Himachal Pradesh High Court
Hiru And Others vs Mansa Ram (Deceased) Through His Lrs ... on 10 July, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 480 of 2004 .
Reserved on: 03.07.2019 Date of decision: 10th July, 2019 Hiru and others ...Appellants/Defendants Versus Mansa Ram (deceased) through his LRs Chaman Lal and others ...Respondents/Plaintiffs Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 Yes For the Appellants : Mr. G.R. Palsra, Advocate.
For the Respondents : Mr. Sanjeev Kuthiala, Senior Advocate, with Ms.Sonia Saini, Advocate.
Tarlok Singh Chauhan, Judge The defendants are the appellants, who aggrieved by the judgment and decree passed by learned first appellate Court whereby it allowed the appeal and set-aside the judgment and decree passed by learned trial Court, have filed the instant regular second appeal.
The parties shall be referred to as the plaintiffs and the defendants.
1Whether reporters of Local Papers may be allowed to see the Judgment ?yes ::: Downloaded on - 29/09/2019 00:38:26 :::HCHP 2
2. The plaintiffs filed a suit for declaration that they were owners in possession of the suit land comprised in Khewat No. 25 min, .
Khatauni No. 57 min, Khasra Nos. 39, 45, 92, 94, 175, 195, 215 and 218 Kitta 8 measuring 6-2-13 bighas, situated in Village Kheyogi, Illaqua Tilli, Tehsil Chachiot, District Mandi, H.P. and for permanent prohibitory injunction. It was averred that the plaintiffs are in possession of the suit land as non-occupancy tenants since the time of Galla Batai r to their father on payment of ½ produce as rent to defendant No.1 and prior to him his father Pira. The plaintiffs were also getting receipts of and after enforcement of the H.P. Tenancy and Land Reforms Act, had become owners of the suit land and, therefore, defendant No.1 had no right, title and interest in the suit land.
However, with a motive to oust the plaintiffs from the suit land, he in collusion with defendant No.3 hatched a conspiracy against the plaintiffs and executed general power of attorney in favour of defendant No.3. Defendant No.3 taking undue advantage of the wrong entries alienated Khasra Nos. 92 and 94 measuring 0-19-9 bighas of land in favour of his son defendant No.2 and defendants No.2 and 3 in collusion with defendant No.1 started interfering in the suit land and cut and remove the wheat crop therefrom. Hence, the suit.
::: Downloaded on - 29/09/2019 00:38:26 :::HCHP 33. The defendants resisted and contested the suit and raised preliminary objections regarding locus standi and maintainability. On .
merits, it was pleaded that defendant No.1 was owner in possession of the suit land and after sale of some portion thereof, defendant No.2 was owner in possession of that land. It was also averred that the plaintiffs neither were in possession of the suit land as non-occupancy tenants nor had been paying any produce of the land to defendant No.1 nor to his father Pira. The receipts were wrong and did not pertain to the suit land. The part of the suit land had been validly alienated by defendant No.3 in favour of defendant No.2 and there was no conspiracy since the land had been sold for consideration of Rs.2000/-.
4. On the pleadings of the parties, the trial Court framed the following issues:
1. Whether the plaintiffs were in possession of the land in dispute as tenant, as alleged? OPP
2. If issue No.1 is proved whether the plaintiffs have become owners of the land in dispute u/s 104 of the H.P.Tenancy and Land Reforms Act? OPP
3. Whether revenue entries showing the defendant No.1 as owner in possession are wrong? OPP ::: Downloaded on - 29/09/2019 00:38:26 :::HCHP 4
4. Whether the plaintiffs have no locus-standi to file the suit and the present suit is not legally maintainable? OPD .
5. Relief.
5. After recording the evidence and evaluating the same, the learned trial Court dismissed the suit and aggrieved thereby the plaintiffs filed an appeal before the learned first Appellate Court, who allowed the same vide judgment and decree dated 30.7.2004, constraining the defendants to file the instant appeal.
6. On 2.11.2004, the appeal came to be admitted on the following substantial question of law:
"Whether the learned Appellate Court misread, misconstrued and misinterpreted the evidence led by the respondents and ignored the evidence on record in holding that the respondents were tenants in the land, subject matter of dispute?"
7. I have heard learned counsel for the parties and have also gone through the records of the case carefully.
8. Adverting to the judgment and decree passed by learned trial Court, it would be noticed that even though the plaintiffs produced receipts regarding the payment of rent, but it is more than settled that the tenancy is a bilateral agreement between the parties and in ::: Downloaded on - 29/09/2019 00:38:26 :::HCHP 5 absence of payment of rent, there can be no valid tenancy. Admittedly, in the instant case, there is no written agreement of tenancy, however, .
the plaintiffs on proof placed on record the rent receipts Ex.PW-3/A and Ex.PW-3/B both dated 16.12.1975 which pertained to the receipt of Kharif crop by the defendants. However, these receipts were discarded by the trial Court mainly on the ground that the same did not bear any khasra number in respect of the receipt of Galla Batai, which
9.
r to findings being totally perverse, was rightly set-aside by the learned first Appellate Court.
That apart, the rent receipts otherwise stood duly proved on record by the Nambardar, who stepped into the witness box and proved the receipts of Galla Batai, which bear his signatures and also bore the signatures of the defendant/respondent Hiru in Ext. PW-3/A to Ext. PW-3/F and besides Ext.PW-3/B has bore the thumb impression of the father of PW-3 the then Numberdar and thumb impression of the mother of the defendant/respondent. Even though the witness was cross-examined, but nothing fruitful could be elicited therefrom by the defendant. Besides this, even PW-2 Pradhan of the Gram Panchayat has also proved his report Ext.PW-2/A which was made on a complaint made to him by the plaintiffs alleging interference in the suit land by the defendants. Lastly and more importantly is the statement ::: Downloaded on - 29/09/2019 00:38:26 :::HCHP 6 of PW-1 Hiru himself, who though in his examination-in-chief has simply denied the claim of the defendants being a tenant in possession .
of the suit land, but when confronted with his statement Ex.AW-1/A that was recorded in a suit filed by one Mansa Ram against Shukru where he, apart from denying the said statement, had virtually no explanation for the admissions made therein.
10. Now, adverting to his cross-examination. Hiru admitted that the respondent was in occupation of his land measuring 6 bighas and cultivating the same as a tenant. It would be noticed that the respondent moved an application before the learned first Appellate Court for leading additional evidence under Order 41 Rule 27 CPC seeking permission to tender in evidence certified copy of the statement made by Hiru in Civil Suit No. 17/1996 decided on 9.5.2000.
The said application was allowed vide order dated 3.12.2002 and the statement of Hiru was allowed to be placed on record. Thereafter, the parties led evidence and the appellant examined Record Keeper Bimla Devi as AW-1 and closed his evidence. Whereas, the appellant again examined Hiru, who surprisingly enough even feigned ignorance having been made a statement Ex.AW-1/A. The relevant portion of cross-examination of Hiru reads as under:
::: Downloaded on - 29/09/2019 00:38:26 :::HCHP 7"........oknxzLr tehu ftldk nkok ea"kk us esjs mij fd;k gS mldk jdck Ng ch?kk gSA ;g xyr gS fd eSus "kqdzw ds eqndek esa tc eSa crkSj xokg DW-
.
2 issS"aA gqvk Fkk rks eSus ;g dgk gks fd oknh ds ikl esjh Ng ch?kk Hkwfe crkSj etkjk dkLr ds fy, nh FkhA ;g xyr gS fd eSus "kqdzw dh rjQ ls xokg is"k gqvk Fkk rks eSus ;g dgk fd "kqdzw esjk eqtkjk gS rFkk ekfyd eSa Lo;Z gwWA eq>s ;kn u gS fd c;ku Ex.AW-1/A dk Hkkx A ls A eSus fn;k Fkk ;k ughaA eq>s ;g Hkh ;kn u gS fd c;ku B to B dk Hkkx eSus fn;k Fkk ;k ughA c;ku C सस Ca eSaus lqu fy;k gS ,slk c;ku eS u fn;k FkkA c;ku Ex. AW1/A dk Hkkx D ls D Hkh eSus lqu fy;k gS ,slk c;ku eSus u fn;k FkkA c;ku Ex.
AW1/A dk Hkkx E सस E eSus lqu fy;k gS ,slk c;ku eSus Court esa u fn;k FkkA c;ku Ex. AW1/A dk Hkk ग F to F xyr gS eSus ,slk c;ku u fn;k FkkA"
11. The purpose of proving an admission of a party is not to contradict a statement given by the party as a witness to the case. The purpose is to prove the case of the party who relies on the admission.
12. It is true that a statement on oath (given as a witness) of the party making an admission will have to be considered along with the admission and unless an explanation as to the circumstances in which the admission was made is given or it is otherwise proved that the admission was erroneous, the statement contrary to the admission must be taken to be reliable.
::: Downloaded on - 29/09/2019 00:38:26 :::HCHP 813. No doubt, evidence in previous suit does not prove anything and it ought to be put to the witness, but it is not so in the .
case of admission where the party making the admission is required to explain and rebut the same and unless and until that is satisfactorily done the fact admitted must be taken to be established.
14. As already stated, a mere contradictory statement on oath cannot be said to be an explanation of the circumstances under which the previous admission was made, and the duty cast upon the party to explain his previous admission cannot be said to have been satisfactorily discharged unless he offers an explanation, and as the duty is on him to offer an explanation, there is no reason why it should be the duty of the opposite party to ask for his explanation by putting the previous statement to him.
15. Thus, once the admission of the respondent Hiru stands duly proved on record, this Court need not wander here and there to come to the conclusion that the plaintiffs were in possession of the land in dispute as tenant as admitted by Hiru himself and since the vestment under the H. P. Tenancy and Land Reforms Act is automatic on coming into force of the Act, had become owners thereof on the appointed day.
::: Downloaded on - 29/09/2019 00:38:26 :::HCHP 916. Once that be the position, then it is absolutely difficult to countenance and appreciate the stand taken by the appellants/ .
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 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 ::: Downloaded on - 29/09/2019 00:38:26 :::HCHP 10 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."
17. 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:
"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 ::: Downloaded on - 29/09/2019 00:38:26 :::HCHP 11 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 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."
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 ::: Downloaded on - 29/09/2019 00:38:26 :::HCHP 12 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 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 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."::: Downloaded on - 29/09/2019 00:38:26 :::HCHP 13
37. Thus, it is accordingly held that the conferment of the proprietary rights is automatic, by operation of law."
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18. In view of the aforesaid discussion, it cannot be held that the learned first appellate Court has misread, misconstrued and misinterpreted the evidence led by the respondents and ignored the evidence on record while coming to the conclusion that the respondents/plaintiffs were the tenant in the land in dispute.
The substantial question of law is accordingly answered against the appellants.
19. In view of the aforesaid discussion, there is no merit in this appeal and the same is accordingly dismissed, so also the pending application(s) if any, leaving the parties to bear their own costs.
( Tarlok Singh Chauhan ) 10th July 2019. Judge.
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