Giaru vs Ramesh Chand

D.B. Lal, J.—This second appeal is directed against the decision of the Additional District Judge, Bilaspur, reversing on appeal a decision of the Compensation Officer, Bilaspur, whereby he had granted the application of one Giaru conferring upon him proprietary rights in land measuring 41 bighas and 10 biswas situate in village Tayaman, Tehsil Sadar of that district. The Petitioner''s father Sihanoo filed a petition u/s 11 of the Himachal Praddsh Abolition of Big Landed Estates and Land Reforms Act, 1953 (hereinafter to be referred as the Abolition Act, 1953), against Ramesh Chand minor, his landowner, for the disputed land and claimed for proprietary rights in respect of such land after ascertainment and payment of compensation as prescribed under law. During the pendency of the application, Sihanoo died and in his place the present Appellant Giaru was substituted. The defence on behalf of Ramesh Chand was that Giaru was not his tenant, that the disputed land was banjar and could not be considered "land" as defined in the Abolition Act, 1953, and that at any rate the minor Ramesh Chand had no other means of livelihood and as such he could not be deprived of the disputed land. The parties went to trial on all the three grounds and the learned Compensation Officer held that Giaru was a tenant and that the disputed land was not banjar and hence was covered under the definition of "land" as provided in the Abolition Act, 1953. The learned Compensation Officer further held that the minor was supported by his grandfather and also by his parents and as such he is possessed of other means of livelihood which were sufficient. With these findings the decision was, that Giaru was entitled to claim proprietorship for the land and his application was allowed.

An appeal was filed before the Additional District Judge, Bilaspur against the decision of the learned Compensation Officer. The learned Counsel did not combat the findings of the learned Compensation Officer to the extent these findings related to Giaru being a tenant and the land being covered under the Abolition Act, 1953 for conferment of proprietary rights. However, there was a serious context on the third ground, namely, the minor landowner having possessed other means of livelihood. Upon consideration of evidence adduced by the parties, the learned Additional District Judge who decided the case held, that despite the support received by the minor from his mother, father and grandfather, he was not possessed of other means of livelihood which could be considered sufficient and the disputed land also did not accrue any income for him as Giaru was not paying rent for the last several years. Upon these findings, the appeal was allowed and the application u/s 11 of the Abolition Act, 1953 was dismissed.

Giaru has come up in this second appeal. The learned Counsel for the Appellant has confined his argument on the ground as to whether Ramesh Chand landowner could be stated to possess other means of livelihood so that Giaru is not disentitled to obtain proprietary rights in this land. I am thus concerned with Sub-section (2) of Section 11 of the Abolition Act, 1953 which need be reproduced for sake of convenience:

11(2) Nothing Contained in Sub-section (1) shall apply to a landlord, if he has no other means of livelihood and is a minor, widow or a person suffering from physical or mental disability incapable of earning his livelihood. In the case of a minor, Sub-section (1) shall not apply during his minority and in other cases for his life time.

The fact which weighed the scale in this case was the specific finding given by the learned first Appellate judge that despite the financial assistance received by Ramesh Chand from his parents and grandfather, he was still not possessed of sufficient means of livelihood and as such he was entitled to get the benefit of Sub-section (2).aforesaid and no proprietary rights could be conferred upon the Appellant. The learned Judge has relied upon two decisions of this Court wherein it has been held that "other means of livelihood" would mean sufficient means for any person to live according to the circumstances he is placed. One does not exist but also lives and for such living, some income, howsoever meagre, is needed more than what is required for keeping the body and soul together. The learned Appellate Judge has held as a question of fact, that the income of the father is not sufficient to sustain the family and that the grandfather was not even bound under law to maintain the minor Ramesh Chand. The mother is, of course, not possessed of any property of her own. It could be stated on behalf of the Appellant that under Para 32 of the Himachal Pradesh (Courts) Order, 1948, question regarding fact can be gone into in second appeal. Be as it may, I have considered all the evidence adduced in this case and I do not find any compelling reason to take a different view than what has been taken by the learned first Appellate Judge. Nearly every witness produced by the Respondent stated that the minor was not possessed of any other means of livelihood except the disputed land. The learned Appellate Judge rightly believed these witnesses. What weighed with the learned trial Judge was the fact that the grandfather was giving some financial support to the Respondent. It is abundantly clear that the grandfather, so long the father was alive, was not legally bound to maintain the minor-Respondent. Therefore, whatever help is received by the minor from the grandfather can be discontinued at any stage. The father is not possessed of sufficient means because he has to support the wife and perhaps other children in the family. I am, therefore, loath to disturb the finding of the learned Appellate Judge that the minor is not possessed of other means of livelihood so as to deprive him of the benefit of Sub-section (2) of Section 11.

It is contended by the learned Counsel for the Appellant that there is no finding, as to whether the minor is incapable of earning his livelihood. Sub-section (2) of Section 11, as it exists, cannot be interpreted so as to mean that a minor in order to get the benefit of that sub-section, besides proving that he has no other means of livelihood, must also prove that he is incapable of earning his livelihood. In fact that expression refers to a person suffering from physical or mental disability of which the natural consequence is that he is incapable of earning his livelihood. A minor and a widow by virtue of their status as such, have only to prove that they have no other means of livelihood. That is a plain reading of Sub-section (2) of Section 11. Therefore, a finding was not required to be given by either Court that the minor was also capable or incapable of earning his livelihood.

The learned Counsel further referred to the observation made by the trial Judge that the counsel of the minor landowner even gave up the plea that he did not possess another means of livelihood and rather admitted that he did possess such means of livelihood so that he could be deprived of the benefit of Sub-section (2) of Section 11. As observed by the learned Appellate Judge, this observation of the learned trial Judge was without any force because he had already discussed the entire evidence on merit and thereafter arrived at the conclusion that the minor was not possessed of other means of livelihood. The learned first Appellate Judge has also considered the same evidence and he has arrived at a different conclusion. Therefore, the question does not in fact arise in the present case as to whether the specific ground was given up by the learned Counsel. It was held on merit that the minor was not possessed of any other means of livelihood, except the present land and on that ground he is entitled to the benefit of Sub-section (2) of Section 11.

It is then submitted that the issues should have been properly framed and that the finding was arrived at without evidence. There is no merit in these contentions either.

I have, therefore, no reason to take a different view and would agree with the approach and final conclusion of the learned first Appellate Judge. The appeal has no force and is dismissed with costs to the Respondent.