Labha and Another vs Sitar Mohammad and Another

R.S. Pathak, C.J.—This is a landowners'' appeal arising out of a proceeding u/s 11(1) of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act.

The tenants-Respondents applied u/s 11(1) of the aforesaid Act for grant of proprietary rights in a parcel of land. The application was opposed by Labha on the ground that he had already gifted the land to Wali Mohammad and had no interest left in the land. On this, the tenants impleaded Wali Mohammad as a further party to the application. Wali Mohammad resisted the application contending that he was a minor and had no other means ot livelihood, and that he was entitled to the benefit of Section 11(2) of the Act. The Compensation Officer found that Labha had gifted the land to Wali Mohammad in order to defeat the rights of the tenants, and that Wali Mohammad resided with his parents and had sufficient means of livelihood. He allowed the application of the tenants and granted them proprietary rights. At the same time a similar application by the tenants in respect of the land in Khasra No. 328 was rejected. Both the tenants and the landowners appealed. The learned District Judge, by his judgment and order dated March 17, 1970, dismissed the appeal filed by the landowners and allowed that filed by the tenants, and in the result granted the tenants proprietary rightst in the entire land. Against his order the landowners have filed the present appeal.

The learned District Judge proceeded on the view that the gift made by Labha in favour of Wali Mohammad was hit by the principle of lis pendens and therefore would have no effect on the rights of the tenants to acquire proprietary rights in the land as against Labha. He came to this conclusion in the belief that the application u/s 11(1) of the Act had been made on January 5, 1965 and that the gift by Labha in favour of Wali Mohammad was also made on the same date. When this appeal came on for hearing originally, it became necessary for this Court to determine whether the gift had preceded or followed the making of the application u/s 11(1) of the Act. Accordingly, on November 28, 1974 an order was made remitting an issue to the laerned District Judge for a finding as to what was the specific time of the day at which the gift deed dated January 5, 1965 was executed and the application u/s 11(1) of the Act was made. The learned District Judge has now returned a finding to the effect that while the gift deed was executed on January 5, 1965 and presented for registration on the same day at 11.45 A.M. the application u/s 11(1) was filed before the Compensation Officer on January 8, 1965. It is apparent from this finding that the gift deed was executed well before the application was made, and that therefore the doctrine of lis pendens on which the learned District Judge relied has no relevance. It is clear that on the date when the application was made by the teuants the land stood gifted already to Wali Mohammad, and therefore, no claim could be made by the tenants as against Labha. The claim could be considered only as against Wali Mohammad. For that it is necessary to determine whether Wali Mohammad is entitled to the benefit of Section 11(2) of the Act. It does not appear to have been disputed before the learned District Judge and the Compensation Officer that Wali Mohammad was a minor on the relevant date. Consequently, the only question to be decided is whether he had "no other means of livelihood" within the meaning of Section 11(2) of the Act. The learned District Judge, when considering this aspect of the case, has observed:

It is clear from the evidence produced by the landowners that Wali Mohammad could not be maintaining himself out of the income of the land in dispute. The minor is living with his mother, and it appears that they have other means of livelihood.

This finding, couched in the terms in which it is, cannot be made a proper basis for disposing of the case. For the purpose of the determination whether Wali Mohammad had "no other means of livelihood" beyond the land in dispute, it is necessary to determine what other property was possessed by him which could serve as a means of livelihood. The circumstance that he lived with his mother cannot be considered as providing for his livelihood. It is now settled law that the fact that a minor lives with a parent is not relevant for the purpose of deciding whether he has other means of livelihood. The "other means of livelihood" must be a source of income relevant to the minor directly, and therefore what needs to be determined is whether besides the income from the land in dispute the minor derives income from any other source which can be said to constitute his means of livelihood. As the learned District Judge has not applied his mind to this aspect of the case, the judgment and order made by him must be set asid and the case remanded so far as it concerns the appeal filed by Labha and Wali Mohammad. No challenge had been made to the order of the learned District Judge so far as it disposes of the appeal filed by Sitar Mohammad and Bashir Mohammad, and therefore that part of the judgment must be considered as final.

The appeal is allowed, the judgment and order dated March 17, 1970 of the learned District Judge is set aside so far as it disposes of the appeal filed by Labha and Wali Mohammad and the case is remanded to the learned District Judge for fresh consideration and decision in accordance with law. In the circumstances, there is no order as to costs. The parties will appear before the learned District Judge on March 14, 1977.