Paras Ram and Others vs Bhuru

Chet Ram Thakur, J.—This is an appeal by Paras Ram and others, landowners against the order, dated 8th January, 1969, passed by the District Judge, modifying the order of the Compensation Officer on an appeal filed by Bhuru tenant�applicant.

Bhuru made an application u/s 11 of the H.P. Abolition of Big Landed Estates and Land Reforms Act (hereinafter called the Act) for acquisition of proprietary rights in respect of the land covered by Khasra Nos. 70, 73, 77 and 85 measuring 24 bighas 5 biswas, situate in village Dhuk, Tehsil Ghumarwin of District Bilaspur. Paras Ram, Hari Krishan, Kalawati, Jaidcvi, Kamla and Satya, residents of that village, were the owners of this land. The landowners opposed the application on a number of grounds and the learned Compensation Officer found that the relationship of landlord and tenant existed between the parties. It was further held that Paras Ram, one of the landowners, who had sought the protection of Section 11(2) of the Act on account of his being an aged person was not entitled to invoke the aid of the same. It was, however, held that Smt. Kalawati and Jaidevi, the widows, who were wholly dependent upon this land were entitled to protection and their shares could not be acquired during their life-time. The Compensation Officer, therefore, made the following order allowing the application:

In view of the decision of issues Nos. 1, 2, 3, 4, 5, 7, 8 and 9 in favour of the applicant and issue No. 3(i) and 6 in favour of the Respondent, I accept this petition and grant proprietary rights of the land measuring 24-5 bighas comprising Khasra Nos. 70, 73, 77 and 85, Kita 4, situated in village Duhak, Tehsil Ghumarwin on payment of Rs. 359.46 as compensation of the land and Rs. 300 of the house in favour of Shri Bohru applicant after the death of Smt. Jai Devi and Smt. Kalawati. Tin''s amount of compensation shall be deposited within two months after their death into the Government Treasury. Till then, it is further directed that the Petitioner shall pay rent to the Respondents during the life-time of Smt. Jai Devi and Smt. Kalawati.

On appeal to the District Judge by Bhuru, against the order of the Compensation Officer that during the life-time of Jai Devi and Kalawati, the applicant will pay rent to the Respondents, it was held that the order was quite correct. However, the learned District Judge on the contention of the Respondents'' learned Counsel held that the finding of the Compensation Officer on issue No. 5 was wrong and that Shri Paras Ram, who was aged 80 or 90 years and had weak eye-sight and had no other means of livelihood was also entitled to protection under Sub-section (2) of Section 11 and, therefore, he modified the order of the Compensation Officer to this extent and decided the appeal accordingly. In other words he dismissed the application of the tenant qua the share of Paras Ram and confirmed the order of the Compensation Officer in other respects. It may be stated here that there were no cross-objections nor any appeal filed by Paras Ram, but the learned District Judge merely on the argument raised by the learned Counsel for the Respondents modified this appeal qua the share of Paras Ram.

Feeling aggrieved, Hari Kishan, Smt. Krishni, Smt. Kamla and Smt. Satya whose""right, title and interest in their share in the land-had''been granted to the tenant filed this miscellaneous second appeal in this Court. Paras Ram, Smt. Jaidevi and Smt. Kalawati whose shares in the land had been exempted from acquisition also joined as Appellants. The appeal came up for hearing before Beg, C.J., as he then was, and a question was raised before him as to whether a tenant who seeks to acquire the "right, title and interest of the landowner in the land of the tenancy held by him under the landowner" can be permitted to do so where there are some disabled persons among the landowners or landlords. The contention was that the tenancy could not be split up; if some of the landowners or landlords are disabled, no part of the land comprised in a single tenancy as defined by Section 2(19) of the Act can be acquired by a tenant. As this was a very important question of law, the learned Judge referred the whole case for decision by a Division Bench and it is how the case has come up for hearing before us.

The learned Counsel for the Appellant has raised two main points, namely (1) the entire body of owners constitutes one landlord. If any one of the landowners or landlords suffers from any disability as envisaged in Section 11(2) and such a person is held entitled to the benefit from acquisition then the entire tenancy is protected, and that there is no provision in the Act nor is there any other provision in any other law which empowers splitting up of the tenancy, and (2) that the findings on document Exhibit RA are contrary to Sections 8 and 110 of the Punjab Tenaney Act.

Now the first question is, whether the entire body of owners constitutes one landlord? Learned Counsel for the Appellant has drawn our attention to various provisions of the Act. Section 2(3) of the Act defines "estate", "landowner" and "holding" as having the meanings respectively assigned to these words in the Punjab Land Revenue Act, 1887, as in force in Himaehal Pradesli immediately before 26th January, 1950. Section 3(1) of the Punjab Land Revenue Act defines "estate" as under:

(1) ''estate'' means any area,--

(a) for which a separate rccord-of-rights has been

made; or

(b) which has been separately assessed to land revenue, or would have been so assessed if the land revenue had not been released, compounded for or redeemed; or

(c) which the (State) Government may, by general rule or special order, declare to be an estate;

Landowner has been defined as:

(2) ''landowner'' does not include a tenant or an assignee of land revenue but does include a person to whom a holding has been let in farm, under this Act, for the recovery of an arrear of land revenue or a sum recoverable as such an arrear, and every other person not hereinbefore in this clause mentioned who is in possession of an estate or any share or portion thereof, or in the enjoyment of any part of the profits of an estate;

Holding has been defined as:

(3) ''holding'' means a share or portion of an estate held by one landowner or jointly by two or more landowners;

A landlord has been defined in Section 2(6) of the Act as: ''landlord'' means a person under whom a tenant holds land, and to whom the tenant is or but for a contract to the contrary would be liable to pay rent for that land;

Tenancy has been defined as:

''tenancy'' means a parcel of land held by a tenant of a landlord under one lease or one set of conditions;.

Section 11(1) of the Act gives the right to a tenant to acquire the right, title and interest of the landowner in the land of the tenancy held by him under the landowner. Sub-section (2) of this section gives protection to a landlord against the acquisition of his right, title and interest by the tenant in case he or she is a minor, widow, person suffering from physical or mental disability incapable of earning his/her livelihood. In the case of a minor Sub-section (1) shall not apply during the minority and in other cases for his life-time. The submission made by the learned Counsel for the Appellant is that all the persons who are owners of land may be landowners but a landlord need not be a landowner. There can be no dispute with this submission that it is not necessary that a landlord should necessarily be a landowner. A landlord can be a person other than the landowner. He may be a mortgagee or he may be an assignee of land revenue, etc. The endeavour of the learned Counsel for the Appellant is to show that the landlord means the entire body of landowners or landlords, that is, if there are landlords more than one, then the entire body of landlords would constitute one landlord. That way his further contention is that the tenancy cannot be split up in the sense that a tenant cannot become the landowner in respect of the shares of some of the landowners and also continue or remain a tenant in respect of the shares of some other landlords because the entire body of landowners or landlords constitute one landlord. The tenant can either acquire the right, title and interest of the entire body or he cannot acquire the right, title and interest of any one of them. He has also referred us to Sections 13, 14, 48, 52 and 62. Sub-section (6) of Section 11 reads as:

(6) On and from the date of the grant of the certificate under Sub-section (5) the tenant shall become the owner of the land comprised in the tenancy and the right, title and interest of the landowner in the said land shall determine.

So, from this use of the word "tenancy" it would appear that it is the entire parcel of land held by a tenant of a landlord under one lease or one set of conditions, of which he would become the owner. Section 12(1) also refers to the land of the tenancy which means the entire parcel of land held by a tenant of a landlord under one lease or one set of conditions. Section 14 gives an option to the tenant to make an application to the Compensation Officer for surrender to the landowner of an area equal�(a) in the case of occupancy tenant, to one-fourth of the lands of the tenancy; and (b) in other cases, to three-eighth of the lands of the tenancy, where he holds a tenancy exceeding twelve acres in area. This would, therefore, go to show that the tenant has been given the right to surrender a part of the tenancy. Section 48 deals with leases. Section 51 places a prohibition or restriction on the tenant to relinquish a part only of his tenancy. Section 62 deals with the right of the tenant to make an application for recovery of possession or for compensation or for both within one year from the date of his wrongful dispossession from his tenancy or any part thereof. From these sections, what the learned Counsel wants us to hold is that it is the tenant who has been given the right to surrender a part of the tenancy but a land-ower has no right to eject the tenant from any part of the tenancy. The landowner has been given right only to eject him from the whole of his tenancy and not from any part thereof, whereas the tenant has been given the right to surrender a part of the tenancy and there is nothing in the Act whereby it may be spelt out that the tenancy can be split up. It is only Section 14, which authorises the Court to curtail the tenancy rights on the happening of certain conditions, that is, in the case of reservation. The learned Counsel has also placed reliance on Miss Section Sanyal v. Gian Chand AIR 1938 SC 438 wherein it was held that the contract of tenancy is a single and indivisible contract and in the absence of any statutory provision to that effect it is not open to the Court to divide it into two contracts one for residential purpose and the other for non-residential purpose and to grant relief to the landlord u/s 31(1) is limited to the portion of demised property which is being used for residential purposes. Reliance is also placed on Kanwar Behari v. Smt. Vindhya Devi AIR 1966 Pb. 481 wherein it was held that even reading the definition of the premises into Section 14(1)(e) would mean that the function of the Court is to decide whether or not a building or a part of a building let separately for use as residence is required bona fide by the landlord. Where the building let for residence is the entire premises it is not open to the Court to further sub-divide that premises and order eviction with respect to a part thereof. Similarly in Shri Madan Lal Kapur and Ors. v. Shri Nand Singh 1966 CriLJ 772 which was also a case u/s 13(3)(a)(iii) of the East Punjab Urban Rent Restriction Act, where a few rooms of the building were found unsafe for human habitation, it was held, that the tenant is liable for ejectment from the whole of the building. Thus, from these authorities what follows is that the Court will get power only from the Act to split up the tenancy, if the Act does not authorise the Court, then it has got no jurisdiction to split up the tenancy. Keeping in view the scheme of the Act it would be apparent that the landlord has not been given any right to split up the tenancy nor the Compensation Officer or the Court has been given the right to split up the tenancy. The tenant has, however, been given in certain circumstances a right to surrender a part of the tenancy, otherwise it means that a tenancy held under one ease and under one or more than one landowners constitutes one and indivisible tenancy. In the instant case, a part of the property has been granted in ownership to the Respondent and in respect of a part of it his application has been rejected which means that a fresh tenancy has been created and which is not the intention of the statute. A person cannot both be an owner and a tenant in respect of the same parcel of land, unless that land is partitioned. Malagar vs.Shiv Ram [1969 PLR 276], lays down that each co-owner is to the extent of his undivided share an owner in the entirety or in every inch of the undivided property. Both the titles that of the lessor or the lessee cannot exist in one and the same person. A co-owner, even if his share in the land is defined, cannot become a lessee in respect of the whole or part of the land. He cannot acquire the right, title and interest of the landowners.

In Tekan and Ors. v. Ganeshi 1962 PLR 572 which is an authority under the Punjab Security of Land Tenures Act, it was held that a lessee who holds land under another person namely, the owner of the land from whom he j has taken the lease and is liable to pay rent equal to the lease money for the land which he has taken on lease to that other person, is a tenant within Section 4(5) of the Punjab Tenancy Act and he cannot, therefore, be a landowner keeping in view the definition of that term in the Punjab Security of Land Tenures Act and in the Punjab Land Revenue Act, and he is not entitled to the benefit of Section 14A(i) of the Punjab Security of Land Tenures Act and to eject his tenant. So, this authority has been cited to show that a landowner cannot be a tenant. From this also it would be manifest that a tenant cannot acquire the right, title and interest of one of the landowners in the land of his tenancy which constitutes one parcel of land under one lease. Either he must be held entitled to acquire the land in its entirety or he cannot acquire the share of any one of the landowners in the land of his tenancy because if he acquires the right in the share of one of the landowners in the land of his tenancy that means that he would both be an owner as also a tenant in respect of the land and which position would be anomalous. An owner, unless the property is partitioned has got share in every inch of the joint land, therefore, the tenant cannot be conferred a right of ownership in respect of the share of a landowner in the land. He has been given the right to acquire the right, title and interest of the landlord, which constitutes the entire body of the landowners and the entire land including the share of all the landowners and landlords constitutes one tenancy. Therefore, he cannot be a landowner in respect of the same land as also a tenant of the land and if one of the landowners suffers from any disability and he is entitled to protection under Sub-section (2) of Section 11 of the Act then the entire body of the landowners constituting one landlord must be so protected till the time the disability ceases. In the instant case there are more than one persons who constitute the landlord. Unless the disability of the landowners ceases irrespective of the fact that the other landowners are not suffering from any disability, the tenant cannot be granted this right and the protection must be granted to the entire body of the co-sharers constituting the landlords.

According to Miran Baksh v. Mian Khan and Ors. (AIR 1945 Lah 249), where a tenant holds under more persons than one, any one or some of them are not landlords but all of them collectively, except where it is expressly so provided. Section 53(10) has expressly provided that for the purpose of Section 53 and that section alone any one may be deemed to be the landlord. Section 56 docs not contain a provision similar to the one contained in Section 53(10) and, therefore, the landlord in Section 56 means all the landlords collectively as a unit. Similarly in Pheru alias Tara Singh and Anr. v. Bua Ditta and Ors. 1962 PLR 825 it was held that wherever the word ''landlord'' occurs in the Punjab Tenancy Act, it means all the landlords jointly and not one of them unless it is indicated otherwise in the body of the Act.

On the contrary the learned Counsel in his endeavour to show that the tenancy is divisible and the shares of the landowners could be split up has relied on a number of authorities. Firstly, he has given the history which led to the legislation of the Act and then he has cited The The State of West Bengal Vs. Nripendra Nath Bagchi, to emphasis his point that while interpreting law, the Courts should keep in mind the observations which led to the legislation. According to this authority, to find out the meaning of a law recourse may legitimately be had to the prior state of law, the evil sought to be removed and the process by which the law was evolved. According to the learned Counsel for the Respondent there is no prohibition in the law about splitting up of the tenancy. According to him, Sub-section (2) of Section 11 envisages such a position. This Act was enforced on the 26th January, 1955. Prior to that there were several princely States of which Himachal Pradesh was constituted and there were a number of Tenancy Laws of different nature enforced in different integrated parts of the State. In order to bring them on a uniform basis and to give security to the tenants and to improve their position this Act was passed. By this legislation the distinction between occupancy and non-occupancy tenancy which existed under the Punjab Tenancy Act was also done away with and the right of succession which was previously limited was also rationalized and, therefore, the object of the Act is to improve the status of tenants. Hence it is to be interpreted not in derogation of the intention of the legislation. The learned Counsel has drawn our attention to Section 7 of the Act, which says that in the absence of a custom to the contrary no one of several joint owners of land shall acquire a right of occupancy under this chapter in land jointly owned by them. According to him, it was not the intention of the legislature that if the protection is to be given to the one co-sharer the others are also protected. He has also referred us to Section 122 of the Himachal Pradesh Land Revenue Act, 1954, which deals with the effect of partition of estates and tenancies of joint liability for revenue and rent. Under Sub-section (2) of Section 122 a partition of a tenancy shall not, without the express consent of the landlord, affect the joint liability of the co-sharers therein for the payment of the rent thereof. This section, in my opinion, is not of any assistance to the Respondent''s learned Counsel. It speaks about the partition of the tenancy and there is no question of the acquisition of proprietary rights in a portion of the tenancy. According to Kahnu v. Hirda Ram etc. 1969 DLT 183 where land is owned by two co-sharers one co-sharer cannot induct a tenant into his share as well as the share of the other co-sharer in the land so as to make the tenancy binding upon the other co-sharer except with the consent of the other co-sharer. The consent may be either express or implied. Acquiescence by the other co-sharer would not amount to implied consent, but the acquiescence has to be established like any other fact by clear, definite and cogent evidence or circumstances, omission to object on the part of the other co-sharer for a long time and with full knowledge of the occupation of the land including his share by the tenant may be a circumstance from which an inference of acquiescence might be drawn. This authority has got no bearing on the point about splitting up the tenancy as also about the fact that a person can both be an owner as also a tenant in respect of the parcel of a land. Similarly the authority Sukh Dev v. Parsi Plaintiff and Ors. AIR 1940 Lah 473 is not relevant for the present purposes in as much as it states about the possession of one co-sharer in an undivided holding, not exceeding his own share and that he cannot be disturbed in his possession until partition. The authority Barn and Ors. v. Biadar and Ors. AIR 1942 Lah 217 also has got no bearing as it is a case which deals with the question whether a suit by a dispossessed occupancy tenant to recover possession from his landlord of the land to which he claims the occupancy rights is initially within the jurisdiction of the Civil Court or not or is the Civil Court precluded from trying the question whether the occupancy right has been extinguished by abandonment by reason of proviso (1) to Section 77(3) of the Punjab Tenancy Act. Jahuri Sah and Others Vs. Dwarka Prasad Jhunjhunwala and Others, is an authority under the Bihar Buildings (Lease, Rent and Eviction) Control Act, in which it was held that the provisions of Section 11(2) of that Act apply only if there is a relationship of landlord and tenant and that the provisions do not apply where the house is in occupation of a co-owner, even if such co-owner is in possession of a portion larger than his share. The learned Counsel has also relied on Sarwan Singh v. Kaur Chand and Anr. 1970 RCJ (P&H) 891, which is an authority u/s 13 of the East Punjab Urban Rent Restriction Act, wherein, it was held that it is apparent from the definition of "landlord" given in Section 2(2) of the East Punjab Urban Rent Restriction Act, every person who derives title from the landlord is the landlord. Therefore, all the descendants of the original landlord will be landlords individually in their own right. One of the joint landlords can make application for eviction of the tenant u/s 13 of the Act. That is correct. But it docs not mean that the applicant can only apply for the eviction of the tenant from a part of the premises. Therefore, this authority has also got no relevancy. The authority Dhan Devi v. Krishan Kumar and Anr. 1971 Simla Law Journal 77 is also not applicable. There was a subletting of the tenancy by the landlady herself of the premises. A part of the premises was in the possession of the original tenant and a part of the premises was in possession of the sub-tenant and the sub-tenant was attorney to be a tenant by the owner landlady. So, this subletting of the tenancy will not be relevant in the present case. The case Chuhari v. Sirtu 1968 DLT 412 is also not relevant. The Union of India v. Dinesh Kumar 1968 DLT 419 is a case under the Act decided by a Full Bench of the Delhi High Court, Himachal Bench, at Simla. In this the scope of Section 27 was considered and it was also held that the reasons for enactment of a statute have to be kept in mind and the statute should be construed with reference to its intended scope and purpose. The Court should seek to carry out that purpose and not defeat it. If the language is not ambiguous, the statute must be accorded the expressed meaning without deviation. Even where the statute is ambiguous the Court should be cautious lest its opinion should substitute the legislative intent. So, it is only with regard to the scope of Section 27 and it is also not helpful for the present purposes. Jadab Singh and Others Vs. The Himachal Pradesh Administration and Another, has no bearing on the facts of the case. In this case it was the validity of Sections 11 and 27 of the Act, which was challenged on the ground that they contravened the provisions of Articles 19, 31 and 31A of the Constitution and it was held therein that the validity of the provisions for acquisition by the State of die lands of the landowners, for compensation determinable in accordance with the provisions of Schedule II is also not liable to be challenged under Article 31 read with Article 31-A and that this Act was within the class of statutes contemplated by Article 31A(a) of the Constitution and was protected from the attack that any of its provisions violates the fundamental rights enshrined in Articles 19 and 31 of the Constitution.

Therefore, having considered the authorities and the entire scheme of the Act it would appear that the tenancy is of a parcel of a land held under one lease or under on e set of conditions and that the entire body of landowners or landlords constitutes one landlord. If anyone of the co-sharers w ants to eject the tenant from any portion of the land then such a right has not been given because the tenancy is indivisible unless the co-sharers who constitute a single landlord partition the property amongst themselves; the tenancy cannot be sp lit up and the tenant cannot be ejected from any part of the tenancy. He can be ejected from the entire land of the tenancy for the reasons as set out u/s 54 of the Act. A co-sharer can also apply for ejectment of the tenant from the entire land of the tenancy but the tenant cannot be ejected from a portion of the land. The Compensation Officer has also not been given any powers under the Act to split up the tenancy. The tenancy however, can be partitioned by the tenants. But a tenant cannot both be an owner of the land as also a tenant. Unless the property is divided, every co-sharer has got a right in every inch of the land. Therefore, under these circumstances the tenant if he steps into the shoes of one co-sharer then he also is entitled to be the owner in every inch of the land till partition and it would be quite anomalous that the owner should be treated as a tenant of his own land. If a co-sharer is entitled to protection because of his disability then the other co-sharers are also protected because they constitute one landlord and the tenancy is one indivisible parcel of land. Therefore, in the light, of the above the first point must be decided in favour of the Appellant that the entire body of the landowners constitute one landlord and the tenancy is one and indivisible and the protection because of the disability of one of the co-sharers must be extended to the other co-sharers also till the time the disability ceases.

The other point is with regard to the document Ex. RA. This document, Ex. RA, purports to be a relinquishment deed and it has rightly been excluded from evidence by the learned Compensation Officer. It purports to extinguish rights in immovable property of the value of more than Rs. 100 and as such u/s 17 of the Indian Registration Act, it was compulsorily register able and in the absence of that it cannot be looked into. The contention of the learned Counsel for the Appellant is that this document violates Sections 8 and 110 of the Punjab Tenancy Act, inasmuch as it was the Punjab Tenancy Act which was applicable at the time when this document was executed. Section 8 of the Punjab Tenancy Act provides for establishment of rights of occupancy on grounds other than those expressly stated in the Act. This document Exhibit RA which is dated 23rd Kartika, 2010 BK purports to have been executed by Bhuru, Paras Ram and others for a joint cultivation of the land. But, it appears, that this document was not acted upon inasmuch as the subsequent revenue entries show Bhuru as the tenant in possession of the f land. This document was written 17 years ago and, as already stated, it being not registered is not admissible. Further this document is really contrary to the provisions of Sections 8 and 110 of the Punjab Tenancy Act as applied to the erstwhile Bilaspur State. The tenant had been there on for a very long time and he had also secured the right to acquire the occupancy rights in the land by his long cultivation of the land. The subsequent revenue entries also belie that Bhuru had ceased to be the tenant after the execution of this document, Exhibit RA. Hence this document Exhibit RA does not assist the landlord in any way. Therefore, this point goes against the Appellants-landlords.

In view of the fact that the landlords have succeeded in establishing that the protection as contemplated under Sub-section (2) of Section 11 of the Act available to the widows and to Paras Ram, was also available to Hari Kishan, Smt. Krishni, Smt. Kamla and Smt. Satya, the other co-sharers as they constituted one landlord and the tenancy being one and indivisible, therefore, the tenant could not acquire the right, title and interest of the aforementioned co-sharers in the land of the tenancy till the disability of the other co-sharers did not cease.

The appeal, therefore, succeeds and is allowed. The order of the learned District Judge is set aside. However, the parties in view of the circumstances of the case are left to bear their own costs.

R.S. Pathak, C.J.

I agree.