Himachal Pradesh High Court
Ganga Dhar (Since Dead) Through His Lrs vs Gangi & Another on 6 November, 2019
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 217 of 2008 Reserved on: 30.10.2019 Decided on: 06.11.2019 __________________________________________________________ .
Ganga Dhar (since dead) through his LRs .....Appellants.
Versus
Gangi & another ....Respondents.
____________________________________________________ Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
1 Whether approved for reporting? Yes.
____________________________________________________ For the appellants: Mr. Bhupinder Gupta, Sr. Advocate, with Ms. Rinki r Kashmiri, Advocate.
For the respondents: Mr. Ajay Kumar, Sr. Advocate, with Ms. Rohini Karol, Advocate.
Chander Bhusan Barowalia, Judge.
The present regular second appeal has been maintained by appellant Shri Ganga Dhar, who was the plaintiff before the learned Trial Court (hereinafter referred to as "the plaintiff"), laying challenge to the judgment and decree, dated 28.02.2008, passed by learned District Judge, Kullu, District Kullu, H.P., in Civil Appeal No. 43 of 2006, whereby the appeal filed by the plaintiff, was dismissed and the decision of the learned Trial Court dismissing the suit of the plaintiff filed against the respondents/defendants (hereinafter referred to as 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. ::: Downloaded on - 07/11/2019 20:24:55 :::HCHP -2-
"the defendants"), rendered in Civil Suit No. 81 of 2003 (2002), decided on 31.05.2006, was affirmed.
2. The key facts of the case can tersely be summarized as under:
.
Shri Ganga Dhar, the original plaintiff, maintained a suit seeking declaration with consequential relief of permanent prohibitory injunction and in the alternative suit for possession against the defendants (respondents herein). The original plaintiff in his suit claimed that he is owner-in- possession of land measuring 4-2-0 bighas, bearing Sikmi Khasra No. 1834/309/2, out of land measuring 4 bighas, 13 biswas, comprised in Khata No. 437, Khatauni No. 610 and land measuring 3-9-0 bighas, bearing Khasra No. 310, comprised in Khata No. 437, Khatauni No. 611, as per jamabandi for the year 1998-99 of Phati Balh, Kothi Maharaja, Tehsil and District Kullu, H.P. (hereinafter for the sake brevity called as "the suit land"). As per the plaintiff, Shri Dilla Ram was wrongly recorded as tenant in the column of possession and he died long back. He further contended that he moved an application for rectification of Khasra Girdawari before the Assistant Collector 2nd Grade, Kullu, and it was allowed vide order dated 26.11.1979, so the plaintiff was ordered to be recorded as owner-in-possession of the suit land. This order of Assistant Collector 2nd Grade was not challenged and subsequently out of ::: Downloaded on - 07/11/2019 20:24:55 :::HCHP -3- the suit land the government acquired 0-11-0 bigha of land contained in Sikmi Khasra No.1934/309/1 and the plaintiff was paid compensation. At that time no one, including defendant No. 1, objected for payment of compensation to the plaintiff. As .
per the plaintiff, the Shri Dilla, who was wrongly recorded in the column of possession over the suit land, died 36-37 years back, so his tenancy extinguished and the suit land reverted to the plaintiff. The plaintiff further alleged that Shri Ruldu son of Shri Nathu, resident of Koli Behar was recorded as tenant-in- possession of land measuring 3-9-0 bighas, bearing Khasra No. 310, but said Shri Ruldu relinquished and surrendered his tenancy and possession of the suit land in favour of the plaintiff and since then the plaintiff is owner-in-possession of the suit land. After the death of Shri Ruldu, Smt. Gangi (defendant No.
1) connived with the revenue officials and got herself recorded as tenant. So, the plaintiff filed an application for rectification of revenue entries and it was allowed. The next contention of the plaintiff is that if the relinquishment is not proved, then tenancy had extinguished in favour of Shri Ruldu on 14.01.1974 as he had no heirs to inherit his tenancy rights, so the suit land reverted to the plaintiff. Defendant No. 1 is married and living with her husband, so she is not the heir of Shri Ruldu. The plaintiff further alleged that defendant No. 1 got mutation No. 2132 attested and it was rejected by Revenue ::: Downloaded on - 07/11/2019 20:24:55 :::HCHP -4- Officer, vide order dated 06.06.1983, so defendant No. 1 preferred an appeal and case was remanded back to Assistant Collector 1st Grade, Kullu, who, on 16.06.2000, dismissed the application of the plaintiff. So, the plaintiff preferred an appeal .
before the Sub Divisional Collector, Kullu. The plaintiff further contended that Halqua Patwari in sequel to order dated 26.11.1979 entered Rapat No. 30, dated 04.04.1980, but entries of corrections were not incorporated in jamabandi and due the mistake and negligence of revenue officials the name of Shri Dilla continued in the revenue records. Defendant No. 1 took advantage of this and got mutation No. 5083 attested in her favour and depicted that she is legal heir of Shri Dilla and had inherited his tenancy rights and subsequently she got mutations No. 5061 and 5084 attested and sanctioned in her favour depicting that she had acquired proprietary rights over the suit land. Subsequently, defendant No. 1, vide sale deed dated 31.01.2001, sold 0-5-0 bighas of land out of Khasra No. 310 to Shri Kuldeep Singh (defendant No. 2) and mutation No. 5726 was attested in favour of defendant No. 2. Lastly, it is contended that on the basis of wrong revenue entries the defendants started causing interference with the ownership and possession of the plaintiff over the suit land. So, with the above averments, the plaintiff sought a decree for declaration with ::: Downloaded on - 07/11/2019 20:24:55 :::HCHP -5- consequential relief for permanent prohibitory injunction and in the alternative for possession.
3. Defendant No. 1 contested the suit and refuted the contention of the plaintiff. A written statement was filed .
wherein preliminary objection of maintainability, limitation, estopped, valuation, suppression of material facts and jurisdiction etc. were raised. On merits defendant No. 1 denied that Shri Dilla was wrongly recorded as tenant over the suit land and his tenancy extinguished on his death. It was also denied that Shri Ruldu relinquished his tenancy rights in favour of the plaintiff or on his death the tenancy in his favour was extinguished. It was contended that Shri Dilla was owner-in- possession of land comprised in Khasra No. 1834/309 on payment of rent since time immemorial under the plaintiff. Shri Ruldu (father of defendant No. 1) was tenant in possession over land having Khasra No. 310 on payment of rent under the plaintiff. As per defendant No. 1, Shri Dilla, being tenant in possession of the suit land bearing Khasra No. 1834/309 became owner of the suit land under Section 104 of the H.P. Tenancy and Land Reforms Act and after his death defendant No. 1, being his only legal heir, inherited the land. Likewise, Shri Ruldu became owner of the suit land having Khasra No. 310 under Section 104 of the the H.P. Tenancy and Land Reforms Act and after his death defendant No. 1 inherited his ::: Downloaded on - 07/11/2019 20:24:55 :::HCHP -6- estate and became owner-in-possession of the suit land. Defendant No. 1 has further averred that plaintiff procured illegal orders of correction of revenue entries without impleading defendant No. 1 or her father and uncle as party. The plaintiff .
obtained order dated 21.03.1983 from revenue officer and on appeal by defendant No. 1, vide order dated 22.11.1983 of Collector, Kullu, was set aside and the case was remanded back to Assistant Collector 1st Grade, Kullu for decision afresh. The plaintiff preferred an appeal assailing the order of Collector, Kullu, and it was dismissed by Divisional Commissioner and ultimately Assistant Collector 1st Grade, Kullu, vide order dated 16.06.2000, dismissed the application of the plaintiff for rectification and it was held that Shri Ruldu never relinquished his tenancy rights and continued to be in possession and defendant No. 1 has become owner of the land by operation of law, being the sole and exclusive legal heir of Shri Ruldu. The appeal filed by the plaintiff against order dated 16.06.2000, passed by Assistant Collector 1st Grade, was dismissed by Collector Kullu, vide order dated 29.03.2004 and mutation No. 5084 attested in favour of defendant No. 1 as absolute owner-in- possession of the entire suit land. With the above averments, defendant No. 1 prayed dismissal of the suit preferred by the plaintiff.
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4. Defendant No. 2 did not choose to appear and contest the suit, so vide order dated 31.03.2003 he was proceeded against ex parte.
5. The learned Trial Court framed the following issues .
for determination and adjudication:
"1. Whether the plaintiff is owner in possession of suit property, if so, its effect? OPP
2. Whether the plaintiff is entitled to the relief of injunction? OPP
3. Whether Rulda relinquished his tenancy right in Khasra No. 310 in the year 1973, if so, its effect? OPP
4. Whether defendant No. 1 is got recorded as tenant on the death of Rulda wrongly.
If so, its effect? OPP
5. Whether mutation No. 2132 sanctioned in favour of defendant No. 1 is illegal and void. If so, its effect? OPP
6. Whether sale deed dated 31.01.2001 executed by defendant No. 1 in favour of defendant No. 2 is llegal, if so, its effect? OPP
7. Whether the suit as laid is not maintainable? OPD
8. Whether the plaintiff is estopped by his act and conduct? OPD
9. Whether the plaintiff has suppressed the material facts from the Court, if so, its effect? OPD
10. Whether the Civil Court has no jurisdiction, if so, its effect? OPD
11. Whether Dila was tenant over Khasra No. 1834/309 on payment of rent, if so, its effect? OPD ::: Downloaded on - 07/11/2019 20:24:55 :::HCHP -8-
12. Whether on the death of Rulda, defendant No. 1 succeeded in his right in Khasra No. 310, if so, its effect? OPD
13. Whether Dila being tenant over Khasra No. 1834/309 acquired proprietory right under Section 104 of the H.P. Tenancy .
and Land Reforms Act and on his death defendant No. 1 succeeded to his estate. If so, its effect? OPD
14. Relief."
6. After deciding issues No. 1 to 6 against the plaintiff, issues No. 7 to 10 against defendant No. 1 and issues No. 11 to 13 in favour of defendant No. 1, the suit of the plaintiff was dismissed. Subsequently, the plaintiff preferred an appeal before the learned Lower Appellate Court, which was also dismissed, hence the present regular second appeal, which was admitted for hearing on the following substantial questions of law:
"1. Whether both the Courts below have misread, misunderstood and misapplied the provisions of H.P. Tenancy and Land Reforms Act, Punjab Tenancy Act and Hindu Succession Act, in holding that defendant-respondent No. 1 under General Law of Succession was entitled to succeed to the right of tenancy of his father Shri Ruldu as well as Shri Dila who died long back?
2. Whether both the Courts below have acted in erroneous and perverse manner in holding that rights of Shri Dila were succeeded under General Law Succession by Shri Ruldu, by ignoring the fact that during the life time of Shri Ruldu no such claim was preferred and it was only after the death of Shri Ruldu, defendant- respondent got the mutation of inheritance attested in her favour in absence of ::: Downloaded on - 07/11/2019 20:24:55 :::HCHP -9- plaintiff-appellant, contrary to the orders passed by revenue officers which were evidenced by Ex. P-2 and Ex. P-3?
3. Whether both the Courts below have misunderstood and misapplied the ratio of the judgment of this Hon'ble Court titled .
Nathi vs. Neel Chand, in holding that the right of tenancy were heritable under provisions of Punjab tenancy Act, by ignoring the fact that the revenue entries at the time when the claim was made by the defendant-respondent No. 1 did not record either Shri Dila or Shri Ruldu in any capacity whatsoever in the revenue record?"
7. At the very outset it is pointed out that during the pendency of the present appeal appellant Shri Ganga Dhar, who was original plaintiff, died, so his legal representatives were brought on record and the present regular second appeal is being pursued by them.
8. I have heard the learned Senior Counsel for the legal representatives of the deceased appellant and the learned Senior Counsel for the respondents and have carefully gone through the records.
9. Mr. Bhupinder Gupta, learned Senior Advocate, argued that both the learned Courts below have not taken into consideration the fact that the daughter cannot inherit tenancy and as there was no co-lateral, so the tenancy extinguished. He has further argued that the jamabandies were not appreciated properly by the learned Courts below and in fact the tenancy was relinquished. Even otherwise also the tenancy came to an ::: Downloaded on - 07/11/2019 20:24:55 :::HCHP
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end after the death of the last tenant, as the daughter cannot inherit. He has argued that the appeal be allowed the impugned judgments of the learned Courts below be set aside.
10. Conversely, the learned Senior Counsel for the .
respondents has argued that the tenancy does not come to an end and it was Gair Mourisi tenancy and it could have been inherited on the basis of Hindu Succession Act, as has been held by the Hon'ble High Court. So respondent No. 1 inherited the tenancy and became owner of the land through the operation of law, i.e., the Himachal Pradesh Tenancy and Land Reforms Act. He has further argued that even otherwise also there was no question of relinquishing the tenancy when the property rights were to be conferred upon the tenants. The learned Senior Counsel has referred to order passed by the learned Collector in the appeal filed by the deceased appellant. He prayed that the appeal be dismissed, as the same is devoid of merits.
11. In rebuttal, Mr. Bhupinder Gupta, learned Senior Counsel, has argued that the tenancy could not have been inherited as per the law prevalent at that time, so the appeal be allowed and the impugned judgments and decrees of the learned Courts below be quashed and set aside.
12. Tersely, the plaintiff alelged that after the death of Shri Dila, in the year 1966-67, no one succeeded his tenancy ::: Downloaded on - 07/11/2019 20:24:55 :::HCHP
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over the suit land, having Khasra No. 1834/309. The tenancy of Shri Dila was extinguished, so the suit land reverted back to the plaintiff. So, as per the plaintiff, the tenancy of Shri Dila extinguished when he died and the suit land reverted to the .
plaintiff. Avowedly, Shri Dila was tenant-at-will and he died issueless, but his tenancy devolved upon his other legal heirs. At the time of death of Shri Dila, the suit land was governed under the Punjab Tenancy Act, 1887. Qua this facet of the case a judgment of this High Court rendered in Nathi vs. Neel Chand, 1997(2) Shimla Law Cases 179, holds the field. In the judgment (supra) vide para 34 it has been held as Under:
"34. Admittedly, save and except Section 59, Punjab Tenancy Act, 1887 there is no other provision in the said Act governing succession to the tenancy rights of a tenant-at-will. In the absence of such a provision in the relevant tenancy laws as in force at the relevant time, succession to the tenancy rights of a tenant-at-will prior to the coming into force of the tenancy rights of a tenant-at-will prior to the coming into force of the H.P. Tenancy and Land Reforms Act, 1972, in the areas to which the provisions of Punjab Tenancy Act, 1887, were applicable, would, therefore, be governed by the general law of succession, viz., Hindu Succession Act, 1956. Under Section 8 of the said Act widow and son(s) succeed to the estate of the deceased in equal shares."
Thus, it is clear that succession of non-occupancy tenants, qua the areas governed by the Punjab Tenancy Act, 1887, was held to be governed by the Hindu Succession Act, 1956. Here in the ::: Downloaded on - 07/11/2019 20:24:55 :::HCHP
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instant case, Shri Dila died in the year 1966-67 and at that time his brother Shri Ruldu was alive, so necessarily provisions encapsulated under Section 8 of the Hindu Succession Act, 1956, were applicable. Section 8 of the Hindu Succession Act, .
1956, provides as under:
"8. General rules of succession in the case of males.- The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter-
(a) firstly, upon the heirs, being the
relatives specified in Class I of the
Schedule;
(b) secondly, if thee is no heir of class I,
then upon the heirs, being the relatives specified in class II of the Schedule;
(c) thirdly, if thee is no heir of any of the
r two classes, then upon the agnates of
the deceased; and
(d) lastly, if there is no agnate, then upon
the cognates of the deceased."
The provisions of Section 8 of the Hindu Succession Act, 1956, undeniably provide that Shri Ruldu, who was the brother of Shri Dila, who was tenant-at-will over the suit land, was entitled to succeed the estate of Shri Dila and he rightly succeeded it. It can be safely said that through operation of law Shri Ruldu succeeded the estate of his brother Shri Dila and tenancy rights over Khasra No. 1834/309. So, it would be wrong to say that after the death of Shri Dila the land reverted to the plaintiff.
13. The next contention of the plaintiff is that Shri Ruldu relinquished and surrendered his tenancy and ::: Downloaded on - 07/11/2019 20:24:55 :::HCHP
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possession in favour of the plaintiff. The contention of the plaintiff could have been accepted, but there is no ocular and documentary evidence which could establish this contention. The plaintiff has failed to produce any document showing that .
Shri Ruldu relinquished his tenancy and he delivered the possession of the suit land to the plaintiff. The plaintiff even failed to examine any witness who witnessed such relinquishment. What to talk of other witnesses supporting this contention, even the plaintiff, while deposing in the Court, stated that he was told by Shri Ruldu that he is unable to cultivate the suit land, so the plaintiff, prior to 1971, started cultivating the suit land, whereas in the pleadings the plaintiff averred that in the year 1973 Shri Ruldu relinquished his tenancy rights, so he started cultivating the suit land w.e.f Kharif 1973. The plaintiff moved an application to Assistant Collector 1st Grade, Kullu, seeking rectification of revenue entries pertaining to Khasra No. 310, and in his application he took similar plea, which he took in his pleadings before the Court of lowest rung. The application of the plaintiff was dismissed, as he could not prove that Shri Ruldu relinquished the tenancy. Subsequently, the plaintiff preferred an appeal assailing the order of Assistant Collector 1st Grade, Kullu, which was also dismissed by the Sub Divisional Collector, Kullu, vide order dated 16.06.2000, and this order was not further ::: Downloaded on - 07/11/2019 20:24:55 :::HCHP
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challenged by the plaintiff. Thus, virtually, the order passed by the Assistant Collector 1st Grade, Kullu, became final. Now, it is needless to say that under Section 104(4) of the H.P. tenancy and Land Reforms Act, 1972, the Assistant Collector 1st Grade, .
had jurisdiction to decide jural relationship of tenant and landlord. So, the principles of resjudicata are applicable, as the order passed by the assistant Collector 1st Grade, has become final and still holding its ground, therefore, the plaintiff cannot re-agitate the issue that Shri Ruldu relinquished his tenancy rights in favour of the plaintiff. Shri Ruldu died and defendant No. 1 is his heir, so she was entitled to inherit his estate under Section 8 of the Hindu Succession Act, so with the death of Shri Ruldu the land cannot be said to have reverted to the plaintiff.
14. After elaborately discussing the relevant law, the settled legal position and also the material on record, it can be safely said that after the death of Shri Dila the suit land, bearing Khasra No. 1834/309, was inherited by Shri Ruldu (brother of Shri Dila) and he was already a tenant under the plaintiff qua Khasra No. 310. So, Shri Ruldu became tenant of lands, having Khasras No. 1834/309 and 310, till his death. Shir Ruldu died in January, 1974, and at that time H.P. Tenancy and Land reforms Act, 1972, was not in force and Punjab Tenancy Act, 1886, was applicable. So, defendant No. 1 (daughter of Shri Ruldu) succeeded the tenancy rights of Shri ::: Downloaded on - 07/11/2019 20:24:55 :::HCHP
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Ruldu. Subsequently, the H.P Tenancy and Land Reforms Act, 1972 came into operation, so defendant No. 1 became owner-in- possession of the suit land and the ownership of the plaintiff ceased. The mutations of acquisition of proprietary rights by .
defendant No. 1 have been rightly attested in her favour. The only order which is in favour of the plaintiff is order dated 26.11.1979, passed by Assistant Collector, 2nd Grade, Kullu, whereby the application of the plaintiff qua rectification of revenue entries qua Khasra No. 1834/309 was allowed, but to these proceedings defendant No. 1 was not party, so this order is not binding upon defendant No. 1. In nitty-gritty, it can be said that defendant No. 1 became absolute owner of the suit land, so execution of sale deed dated 31.01.2001 by defendant No. 1 in favour of defendant No. 2 is fully valid.
15. The record, i.e., jambandies show that predecessors-in-interest and defendant No. 1 have been recorded in the column of possession over the suit land. So, the records reflect that the possession of the suit land is with defendant No. 1 and her predecessors-in-interest. It is settled in a catena of judgments that presumption of truth is attached to the record of rights, until the same is rebutted. In the instant case, no cogent and satisfactory evidence has been led by the plaintiff or any document has been produced by the plaintiff to rebut this presumption of truth. Thus, it is also fully safe to ::: Downloaded on - 07/11/2019 20:24:55 :::HCHP
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hold that predecessors-in-interest remained in possession of the suit land and defendant No. 1 came in possession of the suit land.
16. From the above it is crystal clear that defendant No. .
1 was legally entitled to inherit the tenancy and she became owner-in-possession of the suit land. Defendant No. 2, through a valid sale deed executed by defendant No. 1 in his favour, came in possession of small portion of the land. So, under these circumstances substantial question No. 1 is answered holding that the learned Courts below have not misread, misunderstood and misapplied the provisions of the H.P. Tenancy and Land Reforms Act, Punjab Tenancy Act and the Hindu Succession Act and the findings are in accordance with the law.
17. Substantial question No. 2 answered holding that Shri Ruldu succeeded Shri Dila Ram under the Punjab Tenancy Act, as he was real brother of Shri Ruldu and Shri Dila Ram was having no legal heir and the learned Courts below have given findings after appreciating the facts and law correctly, so substantial question No. 2 answered accordingly. Substantial question No. 3 answered holding that judgment rendered in Nathi vs. Neel Chand (supra) is fully applicable to the facts of the present case and the Court below has not committed any ::: Downloaded on - 07/11/2019 20:24:55 :::HCHP
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illegality in applying the law settled in the above case to the facts of the present case.
18. The net result of the above discussion is that the appeal, which sans merits, deserves dismissal and is .
accordingly dismissed. However, taking into consideration the facts and circumstances of the case, the parties are left to bear their own costs.
19. In view of the disposal of the appeal, pending application(s), if any, shall also stand(s) disposed of. 6th November, 2019 to (Chander Bhusan Barowalia) Judge (virender) ::: Downloaded on - 07/11/2019 20:24:55 :::HCHP