Massom Khan vs Chand alias Chandu etc.

D.B. Lal, J.—In these seven miscellaneous second appeals common questions of law and facts arise and as such these can be disposed of by a single judgment. The Appellant Masoom Khan is the landowner within the meaning of Section 11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 (hereinafter to be referred to as the Abolition Act) and an application was filed against him by tenants u/s 11(1) for acquisition of his right, title and interest in the land. Masoom Khan pleaded that there was defect in jurisdiction as the applications were transferred to the Compensation Officer by the Deputy Commissioner and not by the Financial Clmmissioner as laid down in Rule 11 made under the Abolition Act. Besides, it was contended that Masoom Khan should be given benefit of Sub-section (2) of Section 11 inasmuch as he suffered from physical disability and was incapable of earning his livelihood. Further he had no other means of livelihood. Masoom Khan also applied u/s 54 of the Abolition Act for reservation of 5 acres and since that application is yet undecided proprietorship could not be conferred upon the tenants u/s 11. In the end it was contended that Section 11 itself is ultra vires and that the compensation awarded was less and also that no compensation was awarded for houses and trees.

The learned Compensation Officer decided against Masoom Khan and conferred proprietary rights upon the tenants. Masoom Khan came in first appeal before the District Judge, but could not succeed. Now he has come up in these second appeals.

It is contended in the foremost by the learned Counsel representing the Appellant that the decision of the Compensation Officer was without jurisdiction. For this he avails of Rule 11 made under the Abolition Act. According to that Rule, it is the Financial Commissioner who can transfer a proceeding from one Compensation Officer to another. The learned District Judge who pronounced judgment in M.S.A. No. 76 of 1969 has delineated the circumstances under which the application u/s 11 was transferred to the Compensation Officer, Chamba. It is undisputed that the said Compensation Officer had the inherent jurisdiction and the application was otherwise maintainable before him. Formerly one Mehta was appointed Compensation Officer for the entire District of Chamba. He fell sick, and the Financial Commissioner made a general order that all applications u/s 11 pending before him should be transferred to the respective Compensation Officers who had jurisdiction. In pursuance to that order of the Financial Commissioner, these applications were transferred to the Compensation Officer, Chamba. No such plea was taken before the Compensation Officer that the order of transfer was invalid or that he had no jurisdiction to entertain the application. The Appellant obviously waived that plea, and when the decision was against him agitated it for the first time before the first appellate Court. It is contended on his behalf that the plea is far-reaching and the very decision by the Compensation Officer is nonest and should be set aside. I am unable to accept this contention. The learned Counsel relied on State of Uttar Pradesh v. Singhara Singh and Ors. AIR 1964 Supreme Court 358, Their Lordships laid stress on the principle that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. The inference drawn is that the order of transfer was required to be made in accordance with Rule 11 and hence if the said order of transfer was not made within the meaning of that Rule it could be deemed as if not made at all. Firstly, there was the order of the Financial Commissioner quoted in the judgment of the learned District Judge in M.S.A. No. 61 of 1969 and therefore in substance Rule 11 was complied with. If the order was of general nature and comprised all the pending applications u/s 11 it could not be struck down merely on that ground and held to be invalid or unenforceable under law. It was nonetheless a valid order. Secondly, the Compeneation Officer before whom the application was tried had the initial jurisdiction and the application was maintainable before him. The Appellant pursued the application before him. He did not set up a plea of jurisdiction. It is submitted that Section 21 of the Civil P. Code, or at any rate the principle involved therein, should be made applicable. The objection as to jurisdiction was not taken up before the Compensation Officer. At any rate there is no consequential failure of justice. The learned Counsel for the Respondents referred to Smt. Chowli Devi and Ors. v. Rukam Din and Ors. I.L.R.1973 (H.P.) 253, It was held in that case that in an appeal before High Court arising from an application u/s 11 of the Abolition Act in the absence of any procedure having been prescribed in the Abolition Act the provisions of the CPC should apply. Taking assistance from the ratio of that case it can be held that Section 21 of the CPC should apply to a second appeal filed in High Court. The plea regarding jurisdiction cannot be taken up at the belated stage even of first appeal before the District Judge. This is so because the Compensation Officer had the initial jurisdiction and the Appellant availed of that jurisdiction without any objection. It may be correct that as held in Daya Ram v. Smt. Reshmu AIR 1966 H P 36, the Compensation Officer may not be a Court but a persona-deignata. Nevertheless the principle behind Section 21 of the CPC can easily be availed of. The plea of jurisdiction is not sustainable.

In The Bahrein Petroleum Co. Ltd. Vs. P.J. Pappu and Another, their Lordships emphasised the principle of waiver in such proceedings. Where the Defendant, observed their Lordships, allows the trial Court to proceed to judgment without raising the objection as to the place of suing and takes the chance of a verdict in his favour, he waives the objection, and will not be subsequently permitted to raise it. It is even possible to say that long and continued participation by the Defendant in the proceedings without any protest may, in an appropriate case, amount to a waiver of the objection. Exactly the same has been done in the present case. Kusum Kumari v. Biseswar Lal Marwari and Ors. A.I.R.1935 Pat 439 is an exact case on this point. In that case the suit was irregularly transferred to a civil court which was initially competent to try the suit and the Defendant submitted to the jurisdiction of the court without taking objection in time, it was held that the jurisdiction could not be challenged by the Defendant afterwards. Reference need also be made to Ajam Ibram Modan Vs. Bai Hava Bibi, , and Prabhakar Vishnu Naik Vs. Union of India, In these cases also the Defendant submitted to the jurisdiction and no plea was raised at the earlier stage. It was held that the conduct amounted to a waiver of the objection and jurisdiction of the court could not be questioned.

The onus of proof lay upon the Appellant and it was for him to establish that he suffered from physical disability making him incapable of earning his livelihood and that he had no other means of livelihood so that benefit could be granted under Sub-section (2) of Section 11 of the Abolition Act. The two Courts below have carefully considered the evidence. A finding of fact has been given that the conditions required, were not satisfied in the case of the Appellant. It is true that the present second appeals are not u/s 100 of the Code of Civil Procedure; but nonetheless when questions of facts have been decided there must be found more compelling reasons to set aside the decision on fact. Merely because the Appellant considers that the finding of fact has been wrong will neither be here nor there. Certain definite allegations should have been made and proved, which according to the judgments of the two Courts below has not been done. I do not find any material on the record to hold that the Appellant suffers from such a physical disability which renders him incapable of earning his livelihood nor can I say that he has no other means of livelihood. Therefore, this plea also fails.

It is then stated that a certain application u/s 54 of the Abolition Act was moved for reservation of area. Section 11 is not subject to Section 54, and having its independent existence must be complied with. Moreover as the judgments of the learned District Judge indicate, the application u/s 54 is either incomplete or is not properly pursued by the Appellant. In my opinion, the decision was right that merely because the application u/s 54 was filed in 1955 and is lying since then undecided, the Respondents can not be denied the relief u/s 11.

A lukewarm argument was also raised on behalf of the Appellant that Section 11 is ultra vires. But the controversy has been set at rest by the Supreme Court in Jadab Singh and Others Vs. The Himachal Pradesh Administration and Another, Section 11 has been held to be intra vires and no ground can be sustained to hold it otherwise.

As regards compensation it was submitted that valuation was not made for houses and trees. No details were given as to whether the houses were constructed by the land owner or the trees were planted by him. Obviously the tenants were in possession, and if at all the houses must have been constructed by them. In view of Divisional Forest Officer, Himachal Pradesh and Another Vs. Shri Daut and Others, trees are included in the right, title and interest of the land-owner. As such the trees will have to go with the land and no compensation can be granted separately for the trees. It was also submitted that no specific issue was framed on compensation. But at the same time no prejudice was caused to the Appellant. He knew beyond doubt as to what pleas were raised on behalf of the Respondents and he availed of the opportunity of meeting such pleas. Therefore any lacuna in framing the issue has not resulted in prejudice caused to the Appellant.

In the end, I do not find any reason to take a different view than what has been taken by the two Courts below. All the appeals have no force and they are dismissed. However, no order is made as to costs.

This judgment is being given in M.S.A. No. 61 of 1967 and shall form part of the decisions in the connected M.S. As Nos. 62 and 63 of 1967; and Nos. 71, 72, 76 and 77 of 1969. A copy of this judgment shall be kept on the record of each appeal.