Himachal Pradesh High Court
Mast Ram (Deceased) Through His Lrs Rach ... vs Bidhi Chand (Deceased) Through His Lrs ... on 2 April, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
.
R.S.A. No. 461 of 2018
Date of decision: 02.04.2019.
Mast Ram (deceased) through his LRs Rach Pal Singh and others
....Appellants/Defendants
Versus
Bidhi Chand (deceased) through his LRs Subhash Chand and others
r ....Respondents/Plaintiffs
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 No
For the Appellants : Mr. Devender K. Sharma, Advocate.
For the Respondents : Mr. R.P.Singh, Advocate, for respondents
No. 2(i) to 2(iv).
Tarlok Singh Chauhan, Judge (Oral)
The defendants are the appellants, who after having lost before both the learned Courts below, have filed the instant Regular Second Appeal.
2. Brief facts of the case are that the land comprised in Khewat No.356, Khatauni No. 569, Khasra No. 3654 measuring 3 Kanals 2 Marlas and Khewat No. 78, Khatauni No. 166, Khasra No. 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 08/04/2019 21:57:51 :::HCHP 2 3676 measuring 3 Kanals 14 Marlas situated in Village Keori, H.B. No. 162, Tehsil Amb, District Una (hereinafter referred to as the .
'suit land') is owned and possessed by the plaintiff Smt. Balan Devi, and the defendant has no right, title or interest in the suit land. It was averred that the defendant had conspired with the consolidation field staff behind the back of the plaintiff and procured wrong entries in his name in the column of cultivation as tenant at Will of the suit land. These entries are wrong, baseless and without jurisdiction and are against the rights of the plaintiff.
It was averred that the suit land is in possession of the plaintiff and she never inducted the defendant as tenant over the suit land and prayed for injunction restraining the defendant from interfering in the suit land and in alternative for possession.
3. The defendant contested the suit by filing written statement wherein preliminary objections qua maintainability and jurisdiction were raised. On merits, it was averred that the defendant was tenant over the suit land on payment of '12 man galla kacha' per year of Khasra Nos. 4184 and 4198 and Khasra Nos. 3654 and 3676 were replaced by consolidation authorities during the time of consolidation operation. The tenancy of the defendant has been admitted by the plaintiff before the Assistant Consolidation Officer on 18.11.79 on the application of the ::: Downloaded on - 08/04/2019 21:57:51 :::HCHP 3 defendant under Section 21(2) of the H.P. Consolidation Act, therefore, the plaintiff is estopped from filing this suit by her act .
and conduct. It was averred that the Consolidation Officer had passed the order for correction of the record on 21.11.79 and the defendant is in possession of the suit land and there is no question of interference or threats to the plaintiff. Lastly, the defendant prayed for dismissal of the suit.
4. In the replication, the plaintiff had admitted that khasra No. 3654 and 3676 have been formed in lieu of Khasra Nos. 4184 and 4198. The plaintiff denied that she ever admitted the defendant as her tenant before the consolidation authorities or made any statement. It was averred that the plaintiff is an illiterate widow and by misrepresentation, fraud or any undue influence her thumb mark might have taken and thereby regarding her statement in that eventuality, she withdrawn such statement being gratuitous and without consideration and without conferring any right to the defendant.
5. From the pleadings of the parties, the learned trial Court framed the following issues:
1. Whether the plaintiff is in possession of the suit land?
OPP 1A. Whether the plaintiff made a statement voluntarily before the A.C.O. If so, its effect? OPP ::: Downloaded on - 08/04/2019 21:57:51 :::HCHP 4 1B. If issue No.1A is proved whether the plaintiff is estopped from her act and conduct to allege that the statement was never made as alleged? OPP .
1C. Whether the defendant was inducted as tenant over the suit land by Sh. Bhoolu as alleged/ OPD
2. Whether the jurisdiction of this Court to try this suit is barred? OPD
3. Relief.
6. After recording the evidence and evaluating the same, the learned trial Court decreed the suit of the plaintiff on 13.1.1998 and the appeal and cross-objections filed against the said judgment were also dismissed vide judgment and decree passed by learned Appellate Court on 7.6.2018.
7. Aggrieved by the judgments and decrees concurrently rendered by both the learned Courts below, the appellants have filed the instant appeal.
8. I have heard learned counsel for the parties and have gone through the material placed on record.
9. At the out-set, it needs to be observed that on a pointed query by this Court to the learned counsel for the appellants as to date of creation of tenancy, he would contend that the tenancy was created somewhere in the year 1979. It was further asked whether such tenancy rights had in fact created ::: Downloaded on - 08/04/2019 21:57:51 :::HCHP 5 prior to coming into force of the H.P. Tenancy and Land Reforms Act and he fairly conceded that no such rights had been created.
.
10. Once that be the position, then it is absolutely difficult to countenance and appreciate the stand taken by the defendants because under sub section (3) of Section 104 of the H.P. Tenancy and Land Reforms Act, 1972 , the conferment of proprietary rights upon non-occupancy tenant under the provisions of law was automatic and it commenced from the date of issue of the notification as was held by the learned Single Judge of this Court in Daulat Ram and others vs. State of Himachal Pradesh and others 1979 SLC, 215, wherein it was observed as under:
"15. Under sub-section (3) of section 104 of the Act, all rights, title and interest (including a contingent interest, if any) of the landowner of the land held by tenants shall be extinguished, and all such rights, title and interest shall vest in the tenants free from all encumbrances created by the landowner, with effect from the date to be notified by the State Government in the Official Gazette, provided that if the tenancy is created after the commencement of this Act, the provision of this sub-section shall apply immediately after the creation of such tenancy. It cannot be disputed that the entry of tenancy existed much before the promulgation of the Act, and the respondents cannot question the tenancy when it is so recorded in the revenue papers which is a conclusive proof of the factum of the existence of the tenancy. Once a person is entered as a tenant in the revenue record then notwithstanding any ::: Downloaded on - 08/04/2019 21:57:51 :::HCHP 6 agreement, etc. to the contrary, the person so entered shall become the owner by virtue of the provision of sub-section (3) of section 104 of the Act. The conferment of the .
proprietary rights under the Act is automatic from the date of the issue of the notification by the State Government in the Official Gazette, and the vestment of ownership shall be free from all encumbrances. Under rule 27 of the Himachal Pradesh Tenancy and Land Reforms Rules 1975, all rights, title and interests in the tenancy land of landowners...shall vest in the non-occupancy tenants with effect from the commencement of these rules. Similarly, the proprietary rights of tenancy land of the non-occupancy tenants on Government land shall also vest in the tenants from the commencement of these rules. These rules came into force on 3.10.1975. Therefore, from that date the ownership rights vested free from all encumbrances on the persons who were so recorded as tenants under the landowners or for the matter of that the State Government in that land. Therefore, the plea taken up by the respondents that they were not the tenants is wholly incorrect because they cannot set up this case when they are so recorded, and once they are so recorded they become the owner of the land by virtue of the operation of law and they actually became owners with effect from the date of the publication of the rules."
11. This issue has thereafter been considered by a Division Bench of this Court (of which I was a member) in CWP No. 3084 of 2015, titled as Asif Beg and another vs. Estate Officer/Station Commander, decided on 20.06.2016, wherein it was observed as under:
::: Downloaded on - 08/04/2019 21:57:51 :::HCHP 7"33. In the cases titled as Shri Bishambhar Nath versus Shri Hari Chand and others, reported in 1993 (3) S.L.J. .
2906; Sant Ram versus Jash Ram, reported in 1995 (3) S.L.J. 2510; and Jethu through K. Guddi and others versus Gobind Singh, reported in 1995 (4) S.L.J.3031, it has been held that the proprietary rights stand conferred upon the tenants by operation of law. It is apt to reproduce para 27 of the judgment in Jethu's case (supra) herein:
"27. Thus, on the basis of the aforesaid circumstances examined during the trial both the Courts below acted illegally in ignoring the legally competent evidence supporting the defendants' plea of tenancy as claimed by them. The defendants having been held to be in occupation of the suit land as tenants since 1954 55, till date, accordingly, under Section 104 of the H.P. Tenancy and Land Reforms Act the proprietary rights in respect of the suit land stood conferred upon them and they have become owners of the same by operation of law."
34. In the case titled as Mohar Singh versus Manju Devi & others, reported in 1997 (1) S.L.J. 304, this Court has held that the conferment of proprietary rights under HP Tenancy Act is automatic and by operation of law. It is apt to reproduce relevant portion of para 11 of the judgment herein:
" 11. .............Needless to point out here that after coming into force of the Himachal Pradesh Tenancy and Land Reforms Act, 1972, the conferment of ::: Downloaded on - 08/04/2019 21:57:51 :::HCHP 8 proprietory right is automatic and by operation of law. Rest of the matter is procedural as required under the Act and the rules framed thereunder."
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35. This issue stands clinched by the Apex Court in Civil Appeal No. 5424 of 1998, titled as State of Himachal Pradesh versus Chander Dev, wherein it has been held that conferment of the proprietary rights is automatic. It is apt to reproduce relevant portion of the judgment herein:
".......From the above provisions, it is clear that all rights, title and interest of a landowner shall be r 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."
36. The Apex Court in the case titled as Tarsem Lal and others versus Ram Sarup and others, reported in 2014 AIR SCW 2886, held that a tenant becomes owner on enforcement of Act. It is apt to reproduce para 13 of the judgment herein:
" 13. As per the aforesaid provision, all right, title and interest including a contingent interest of a land owner other than the land owner entitled to resume land under subsection (1) shall be extinguished and all such rights, title and interest in respect of the land in question vest in the tenant, i.e. original plaintiff, free from all encumbrances from the date the Act came into force. The Act was published in the Official Gazette on 21st February, 1974 vide Act No.8 ::: Downloaded on - 08/04/2019 21:57:51 :::HCHP 9 of 1974. What is not in dispute is that the original plaintiff became owner of the suit land by operation of law and continued to enjoy all the rights including .
right of irrigation from the common source which was in possession of the original landlord."
37. Thus, it is accordingly held that the conferment of the proprietary rights is automatic, by operation of law."
12. Once the conferment of proprietary rights under the Act was automatic, then obviously no sane person would even induct a tenant after the Act knowing fully well that such tenant would automatically become an owner from the time of creation of tenancy. Therefore, the onus to prove tenancy, that too, in the manner pleaded, lay heavily on the shoulders of the appellants, but they failed to do so as has been concurrently observed by the learned Courts below.
13. The learned Courts below on the basis of oral and documentary evidence have come to the categoric findings that the plaintiff was coming in possession of the suit land since 1954- 1955 till 1981, whereas for the first time the defendant was entered as tenant on the basis of the order passed by the Consolidation Officer dated 21.11.1979. However, when the tenant appeared in the Court, he stated that he had been in possession of the suit land since 1968-1969, however, he failed to ::: Downloaded on - 08/04/2019 21:57:51 :::HCHP 10 prove this entry. Even the applications that were filed before the Assistant Consolidation Officer were found to be tampered with .
and apparently forms the basis for correction of revenue entry and in the application dated 5.11.1979 for correction filed by defendant Mast Ram, it has been mentioned that Khasra Nos.
4211 (0-8) and 4212 (0-8), which were owned by Smt. Vidya Devi etc. and are coming in possession of Gianu and Sahib Devi as tenants, but in the order of Assistant Consolidation Officer which was lateron confirmed by the Consolidation Officer, the Khasra No. 4212 (0-8) was left out on the ground that Gianu etc. co-sharers were not present, whereas the entry of Khasra No. 4211 measuring 0-8 was allowed alongwith the suit land on the basis of the statement of Kaka Ram, co-sharer and the plaintiff. However, it is not clear if Kaka Ram was one of the co-sharers and how the said entry could have been changed without the consent of the other co-sharers. Surprisingly enough, in the order of the Consolidation Officer, it has been mentioned that the respondents i.e. Kaka Ram and Smt. Balan Devi were not present despite service, but there is nothing on record to show that the notices were in fact served upon them. As observed above, the Consolidation Officer has passed the orders solely on the basis of the report of the Assistant Consolidation Officer.
::: Downloaded on - 08/04/2019 21:57:51 :::HCHP 1114. As a last ditch efforts, learned counsel for the appellants would vehemently argue that in the statement .
recorded on 18.11.79, Balan Devi had clearly admitted and acknowledged the defendants to be the tenants. It was noticed that Balan Devi was an illiterate lady, whereas defendant Mast Ram was not only literate but he himself had been drafting the application addressed to the Assistant Consolidation Officer.
Serious and strong observations have been made against defendant Mast Ram, whereby he had not only misrepresented the facts but played fraud upon Balan Devi.
15. The learned Courts below have concurrently held that the aforesaid statement was neither voluntary nor genuine and was in fact because of the collusion between the revenue staff and defendant Mast Ram by taking benefit of illiteracy and innocence of Balan Devi. In case Balan Devi had in fact made such a statement, then defendant Mast Ram, who as stated above, was literate and having knowledge of law, would not have remained silent for 13-14 years and would have immediately got his possession recorded. Moreover, there is no rapat rojnamcha nor the defendant has been found in possession of the suit land.
::: Downloaded on - 08/04/2019 21:57:51 :::HCHP 1216. The findings recorded by the learned courts below are pure findings of fact and are immune from interference by this .
Court in the second appeal.
17. No question of law much less substantial question of law arises for consideration in this appeal.
18. Accordingly, there is no merit in this appeal and the same is dismissed, leaving the parties to bear their own costs.
Pending application, if any, also stands disposed of.
(Tarlok Singh Chauhan) nd 2 April, 2019. Judge (GR) ::: Downloaded on - 08/04/2019 21:57:51 :::HCHP