Baldev Singh vs Jhaodu and Others

R.L. Khurana, J.—This is the plaintiff''s regular second appeal against the judgment and decree dated 29-8-1989 of the learned Additional District Judge, Nahan, affirming the judgment and decree dated 26-4-1989 of the learned Sub-Judge, 1st Class (2), Paonta Sahib.

Briefly stated, the facts of the present case are these. One Mangta, father of the plaintiff and proforma defendants No. 4 and 5 was the tenant in respect of land measuring 1 bigha 15 biswas comprising of Khastra No. 414/1 of village Shampur Gorkhuwala, Tehsil Paonta Sahib, hereinafterrefered to as the land in dispute. The said Mangta died sometime in the year 1957-58. His tenancy qua the land in dispute came to be inherited by the plaintiff and Performa defendants No. 4 and 5, in equal shares under the owner Bhupender Singh. The land in dispute came to be vested in the State u/s 27 of the H.P. Big Landed Estates and Land Reforms Act, 1953 (for short, the Act) At the time of death of the above named Mangta, the plaintiff and proforma defendants No. 4 and 5 were minors. Taking undue advantage of their minority, the defendants 1 to 3 in connivance with the revenue field staff in 1966 got themselves recorded as tenants of the land in dispute by getting the names of the plaintiff and proforma defendants No. 4 and 5 deleted Inspite of such change in the revenue entries, the plaintiff and proforma defendants continued to remain in possession of the land in dispute till April, 1986 when they came to be forcibly dispossessed therefrom. A suit for possession of the land in dispute accordingly came to be filed by the Plaintiff on 24-3-1987.

Defendants 1 to 3 while resisting the suit denied the tenancy of Mangta It was pleaded that their father Roda was in possession of the land in dispute under the owner Shri Bhupender Singh. The revenue entries in favour of Mangta and thereafter. The plaintiff and proforma defendants were wrong, which came to be corrected They also denied the minority of the plaintiff and proforma defendants at the relevant time.

On the pleadings of the parties, the following issues were framed by the learned trial Court:

Whether Sh. Mangta, father of the Plaintiff and proforma Defendants was in possession of the suit land as tenant, as alleged? OPP

If issue No. 1 is proved, whether after the death of said Mangta tenancy was inherited by the Plaintiff and proforma Defendants in equal share as alleged? OPP

Whether the Defendants No. 1 to 3 forcibly dispossessed the Plaintiff and proforma Defendants from the suit land in the year April, 1986, as alleged? OPP

Whether in the year 1966, the Defendants No. 1 to 3, in collusion with Patwari Halqa, taking un-due advantage of the minority of Plaintiff, illegally and fraudulently procured false entries of tenancy in respect of the suit land in their favour? OPP

Whether the entries in revenue record in favour of Defendants No. 1 to 3 are illegal and are not binding upon the Plaintiff and proforma Defendant? OPP

Whether the Plaintiff is entitled to recover possession of the suit land? OPP

Whether the suit is not maintainable in the present form? OPP

8 Whether the suit is barred by limitation? OPD

Whether the Plaintiff has got no cause of action to file the present suit? OPD

Whether the Defendants No. 1 to 3 are coming in possession of the suit land as tenant as alleged, if so its effect? OPD

Relief.

The learned trial Court answered issues No. 1 to 6 in the negative and issues No 7 to 10 in the affirmative. Consequent upon such findings, the suit of the Plaintiff was dismissed vide judgment and decree dated 26-4-1989.

On an appeal having been carried before the learned Additional District Judge by the Plaintiff, the findings of the learned trial Court were affirmed on all the issues. Resultantly, the appeal was dismissed on 29-1989.

Peeling aggrieved by and being dissatisfied with the findings of the learned Courts below, the Plaintiff has come up before this Court by way of the present regular second appeal.

Admittedly, the land was previously owned by one Shri Bhupender Singh and in possession of tenant. The land came to be vested in the State u/s 27 of the Act. According to the Plaintiff, his father Mangta was the tenant qua the land in dispute and after his death the tenancy rights were inherited by the Plaintiff and proforma Defendant No. 4 and 5. On the other hand, the Defendants 1 to 3 claim that their father Roda was the tenant qua the land in dispute and they have succeeded to the tenancy rights.

Ex. PA is the copy of jamabandi for the year 2000-2001 (BK) wherein the land in dispute is recorded under the ownership of Sardar Randeep Singh and in possession of Parsu and Ors. as tenants and Suba son of Suraj as sub-tenant. In Ex. PB copy of jamabandi for the year 1954-55 Shri Bhupender Singh is recorded as owner of the land in dispute Parsu and Ors. are shown as tenants while S/Shri Mangat Ram, Lachhman and Udho sons of Suba are shown as sub-tenants. In the following jamabandi for the year 1958-59 (Ex PD) the entries in respect of owner and tenants are the same. However, instead of S/Shri Mangat Ram, Lachhman and Udho sons of Suba, the name of Mangat Ram, father of Plaintiff and proforma Defendants 4 and 5 has been recorded as in possession of the land in dispute as sub-tenant. Ex PC jamabandi for the year 1960-61 records the Plaintiff and proforma Defendants No. 4 and 5 as sub-tenants on payment of annual rent of Rs. 11.

Ex. P-3 is the copy of daily diary report dated 14-4-1966 to the effect that a change was made in the revenue entries qua khasra No 414/1 besides Ors. . It was on the basis of such changed entries that proprietary rights appear to have been conferred on Defendants 1 to 3 qua the land in dispute and some other land as is evident from copy of mutation Ex. DX.

Even if it be taken that the change of revenue entries qua the land in dispute as per Ex P-3 was wrong, the position which emerges is that Mangla, the father of the Plaintiff and proforma Defendants No. 4 and 5, was only a sub-tenant qua the land in dispute.

The question, thus, which arises for determination is whether a sub-tenant is entitled to acquire proprietary rights u/s 27(4) of the Act.

Section 27(4) of the Act provides:

The right, title and interest of the land-owner acquired under Sub-section (I) or (2) shall be transferred by the State Government on the payment of compensation in accordance with Schedule-I to such tenant who cultivate such land.

Section 2(17) of the Act defines "tenant" as meaning a person who holds land under Anr. person, and is, or but for a contract to the contrary would be liable to pay rent for that land to that other person, but it does not include:

(a) an inferior land owner, or

(b) a mortgagee of the rights of land-owner, or

(c) a person to whom a holding has been transferred or an estate or holding has been let in farm under the Punjab Land Revenue Act, 1887, as in force in Himachal Pradesh, immediately before :?6th January, 1950, for the recovery of an arrear of land revenue or of a sum recoverable as such as arrear, or

(d) a person who takes from the State Government a lease of unoccupied land for the purpose of sub-letting it.

Sub-section (16) to Section 2 of the Act defines a "sub-tenant" means a tenant holding, whether immediately or mediately, under Anr. tenant

The learned Counsel for the Plaintiff contended that since Mangta, father of the Plaintiff and proforma Defendants No, 4 and 5, was in actual cultivating possession of the land in dispute, even though as a sub-tenant, he would be deemed to be "the tenant who cultivates such land" within the meaning of Section 57(4) of the Act and thus entitled to acquisition of proprietary rights under the said provision. In support the learned Counsel has placed reliance on the decision of learned Single Judge (H S Thakur, J.) of this Court in Prithvi Chand and Ors. v. Chhaju 1981 Sim L.C. 193, wherein it was held that a cultivating tenant, who even as a subtenant cultivates the land, is entitled to acquire proprietary rights and other rights u/s 27(4) of the Act.

With respect, the view taken by the learned Single Judge in Prithvi Chand''s case (supra) is not correct in view of the ratio laid down by a Division Bench of this Court in Smt. Dev Lata v. Alam etc. ILR (1975) H.P. 450

The Division Bench while dealing with the meaning of the words "such tenant who cultivates such land" as appearing in Section 27(4) of the Act held that these words do not include a sub-tenant. In coming to such conclusion it was observed:

Why did the statute refer to "such tenant who cultivates such land" in Section 27(4) when in Section 11 and Section 14 it refers to a tenant holding land in tenancy and does not describe him by reference to the criterion of cultivation An analysis of the scheme set out in Section 27 explains why. Section 27(2) contemplates two categories of land, land which is under the personal cultivation of the landowner and land which is not under his personal cultivation. To the former Section 27 does not apply. It applies to the latter. It will be noticed that the Statute does not make this test relevant in Section 11 and Section 14. The criterion for applying Section 27 is that the land must not be under the personal cultivation of the land owner The right, title and interest of the landowner in such land vests in the State Government and is transferred by the State Government to the tenant who cultivates the land. The words "who cultivates such land" are descriptive of the tenant, and indicate the tenant who holds the land, Section 27, as I have said before, refers to land which is not under the personal cultivation of the landowner but is cultivated by the tenant. It is true that when a tenant sub-lets the land to Anr. , it is the sub-tenant who is in actual cultivatory possession. ''Possession in fact is not with the tenant But looked at in contradistinction to the landowner it is the tenant who will be said to cultivate the land when the landowner cannot be described as cultivating it, I am unable to hold that reference in Section 27 (4) was intended to a sub-tenant. Chapter III is concerned entirely with the transfer of rights from landowners to tenants.

There is Anr. good reason for coming to that conclusion In a case where a tenancy and a sub-tenancy have been created in respect of land, different bundles of rights belong to the landowner, the tenant and the sub-tenant in respect of the land. Section 27 provides for the vesting of the landowner''s rights in the State Government, and for payment of compensation to the landowner for such deprivation. Now, if Section 27(4) can be said to convey the right, title and interest in the land to a sub tenant, the tenant stands deprived of his rights in the land and there is no provision whatever in Section 27 for payment of compensation to him. It is difficult to accept that while the legislature could have contemplated payment of compensation to the landowner no such provision should have been made in respect of the tenant It was urged for the Respondents that when the sub-tenant acquires the right, title and interest of the landowner u/s 27(4) the tenant now becomes his tenant and therefore no occasion arises of the latter being deprived of his rights in the land. The contention is founded in fallacy because it omits to note that the cultivatory possession of the land continues in the subtenant, who according to the construction suggested, steps into the shoes of the landowner. The tenant can no longer be envisaged as a tenant in such circumstances It (sic) the cultivatory possession is with the landowner it is difficult to appreciate how the tenant can be said to hold the land. Section 2(17) of the Act defines a "tenant" as "a person who holds land under Anr. person " If Section 27(4) is construed to refer to a tenant and not as including a sub-tenant, upon that construction the sub-tenants'' rights in respect of the land are not affected. u/s 27(1) the right, title and interest of the landowner is deemed to have been transferred and vested in the State Government free from all encumbrances. An encumbrance does not ordinarily include a lease : District Bank v. Webb (1958) 1 W.L.R. 148. The tenancy and the sub-tenancy continue to subsist, the tenant becoming the tenant of the State Government and the sub-tenant continuing to hold the land under the tenant. When the tenant acquires the right, title and interest in the land u/s 27(4) and becomes the landowner the sub-tenant continues to be his tenant. The relationship between the tenant and the sub-tenant continues to have all the attributes of a tenancy On such a construction, both reason and justice are served.

Relying upon the ratio laid down by the Division Bench in Smt. Dev Lata''s case (supra) it can be safely concluded that Plaintiff and proforma Defendants No 4 and 5 in their capacity of being sub-tenants did not acquire proprietary rights qua the land in dispute u/s 27(4) of the Act. They not being the owners, therefore, are not entitled to possession of the land in dispute.

Consequently, the present appeal fails and the same is dismissed with no orders as to costs.