Himachal Pradesh High Court
Bahadur Singh vs Vinod Kumar & Others on 14 June, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Regular Second Appeal No.584 of 2006.
Judgment Reserved on: 17.05.2016.
.
Date of decision: 14.06.2016
Bahadur Singh ....Appellant-Plaintiff
Versus
Vinod Kumar & Others ....Respondents-Defendants
of
Coram
rt
The Hon'ble Mr.Justice Sandeep Sharma,Judge.
Whether approved for reporting ?1 Yes.
For the Appellant: Ms.Jyotsna Rewal Dua, Senior
Advocate with Ms.Shalini, Advocate.
For Respondents: Mr.Ramakant Sharma, Senior Advocate
with Mr.Basant, Advocate.
Sandeep Sharma,J.
This appeal has been filed by the appellant-
plaintiff against the judgment and decree dated 30.09.2006, passed by the learned District Judge, Sirmaur District at Nahan, H.P., affirming the judgment and decree dated 24.11.2005, passed by the learned Civil Judge(Senior Division), Sirmaur District at Nahan, whereby the suit filed by the appellant-plaintiff has been dismissed.
1Whether the reporters of Local Papers may be allowed to see the judgement? Yes.
::: Downloaded on - 15/04/2017 20:34:58 :::HCHP 22. The brief facts of the case are that the plaintiff-
appellant (herein after referred to as the `plaintiff'), claims that he has been coming as a tenant in respect of the land .
bearing Khata Khatauni No.9 min/20, Khasra Nos.115, 118, 179, 183 min, 184, 186, 187 and 188, measuring 70- 17 bighas, situate in village Sharu Mailia, Tehsil Nahan, District Sirmaur, H.P. as per Jamabandi for the year 1997- of
98. It is submitted by the plaintiff that vide order dated 13.7.1998 he was conferred proprietary rights under rt Section 104 of the H.P. Tenancy and Land Reforms Act, 1972 (hereinafter referred to as the `Act') on land of Khata No.9/20 to the extent of 6-4 bighas and mutation No.217 was accordingly attested. It is alleged by the plaintiff that on 10.10.2000, defendants No.1 to 4 and their father defendant No.5 tried to cause interference in the suit land and allegedly proclaimed that their father defendant No.5 Satya Nana purchased the said land through sale deed from the plaintiff. The plaintiff claimed and alleged that he never executed any sale deed in favour of defendant No.5 and to his utter surprise, on enquiry from the Patwari Halqua, he came to know that the sale deed was executed on 18.12.1999 in relation to the land in question. It is ::: Downloaded on - 15/04/2017 20:34:58 :::HCHP 3 alleged by the plaintiff that in this regard he had also lodged complaint with the Deputy Commissioner and Tehsildar, Nahan, claiming that sale deed dated .
18.12.1999 is the result of fraud committed by defendants No.1 to 4 in collusion with their father defendant No.5 and marginal witnesses, but all in vain. It is further submitted by the plaintiff that he is an illiterate person and of affixes his thumb impression and defendant No.5, being influential person and Pradhan of the Panchayat rt manipulated and procured forged sale deed. It is averred by the plaintiff that on 18.12.1999, defendant No.5 had taken him to the Tehsil Office on the pretext to appear as a witness and thus his thumb impression was procured on the document, which was purportedly made a document subsequently. It is also alleged that a conspiracy was hatched qua attestation of mutation No.217. In the said premise, the plaintiff claimed that the sale deed in question is null and void being in violation of the provisions of the Act and thus, craves for the relief of declaration by declaring the sale deed along with the mutation so attested qua the suit land in favour of the defendants, as null and void and also for the relief of permanent prohibitory ::: Downloaded on - 15/04/2017 20:34:58 :::HCHP 4 injunction, thereby restraining the defendants from causing any interference in any manner in the suit land.
3. Defendants, by way of filing joint written .
statement, raised preliminary objections on the ground of maintainability, non-joinder of necessary parties, cause of action, valuation and estoppel. On merits, a plea has been taken by the defendants that the plaintiff was inadvertently of conferred proprietary rights on land of Khata No.9/20 min to the extent of 6-4 bighas vide mutation No.217, but rt subsequently when the mistake was noticed, the same was got rectified and earlier order was reviewed suo moto by the authorities concerned. The defendants also submitted that the land was rightly purchased from the plaintiff vide registered sale deed and the question of so called fraud, as alleged, thus, does not arise as the sale deed was executed as per the directions of the plaintiff and it was registered by the Sub Registrar after explaining the contents thereof to the vendor and the sale consideration amounting to Rs.16,000/- had also been paid to the plaintiff before affecting the sale. The defendants also denied that the plaintiff was brought to the Tehsil by misrepresenting the fact or to become a witness to some document. The ::: Downloaded on - 15/04/2017 20:34:58 :::HCHP 5 plaintiff, who is stated to be a worldly wise person, as such, could not have been misled simply on the ground of illiteracy and thereby to get the sale deed executed and in .
the said premise the question of undue influence or fraud so alleged, thus, does not arise. In respect of so called contravention of the provisions of the Act, the defendants submitted that since the plaintiff was recorded as tenant of long back, therefore, the question of contravention of the provisions as alleged by the plaintiff by executing the sale rt deed in question on 18.12.1999 does not arise. The defendants therefore, claimed to have acquired title to the suit land on account of its purchase and the allegations to the contra, thus, have been completely negated with the prayer to dismiss the suit.
4. In his replication filed by the plaintiff, while denying the allegations made in the written statement, reaffirmed the averments made in the plaint.
5. On the pleadings of the parties, the learned trial Court framed the following issues:-
"1. Whether the sale-deed dated 18.12.1999 executed and registered by plaintiff Bahadur Singh in favour of defendants, is illegal, null and void? If so, its effect? OPP.::: Downloaded on - 15/04/2017 20:34:58 :::HCHP 6
2. If issue No.1 is proved in affirmative, whether the plaintiff is entitled to decree of declaration and injunction, as prayed? OPP.
.
3. Whether the aforesaid sale-deed dated 18.12.1999 is otherwise, illegal, being breach of provision of Section 113 of H.P. Tenancy and Land Reforms Act, 1972, as alleged? OPP.
4. Whether the suit of the plaintiff in of the present form is not maintainable? OPD.
5. Whether the suit is bad for non- rt 6. joinder of necessary parties? OPD.
Whether no enforceable cause of action accrued to the plaintiff to file the present suit? OPD.
7. Whether the suit is not properly valued for the purpose of court fee and jurisdiction, as such, liable to be rejected under Order 7 Rule 11, CPC? OPD.
8. Whether the plaintiff is estopped to file the present suit by his act, conduct and acquiescence? OPD.
9. Relief."
6. The learned trial Court, except issue Nos.5 & 7, decided all the aforesaid issues in favour of the defendants and accordingly dismissed the suit of the plaintiff. The ::: Downloaded on - 15/04/2017 20:34:58 :::HCHP 7 appeal preferred by the plaintiff before the learned Appellate Court was also dismissed.
7. This second appeal was admitted on the .
following substantial questions of law:
"(1) Whether the dubious role played by revenue officers in illegally and irregularly seeking the permission to review the order dated 13.7.1998 on the mutation and then actually of reviewing it illegally on 9.11.2001, without following the prescribed procedure has resulted in gross failure of justice?
rt (2) Whether the sale deed of land in question was hit by provisions of Ss.113 of the HP Tenancy and Land Reforms Act and was therefore void.
And whether in the facts and circumstances of the case, ld.Courts below fell into error in presuming that proprietary rights stand conferred on non occupancy tenants suo motto w.e.f. 4.10.1975 as per rule 27 of the HP Tenancy and Land Reforms Act, ignoring the due meaning of word `the date' occurring in the section 113 of the Act, especially when the proprietary rights of minor landowners could not vest in the tenant during their minority. Date of conferment of proprietary rights on tenant shall vary and is not automatic as presumed by ld.Courts below?
::: Downloaded on - 15/04/2017 20:34:58 :::HCHP 88. In nutshell facts of the case are that the plaintiff, who claimed himself to be a tenant of one Shri Dharambir and others on the land, description whereof has .
already been given above, to the extent of 70-17 bighas, as per Jamabandi for the year 1997-98. Since there was no dispute interse the plaintiff-tenant and other owners of the land, owners were not impleaded as party respondents in of the suit.
9. It emerges from the record that the plaintiff, rt being the tenant (Gair Mouroosi) under the owners, was entitled to be conferred proprietary rights under Section 104 of the Act. Accordingly, after commencement of the Act, revenue officer, who is also land revenue officer, entered mutation No.217 for conferment of proprietary rights on the plaintiff qua the tenanted land vide order dated 13.7.1998 under Section 104(3) of the Act on the land of Khata Khatauni No.9/20 to the extent of 6-4 bighas. Plaintiff further set up a case that defendants No.1 to 4 and their father defendant No.5 started interfering in the land of the plaintiff and, on being questioned, plaintiff was informed that they have already purchased 18-2 bighas of land through sale deed from him (the plaintiff).
::: Downloaded on - 15/04/2017 20:34:58 :::HCHP 9Plaintiff inquired the matter from Patwari Halqua and approached him for obtaining the revenue papers, who supplied him copy of the Jamabandi. After obtaining the .
copy of Jamabandi, the plaintiff was surprised to know that the defendants have procured the sale deed on 18.12.1999 from plaintiff in relation to his tenancy land.
Plaintiff made complaint to the Hon'ble Revenue Minister, of Himachal Pradesh, Shimla, copies whereof were also sent to Deputy Commissioner and Tehsildar, Nahan, but all in vain.
rt He specifically alleged that sale deed dated 18.12.1999 is the result of fraud committed by the defendants No.1 to 4 in collusion with their father defendant No.5 as well as marginal witnesses, revenue officer and officials. Since the plaintiff was illiterate and only use to put thumb impression, defendants took undue benefit of the same and got the aforesaid sale deed executed in their favour. As per averments contained in the plaint, father of defendants No.1 to 4; namely; Satya Nand, defendant No.5, who is a an influential person of the area, using undue influence on the plaintiff and taking advantage of his being illiterate, made plaintiff to affix thumb impression on certain blank documents, which ::: Downloaded on - 15/04/2017 20:34:58 :::HCHP 10 were lateron used for preparing the sale deed. Plaintiff also denied that he ever executed any sale deed for a sum of Rs.16,000/- nor he received any consideration at any time.
.
It is also averred that the sale deed does not confer any right, title or interest upon the defendants because plaintiff had never become the owner of 38-2 bighas of land of Khasra Nos.179 and 188 at the time of alleged sale. The of revenue officers illegally and un-authorisedly entered in the revenue record that the plaintiff has become owner of the rt 33-13 bighas of land. To the contrary, at the time of alleged sale, the plaintiff was the owner to the extent of 6-4 bighas of land. It is also the case of the plaintiff that alleged sale deed is in contravention of sub-section (1) of Section 113 of the H.P. Tenancy and Land Reforms Act, as such, the same deserves to be declared void and cannot be acted upon.
10. Defendants, by way of written statement, resisted the claim of the plaintiff and specifically stated that plaintiff was inadvertently conferred the proprietary rights of the land of Khata No.9/20 min to the extent of 6-4 bighas vide mutation No.217, which was subsequently corrected by Assistant Collector taking suo moto action ::: Downloaded on - 15/04/2017 20:34:58 :::HCHP 11 and plaintiff was granted proprietary rights qua 33-13 bighas of land and, as such, sale deed executed in their favour by the plaintiff is valid and on the strength of same .
defendant No.1 to 4 became owners in possession of the suit land which was purchased by them for the consideration of Rs.16,000/-.
11. I have heard learned counsel for the parties and of have gone through the record of the case.
12. Ms.Jyotsna Rewal Dua, learned Senior Counsel, rt representing the appellant, vehemently contended that the judgments and decrees, as passed by both the Courts below, deserve to be quashed and set aside as the same are not based upon the correct appreciation of the evidence available on record. She forcefully contended that both the Courts below have miserably failed to appreciate the evidence available on record in its right prospective.
Rather, both the Courts below have fallen in grave error while interpreting Section 104(4) as well as Section 113 of the Act.
13. Ms.Jyotsna Rewal Dua forcefully submitted that there is ample evidence on record to suggest that at the time of execution of alleged sale deed dated 18.12.1999 in ::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 12 favour of defendants No.1 to 4, plaintiff was owner of the suit land to the extent of 6-4 bighas and as such defendants, in collusion with the revenue authorities, .
committed fraud and vide sale deed dated 18.12.1999 sold 38-2 bighas of land of Khasra Nos.179 and 188 in favour of the defendants. It is also contended on behalf of the appellant that the sale deed pertaining to sale of 38/80th of share of Khasra Nos.179 and 188, measuring 38-2 bighas is in complete violation of sub-sections (1)(i) and (8) of rt Section 104 of the Act because as per Section 104(1)(i), land owners whose entire land is under non-occupancy tenant has been held entitled to resume tenancy of land up to one and half acres of irrigated land and/or three acres of un-irrigated land. In case the land owners owns less than one and a half-acres of irrigated land or three acres of un- irrigated land, landowner can resume land to make deficiency.
14. It is also contended on behalf of the plaintiff that both the Courts below have committed grave irregularities while concluding that there is no violation of Section 113 of the Act and the plaintiff was a tenant in Khata No.9/20, land measuring 70-17 bighas and ::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 13 conferment of proprietary rights to the extent of 33-13 bighas was automatic by the operation of law. She also contended that both the Courts below also misconstrued .
the provisions of Section 113 of Act, which specifically provides that:
"No land in respect of which proprietary rights have been acquired under this chapter shall be transferred by sale, mortgage, gift or otherwise of during a period of ten years by a person from the date he acquires proprietary rights".
She forcefully contended that while interpreting the rt provisions of Section 113, both the Courts below have failed to acknowledge the import of the sentence "from the date". As per Ms.Dua, on 18.12.1999, plaintiff was owner of the land to the extent of 6-4 bighas and as such any transaction beyond 6-4 bighas, as has been claimed in the present case by the defendant, is null and void and cannot be looked into. During arguments, she also invited the attention of this Court on various documents available on record to substantiate her plea that on 18.12.1999, when alleged sale deed was registered, plaintiff was only owner to the extent of 6-4 bighas and subsequent mutation entered by the revenue authorities depicting him the owners to the extent of 38-2 bighas of land of Khata Nos.179 and 188, was the result of fraud committed by the defendants as ::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 14 well as revenue authorities. It is also contended that once it stands proved on record that at the time of sale, which is allegedly took place on 18.12.1999, plaintiff was owner to .
the extent of 6-4 bighas, any sale deed, whereby allegedly 33-13 bighas of land has been sold to the defendants for the consideration of Rs.16,000/-, is null and void and cannot be given effect to. Lastly, she prayed that of judgments passed by both the Courts below deserve to be quashed and set aside.
15. rt Per contra, Shri Ramakant Sharma, learned Senior Counsel appearing for the respondents, supported the judgments passed by both the Courts below and vehemently argued that no interference, whatsoever, is warranted in the present facts and circumstances of the case, especially in view of the fact that both the Courts below have very meticulously dealt with each and every aspect of the matter. He also urged that scope of interference by this Court is very limited especially when two Courts have recorded concurrent findings on the facts as well as law. In this regard, to substantiate the aforesaid plea, he placed reliance upon the judgment passed by Hon'ble Apex Court in Laxmidevamma and Others vs. ::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 15 Ranganath and Others, (2015)4 SCC 264. He also submitted that it stands proved on record that the plaintiff was granted proprietary rights qua 33-13 bighas of land .
after commencement of the Act and, as such, he was entitled to sell the aforesaid land to the defendants, which he actually sold to them for a consideration of Rs.16,000/-.
He forcefully contended that the provisions, as contained in of Section 104 of the Act, itself provide that conferment of proprietary rights is automatic after the commencement of rt the Act and the provisions of Section 113 of the Act is not applicable in the present facts and circumstances of the case where admittedly the plaintiff, who was the owner of the land measuring 33-13 bighas, was competent to sell the land and as such, prayed for dismissal of the appeal.
16. This Court while admitting the instant appeal, framed two substantial questions of law, which have been reproduced above.
17. First question deals with the mischief played by revenue officer while seeking permission to review the order dated 13.7.1998 and then illegally reviewed the mutation on 9.11.2001 that too at the back of the owners as well as tenant of the land in question. Second question relates to ::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 16 the interpretation and violation of the provisions of Section 113 as well as Rule 27 of the Act. Accordingly, this Court, solely with a view to answer the aforesaid questions, .
undertook exercise to critically examine the evidence, be it ocular or documentary, on the record to reach just and fair decision.
18. Before adverting to the merits of the case, it of would be appropriate to deal with the specific objection raised by the learned counsel representing the respondents rt with regard to maintainability and jurisdiction of this Court, while examining the concurrent findings returned by both the Courts below, Shri Ramakant Sharma had invited the attention of this Court to the judgment referred above, wherein the Hon'ble Supreme Court has held:
"16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that ::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 17 declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the .
findings so recorded are shown to be perverse.
In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be of sustained."
(p.269)
19. Perusal of the judgment, referred hereinabove, rt suggests that in exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. There can be no quarrel (dispute) with regard to aforesaid observation made by the Court and true it is that in normal circumstances High Courts, while exercising powers under Section 100 CPC, are restrained from re-
appreciating the evidence available on record, but as emerges from the case referred above, there is no complete bar for this Court to upset the concurrent findings of the Courts below, if the same appears to be perverse.
20. In this regard reliance is placed upon judgment passed by Hon'ble Apex Court in Sebastiao Luis ::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 18 Fernandes (Dead) through LRs and Others vs. K.V.P. Shastri (Dead) through LRs and Others, (2013)15 SCC 161 wherein the Court held:
.
"35. The learned counsel for the defendants relied on the judgment of this Court in Hero Vinoth v. Seshammal, (2006)5 SCC 545, wherein the principles of relating to Section 100 of the CPC were summarized in para 24, which is extracted below : (SCC pp.555-56) rt "24. The principles relating to Section 100 CPC relevant for this case may be summarised thus:
(i) An inference of fact from the recitals or contents of a document is a question of fact.
But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding ::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 19 precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on .
account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled of position of law.
(iii) The general rule is that High Court will not interfere with the concurrent findings of the courts rt below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
We have to place reliance on the afore-
mentioned case to hold that the High Court has framed substantial questions of law as per Section 100 of the CPC, and there is no error in the judgment of the High Court in this regard and therefore, there is no need for this Court to interfere with the same."
(pp.174-175) ::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 20
21. In the aforesaid case, Hon'ble Apex Court has interpreted the principles relating to Section 100 CPC, wherein it has been concluded that general rule is that the .
High Court will not interfere with the concurrent findings of the Courts below. But it is not absolute rule. If it appears to the Court that Courts below have ignored material evidence and have drawn wrong inference on the of proved fact by applying the law erroneously, Court, exercising powers under Section 100 CPC, can certainly re-
rt appreciate the evidence and as such, it cannot be concluded that the power of re-appreciation of evidence available on record under Section 100 CPC is totally barred, if there is a concurrent finding from both the Courts below.
22. In the present case, during arguments, learned counsel representing the appellant, has been successful in persuading this Court to look into the evidence which prima-facie suggested that while passing judgments and decrees, both the Courts below failed to appreciate evidence on record. Apart from above, it also appears that both the Courts below, while recording findings failed to interpret the provisions of law applicable in the present ::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 21 case in its right perspective. Hence, this Court was compelled, in the peculiar facts and circumstances, to re-
examine/re-appreciate the evidence available on record .
despite there being concurrent findings on the fact as well as law by both the Courts below.
23. Before adverting to the merits of the case, it would be apt and in the interest of justice to reproduce of provisions of Section 104 of the Act:
"104. Right of tenant other than rtoccupancy tenant to acquire interests of landowner-
(1) Notwithstandng anything to the contrary contained in any law, contract, custom or usage for the time being in force, on and from the commencement of this Act, if the whole of the land of the landowner is under non-
occupancy tenants, and if such a landowner has not exercised the right of resumption of tenancy land at any time since January 26, 1955, under any law as in force:-
(i) such a landowner shall be entitled to resume before the date to be notified by the State Government in the official Gazette and in the manner prescribed, either one and a half acres of irrigated land or three acres of unirrigated land under tenancy from one or more than one tenants for his personal cultivation and the right, title and interest (including contingent interest, if any) of the ::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 22 tenant or tenants, as the case may be, therefrom shall stand extinguished free from all encumbrances created by the tenant or tenants to that extent:
.
Provided that is the tenant has taken loan from the State Government, a co-
operative society or a bank for the improvement of tenancy land which the landowner has resumed under clause(i) or clause(ii) and has used such loan for the of improvement of such land, then the landowner, shall be liable to repay the outstanding amount of such loan and to the extent actually used for the said purpose rt and interest thereon to the State Government or to the Co-operative Society or a bank, as the case may be, proportionate to the improved land resumed by him:
Provided further that the landowner shall not be entitled to resume from a tenant more than one half of the tenancy land;
(ii) ..........................................
(iii) ..........................................
(iv) ..........................................
(v) ..........................................
(vi) ..........................................
(2) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
(3) All rights, title and interest (including a contingent interest, if any) of a landowner other than a landowner entitled to resume land under sub-section (1), shall be extinguished and all such rights, title and interest shall with effect from the date to ::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 23 be notified by the State Government in the Official Gazette vest in the tenant free from all encumbrances:
.
Provided that if a tenancy is created after the commencement of this Act, the provision of this sub-section shall apply immediately after the creation of such tenancy.
(4) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... (5) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
of (6) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... (7) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
rt (8) Save as otherwise provided in sub-section (9) nothing contained in sub-section (1) to (6) shall apply to a tenancy of a landowner during the period mentioned for each category of such landowners in sub-section (9) who,-
(a) is a minor or unmarried woman, or if married, divorced or separated from husband or widow; or
(b) is permanently incapable of cultivating land by reason of any physical or mental infirmity; or
(c) is a serving member of the Armed Forces; or
(d) is the father of the person who is serving in the Armed Forces, upto the extent of inheritable share of such a member of the Armed Forces on the date of his joining the Armed Forces, to be declared by his father in the prescribed manner.
(9) In the case of landowners mentioned in clauses (a) to (d) of sub-section (8), the ::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 24 provisions of sub-sections (l) to (6) shall not apply,-
(a) in case of a minor during his minority .
and in case of other persons mentioned in clauses (a) and (b) of sub-section (8) during their life time;
(b) in case of persons mentioned in clauses
(c) and (d) of sub-sector (8), during the period of their service in the Armed Forces subject to resumption of land by such persons to the extent mentioned in first proviso to clauses (d) of and (dd) of sub-section (1) of section 34.
Provided that nothing contained in this section shall apply to such land rt which is either owned by or is vested in the Government under any law, whether before or after the commencement of this Act, and is leased out to any person."
24. Plain reading of Section 104(3) suggests that after the commencement of the Act, all rights, title and interest (including a contingent interest, if any) of a landowner other than a landowner entitled to resume land under sub-section (1), 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, provided that if a tenancy is created after the commencement of this ::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 25 Act, the provision of this sub-section shall apply immediately after the creation of such tenancy.
25. But under Section 104(8), interest of minor, .
unmarried woman, divorcee and widow, person permanently incapable of cultivating land by reason of any physical or mental infirmity, serving member of the Armed Forces and father of the person who is serving in the of Armed Forces, up to the extent of inheritable share of such a member of the Armed Forces on the date of his joining rt the Armed Forces, to be declared by his father in the prescribed manner, have been precluded.
26. A plain reading of Section 104(8) suggests that, "Save as otherwise provided in sub-section (9), nothing contained in sub-section (1) to (6) shall apply to a tenancy of landowner during the period mentioned for each category of such landowners in sub-section (9)", as has been described hereinabove.
27. Sub-section 9 of Section 104 provides that "landowners mentioned in clauses (a) to (d) of sub-section (8), the provisions of sub-sections (1) to (6) shall not apply".
28. Section 113 of the Act provides that "no land in respect of which proprietary rights have been acquired ::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 26 under this Chapter shall be transferred by sale, mortgage, gift or otherwise during a period of ten years by a person from the date he acquires proprietary rights".
.
29. While interpreting giving effect to the provisions of Section 113, last expression used i.e. "the date he acquires property" "is of great significance" because persons on whom the proprietary rights are conferred of cannot sell/mortgage, gift or otherwise for a period of ten years from the date he acquired the proprietary rights. In rt simple words, it is understood that person who became owner by virtue of the Act, cannot further sale, mortgage, gift the land in question for ten years from the date of conferment of proprietary rights.
30. In the present case, moot question, which requires consideration/decision of this Court, is that, "whether the plaintiff, who became owner of the land by virtue of conferment of proprietary rights qua the tenancy land to the extent of 6-4 bighas on 13.7.1998, could make sale of that land before expiry of period of ten years as has been specifically provided under Section 113 of the Act.
Another question, which requires consideration, is that, "when on 13.7.1998 plaintiff was conferred proprietary ::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 27 rights qua the tenancy land to the extent of 6-4 bighas, could he sell land to the extent of 38-2 bighas of Khasra Nos.179 and 188, which was subsequently on 2.5.2001 .
recorded in his name by the Assistant Collector 2nd Grade, taking suo moto action, reviewing mutation No.217 holding the plaintiff entitled to land measuring 38.2 bighas.
31. In the present case, plaintiff, undisputedly, is of the tenant of one Shri Dharambir and others on the suit land as per Ex.P-1, Jamabandi for the year 1997-98, as rt "Gair Mouroosi" under the original owner and he was granted proprietary rights under Section 104 of the Act.
Accordingly, after the commencement of the Act, revenue authorities vide mutation No.217 held plaintiff entitled for conferment of proprietary rights qua the tenancy land and vide order dated 13.7.1998 conferred proprietary rights under Section 104(3) of the Act of the land of Khata No.9/20 to the extent of 6-4 bighas, meaning thereby that on 13.7.1998 plaintiff had become absolute owner of the land of Khata No.9/20 to the extent of 6-4 bighas.
32. Perusal of the evidence available on record reveals that though total land in Khasra Nos.179, 188 has ::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 28 been shown as 38-2 bighas but plaintiff sold his share 19/40th share, measuring 18-2 bighas to the defendants.
33. Plaintiff, by way of suit for declaration and .
prohibitory injunction, prayed that vide order dated 13.7.1998, he was conferred proprietary rights under Section 104 of the Act on the land of Khata No.9/20 to the extent of 6-4 bighas, meaning thereby that on 13.7.1998, of he had become owner of the suit land to the extent of 6-4 bighas of the land, description whereof, has been given rt above, by virtue of the Act. But defendants in written statement stated that vide sale deed dated 18.12.1999, plaintiff sold them 18-2 bighas of land for a consideration of Rs.16,000/-. During the proceedings of the case, while examining the evidence available on record, this Court could lay hand to the document i.e. Ex.P-2 whereby mutation No.217 has been attested and plaintiff has been shown to be the owner of the land to the extent of 6-4 bighas. There is one document annexed with the aforesaid Ex.P-2, available on record, reading whereof suggests that original owners filed their objections on behalf of minors and widows, who had their shares in the estate, which was lateron conferred upon the plaintiff and the Assistant ::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 29 Collector 2nd Grade, while dismissing their objections, held that interest of minors as well as widows has been protected while conferring proprietary rights on the plaintiff .
to the extent of 6-4 bighas. Careful reading of the aforesaid document clearly suggests that on 13.5.1998, when this mutation No.217 was attested, plaintiff was held to be owner to the extent of 6-4 bighas. It can be safely of inferred, after perusing the aforesaid documents, that on 13.5.1998, plaintiff had become owner of the land to the rt extent of 6-4 bighas by virtue of the Act.
34. In the present case, as emerges from the record as well as case set up by defendants that they purchased the land measuring 18-2 bighas of Khasra Nos.179 and 188 from the plaintiff vide sale deed Ex.P-4 for the consideration of Rs.16,000/-. At this stage, it is not understood that how the revenue authorities registered sale deed in favour of the defendants depicting therein sale of 18-2 bighas of land out of total 38-2 bighas of land of Khasra Nos.179 and 188 by the plaintiff in favour of defendants because as per record Ex.P-2, whereby mutation No.217 has been attested, plaintiff was only owner of the land to the extent of 6-4 bighas. Record ::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 30 nowhere suggests that on the date of sale i.e. 18.12.1999, plaintiff had become the owner of 38-2 bighas of land of Khasra Nos.179 and 188. Though attempt has been made .
by the defendants to justify the aforesaid sale by contending that plaintiff was inadvertently conferred the proprietary rights of the land of Khata No.9/20 min to the extent of 6-4 bighas vide mutation No.217, which was of subsequently got corrected by the Assistant Collector taking suo moto action and plaintiff was granted rt proprietary rights qua 33-13 bighas of land. As per defendants, plaintiff was owner of the suit land to the extent of 33-13 bighas of land at the time of registration of sale deed on 18.12.1999 but aforesaid submission/contention of defendants is not substantiated by any evidence available on record. To the contrary, record suggests that on 18.12.1999, plaintiff was owner to the extent of 6-4 bighas of land. If, for the sake of discussion/arguments at this stage, the aforesaid contention of defendants is accepted that inadvertently revenue authorities conferred proprietary rights on the land of Khata No.9/20 min to the extent of 6-4 bighas vide mutation No.217, which was subsequently corrected by the ::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 31 revenue authorities, taking suo moto action and plaintiff was granted proprietary rights qua 33-13 bighas of land, it is not understood that how sale deed could be registered .
for the land measuring 18-2 bighas, when admittedly on 18.12.1999 plaintiff was owner to the extent of 6-4 bighas of tenancy land. Even, as per the case set up by defendants, mutation No.217 was later reviewed by the of revenue authorities and proprietary rights qua 33-13 bighas of land was granted in favour of the plaintiff on 2.5.2001.
rt But record reveals that even aforesaid correction, as is being relied heavily by the defendants, was carried out on 2.5.2001 i.e. Ex.P-1 (at pages 74-75 on the record of the trial Court). If aforesaid contention of the defendants that the plaintiff had become owner of 33-13 bighas of land after correction of mutation No.217 by the revenue authorities, sale deed dated 18.12.1999 cannot be held to be genuine/valid because correction, if any, was also carried out on 2.5.2001 which clearly suggests that on 18.12.1999 plaintiff was only owner of the land to the extent of 6-4 bighas and any sale beyond 6-4 bighas of land by the plaintiff on 18.12.1999 cannot be held to be legal.
::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 3235. Before concluding that on 18.12.1999, when alleged sale took place, plaintiff was only competent to sell the land, if any, to the extent of 6-4 bighas, it would be apt .
to examine the contention put forth by Shri Ramakant Sharma, learned Senior counsel, as well as conclusion drawn by both the courts below that plaintiff had become the owner of the entire land in question immediately after of commencement of Act in terms of Section 104 of the Act.
36. It is also contended by Mr.Sharma as has also rt been held by both the Courts below that conferment of proprietary rights was automatic after commencement of the Act. Since plaintiff was non-occupancy tenant over Khata No.9/20, land measuring 70-17 bighas, he had immediately become the owner of the land to the extent of 33-13 bighas and as such plaintiff being owner of the complete land was competent/entitled to execute a sale deed dated 18.12.1999. At this stage, it would be profitable to refer to Section 104(3) of the Act, which has been reproduced hereinabove, which provides that all right, title or interest of land owner other than land owner entitled to resume land under sub section (1) shall be extinguished and all such right, title and interest shall be ::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 33 with effect from the date to be notified by the State Government in the official gazette vest in the tenant free from all encumbrances.
.
37. Reading of the aforesaid provisions suggests that immediately after commencement of this Act all rights, title and interest of the original owner would be extinguished and all rights, title and interest would vest in of the tenant free from all encumbrances. But careful reading of the same suggests that distinction has been carved out rt in the aforesaid Section 104(3) which specifically states that "other than the land owner entitled to resume land", meaning thereby that conferment of proprietary rights would not be automatic in the case of land owners, who are entitled to resume land under sub-section (1). Section 104(8) specifically provides that nothing contained in sub-
section (1) to (6) would apply to the tenancy of land owners during the period mentioned for each category of such land owners in sub-section (9), who is a minor, unmarried woman or after marriage divorced or separated from husband or widow, person permanently incapable of cultivating land, person serving member of the Armed Forces and father of person who is serving in the Armed ::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 34 Forces up to the extent of inheritable share in the said property. Section 104(9) further provides that in case land owners mentioned in clause (a) to (d) of sub-section (8), the .
provisions of sub section (1) to (6) shall not apply in the case of minor during his minority and in case of other persons mentioned in clauses (a) and (b) of sub section 8 during their life time.
of
38. Conjoint reading of aforesaid provisions makes one thing clear that conferment of proprietary rights would rt not be automatically conferred upon tenant in the case of land owners, who are entitled to resume land under sub-
section (1) of Section 104. Plain reading of aforesaid section suggests that in case there is minor, unmarried woman, divorcee woman or widow, conferment of proprietary rights would not be conferred automatically and these people will have right to resume land to the extent prescribed under the provisions.
39. In the present case, scrutiny of the record suggests, as has been discussed above, perusal of Ex.P-2 clearly suggests that while conferring proprietary rights to the extent of 6-4 bighas in favour of plaintiff, revenue authorities took note of the objections filed on behalf of ::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 35 minors, widows, who have/had share in the suit land before conferment of proprietary rights. At this stage, it can be safely presumed after perusing this Ex.P-2 that .
revenue authorities before holding plaintiff owner to the extent of 6-4 bighas recorded objections of the minors/widows in terms of Section 104(8) and (9) of the Act.
of
40. In view of the aforesaid discussion, this Court does not find much force in the contention raised by rt Mr.Ramakant Sharma as well as findings returned by both the Courts below that conferment of proprietary rights are conferred automatically after commencement of the Act.
To the contrary, as has been discussed above, in the case of minor, widow, divorcee and physically handicapped person, conferment of proprietary rights is not automatic but same is subject to right of resumption in favour of these persons.
41. Now, coming to another question with regard to the violation of Section 113 of the Act, wherein it has been urged by the counsel representing the respondents-
defendants and also concluded by the Courts below that there was no bar, as such, under Section 113 of the Act for ::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 36 selling the property acquired under the Act. Provisions of Section 113 of the Act have already been reproduced above. Careful reading of the aforesaid provisions suggests .
that specific bar has been created for the transfer of ownership rights by the person who acquires these proprietary rights with the commencement of Act, for a period of ten years from the date he acquired proprietary of rights. Last sentence used in the definition of Section 113 is very important/crucial in ascertaining the effect as well rt as import of Section 113 which provides "from the date he acquires proprietary rights", meaning thereby person, on whom proprietary rights have been conferred under the Act, is not entitled to transfer the same by sale, mortgage, gift for a period of ten years from the date when he acquired the proprietary rights.
42. In the instant case, as has emerged from the record plaintiff had actually become the owner by virtue of proprietary rights conferred upon him of the land of Khata No.9/20 min to the extent of 6-4 bighas vide mutation No.217 on 13.7.1998, meaning thereby he had no right, whatsoever, to sale the land conferred upon him by virtue of proprietary rights for ten years from the date of ::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 37 acquirement i.e. 13.7.1998. He could not sell land measuring 6-4 bighas till July, 2008. Hence, sale deed registered on 18.12.1999 was certainly in complete .
violation of provisions of Section 113 of the Act and hence could not be given effect to.
43. Now, if aforesaid proposition is viewed from the angle of the defendants, who have stated/claimed that the of plaintiff was inadvertently conferred proprietary rights of the Khata No.9/20 min measuring 6-4 bighas vide rt mutation No.217, which was subsequently considered by revenue authorities taking suo moto action and proprietary rights qua 33-13 bighas of land was conferred upon the plaintiff. But in that case also, if it is presumed that plaintiff had become owner of the complete land measuring 33-13 bighas after necessary correction by revenue authorities, in that eventuality also if version of the defendant is taken to be correct that "entire land measuring 18-2 bighas out of 33-13 bighas of land was purchased by them on 18.12.1999", transaction, if any, would also be hit by Section 113 of the Act.
44. In view of the detailed discussion as well as categorical examination of the evidence, be it ocular or ::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 38 documentary evidence, on record, this Court has no hesitation to conclude that on 18.12.1999 plaintiff was only competent to make sale, if any, to the extent of land .
measuring 6-4 bighas because by that time he had only become owner to the extent of 6-4 bighas in terms of mutation No.217 entered on 13.7.1998. It is also held that any sale made by plaintiff beyond 6-4 bighas on of 18.12.1999 was illegal and could not be given effect to by the revenue authorities because admittedly on the given rt date he had become owner of 6-4 bighas by virtue of conferment of proprietary rights under Section 104(3). In the present case proprietary rights could not be conferred automatically in terms of Section 104(3) of the Act because admittedly as per mutation Ex.P-2 minors, widows, being original owners had also right in the land which was to be conferred on the plaintiff and they had right in terms of Section 104(8) and (9) to resume the land. Hence in view of the aforesaid discussion question No.2 is answered accordingly.
45. Though, while exploring answer of substantial question No.2, many things have emerged which certainly points towards the dubious role played by revenue officers ::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 39 in the registration of sale deed i.e. Ex.P-4 dated 18.12.1999. To specifically answer the question No.2, it would be apt and in the interest of justice to refer to the .
documents available on the record to conclude whether revenue officers committed illegality and irregularity while reviewing the order dated 13.7.1998 whereby mutation No.217 was modified and the plaintiff was held to be the of owner of the land measuring 33-13 bighas instead of 6-4 bighas.
46. rt In the present case, perusal of Ex.P-1 i.e. Jamabandi for the year 1997-98 clearly suggests that plaintiff has been shown as a tenant in possession over the suit land Khata No.9/20 min and in the column of owner one Shri Dharambir alongwith other persons has been recorded as owner, but careful reading of the same suggests that there are some minors and widows, meaning thereby that minors and widows have/had also share in the land bearing Khata No.9/20. Further perusal of Ex.P-2 i.e. mutation carried out on 13.5.1998/15.5.1998 whereby revenue authorities i.e. Assistant Collector 2nd Grade after recording objections of the original owners i.e. minor as well as widow, who had share in the property bearing ::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 40 Khata No.9/20, conferred proprietary rights in favour of the plaintiff to the extent of land measuring 6-4 bighas.
Careful perusal of these documents suggests that at the .
back of this Jamabandi even the tatima has been prepared showing the plaintiff as owner to the extent of 6-4 bighas of land.
47. In the present case on 18.12.1999 alleged sale of took place, whereby plaintiff allegedly sold his share to the extent of 18-2 bighas out of 38-2 bighas of land of Khasra rt Nos. 179 and 188. At this stage, it is not understood that how the revenue authorities allowed the sale deed to be registered specifically knowing that plaintiff is the owner of land to the extent of 6-4 bighas only because at the time of registration of sale deed of land, it was/is the duty of the land revenue authorities to verify from the records, "whether person who intends to sell some piece of land is the actual owner of that land or not. In this case plaintiff has specifically alleged that sale deed dated 18.12.1999 was registered in connivance with the revenue officials, which allegation appears to be correct and genuine in the given facts and circumstances. There can be two things;
either revenue authorities, at the time of registration of sale ::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 41 deed dated 18.12.1999, failed to notice that plaintiff is only owner to the extent of 6-4 bighas or they colluded with the defendants and solely for some extraneous considerations .
registered sale deed dated 18.12.1999 showing therein sale of 18-2 bighas of land. In both the aforesaid situations, action/inaction of the revenue authorities at that relevant time in registering sale deed dated 18.12.1999 deserves to of be highly deprecated and condemned.
48. It also emerges from the record that vide Ex.P-3 rt plaintiff filed a complaint to the then Revenue Minister specifically alleging therein that revenue authorities colluded with the defendants and got the sale deed dated 18.12.1999 executed fraudulently. It appears that after lodging of aforesaid complaint, which was received by the authorities on 3.11.2000, revenue authorities, just to hush up and justify their illegal action, decided to review the mutation No.217, whereby proprietary rights to the extent of 6-4 bighas were conferred upon the plaintiff. Ex.P-1 (at pages 74-75 on record of the trial Court) suggests that suo moto action was taken by the Assistant Collector 2nd Grade, Dadahu, by procuring permission from Sub Divisional Magistrate, Nahan for review of mutation ::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 42 No.217. Perusal of Ex.P-1 shows that on the side of that page, it has been written "review allowed. Both the parties be heard and compare the entries with revenue record.
.
Form L.R.-VIII be corrected as per law". As per aforesaid review order issued by Sub Divisional Magistrate, Sub Division, Nahan, Assistant Collector 2nd Grade was supposed to call both the parties before effecting any of change in mutation No.217 but this Court has not been able to find out any document on record which could rt suggest that before carrying out review of mutation No.217, Assistant Collector 2nd Grade, Dadahu, called the parties and recorded their statements before correcting the mutation No.217. Rather, Assistant Collector 2nd Grade, himself, without associating any party i.e. original owner and tenant (plaintiff), suo moto corrected mutation No.217 and held the plaintiff entitled to land measuring 33-13 bighas instead of 6-4 bighas in terms of Land Revenue Act.
Aforesaid exercise was carried out on 2.5.2001 i.e. after three years of 13.7.1998 when initially mutation No.217 was carried out. Even on the back of this Ex.P-1, note has been recorded by the Assistant Collector 2nd Grade, whereby objections filed on behalf of minor and widows, ::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 43 being original owners and share holders in the land in question have been taken note of, has recorded that proprietary rights to the extent of 6-4 bighas have been .
conferred upon the plaintiff after protecting rights of aforesaid persons. Though it is not understood that where/what was the occasion for the Assistant Collector 2nd Grade, Dadahu to record aforesaid objection of the of minor/widows, who were original owners before conferment of proprietary rights because on the front side rt of the paper while reviewing the mutation No.217 on 2.5.2001 plaintiff was held to be owner of 33-13 bighas of land in terms of the Act.
49. While examining the aforesaid issues, this Court examined each and every document available on record as well as submissions made by the witnesses adduced by the parties. But in view of the overwhelming documentary evidence available on record, this Court did not find it necessary to refer to the witnesses adduced by the parties who have only deposed with regard to the registration of the sale deed i.e. Ex.P-4 by the plaintiff in favour of the defendants. Since this Court came to the conclusion that the sale deed, dated 18.12.1999, Ex.P-4, ::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 44 was sham transaction and could not be given effect to, deemed it not necessary at all to refer to the witnesses' produced by both the parties solely to prove that sale deed .
Ex.P-4 was validly executed. However, to specifically answer the substantial question No.1, this Court solely with a view to examine role of revenue authorities, deemed it fit to refer to the statement of DW-3 i.e. the Sub of Registrar, revenue officer. Close reading/analysis of the statement given by this witness leaves no doubt in the rt mind of the Court that he has gone above the board to prove the case of the defendants. Rather, it would be appropriate to say that he left no stone unturned to prove the sale deed Ex.P-4 as well as justify action of the revenue authorities in reviewing the mutation No.217 taking suo moto action that too in the absence of the parties.
50. In the totality of facts and circumstances as discussed hereinabove as well as documentary evidence available on record, this Court has no hesitation to conclude that the revenue authorities played dubious role at the time of execution of the sale deed Ex.P-4 and flouted all rules and said go-bye to the well laid down procedure for the registration of the sale deed, if any, further action of ::: Downloaded on - 15/04/2017 20:34:59 :::HCHP 45 the revenue authorities in correcting mutation No.217 after registration of sale deed Ex.P-4 in the year 2001 itself suggests that revenue authorities actually colluded with .
the defendants for some extraneous considerations.
51. In view of the detailed discussion made hereinabove, this appeal is allowed. The judgments passed by both the Courts below are quashed and set aside and of suit filed by the plaintiff is decreed. There shall be no order as to costs.
52. rt Interim order, if any, is vacated. All miscellaneous applications are disposed of.
June 14, 2016 (Sandeep Sharma)
(aks) Judge
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