Dilbhag Singh & Others vs Hari Ram & Others

Rakesh Kainthla, J

The present appeal is directed against the judgment and decree dated 1.10.2009, passed by the learned Additional District Judge, Fast Track Court, Una, District Una, H.P, vide which, the appeal filed by the respondent no.1 (defendant no.1 before the learned Trial Court) was allowed and judgment and decree passed by the learned Civil Judge (Jr.Divn.), Court No.1, Amb, District Una, H.P. was set aside. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

Briefly stated, the facts giving rise to the present appeal are that the plaintiffs filed a civil suit before the learned Trial Court for seeking a declaration that they are owners in possession of the land comprised in Khewat No.42, Khatauni No.73, Khasra No. 360, measuring 0 -18-47 Hectares to the extent of 7/8th share, situated in village Mughal, Tehsil Amb, District Una, H.P., as per Jamabandi for the year 1999-2000 (hereinafter referred to as the suit land). The entries made in the revenue papers in the name of defendant no.1, as owner in possession, and mutationa No.123 dated 16.11.1981 sanctioned by AC 1st Grade Amb are illegal, null and void. A consequential relief of permanent prohibitory injunction for restraining defendant no.1, from forcibly ousting the plaintiffs, from the suit land, changing its nature, alienating or disposing of the same was also sought .It was pleaded that the land measuring 4 Kanal 16 Marla comprised in Khewat No.1 min, Khatauni No. 4 min, Khasra Nos.76 and 79, as entered in the Jamabandi for the year 1967-68, situated in Village Mughal, Tehsil Amb, District Una, H.P. was jointly owned and possessed by Mehar Chand, the predecessor-in-interest of defendants No.2 to 6 to the extent of 1/8th share and one Badhawa to the extent of 7/8th share. The plaintiffs purchased 7/8 share from Badhawa in the land measuring Khasra nos. 76 and 79 measuring 4 Kanal 16 Marla, situated in village Mughal, Tehsil Amb, District Una, H.P. vide registered deed No. 221, on 30.5.1973. A mutation regarding the sale was attested and sanctioned on 27.03.1984. Kamla Devi, defendant no.6 is the real sister of defendant no.1. Mehar Chand was the husband of Kamla Devi. Defendant No.1 in connivance with Mehar Chand and the revenue officials got his name recorded as Gair Maroosi (non-occupancy tenant) in the column of cultivation behind the back of the plaintiffs without any notice to them. The entry was incorporated in the Jamabandi for the years 1978-79 without any order from the competent authority. Defendant No.1 was never induced as a tenant by the plaintiff in the suit land. The Khasra No.76 and 79 were converted into new Khasra No.421 during the settlement. Khasra No. 421 was converted into the new Khasra No. 360, during the consolidation. Defendant No.1 started threatening to oust the plaintiffs from the suit land, changing the nature of the suit land and alienating the same. The plaintiffs checked the revenue record and found that mutation No.123, was sanctioned in favour of the defendant no.1. The plaintiffs requested defendant No.1 to admit their claim and not to interfere with the suit land but in vain, hence, the suit was filed to seek relief mentioned above.

The suit was opposed by defendant no.1 by filing a written statement taking preliminary objections regarding lack of maintainability, jurisdiction & locus standi,the plaintiffs being estopped by their act and conduct to file the present suit and the suit being barred by limitation. The contents of the plaint were denied on merits. It was asserted that land measuring 96 Kanal 4 Marla was previously owned by Mehar Chand to the extent of 1 share and Saudagar to the extent of 7 shares. The allotment in favour of Saudagar was cancelled vide rapat no. 218, dated 14.02.1973. The allotment was made in favour of one Badawa vide Rapat no.312, on 12. 04.1973. Badawa became owner to the extent of 7 shares. Mehar Chand was in exclusive Hissedari possession of land measuring 11 Kanal 9 Marla bearing Khasra Nos. 75, 76, 76/1 min, 79 and 86 out of Khewat No. 1, Khasra No. 78/1 min measuring 11 Kanals 9 Marla out of Khewat No.1 and Khasra no.78/1 min measuring 11 Marla, out of Khewat No.2. Thus, Mehar Chand was in exclusive hissedari possession to the extent of his share. Mehar Chand inducted defendant no.1, as a non-occupancy tenant, over land comprised in Khasra nos. 76 and 79 measuring 4 Kanals 16 Marla alongwith other land on the payment of rent ‘Batai’ in June 1966. Defendant No.1 is in possession since Kharif 1966, on the payment of rent ‘Batai’. Khasra nos. 76 and 79 were converted into Khasra No.421 during the settlement. The mutation no. 123 was sanctioned in favour of defendant no.1 on 16.11.1981, in presence of the plaintiff in Jalasa Aam regarding the conferment of proprietary rights. The plaintiffs moved an application for separating their shares during the consolidation and the consolidation authorities partitioned the share of the plaintiffs and defendant no.1. Khasra No. 421, was converted into new Khasra No. 360, during the consolidation. The plaintiffs have no right, title or interest in the suit land. It was admitted that plaintiffs have purchased 7/8th shares of Badawa in Khasra Nos. 76 and 79, inter alia. The mutation was sanctioned in their names in the year 1984. Defendant No.1 became the owner after the conferment of proprietary rights in the year 1981. The jurisdiction of the Civil Court is barred to hear and entertain the present suit because of the H.P. Tenancy and Land Reforms Act and H.P. Consolidation of Land Holding Act. Hence, it was prayed that the suit be dismissed.

A separate written statement was filed by defendants no. 2 to 6, taking preliminary objections regarding lack of maintainability, locus standi& jurisdiction, the plaintiffs being estopped by their act and conduct to file the present suit and the suit being barred by limitation. The contents of the plaint were denied on merits. The pleas taken by defendant no.1 were reiterated. It was asserted that Mehar Chand had inducted defendant no.1 as a non-occupancy tenant over land bearing Khasra no.76 and 79 and defendant no. 1 was conferred proprietary rights on 16.11.1981. The plaintiffs separated their shares and the plaintiffs have no right, title or interest over the suit land.

Hence, it was prayed that the suit be dismissed.

A replication denying the contents of the written statement and affirming those of the plaint was filed.

Learned Trial Court framed the following issues on 25. 03.2004:-

Whether the plaintiffs are owners in possession to the extent of 7/8th share in the suit land, as alleged? OPD

Whether mutation No. 123 dated 16.11.1981 is illegal, null and void as alleged? OPP.

Whether the defendants are interfering with the suit land without any right to do so? OPD

Whether the suit is not maintainable? OPD.

Whether this Court is having no jurisdiction? OPD.

Whether the suit is barred by limitation? OPD

Whether the suit is barred under Order 2 Rule 2 CPC?OPD

Whether the plaintiffs are estopped by their acts and conduct to file this suit? OPD

Whether Mehar Chand had inducted defendants as tenants if so its effect? OPD.

Relief.

The parties were called upon to produce the evidence and the plaintiffs examined Karam Chand (PW-1)and Joginder Pal (PW-2). The defendant no. 1 examined himself (DW-1) and Karam Deen (DW-2).

The learned Trial Court held that the mutation was sanctioned behind the back of the plaintiffs in violation of the principle of natural justice; hence, the jurisdiction of the Civil Court is not barred. The plaintiffs had purchased 7/8th shares in Khasra Nos. 76 and 79 from Badhawa vide Sale Deed (Ext.P- 7), Defendant no.1, admitted that he was inducted as a non-occupancy tenant by Mehar Chand and not by Badhawa or the plaintiffs. The proprietary rights could have been conferred upon the defendant regarding the share of Mehar Chand and not the plaintiffs. The children of Mehar Chand were minors and the proprietary rights could not have been conferred in respect of their shares. The partition during the consolidation will not have any effect. Learned Trial Court answered issues no.1 to 3 in the affirmative, issues no.4 to 8 in the negative, issue No.9, as per findings and decreed the suit of the plaintiffs.

Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned Trial Court, defendant no.1 filed an appeal before the learned Additional District Judge, Fast Track Court, Una, District Una, H.P. Learned First Appellate Court held that the suit was filed on the basis of Jamanandi for the year 1999-2000. The record of the whole Khata was not produced. The plaintiffs had purchased 7/8th shares of Badhawa to the extent of 78 Kanal 3 Marala. The revenue record of the total land shows that Mehar Chand was the owner to the extent of 1/8th share and Badhawa was the owner to the extent of 7/8th share in 96 Kanal of the land. Mehar Chand was in hissedari possession of the land measuring 12 Kanal including the suit land. The suit land was in possession of Mehar Chand at the time of the purchase of the land by the plaintiffs. Mehar Chand had created tenancy regarding the land in his possession. The plaintiff (Karam Chand) admitted that he was allotted the land as per his entitlement and, he could not have any grievance regarding the conferment of the proprietary rights. The plaintiffs had not placed complete facts before the Court. Hence, the appeal was allowed and the judgment & decree passed by the learned Trial Court were set aside.

Being aggrieved and dissatisfied with the judgment and decree passed by the learned First Appellate Court, the present appeal has been filed asserting that the learned First Appellate Court erred in allowing the appeal. The learned First Appellate Court made out a case for the defendants, which was never pleaded or proved. Mehar Chand had 1/8th share and the plaintiffs had 7/8th share. The tenancy could be created only regarding the share of Mehar Chand and not the share of the plaintiffs. The sale deed executed by Badhawa in favour of the plaintiffs was not disputed. There is no evidence regarding the induction of Hari Ram as a tenant by Mehar Chand. The entries in his favour were wrong and illegal. Hence, it was prayed that the present appeal be allowed and judgment and decree passed by the learned First Appellate Court be set aside.

The appeal was admitted on the following substantial questions of law framed on 7.12.2009:

The tenancy created by one co-owner over the joint land does not legally bind the other co-owners and such tenancy, if at all is sustainable qua the share of that co- owner only, the contrary conclusions as drawn by the learned lower appellate Court are not sustainable?

Whether a mutation of proprietary rights under Section 104(3) of the H.P. Tenancy and Land Reforms Act in favour of a tenant cannot be sanctioned when the owners are minors and as such legally disabled persons and such mutation if attested is not sustainable?

I have heard Mr. N.K.Thakur, learned Senior Advocate assisted by Mr. Karan Veer Singh, Advocate, for the appellants and Mr. Sanjeev Kuthiala, learned Senior Advocate, assisted by Ms. AmitaChandel, Advocate, for the respondents.

Mr. N.K.Thakur, learned Senior Advocate, for the appellants/plaintiffs submitted that the learned First Appellate Court erred in reversing the well-reasoned judgment passed by the learned Trial Court. It was duly proved that proprietary rights were conferred upon defendant no.1 in the absence of plaintiffs. Mehar Chand could not have inducted defendant no.1 as a tenant over the share of the plaintiffs. The revenue authorities erred in conferring the proprietary rights regarding the share of the plaintiffs upon defendant no.1. The learned First Appellate Court made out a case in favour of the defendants, which was neither pleaded nor proved. Hence, he prayed that the present appeal be allowed and judgment and decree passed by the learned First Appellate Court be set aside.

Mr. Sanjeev Kuthiala, learned Senior Advocate, for the respondents/defendants supported the judgment and decree passed by the learned First Appellate Court. He submitted that plaintiffs were allotted the land to the extent of their shares during the partition and this fact was admitted in the cross-examination. The plaintiffs cannot have any grievance regarding the conferment of proprietary rights when their share was not affected. The land was partitioned during the consolidation and every person was allotted land according to his share. Therefore, he prayed that the present appeal be dismissed.

I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.

Substantial question of law no.1

Defendant No.1 has specifically stated in para 1(b) of the written statement that he was inducted as a non-occupancy tenant by Mehar Chand over Khasra no. 76 and 79 measuring 4 Kanal 16 Marla.

Defendants No. 2 to 6, the successors of Mehar Chand also stated in para 1(b) of their written statement that Mehar Chand inducted defendant no.1 as a tenant in Khariff 1996 and thereafter he was paying rent ‘Batai’. Thus, the tenancy of defendant No.1 was not disputed by the successors of the original owner. Defendant no.1 stated in his proof affidavit (Ext.DW-1/A),that Mehar Chand was in possession of Khasra No.75,76,76/1 min, 79 and 86 and he had inducted defendant no.1 as a non-occupancy tenant over 4 Karal 16 Marla land bearing Khasra no. 76 & 79.

A perusal of a copy of the Jamabandi for 1967-68 (Ext.D-1), shows that Mehar Chand was recorded owner to the extent of 1 share and Saudagar was recorded owner to the extent of 7 shares in Khewat No.1, Khatauni No.1 and Khatauni nos.2 to 4. Saudagar was recorded in possession of the land comprised in Khewat no.1, Khatauni no.1 Kitta 8 measuring 23-10 Bigha. Mehar Chand was recorded to be in possession of Khewat No.1, Khatauni No. 4, Khasra Nos. 75, 76, 71/1, 79 & 86 Kitta 5, measuring 11-9 Bigha. This clearly shows that the plea taken by the defendants that Mehar Chand was in possession of Khsara Nos.75, 76, 71/1 min, 79 and 80 is duly corroborated by the entry in the copy of Jamabandi for the year 1967-68 (Ext.D-1). The plaintiff purchased 7/8th shares of Badhawa in Khewat No.1, Khatauni No. 1 to 3, 189/320 shares in Khewat No. 2, Khatauni Nos.5,6, 7, 8 & 9 and 7/8th shares in Khewatno.1, Khatauni no. 4. Thus, the plaintiffs had purchased the share of Badhawa and not the specific land.

Mehar Chand was recorded as co-owner in possession of the suit land and other Khasra numbers. He had inducted defendant no.1 as a tenant over the land in his possession. It was laid down by High Court of Hon'ble Punjab & Haryana in Ram Chander v. Bhim Singh, 2008 SCC OnLine P&H 754 = that a co-sharer in possession can transfer his share and transferee is entitled to remain in possession till the partition. It was observed:-

“19. Another attribute of joint property is that where a co-owner in possession of a specific portion of the joint holding and recorded as such in the revenue record, transfers any right, title or interest, from the portion in his specific possession, his vendee would be entitled to protect the portion so transferred, without, however, asserting exclusive ownership to the portion so transferred and possessed, till such time as the joint estate is not partitioned.

In order to place our above conclusion in perspective, we deem it appropriate to reproduce a paragraph from the judgment in Bhartu v. Ram Sarup'scase (supra) that succinctly explains our opinion, as under: -

"6. Take another example where 'A' and 'B' jointly' own a khewat in equal shares measuring 200 bighas. 'B' is in separate possession of 100 bighas of land comprised of specific khasra numbers and transfers it to 'C. This is not disputed that in spite of this sale, 'A' continues to be a co-sharer in the land transferred by 'B'. If that is so how can it be disputed that 'C would necessarily be a co-sharer in the remaining 100 bighas of land in possession of' A' as otherwise it would mean that 'A' is exclusively the owner of 100 bighas of land in his possession and also a co-sharer with 'C in the remaining 100 bighas which obviously is not possible. The matter can further be illustrated by another example. 'A' and 'B' are co-sharers in the joint khewat, say of 100 bighas of land in equal shares. 'B' who is in exclusive possession of land measuring 40 bighas of land comprised of khasra Nos. 1,2,3 and 4 transfers two khasra numbers, that is, 1 and 2, measuring 20 bighas to 'C specifically stating in the deed that he is in possession of these khasra numbers as a co-sharer and is transferring his interest as such. Can it be said on these facts that 'C has purchased anything except a co-sharer's interest in khasra Nos. 1 and 2 in spite of the fact that the sale is of specific numbers and of the specified area. The answer obviously would be in the negative and if so then the sale is obviously of a share by the co-sharer out of the joint land and nothing else."

Therefore, it was permissible for Mehar Chand to induct defendant no. 1 as a tenant on the land in his possession subject to the rights of the plaintiffs at the time of partition.

It is undisputed that land was partitioned during the consolidation. Plaintiff Karam Chand (PW-1), admitted in his cross-examination that his father had filed an application for partition during the consolidation and the Khata was separated during the consolidation. He further admitted that the land which fell to his share, during the consolidation was allotted to him and he is the owner in possession of the land allotted to him. He also admitted that he had no concern with the share of Mehar Chand.

These admissions clearly show that suit land and another land were partitioned during the consolidation and plaintiffs were allotted the share to which they were entitled. Learned First Appellate Court had rightly pointed out that plaintiffs cannot have any grievance when they had obtained their share in the partition. If they have any grievance regarding the land allotted to them during the partition, their remedy lies before the consolidation authorities and not before the Civil Court.

Thus the tenancy created by a co-owner over the joint land will not bind other co-sharers however, in the present case, the learned First Appellate Court had rightly held that plaintiffs were allotted the share to which they are entitled and they cannot claim any land owned by defendant no.1 by filing the present suit, Hence, the substantial question of law is answered accordingly.

Substantial question of law no.2:-

Defendant No.1 stated in his cross-examination that plaintiffs and legal heirs of Mehar Chand were present at the time of conferment of proprietary rights. Mehar Chand had died at the time of attestation of the mutation. Children of Mehar Chand were major on the date of conferment of the proprietary rights. However, it was duly proved by the statement of Joginder Pal (PW-2) and the certificate (Ex.PW2/A) produced by him that Prakash Chand, Narinder Kumar, Krishan Devi and Nirmala Devi were born on 19.06.1968, 07.08.1973, 02.04.1971 and 06.08.1976, respectively. All of them were minors on 16.11.1981, the date of attestation of mutation.

Section 100(4)(8) of H.P. Tenancy and Land Reforms Act, 1972, provides that the provisions of Section 100 (4) (1) to (6), do not apply to the tenancy of the land owner during the minority. Thus the ownership could not have been conferred upon defendant no.1, in view of this proviso during the minority of the legal heirs of Mehar Chand; however, the learned First Appellate Court had rightly pointed out that this plea was available to the legal heirs of Mehar Chand and not to the plaintiffs. When the legal heirs of Mehar Chand have not agitated the conferment of proprietary rights, no declaration can be granted at the instance of the plaintiffs, who is the third person. Therefore, the mutation of the proprietary rights cannot be sanctioned in favour of the tenant of minor land owner but no declaration regarding the invalidity of the mutation can be granted in the present case at the instance of the plaintiffs. Hence, the substantial question of law is accordingly answered.

Final order:-

In view of the above, the present appeal fails and the same is dismissed. The record of the case be remitted back to the learned Courts below. Pending miscellaneous applications, if any, also stand disposed of.