Arun Sen Chand vs The State of Himachal Pradesh etc.

D.B. Lal, J.—Arun Sen Chand claims to be the adopted son of Rana Kishan of Kothar Estate of Solan (the then District Mahasu). He has filed this suit for a declaration that he is owner-in-possession of vast areas of land situate in different villages of Tehsil Solan, which are mostly described in the revenue papers as ''kharetar'', ''ghasni'' or ''banjar qadim''. According to Plaintiff, he is shown as the owner of this land in the ''jamabandis'' and since most of the land did not fall within the definition of "land" as provided in the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act (hereinafter to be referred to as the Abolition Act), no part of it became vested in the State Government u/s 27 of that Act. That apart, the Plaintiff also pleads that the disputed land has been in his "personal cultivation" and therefore under Sub-section (2) of Section 27 it would not vest in the State Government and the Plaintiff had retained its ownership.

Sometimes ago the Plaintiff filed a writ petition in the Court of the Judicial Commissioner in respect of this very land. He had taken the plea, inter alia, that the land could not vest without determination and payment of compensation. The Judicial Commissioner decided the writ petition in his favour, but the State Government went in appeal before the Supreme Court. In that Court it was held that the vesting took place from the date of enforcement of the Abolition Act, which is 26th January, 1955. The case was, however, remanded to the Hon''ble High Court of Delhi for decision on other points which were left undecided by the Judicial Commissioner. Thereafter the writ petition was listed before Mr. Justice T.V.R. Tatachari of that High Court. At that stage, a joint statement was given by the parties that the dispute involved several questions of fact and as such could only be resolved by filing a regular suit. Accordingly the learned Judge directed the Plaintiff to file a regular suit and dismissed the writ petition. The requirement of notice u/s 80 of the CPC was, however, given up by the Defendants.

The Compensation Officer, Solan, who is an authority under the Abolition Act, had initiated proceedings for vestment of the land in favour of the State Government. In the year 1962, the Collector, Mahasu district, issued orders that mutations be written in favour of the Government. According to the pleas of the Plaintiff, firstly, the land did not fall within the definition provided in the Abolition Act, and secondly it was under his personal cultivation and so no part of the land had vested in the State Government. Thus he had a grievance against the order of the Collector. It is further stated on his behalf that the land falling in Mauza Jungle Nalka is a private forest and has been declared as such under the Himachal Pradesh Private Forest Act. Similarly the land situate in Mauza Jagjitnagar is meant for the construction of houses. The Plaintiff has carved out plots for construction work. As such this land is not meant for a purpose subservient to agriculture and hence does not fall within the definition of "land". According to Plaintiff, only such land could vest which was settled with the tenants as according to Sub-section (4) of Section 27 the State Government was required to transfer the land to such tenants on payment of compensation. The revenue officials have been threatening the Plaintiff to record mutations in respect of the land in favour of the State Government. This has prompted the Plaintiff to file the present suit for a declaration that he is owner-in-possession and is entitled to "enjoy, transfer or alienate" the land in any manner he likes. The Plaintiff also wants a declaration that any executive instruction to the contrary issued by the Government is "wrong, illegal, void and inoperative".

The Defendants have refuted nearly every plea of the Plaintiff. Their allegations are, that the entire land falls within the definition provided in the Abolition Act. No part of the land comprising in sub-paras (a) to (g) of paragraph (1) of the plaint is under personal cultivation of the Plaintiff and hence vestment for it in favour of the State Government has taken place. The revenue entries were correctly sought to be mutated in favour of the State Government. There was in fact automatic vestment with effect from 26th January, 1955, by virtue of the provisions contained in Section 27(1) of the Abolition Act. The Plaintiff is a landowner paying land revenue which was more than Rs. 125 per year and as such no part of the land, besides the area which was under his personal cultivation, remained free from vestment. In respect of sub-para (h) of paragraph (1) of the plaint, it was pointed out that specific plots were under personal cultivation of the Plaintiff and the remaining land not being under his personal cultivation again came to be vested in the State Government.

Since the predecessor-in-interest of the Plaintiff was not the owner of the property, any gift in favour of the Plaintiff did not confer upon him any title. As such the Plaintiff was not even competent to file this suit. Only 89 bighas, 10 biswas and 3 biswansis was under the personal cultivation of the previous owner Shrimati Krishan Kumari and as such this land alone was free from Vestment. It was denied that Mauza Jungle Nalka was ever declared as a private forest. It is entered as ''gkasni'' land. The land is not a forest and as such is rot excluded from the definition of "land". Similarly in the rest of the land, no forest area is included. Even for Jagjitnagar plots, the land could not be stated to be outside that definition. According to Defendants, as such, this land also vested in the State Government. On these grounds, it was stated that the Plaintiff did not deserve any relief.

Upon the pleadings of the parties the following issues arose for decision:

Issues

(1) Whether the Plaintiff is the order-in-possession of the land in suit. Can the disputed land be considered to be in the personal cultivation of the Plaintiff?

(2) Whether a part of the land in suit is a private forest and as such the Plaintiff is its owner.

(3) Whether any part of the land in suit cannot be described as "land" as defined in the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act? If so, its effect?

(4) Has not the right, title and interest of the landowner in the land in dispute vested in the State Government u/s 27 of the H. P. Abolition of Big Estates and Land Reforms Act?

(5) Whether any automatic vestment of such right, title and interest of the land owner u/s 27 of the H. P. Abolition of Big Landed Estates and Land Reforms Act has taken place in favour of the Government, as alleged by the Defendants?

(6) Whether the land in dispute is liable to be mutated in the revenue record in favour of the State Government as a consequence of vestment?

(7) Whether the gift in favour of the Plaintiff is invalid, as alleged by the Defendants?

(8) Whether the disputed gift is also disqualified u/s 85 of the H. P. Abolition of Big Landed Estates and Land Reforms Act?

(9) To what relief, if any, is the Plaintiff entitled?

Findings

Issues Nos. 2 and 3:

The contention of the Plaintiff has been that the land comprising in Mauza Jungle Nalka, Mauza Jatrog and Mauza Badhol is in fact forest and as such not covered by the definition of land as provided in the Abolition Act. Similarly the land situate in Mauza Jagjit Nagar is in the shape of plots "meant for construction of houses for purposes not subservient to agriculture" and as such these plots are also outside the definition of land. There is no pleading regarding the rest of the land, although the learned Counsel argued that even the other land which is entered as banjar qadim or kharetar was not land.

Admittedly the land comprising Mauza Jungle Nalka is entered as Ghasni. A little part of it is entered as ''Thakur Dwara'' or ''Bauri''. The last two categories may be considered to be site of building or other structure on a land occupied for agriculture purpose or for pasture. Similarly the land situate in Mauza Badhol and in Mauza Jatrog is also entered in the revenue papers as ''kharetar'' or ''banjar qadim''. It is so clear from Ex. P. 7 jamabandi of 1964-65, Ex. D. 7 jamabandi of 1952-53, Ex. P.3 jamabandi of 1965-66, and Ex. D. 3 jamabandi of 1953-54. The revenue entries regarding Mauza Jungle Nalka are Ex. P. 6 jamabandi 1968-69 and Ex. D. 6 jamabandi 1951-52. It is entirely clear from the statement of Prithi Chand Patwari (P.W. 7) that kharetar and ghasni are one end the same category. Besides Arun Sen Chand (P.W. 9), none of the witnesses stated that the land falling in Badhol, Jatrog or Jungle Nalka is forest. Although there is an allegation that some notification has been issued by the Forest Department regarding Jungle Nalka, but no such notification has been produced. The Defendants, however, deny that any such notification was at all issued by them. In order to constitute forest, either there should have been a declaration under the Indian Forest Act or under the Himachal Pradesh Private Forest Act to that effect, or there should have been otherwise some proof to indicate that the foliage of trees is so dense that neither grass can grow nor any crop can be raised. There is absolutely no such evidence and the revenue entries are obviously ''ghasni'' or ''kharetar''. Therefore, it is not held that any of the land situate in Jungle Nalka or Badhol or Jatrog is in the shape of forest. It is quite another thing to say that some trees exist, may be in large numbers, and the Plaintiff has been cutting such trees either for domestic purpose or even for selling timber out of them.

Regarding Jagjitnagar, there is no doubt evidence to indicate that the land is lying in the shape of plots meant for construction work. The entries are there in Ex. P. 1 jamabandi 1966-67, and Ex. D. 1 jamabandi 1954-55. These are eight plots which are entered in the revenue papers. Shankar (P. W. 4) and Khiali Ram (P.W. 8) who were at one stage servants of the Plaintiff, and Ratti Ram Patwari (P.W. 6) have stated that the plots situate at Jagjitnagar are meant for construction of houses. Arun Sen Chand (P.W.9) has, of course, given a similar statement. As such it is not difficult to hold that the land of Jagjitnagar is neither occupied for agriculture purposes nor for purposes subservient to agriculture, nor for pasture. There is no evidence either that the land is a site of buildings and other structures on such land. With this finding, the only inference possible is that the land of Jagjitnagar does not fall within the definition of the land as provided in the Abolition Act.

As regards ''banjar qadim'', kharetar or ''ghasni'', there could be no dispute that the the occupation was for agriculture purposes or for purposes subservient to agriculture or for pasture., Most of the land is even entered in the revenue record as ''ghasnis''. The land is entirely capable of cultivation. The land cap be broken and Cultural land can be carved out. Most of these areas contain grass which is fodder for cattle. The land itself is either pasture or ghasni. As such prima facie ''banjar qadim'', ''kharetar'' or ''ghasni'' is included in the definition of land. The growing of grass is no doubt an agriculture purpose or at any rate a purpose subservient to agriculture. Cattle meant for ploughing are fed upon the grass which grows in the banjar, kharetar or ghasni''. The learned Counsel relied on Rajkumar Rajinder Singh v. State of Himachal Pradesh and Ors. I.L.R 1973 . 469. In this decision it was held that ghasni or banjar qadim are land either occupied for agricultural purposes or for purposes subservient to agriculture. Decidedly such a land is a pasture or ghasni and as such included in the definition of land. I need not repeat what I have stated in that judgement. For the very same reasons, it may be held that ghasni, kheretar and banjar qadim is land which vested in the State Government.

As regards orchard which is in Kishangarh, there can be no dispute that it is covered under the definition of "land". Whatever land is noted as ''thakur dwara'', ''bauri'' or ''kuhl'', that is also included in the definition of land. The purposes were subservient to agriculture. Similarly the buildings which exist over the ''khud kashat'' land of the Plaintiff in Mauza Kishangarh are on a site occupied for agriculture purposes or for purposes subservient to agriculture. As such the land underneath such buildings is also covered by the definition.

It is, therefore, decided in these issues that besides the land situate in Mauza Jagjitnagar, all the rest of the land is covered by the definition and as such it could vest in the State Government. None of the land could be stated to be forest so as not be covered by that definition.

The two issues are decided accordingly.

Issue No. 1:

It is then contended by the Plaintiff that under Sub-section (2) of Section 27, all this land is under the "personal cultivation of the landowner" and as such only such land could vest which was with the tenants and which according to the Plaintiff is not included in the suit. In the case Rajkumar Rajinder Singh v. State of Himachal Pradesh and Ors. (supra) the expression "personal cultivation" has been explained with sufficient elaboration. I adopt the entire reasoning, and hold that besides a few plots situate in Mauza Kishangarh which are in the ''khud kashat'' of the Plaintiff, no part of the other land was ever under the personal cultivation of the Plaintiff. It is undoubtedly stated by Sant Ram Patwari (P.W.5) that he made the entry of "khud kashat" for Kishangarh due to personal cultivation by the Plaintiff. In respect of no other land "khud kashat'' entries exist. As such according to revenue records, besides a part of land in Kishangarh, no other land is entered in the personal cultivation of the Plaintiff.

The witnesses adduced only indicate in a casual manner, that the possession is with the Plaintiff or that he cultivates by the help of servants and labourers. As regards possession, it was never indicated, nor could it be so stated, that the Plaintiff was cultivating banjar qadim, kharetar or ghasni. His possession has been shown by the witnesses by the following acts--selling timber, selling rosin and selling grass. These sales could have very well been done by the Plaintiff even otherwise than by remaining in personal cultivation of the area. Even other persons of the locality did possess customary rights to take timber for fuel or other domestic use. Similarly they could graze their cattle inside these vast areas. Asha Ram (P.W. 1) did not give any details regarding the labour employed or the sales effected of trees or rosin. Similarly Devi Dutt (P.W.2) could not give such details. According to him, the land in personal cultivation was only in Kishangarh and the rest of the land in dispute is ghasni which is not under personal cultivation. At Kishan-garh the Plaintiff has also planted an orchard in 8 or 10 bigha area from the last 4 to 5 years. Parma Nand (P.W. 3) stated that the Plaintiff sells trees and rosin, and collects grass. He could not give details regarding the sales etc. He does not know if any area is actually cultivated for crops, except 75 bighas or so in Kishangarh. Shanker (P.W. 4) merely stated that the Plaintiff collects grass, rosin, fuel wood etc. That would not constitute personal cultivation. Sant Ram Patwari (P.W. 5) similarly could not give any detail regarding sale of trees or rosin. Khiali Ram (P.W.8) stated that one Shashtri used to keep the accounts for the Plaintiff. Arun Sen Chand (P.W.9) himself stated that he used to keep accounts. But no such accounts have been produced. Arun Sen Chand (P.W.9) stated for the first time that he used to fence the ghasni area and that he employed some Cho-wkidar to keep watch in that area. It is difficult to believe that such a vast area was fenced by him or that any Chowdkidar was employed for the purpose of keeping watch over such area. As I have stated before, some accounts could have been produced to indicate the expenses incurred for all this. As to the planting of trees, he stated that he stops cutting of the grass for 2 or 3 years and the trees grow spontaneously. Neither he ever kept any nursery nor purchased seed plants from the Forest Department. This is the evidence regarding the planting of trees by him. According to him, he removes bushes and the grass grows in a natural shape which he cuts for fodder. All this process cannot be considered to be personal cultivation. Besides the statement of Arun Sen Chand (P.W. 9), there is no corroboration for all this. He is, of course, interested to depose in his favour. No explicit reliance could be placed on him. It is not proved that he has at all improved the product of the earth by manual industry, management or improvement in husbandry. He has not tilled this land except that part of the area which is '' khud kashat'' in Mauza Kishangarh.

In Rajkumar Rajinder Singh v. State of Himachal Pradesh and Ors. (supra) this Court pointed out the circumstances under which the ghasni area could be held to be under personal cultivation. No such acts of commission or omission have been proved. I am, therefore, confident to hold that none of the land, except the cultivatory plots of Kishangarh, was in personal cultivation of the Plaintiff. As such the entire land has vested, besides the specific plots of Kishangarh of which the area, according to Defendants, is 89-10-3 bighas. The Plaintiff himself stated that about 80 to 90 bighas was under his personal cultivation at Kishangarh. According to Sant Ram Patwari (P.W. 5), the area is only 63-2-19 bighas. However, the Defendants have admitted that the area under personal cultivation is 89-10-3 bighas and that figure has to be accepted.

It is then stated by the Plaintiff that only such part of the land had vested which was with the tenants. This argument has been repelled in Union of India v. Dinesh Kumar 1968 Delhi Law Times 419, which is a decision u/s 27 of the Abolition Act. It has been held that where the annual land revenue of the landed holding of a landowner exceeds Rs. 125 per year, his entire landed holding is to be deemed automatically to have been transferred and vested in the State Government free from all encumbrances. As such it would be wrong to submit that only such land which is in excess over the area for which land revenue could be assessed at Rs. 125 per year did not vest. Similarly it would be incorrect to hold that only such land which was with the tenants became vested. The Plaintiff seeks assistance from Sub-section (4) of Section 27 and it is pleaded that whatever land is with the tenants has to be transferred by the State Government to them on payment of compensation. That may be so, but it cannot be considered that any restriction is placed because of this on the automatic vestment which takes place under Sub-section (1). Apart from this, perhaps no land can be forced upon a tenant who is not willing to pay the compensation and in that contingency that part of the land would nonetheless remain in the proprietorship of the Government. There is no provision for that part of the land to revert back to the previous landowner. The word "shall" used in Sub-section (4) must be held to mean "may" in the the context it is used. Moreover, in the present suit, no such land has been included which is with the tenants and therefore the question doesn''t directly arise as to whether only that much land had vested in the State Government. Even otherwise in my opinion, Sub-section (1) of Section 27 is clear and no restriction can be placed upon vestment by making a reference to Sub-section (4) of that section.

The issue is decided against the Plaintiff. Issues Nos. 4 and 5:

It is settled law that automatic vestment takes place u/s 27 of the Abolition Act. Except the two parcels of land for which a finding has been given, the rest of the area has vested in the State Government.

Both the issues are decided against the Plaintiff.

Issue No. 6:

As the Government has become the proprietor of the land, there can be no dispute as to the mutation of such land in the revenue record in favour of the Government

Issues Nos. 7 and 8:

In the plaint it is asserted that the Plaintiff has become owner by a gift executed in his favour by his adoptive mother. The plea against this in the written statement is, that for the land vested there could be no valid gift. The -reason ascribed is that the donor herself did not possess a title for such land. It is thus evident that the gift in favour of the Plaintiff is manifestly valid for the plots of Jagjitnagar and for the land under personal cultivation at Kishangarh. In respect of the remaining land the gift was not valid because no title could be conferred upon the Plaintiff when the donor herself was not the owner of such land.

Section 85 of the Abolition Act is not directly applicable because the gift cannot be held to be a contract or an agreement which has the effect of directly or indirectly preventing the vesting of the land in the State Government.

Both the issues are decided accordingly.

Issue Mo. 9:

The Plaintiff''s suit is decreed for 4-4-16 bighas land of Jagjitnagar and 89-10-3 bighas of land situate in Mauza Kishangarh of which the khasra numbers are given in the written statement. The Plaintiff is not entitled to the relief in respect of the remaining area of the land.

ORDER

The suit is decreed for the land in dispute situate in Mauza Jagjitnagar and for 89-10-3 bighas under specified khasra numbers situate in Mauza Kishangarh. The suit is dismissed for the rest of the area of land under dispute.

In the special circumstances of the case, the parties are left to bear their own costs.