Parkash Singh vs Naseeb Singh

We have heard Mr. S.D. Sharma. learned counsel for the applicant, as well as Mr. S.C. Mansotra, learned advocate for the respondent1.

This Letters Patent Appeal is directed against the order dated 10.11.2000 propounded by the learned Single Judge. By the aforesaid order, the

learned Single Judge allowed the Civil Rule and held as under:

I am of the opinion that the view expressed by the Special Tribunal is not in accordance with the spirit of the Agrarian Reforms Act, Benefit has

been given to a person who is serving in the Army and if on his share somebody is in cultivation, then the cultivation is to be treated as his personal

cultivation. This is the plain meaning of the section 2 (12) (g) and this has to be given effected to.

In this view of the matter the petitioner would be deemed to be in possession and is entitled to the same share as is being enjoyed by his brother.

Agrarian Reforms Act is not to be interpreted in a manner, which has to cause prejudice in any manner, to a person and favour to other person.

Aggrieved by the aforesaid order of the learned Single Judge, the appellant/respondent impugned its correctness in this appeal, It was

contended by the appellant/respondent that a tiller, cultivating the land personally on 1st September, 1971 and onwards, is only entitled for the con

ferment of rights under Section 4 and 78 of the Agrarian Reforms Act, 1976 (here in after referred to as Act). That Sher Singh father, and uncle

Kehar Singh were never remained tiller of land in question on the crucial date of Kharif 1971 and onwards. It was only the appellant/respondent,

who happened to be cultivating the land independently and in his own right as tenant continuously prior to, during Kharif 1971 and onwards. This is

also evidenced from the Revenue Record. His further submission is that he has been confirmed the right under Section 4 of the Act vide Mutation

No. 209 as prospective owner.

The respondent/writ petitioner, on the other hand, in controverting the contention of the appellant, submitted that the cultivation by one brother

or a member of the family is taken as personal cultivation of all, irrespective of the fact whether one is minor, incapacitated or in the Army and laid

emphasis on the provisions of Section 2(12) (b) (c) (e)and (g) read with Section 5 of the Act, That their predecessorsininterest, namely Sher Singh

and Kehar Singh, were tenants of one Math and others, the owners. The appellant/respondent has no separate contract of tenancy with Nath and

others. The petitioner and the respondent cannot have separate and exclusive tenancy till the life time of the father and the uncle, who died on

05.01.1972 and 05.01.1974 respectively. It is further contended by the respondent/writ petitioner that the cultivation of land by the

appellant/respondent even in Kharif 1971 was for and on behalf of all the members, notwithstanding that the father was incapacitated because of

old age to cultivate, and the respondent/writ petitioner was in Army in the year 1971 as contemplated under Section 2 (12) (b) (c) (e) and (g). To

support his contention. Mr. Mansotra relied upon the decision dated 15.12.1999 of a coordinate Division Bench of this Court in Anchal Dass vs.

State of J&K and others, in LPA (W) No. 279/96. The above referred judgement is not applicable to the facts of this case being clearly

distinguishable.

Tracing the history of the case from record, it appears that the disputed land was owned by Nath and others as per record. The

appellant/respondent was tiller of the land prior to and during Kharif 1971 arid had been paying rent to the owners till date to the extent of 1/4th

share of the produce. There, however, did not subsist any contract of tenancy between Sher Singh, Kehar Singh and owners of the land. The

question of possession at a relevant point of time during Kharif 1971 is a question of fact. This fact has been verified at site by three Tehsildars on

three Mutations on different dates that the appellant/respondent is the tiller of the land. The landlords had also affirmed during enquiry before the

Tehsildar, in presence of the villagers and the parties, that Parkash Singh, appellant/respondent, alone was paying rent of the disputed land during

Kharif 1971 and thereafter. The appellant/respondent was, thus, declared as prospective owner vide Mutation No. 209. There is a consistent

finding of fact by the Revenue Courts at different level that the appellant/respondent has acquired the status of prospective owner in the disputed

land independently and in his own right. The argument put across by the respondent/writ petitioner that he was entitled to the share of land, being

brother of Parkash Singh, is not well founded. The position emerging from record and consistent finding of fact of the Revenue Courts at different

stages stating that appellant/respondent was cultivating the land, belonging to Nath and others, as tenant and therefore, he alone was entitled to

right under Section 4 and 8 of the Agrarian Reforms Act, the provisions of Section 2 subsection (12) (b) (c) (e) and (g), are not attracted. Further

plea of in heritance taken by the respondent/writ petitioner is also misplaced as the appellant/respondent has acquired the property in his own right.

Such a plea is available only in case of proprietary land of a family. If it is only the joint family property, it has to devolved by inheritance. This is,

admittedly, not the position in this case. As per record, the father of the respondent/writ petitioner was never cultivating the land in Kharif 1971.

The respondent/writ petitioner has no claim over the disputed land consequently, the provisions of Section 2(12) (e) read with Section 41 are not

applicable. It is not the question of inheritance on the basis of which Mutation No. 209 was at tested in favour of the appellant/respondent

declaring him to be the prospective owner on 26.11.1993, but it was because of the appellant/respondent cultivating the land as tiller independently

in his own right as tenant prior to, during Kharif and after wards. Thus, the question of inheritance or succession of the late Sher Singh could not

arise in the matter.

In the facts and circumstances of the case, we are clearly of the view that the learned Single Judge has misconstrued the provisions of the Act in

interpreting by construing the provisions of the statute and that would be to start with literal interpretation. The ""literal meaning"" is the ordinary, plain

meaning we give to the words. A logical corollary of the rule of literal interpretation is that a statute may not be extended to meet a case for which

the provision has clearly and undoubtedly not been made; and the application of the rule necessarily involves that addition to or modification of

words used in statutory provisions is not generally permissible. To ascertain the meaning of the clause, we must look at the whole charter, at what

precedes and what succeeds and not merely at the clause itself. It. therefore, follows that a tiller, as defined in explicit terms in Section 2 (17) of the

Act. cultivating the land personally on 1st of September, 1971 and onwards is only entitled for conferment of right under Sections 4 and 8 of the

Act. Such cultivation by the appellant/respondent was in his own right and not that he had inherited this land in any capacity from his father.

In result, we allow the appeal, set aside and quash the order dated 10.11.2000 formulated by the learned Single Judge. As a consequence, the

writ petition shall also stand dismissed.