDER CHAUHAN

body2017
ORDER Shri Narinder Chauhan, I.A.S. —The revision petition under section 17 of the H.P. Land Revenue Act, 1954(herein after referred to the Act''), is directed against the order dated 17.1.2005, passed by the Ld. Divisional Commissioner, Shimla Division, in Appeal No. 51/2002, whereby Id Commissioner has dismissed the appeal of the present petitioner by upholding the order dated 7.1.2002, passed by the Id. Settlement Collector, Shimla, in case No. 152/2000. 2-3. Briefly stated, the facts of the case are that Smt. Nimo Devi herein petitioner filed an application before the A.C. 1st Grade, Suni on 15.2.2000, for correction of revenue entries in respect of khata no 42min, khatauni No. 93, khasra nos 61,103,437 452 592, kita-5, area measuring 5-13 bighas, situated in mauza Malgi. Tehsil Suni, Distt. Shimla, H.P. on the basis of jamabandi for the year 1980-81, stating therein that the aforesaid land has been succeeded her through inheritance after the death of her father Shri. Tikhu and she had been recorded as ''Gair Maurusi'' in his place under the ownership of Smt. Sandhiru, on the basis of order dated 30.6.1997 passed by the AC 2nd Grade, Suni, in case no. 13/77. That during the settlement operations, she has been recorded, as ''kabij'' only. Therefore, she requested for correction of the same to record her as gair-maurusi in the column of possession. After hearing the counsel for both the parties, the - A.C.1st Grade, vide order dated 16.9.2000, forwarded the matter to the Settlement Collector, Shimla for necessary orders keeping in view the order/direction dated 20.3.1997 passed by the Settlement Collector, Shimla, in case No. 89/96 The Id Settlement Collector, after providing an opportunity of being heard to for both the parties, rejected the application vide order dated 7.1.2002 passed in case no. 152/2000 observing that:- 3. 152/2000 observing that:- 3. " cUnkscLr ds nkSjku rS;kj fd, x, vfHkys[k ds voyksdu ls ik;k x;k fd izkfFkZ;k dks fely gdh;r ds [kkuk dk''e esa crkSj dkfct ntZ fd;k x;k gS] tcfd tekcUnh esa xSj ekS:lh fcyk yxku dk bUnzkt ntZ FkkA izkfFkZ;k dks xSj ekS:lh ls lEcfU/kr gSfl;r dk fookn lgk;d lekgrkZ f}rh; Js.kh dh vnkyr esa okn la[;k 13@77 ds :i esa Fkk ftldk fu.kZ; mUgksaus fnukad 30-06-1977 dks izkfFkZ;k ds gd esa nsdj mls xSj ekS:lh djkj fn;kA lgk;d lekgrkZ f}rh; Js.kh }kjk ikfjr vkns''k muds {ks=kf/kdkj ls ckgj gS D;ksafd tgka dgh Hkh eqtkjk ls lEcfU/kr gSfl;r dk fookn gks ,sls ekeyksa dks fu.kZ; djus dh ifDr;ka fg0iz0 eqtkjk ,oa Hkw&lq/kkj vf/kfu;e] 1973 ds rgr dsoy Hkw&lq/kkj vf/kdkjh esa gh fufgr gS rFkk rglhynkj o uk;c rglhynkj dks fg0iz0 Hkw&jktLo vf/kfu;e ds vUrxZr ,sls fooknksa dks fuiVkus dk {ks=kf/kdkj ugha gSA vr% lgk;d lekgrkZ f}rh; Js.kh lqUuh }kjk fely la[;k 13@77 esa ikfjr vkns''k fnukad 30-06-1977 dksbZ egRo ugha j[krk rFkk ;g vkns''k Lor% gh fuf''dz; gks tkrk gSA mi;qZDr foospu ds vk/kkj ij eSa bl fu"d''kZ ij igqapk gwa fd izkfFkZ;k o ekfyd ds e/; xSj ekS:lh ds lEcU/k LFkkfir ugha gksrs rFkk vfHkys[k esa ek= xSj ekS:lh ''kCn fy[kuk gh dkuqu dh n`f"V esa i;kZIr ugha gSA jktLo vfHkys[k esa ,slh izfof"B;ka ftldk dksbZ vk/kkj ugha gksrk] ls fdlh dk gd l`ftr ugha gksrkA ,slh izfof"V;ka@bUnzktkr xqtkjk dh ifjHkk"kk esa ugha vkthA " 4. Feeling aggrieve with the order dated 7.1.2002, of the Settlement Collector, Shimla, Smt. Nimo Devi(present petitioner) filed an appeal before the Id. Commissioner, Shimla Division who after hearing the parties and on perusal of the record dismissed the same vide impugned order dated 17.1.2005, observing that; "Perusal of the record reveal that after death of father of the appellant Sh. Tikhu. who was recorded as gair-maurusi tenant as per the jamabandi for years - 1975-76 appellant was recorded as gair-maurusi tenant. During settlement, status of the appellant was changed to that of a kabij as is evident from the entries reflected in the Misal Haquiat. Lower Court in the impugned order held that propriety rights u/s 104 of the H.P. Tenancy & Land Reforms Act were not conferred upon the father of the appellant as he was not paying lagaan, as such the same could not be inherited by the appellant. Lower Court in the impugned order held that propriety rights u/s 104 of the H.P. Tenancy & Land Reforms Act were not conferred upon the father of the appellant as he was not paying lagaan, as such the same could not be inherited by the appellant. Record reveals that appellant was recorded as gair maurusi tenant by the order dated 30.6.1977 of the Asst Collector, 2nd Grade, Suni(Naib-Tehsildar) who, lower court held, was not competent to pass such an order as disputes of tenancy is the jurisdiction of the Land Reforms Officer under the HP. Tenancy & Land Reforms Act. Order passed by the lower court is proper and does not call for any interference from this court, as such the appeal is dismissed". 5. Hence, this revision petition. Earlier, vide order dated 3.7.2006, the revision was accepted by my predecessor in absence of the respondents. Thereafter, on filing a CMA No. 70/2008 for setting aside the ex parte order, the revision petition has been restored by this court vide order dated 9.11.2012. During pendency of this application, petitioner Smt. Nimo Devi, expired, and her legal heirs have been brought on record vide order dated 12.7.2008, passed in CMA No. 110/08. 6. I have heard the Id. Counsel for both the parties. Reiterating the grounds of revision petition, Ld. Counsel for the petitioners argued that Shri Tikhu, the father of the petitioner was entered as a non-occupancy tenant under Smt. Sandharu since 1948, in the revenue record qua land in question, who has bequeathed this property in favour of present petitioner byway of a ''Will''. That the lower court has wrongly observed that the proprietary rights under section 104 of the HP. Tenancy & Land Reforms Act, was not conferred upon the father of the petitioner. He further argued that even the Id. Sub-Judge, Court No. 3, Shimla, vide judgment dated 27.5.1982, passed in civil suit No. 34/1 of 1976, qua the same land has specifically held in issue No.4, that the present petitioner is the daughter of the deceased Tikhu and has as such succeeded to the suit land. Further, it has been contended that Id. Sub-Judge, Court No. 3, Shimla, vide judgment dated 27.5.1982, passed in civil suit No. 34/1 of 1976, qua the same land has specifically held in issue No.4, that the present petitioner is the daughter of the deceased Tikhu and has as such succeeded to the suit land. Further, it has been contended that Id. Settlement Collector and Commissioner have ignored the documents produced before them and have wrongly observed that the Land Reforms Officer, is only competent to try and decide such matters, but, in fact the dispute of tenancy was already decided by the Civil Court and the Settlement Collector has no jurisdiction to change the old and longstanding entries without following the procedure of law. The Id. counsel has also argued that the revision petition was allowed by this court vide order dated 3.7.2006, and now the respondents want to set aside this order only on the ground that they were not heard by this court earlier. 7. On behalf of the respondents, the Id. counsel has filed written arguments wherein it has been submitted that the application filed by the present petitioner before the A.C.Ist Grade, was not maintainable since the same was neither verified nor supported by an affidavit, and the dispute qua tenancy can only be decided under the HP. Tenancy &Land Reforms Act, 1972 and not under the HP. Land Revenue Act, 1954,and as such the order dated 30.6.1977, passed by the A.C.IInd Grade, in case No. 13/77, is a nullity, illegal and wrong being passed without jurisdiction. It has been added that on perusal of the above order, it is clear that the same was passed behind the back of the respondents without impleading them as a party. Ld. counsel further contended that rights of tenancy cannot be inherited by a female legal heirs as per provision of section 45 of the H.P. Tenancy & Land Reforms Act, as such, in the instant case after the death of Shri Tikhu, the alleged tenancy rights were not to be inherited by Smt. Nimo Devi, thus there is an infirmity and illegality having been committed by A.C.2nd Grade. Further, it has been asserted that the relationship of owner and tenant is to be established and in the instant case. Further, it has been asserted that the relationship of owner and tenant is to be established and in the instant case. Lie petitioner has failed to prove that as to when the tenancy was created and she even failed to produce any documentary evidence showing her status as a tenant from a particular day, month end year and also failed to show the rent being paid to the land owner/respondents. Lastly, it has been added that since Shri Tikhu died on 12.10 1974 and the H.P. Tenancy & Land Reforms Act, came into force from 4 1.1975, as such, Shri Tikhu and his daughter enjoy no legal right vested over the land in dispute, hence, the present revision petition and the main application having no merits may be dismissed. 8. I have considered the arguments advanced by the Id. Counsel for the parties and have gone through the records of the records below minutely. Considering the arguments advanced on behalf of both the parties, the main issue between the parties, is as to whether the present petitioner is a tenant over the land in question or not In order to adjudicate upon this issue, it would be appropriate to discuss the relevant provision of the H.P. Tenancy & Land Reforms Act, 1972 Section 2(17) of the Act, ibid defines the term '' tenant 1 as follows. "tenant" means a person who holds land under a landowner, and is, or but fora contract to the contrary would be liable to pay rent for that land to that landowner, and includes- (i) a sub-tenant; and (ii) the predecessor or successors in interest of a tenant or a sub-tenant, as the case may be; but it does not include- (a) a [mere] mortgage Of the rights of landowner, or (b) a person to whom a holding has been transferred or an estate of holding has been left in farm under the Himachal Pradesh Land Revenue Act, 1954 (6 of 1954) or the Punjab Land Revenue, Act, 1887(17 of 1887), as the case may be, for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear, Perusal of the record shows that the predecessor-in-interest of the present petitioner Shri Tikhu, was recorded as ''gair maurusi tenant'' under the ownership of Smt. Sandharu without paying any rent/lagaan, and as such does not fall in the definition of tenant as defined under section 2(17) of the H.P. Tenancy and Land Reforms Act, 1972. Hence, it is clear that this entry as ''gair maurusi'' without paying any rent or lagaan is not a tenancy in the eyes of law. 9. The argument that daughter cannot inherit tenancy as per Section 45 of the H.P. Tenancy & Land Reforms Act, 1972, has been set to rest by Justice Devinder Gupta, in "Charno Devi & Ors v. Dali Mal(dec) thr.LRs",[SLC 1994(2), page 279] , wherein he has held in para 18 that "the order in which the right of occupancy is to devolve has been enumerated in section 45 of the Act, which neither in express terms, nor impliedly provide for the extinguishment of the rights of a tenant in the event of there being none available on the date of death, out of the persons as specified in Clauses (a) to (d)". The proposition was further espoused in paragaraph 25, holding that "Learned counsel for the respondents wants this Court to read the provisions of section 45 of the Act as if it provides for the extinguished of the rights of a tenant on his death, in case no person as is specified in clause (a) to (d) is alive. The proposition was further espoused in paragaraph 25, holding that "Learned counsel for the respondents wants this Court to read the provisions of section 45 of the Act as if it provides for the extinguished of the rights of a tenant on his death, in case no person as is specified in clause (a) to (d) is alive. It is not possible to accept such a submission since it will amount to reading a provision, which the legislature will be deemed to have deliberately avoided to incorporate "Therefore, Section 45 of the Act has no bearing on the merits of the case, and the entire case would hinge on proof of existence of a tenancy 10. The Id. A.C.2nd Grade, vide his order dated 30.6.1977, passed in case No. 13/77, has also not taken into consideration the provisions of section 2(17) of the Act and has wrongly exercised his powers which are not conferred/vested upon him under the Act ibid. Therefore, the Id. Collector Settlement, has rightly set aside the above order of the A.C.2nd Grade, by upholding the entry of the petitioner as kabij recorded by the settlement staff during current settlement operations, and rejected the application for correction vide order 7.1.2002, which has been further rightly upheld by the Id. Commissioner in appeal. Support can also be had from case " Dharam Singh v. Prem Singh",( RSA 445 of 1993) reported in [2001, P & H Recent Revenue Reports, page 594 ], wherein Justice K.C. Sood, has held in para 23 that if there was a dispute about the status of the defendants as tenants, the jurisdiction only vested with the Land Reforms Officer under the H.P Tenancy & Land Reforms Act, 1972. 11. Keeping in view the above provisions of the Act, there appears no infirmity or illegality having been committed by both the courts below by giving concurrent findings, which warrants any interference of this court by exercising revisional jurisdiction, as such, their orders are upheld. The present revision petition which has no legal weightage and as such the same is accordingly dismissed. 12. Order be communicated to the parties. The record of the courts below be returned and the file of this court be consigned to the record room after due completion.