Bhura vs Bhagirath etc.

V.P. Gupta, J.—The present revision petition has been filed against the order dated 11th October, 1977, passed by the Senior Sub-Judge, Hamirpur, on an application filed by Bhura the present Petitioner (Defendant).

The brieffacts of the case are that the Plaintiffs Bhagirath and others filed a suit for possession of 32 Kanals of land as detailed in the plaint on the allegations that the Plaintiffs along with proforma Defendants 2 to 5 were the owners of the disputed land and that this land was previously in possession of one Kharku s/o Sardaru as a tenant and that the said Kharku had left the cultivation of the land in Rabi, 1969. It was further alleged that the possessory rights of the said Kharku vested with the owners and that Bhura Defendant took forcible possession of the land and had been alleging that Kharku had executed a will in his favour regarding tenancy rights. It was further alleged that Kharku had no rights to transfer the tenancy rights to Bhura Defendant No. 1 and that Defendant No. 1 never became a tenant of the disputed land and he was never accepted as a tenant by the Plaintiffs-owners. It was also alleged that the alleged will, if any, was ineffective upon the rights of the owners (Plaintiffs).

On these allegations the Plaintiffs claimed possession of the suit land treating Bhura Defendant No. 1 as Andhra Pradesh High Court trespasser on this land. Defendant Nos. 2 to 4 were proforma-Defendants and they filed a written statement admitting the Plaintiffs'' claim.

Bhura Defendant No. 1 contested the suit of the Plaintiffs on various grounds inter-alia that Kharku had acquired occupancy rights in the suit land and as such had become owner and that Defendant No. 1 is his legal heir. It was further alleged that the suit is not triable by the Civil Court and that Kharku had not relinquished his tenancy rights in Rabi, 1969. Defendant No. 1 also set up a will dated 16th December, 1965, alleged to executed by Kharku in his favour.

Replication was filed and in the replication too, the Plaintiffs reasserted their allegations of the plaint and alleged that Bhura Defendant is a trespasser on the suit land.

Before the framing of the issues, an application was filed by Bhura Defendant on 6-11-1975 claiming that the rights of ownership have vested in him and that mutation to that effect had also been sanctioned in his favour and it was further prayed that the suit of the Plaintiffs be dismissed because the Plaintiffs have no locus-standi and that the suit as framed could not proceed. Reply to this application was filed and the same was contested by the Plaintiffs. It was alleged that Bhura Defendant was never a tenant of the suit land and as such if the revenue authorities have wrongly sanctioned any mutation conferring ownership rights on Bhura Defendant, then such action of the revenue authorities is ineffective upon the Plaintiffs'' rights and that the Plaintiffs are still the absolute owners of the suit land and that Defendant No. 1 Bhura is the trespasser of the same.

It appears that this application remained pending in the trial Court and that on 16th December, 1975, issues were framed. However, thereafter this application was considered and was finally disposed of vide order of Senior Sub-Judge dated 11-10-77 by which the application was dismissed and it was held that the Civil Court has jurisdiction to try the suit.

I have heard S/Shri P.N. Nag and Shri R.K. Sharma, the learned Counsel for the parties at great length.

Shri P.N. Nag, the Counsel for Defendant-Petitioner, contended that the Civil Court has no jurisdiction to try the present suit in view of the provisions of Section 112 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 (Act No. 8 of 1974) (hereinafter referred to as the Act). To develop his arguments he referred to the different provisions of Sections 104, 114 and 115 of the said Act and also referred to the Himachal Pradesh Tenancy and Land Reforms Rules, 1975. The learned Counsel further relied upon the authority ILR 1977 H.P. 357, Devi Singh and Ors. v. Hukam Ram and Ors., and contended that the present suit is barred from the cognizance of the Civil Court because the Petitioner-Defendant has been declared to be the owner of the suit land by a competent authority.

The Counsel for the Respondents (Plaintiffs) contended that for determination of the point of jurisdiction, the allegations in the plaint have to be perused, and that the Plaintiffs have nowhere admitted the status of the Defendant Bhura as a tenant and on the contrary have all along claimed that the Defendant Bhura is a trespasser on the suit land. It was further contended that the order of the revenue authorities is without jurisdiction and as such Section 112 of the Act has no application and that only Civil Court has the right to determine as to whether the Defendant Bhura is a trespasser on the suit land or is a tenant of the suit land. It was further contended that the authority ILR 1977 H.P. 357, Devi Singh v. Hukam Ram, is quite distinguishable because in that authority the definition of the word ''occupancy tenant'' as given in the Punjab Act No. 8 of 1953 was interpreted. It was further contended that the Plaintiffs filed the suit in June, 1974, and the mutation conferring ownership rights upon Bhura Defendant was sanctioned in July, 1975, and as such this mutation has no binding effect upon the rights of the Plaintiffs.

I have carefully considered the contentions of the learned Counsel for the parties and have also gone through the provisions of the Act and the Rules and the law referred to by both the parties. A perusal of Chapter X of the H.P. Tenancy and Land Reforms Act, 1972, shows that this chapter deals with the acquisition of proprietary rights by tenants other than the occupancy tenants. The provisions of Section 104 of the above mentioned Act can be made applicable to persons who are in possession of the land of the land owners as tenants and these provisions are to be followed by the revenue officers, that is, the Land Reforms Officer.

Section 104 of the Act, as substituted by H.P. Act No. 15 of 1976 (H.P. Tenancy and Laird Reforms Amendment Act, 1976) reads as under:

''''104. Right of tenant other than occupancy tenant to acquire interests of landowner-

(1) Notwithstanding 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 un-irrigated 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 tenant or tenants, as the case may be, there from shall stand extinguished free from all encumbrances created by the tenant or tenants to that extent:

Provided that if 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 (ii) and has used such loan for the 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 and interest thereon to the State Government or to the cooperative 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) in case the landowner holds less than one and a half acres of irrigated land or three acres of unirrigated land in his personal cultivation, he shall be entitled to resume tenancy land only to make up the land under his personal cultivation to the extent of one and a half acres of irrigated land or three acres of unirrigated land, as the case may be subject to the other conditions laid down in this section;

(iii) the right, title and interest in the rest of the tenancy land or the landowner, who is entitled to resume land under Clauses (i) and (ii), shall vest in the tenant free from all encumbrances with effect from the date to be notified by the State Government in the Official Gazette;

(iv) in case the land under the tenancy is partly irrigated and partly unirrigated and the landowner intends to resume land of both these classes, he shall be entitled to do so in the ratio and manner to be prescribed;

(v) in the event of any dispute between the landowner and the tenant with regard to the selection of the land for resumption, the first right of selection of land shall be that of the tenant who may exercise this right in the prescribed manner and before the date to be notified by the State Government in this respect in the Official Gazette;

(vi) in case the tenant fails to exercise his right of selection of land by the date notified under Clause (v), the Land Reforms Officer shall determine his share after giving the parties an opportunity of being heard. In such a case also, the tenant shall be given the first choice to select the land.

(2) Where the landowner does not cultivate the land resumed under Sub-section (1) personally within one year from taking possession thereof, then such land shall vest in the State Government on payment of an amount at the rate of ninety-six times the land revenue plus rates and cesses and such land shall be disposed of by the State Government in such manner as may be prescribed. In such an event the first right to get such land shall be that of the tenant from whom the land was resumed by the landowner.

(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 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) Whenever a dispute arises whether a person cultivating the land of a landowner, is a tenant or not, the burden of proving that such a person is not a tenant of the landowner shall be on the latter.

(5) The landowner whose rights, title and interest are extinguished under this section, shall be entitled to receive an amount at the rate of ninety-six times the land revenue plus rates and cesses payable either in lump-sum or in such number of installments not exceeding ten during a period not exceeding five years as may be prescribed:

Provided that if the tenant makes a default in the payment of any installment of the amount the same shall be recoverable as an arrear of land revenue:

Provided further that if the land for which the amount is to be paid under this section is subject to a mortgage debt from a bank, the mortgage debt will be the first charge on the amount payable for such land:

Provided also that the tenant shall not be liable to pay the amount to the landowner for the acquisition of ownership rights in the tenancy land which is equal in area to that of his tenancy land resumed by the landowner under Clauses (i) and (ii) of Sub-section (1) and the extinguishment of rights, title and interest of the tenant in the land resumed by the landowner shall be deemed to be the amount there for.

(6) Save as otherwise provided in Section 114, every decision of the Land Reforms Officer, under this section shall be binding on all persons claiming an interest in a holding not with standing the fact that any such person has not appeared or participated in the proceedings before the Land Reforms Officer or any other revenue authority.

(7) The provisions of the foregoing Sub-section shall apply to evacuee land as defined in the Administration of Evacuee Property Act, 1950 to composite property as denned in the Evacuee Interest (Separation) Act, 1951, or the property vested in the Central Government u/s 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, with effect from such date as the State Government may, by notification in the Official Gazette, specify.

(8) Save as otherwise provided in Sub-section (9), nothing contained in Sub-sections (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, up to 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 provisions of Sub-sections (1) 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-section (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) and (dd) of Sub-section (1) of Section 34.

A reading of this section clearly shows that the person who is to acquire the ownership rights in the land possessed by him should be a "tenant" of the land. Sub-section (3), (4) and (6) of Section 104 clearly lay down that only tenants of the land are to acquire the proprietary rights. Similarly, Section 112 of the Act which bars the jurisdiction of the Civil Court reads as follow:

Section 112. Save as otherwise expressly provided in this Chapter, the validity of any proceedings or orders taken or made under this Chapter shall not be called in question in any Civil Court or before any other authority.

This section can only apply if the proceedings are taken under Chapter X of the Act. In other words, this section is applicable if the person in possession is admitted or proved to be a tenant of the land. Thus if the status of the person in possession of the land as a tenant is disputed, then the provisions of Chapter X cannot be made applicable.

Similarly, Sections 114 and 115 of the Act are only applicable if the proceedings are taken under the Act, i.e., if the Act or Chapter X of the Act is applicable in the matters.

Coming to the Rules framed under this Act, a reading of the Rules contained in Part V clearly show that this part deals with the acquisition of proprietary rights by non-occupancy tenants. Rules 21 to 37 deal with the procedure as to how and in what manner the non-occupancy tenants are to be entered as owners by the revenue authorities and this procedure is laid down for the guidance of the Land Reforms Officer appointed under the said Act for the implementation of the provisions of the said Act.

If the status of a person as a non-occupancy tenant is disputed, then it cannot be said that he is admitted to be a tenant of the suit land and in that case the provisions of Chapter X of the Act or Part V of the Rules will not be applicable. As the whole Chapter X of the Act will be inapplicable to a case where the status of the person claiming to be a tenant is in dispute, therefore, Section 112 of the Act will not become applicable. The Plaintiffs have definitely a right to seek the protection and invoke the jurisdiction of Civil Court for getting their title declared in the suit land or for getting a declaration to the effect that the Defendant is not a tenant of the suit land. This position of law has been settled in AIR 1931 Lah 362 , Shri Raja Durga Singh of Solan Vs. Tholu, , Daya Ram and Others Vs. Jagir Singh and Others, (Daya Ram and Ors. v. Jagir Singh and Ors.). In ILR 1977 H.P. 357, a Full Bench of this Court while considering the definition of the word ''occupancy tenant'' as given in Section 2(f) of Punjab Act No. 8 of 1953, held that a person who is recorded as an occupancy tenant in the revenue records immediately before the commencement of the said Act acquires ownership rights because the recorded entry has been made conclusive proof of the fact that the tenant recorded is an occupancy tenant. In the definition of the word ''occupancy tenant'' under Punjab Act No. 8 of 1953, the recorded revenue entry has been deemed to be sufficient for the determination of the status of a person.

In H.P. Tenancy and Land Reforms Act, there is no such definition for tenant and the tenant has been defined in Section 2(17) as follows:

"tenant" means a person who holds land under a landowner, and is, or but for a contract to the contrary would be liable to pay rent for that land to that landowner, and includes-

(i) a sub-tenant recorded as such in the revenue record;

(ii) the predecessors or successors in interest of a tenant or a sub-tenant, as the case may be, but it does not include-

(a) a mortgagee of the rights of landowner, or

(b) a person to whom a holding has been transferred or an estate or holding has been let in farm under the Himachal Pradesh Land Revenue Act, 1954 or the Punjab Land Revenue Act, 1887, as the case may be, for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear, or

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

In view of the definition of the word ''tenant'' as given in Section 2(17) above, the mere recorded entry is not sufficient and conclusive proof of the fact that the person so recorded is actually a ''tenant'' and the person who claims the tenancy rights has to prove that he holds land under a landowner and is but for a contract to the contrary, would be liable to pay rents for that land to that landowner and includes the persons as mentioned in the above said definition given in Section 2(17) of the Act.

In view of the definition given in Section 2(17) of the H.P. Tenancy and Land Reforms Act, the authorities ILR 1977 H.P. 357, is not applicable to the facts and circumstances of the present case and the same is quite distinguishable.

Another important fact which has to be considered in this case is that the suit was filed on 14-6-1974 and the mutation upon which the Defendant-Petitioner relies and which is Ex-D.1. was sanctioned on 31-7-1975, i.e. during the tendency of the suit. This mutation nowhere states that any order was passed by the Land Reforms Officer as provided in Part V of the Rules or Chapter X of the Act. It is a general mutation regarding all landowners and tenants and was sanctioned n the absence of the parties. There is nothing to show that any notice of the sanctioning of this mutation was ever given to the parties concerned. It is also not clear that the provisions of Part V of the Rules were followed while sanctioning this mutation.

In view of the above discussion, I am of the view that the jurisdiction of the Civil Court is not ousted in this case and the suit as framed by the Plaintiff is not liable to he dismissed on the ground of jurisdiction and I feel that the application u/s 151 CPC has rightly been dismissed on 11th October, 1977, by the Senior Sub-Judge, Hamirpur.

As a result of my findings given above, the present revision petition is hereby dismissed with no orders as to costs. The suit is pending since 1974 and as such the Senior Sub-Judge will try to dispose of the suit at the earliest. The parties are directed to appear in the Court of Senior Sub-Judge, Hamirpur, on 12-5-1980.