Ramesh Chand vs Jai Karan (Deceased) Through Lrs & Anr

Rakesh Kainthla, J

The present appeal is directed against the judgment and decree dated 1.9.2004, passed by learned District Judge, Kangra at Dharamshala (learned Appellate Court), vide which the judgment and decree dated 31.12.2003, passed by learned Civil Judge (Junior Division), Kangra, H.P., (learned Trial Court) were set aside. (The parties shall hereinafter be referred to in the same manner as they were awake before the learned trial Court for convenience).

Briefly stated, the facts giving rise to the present appeal are that the plaintiffs filed a civil suit before the learned Trial Court for seeking a declaration that they are owners-in-possession of the suit land mentioned in para-1 of the plaint and the review dated 14.3.2000 of the Mutation No. 349 already attested on 15.6.1997 based on LR-V, File No. 1255, decided on 23.3.1999 is the result of fraud, misrepresentation and collusion having no effect on their rights over the suit land. A consequential relief of permanent prohibitory injunction for restraining the defendants from dispossessing the plaintiffs or interfering with their possession over the suit land was also sought. It was asserted that the plaintiffs were non-occupancy tenants of the suit land. They became owners after the commencement of the H.P. Tenancy Land Reforms Act. A Mutation No.349 was attested on 15.6.1997 to this effect. The defendants obtained a decision in File No. 1255, decided on 23.3.1999, without informing the plaintiffs and got the mutation reviewed on 14.3.2000. Hari Ram, the predecessor-in-interest of the defendants, had neither filed any LR-V form nor was he entitled to resume the land because he already possessed more than 15 kanals of land in Khata No.22. The defendants started interference with the plaintiffs' possession over the suit land. Hence, the suit was filed to seek the relief mentioned above.

The suit was opposed by filing a written statement taking preliminary objections regarding lack of cause of action, locus standi, jurisdiction and maintainability, the suit having not been properly valued for Court fees and jurisdiction, the suit being barred by limitation, and the plaintiffs being estopped from filing the suit by their act, conduct and acquiescence. The contents of the plaint were admitted to the extent that the plaintiffs were entered as tenants of the suit land. It was admitted that Mutation No. 349 was attested on 15.6.199. It was asserted that this mutation was correctly reviewed on 14.3.2000 based on the decision on LR-V No.1255, Case No. 2124, decided on 23.3.1999, titled Hari Ram Vs. Gorkhu etc. The Mutation No. 349 was wrongly entered without considering the LR-V application filed by Hari Ram on 28 November 1975. The mutation could not have been attested during the pendency of the resumption application. Hari Ram, who possessed less land than prescribed, was entitled to resume the land. Plaintiffs have not filed any appeal against the order, and the present suit is not maintainable. Therefore, it was prayed that the suit be dismissed.

A replication denying the contents of the written statement and affirming those of the plaint was filed.

The following issues were framed by the learned Trial Court on 21.2.2003: -

Whether the plaintiffs are the owners in possession of the suit land? OPP.

Whether the impugned order dated 23.3.1999 is the result of fraud, misrepresentation, and collusion, as alleged? OPP

Whether the plaintiffs are entitled to the relief of an injunction, as prayed for? OPP.

Whether the plaintiffs have got no cause of action and locus standi to file the present suit? OPD.

Whether the Civil Court has got no jurisdiction to try the present suit? OPD.

Whether the suit is not maintainable? OPD.

Whether the suit is not properly valued for the purpose of Court fees and jurisdiction, if so, what is the correct valuation of the suit property? OPD.

Whether the suit is not within time? OPD.

Whether the plaintiffs are estopped by their act and conduct to file the present suit? OPD.

Relief.

The parties were called upon to produce the evidence, and plaintiff No.1 Jai Karan examined himself (PW1) and Niphal Ram (PW2). Defendant No.2 Surinder Kumar examined himself (DW1).

The learned Trial Court held that Hari Ram was the owner of the land and the plaintiffs were cultivating the suit land as his tenants. Hari Ram had filed an application for resumption of the land, and the Land Reforms Officer passed an order of resumption of the land on LR-V No.1255 in File No.2124, titled Hari Ram versus Gorkhu, to the extent of half share. The plea taken by the plaintiffs that they automatically became the owners on the commencement of the H.P. Tenancy and Land Reforms Act was not acceptable because the acquisition of the title by the tenant was subject to the resumption by the land owners. The plaintiffs had appeared along with their counsel before the Land Reforms Officer, and the plea taken by them that the order was passed without hearing them was not correct. Hence, the learned Trial Court answered Issue Nos. 4 to 6 and 9 in the affirmative, Issue Nos. 1 to 3, 7 and 8 in the negative and dismissed the plaintiffs' suit.

Being aggrieved by the judgment and decree passed by the learned Trial Court, the plaintiffs filed an appeal, which was decided by the learned District Judge, Kangra at Dharamshala (learned Appellate Court). Learned Appellate Court held that a mutation of proprietary rights was conferred in the plaintiffs' favour on 16.6.1997. Assistant Collector reviewed this order on 14.3.2000 based on an order passed on 23.3.1999, and the resumption was allowed to the landowner. No application for resumption was placed on record, and it is not known whether any application was pending before the Land Reforms Officer. The HP Land Reforms and Tenancy Act does not enable the Land Reforms Officer to review the order passed by him, and the mutation sanctioned in the plaintiffs' favour could not have been reviewed. The order passed by the Land Reforms Officer suffered from a violation of a fundamental principle of judicial procedure and the civil courts had jurisdiction to hear and entertain the suit. Learned Trial Court had erred in dismissing the suit. Hence, the learned Appellate Court allowed the appeal and decreed the suit.

Being aggrieved by the judgment and decree passed by the learned Appellate Court, the defendant Ramesh Chand filed the present appeal, which was admitted on the following substantial questions of law on 22.11.2004: -

Whether it was open to the Land Reforms Officer to have granted proprietary rights to the tenant during the pendency of the proceedings in application LR-V?

Whether the findings of the learned District Judge are dehors the evidence on record?

I have heard Mr Rahul Mahajan, learned counsel for the appellant. None appeared on behalf of the respondents despite service; hence none could be heard on their behalf.

Mr Rahul Mahajan, learned counsel for the appellant, submitted that the learned Appellate Court erred in reversing the well-reasoned judgment passed by the learned Trial Court. It was duly proved on record that an application for resumption was filed by Hari Ram, which was pending. A mutation of conferment of proprietary rights could not have been attested in favour of the tenants without allowing the land owner to resume the land. There is no infirmity in the order passed by the Land Reforms Officer allowing the resumption of the land. The Learned Appellate Court was swayed by the fact that the LR-V application was not brought on record in the present proceedings, which was not necessary because the official acts are presumed to have been done regularly, and the burden was upon the person who was asserting to the contrary to prove it. No such evidence was led. Therefore, he prayed that the present appeal be allowed and the judgment and decree passed by the learned Appellate Court be set aside.

I have given a considerable thought to the submissions made at the bar and have gone through the records carefully.

Substantial Question of Law No.1:

It is undisputed that Hari Ram, the predecessor-in-interest of defendants No. 1 to 3, was the owner of the suit land and the plaintiff was recorded as a tenant under him. The order (Ex. D1) passed by the Land Reforms Officer reads that Hari Ram had filed a resumption application on 18.11.1975, which was heard in the presence of Surinder. General Power of Attorney of legal representatives of Hari Ram and Mr. R.C. Chaudhary, learned counsel for the tenants. It was found from the record that Hari Ram possessed 0-24-43 hectares, and he was entitled to resume 0-36-33 hectares from the tenants. Hence, an order of resumption was passed in his favour and against the tenants.

Section 104 of the H.P. Tenancy and Land Reforms Act deals with the acquisition of proprietary rights by tenants other than occupancy tenants. It provides that where the land owner has not exercised the right of resumption of tenancy at any time since 26.1.1955, such a land owner shall be entitled to resume before the date to be notified by the State Government, either 1½ acre of irrigated land or 03 acres of un-irrigated land under tenancy from one or more tenants for his personal cultivation and in case the land owner holds less than 1½ acres of irrigated land or 03 acres of un-irrigated land in his personal cultivation he shall be entitled to resume tenancy land only to make-up the land under his personal cultivation to the extent of 1½ acres of irrigated land and 03 acres of un-irrigated land. The right, title and interest in the rest of the tenancy land of the land owner who is entitled to resume land under clause (i) and (ii) shall vest in the tenant free from all encumbrances with effect from the date to be notified by the State, in the official gazette. Section 104(3) provides that all rights of the land owner other than the land owner entitled to resume land under Sub Section 1 shall be extinguished from the date to be notified by the State Government.

It is apparent from the bare perusal of the Section that where a landlord is entitled to resume the land, the tenant will become the owner of the remaining land on the day to be notified by the State Government. It was laid down by a Division Bench of this Court in Smt. Sudarshna Devi Vs. Union of India and another 1978 Shim.Law Cases 330 that there is a distinction between the land owners who are entitled to resume the land from the tenant and the land owners who are not entitled to do so. While the right of the land owner who is not entitled to resume the land would stand extinguished immediately, an inquiry would be necessary in case of the land owner who is entitled to resume the land. It was observed: -

"57. Point No. 9 is with regard to the validity of Rules 24 to 27, which are all quoted above. It was contended that these rules are ultra vires the provisions of the Act because the mutation in favour of the tenants cannot be made before the notifications contemplated by section 104 (3) were issued. This contention requires a reference to the relevant provisions of section 104. It should be noticed from the scheme of section 104 that it makes a distinction between the landowners who are entitled to resume land from the tenants under subsection (1) and the landowners who are not so entitled in view of the fact that they are already holding irrigated land measuring more than one and a half acres or unirrigated land measuring more than three acres. So far as the first category of landlords is concerned, clause (iii) of sub-section (1) of this section provides that right, title and interest of the tenancy land which is more than the land resumed under sub-section (1) shall vest in the tenant free from all encumbrances "with eflect from the date to be notified by the State Government in the official Gazette". So, according to this clause (iii), the surplus land vests in the tenants only from the date which is notified by the State Government in the official Gazette.

Sub-section (3) of section 104 makes a similar provision, though in a different language, with regard to that category of landowners who are not entitled to any resumption under sub-section (1). For this category of landowners, sub-section (3) provides that their right, title and interest "shall be extinguished" and all such rights, title and interest shall vest in the tenant free from all encumbrances from the date to be notified by the State Government in the official Gazette.

The difference which is notable between the two provision is that while sub-section (3) or section 104 makes a specific reference to the extinguishment of the rights of a landowner and to the vestment of these rights in the tenant at a date which may be subsequent to the date of such, extinguishment, clause (iii) of sub-section (1) of section 104 makes no specific reference to "extinguishment".

We thus find that while, according to sub-section (3), the rights of a landowner covered by that sub-section are subject to immediate extinguishment, there is no such stipulation of immediate extinguishment of the rights of a landowner who is covered by sub-section (1). We shall advert to the petitioners' contention with regard to this interpretation at a subsequent stage. But at this stage, we note the above difference between the two provisions with a view to appreciating whether Rules 24 to 27 are, in any manner, contradictory to these provisions.

In our opinion, the legislature has contemplated this distinction between the provisions of sub-section (3) and clause (iii) of sub-section (1) for the apparent reason that in the case of the landowners who are entitled to resumption of tenancy, some enquiry is invariably necessary before ultimate mutations in favour of the tenants are recorded in the revenue register. It is apparent that in the case of the landowners who are entitled to resumption, questions as to from what tenant he would resume and to what extent are likely to arise. If the lands in the possession of the tenants are both irrigated and unirrigated, then a question would also arise as to in what proportion and from what tenant this resumption can be made. Therefore, unless all these enquiries are completed, it would be difficult to know how much land would vest in favour of a particular tenant, in case there is more than one tenant.

So far as the landlords who are not covered by sub-section (1) of section 104 are concerned, no such questions are likely to arise because these landowners are those who already possess at least the minimum of one and a half acres of irrigated land or three acres of unirrigated land. Therefore, for such landlords, sub-section (3) of section 104 provides for the immediate extinguishment of rights and vesting of rights in favour of the tenants at a subsequent stage when notification is issued by the Government." (emphasis supplied)

It was held by this Court in Mehar Chand Vs. Rakesh 2006 (3) SLJ H.P. 2125 that the conferment of the proprietary rights is mandatory over the remaining land and is not dependent upon the procedural law. It was observed: -

Coming to the short and simple but interesting question of law involved for consideration in this appeal, it is noticed that the learned lower Appeal Court by ignoring and overlooking the clear unambiguous and mandatory as well as binding nature of the statutory stipulation contained in sub-section (3) of Section 104 of 1972 Act and by merely relying upon an isolated provisions of law contained in Rule 24(1) of 1975 Rules held that unless the resumption applications of the land owners with respect of both the pieces of land were disposed of, the proprietary rights upon the non-occupancy tenants could not be deemed to have been conferred. Yes, sub-Rule (1) of Rule 24 does prescribe a procedure for the resumption of the parts of land by the land owners after they file applications under Rule 21 of 1975 Rules and the Land Reforms Officer passing an order about the extinguishment of the rights of the non-occupancy tenants with respect to the parts of the land which have been ordered to be resumed in favour of landlords and consequently with respect to the remaining land conferment of proprietary rights upon the tenants. But a reading of Rule 24(1) in the light of the mandatory and unambiguous stipulation contained in sub-section (3) of Section 104 of 1972 Act and the more explicit stipulation contained in Rule 27 of 1975 Rules clearly suggests unambiguous legislative intent that the rights, title and interest of the landlords entitled to resume land (with respect to land other than sought to be resumed) shall stand extinguished and the extinguishment of such rights, title and interest with respect to such land shall be with eflect from the date to be notified by the State Government. Sub-section (3) further stipulates, again unequivocally, categorically and clearly that from the said date the rights, title and interest with respect to the said land shall vest in the tenant free from all encumbrances. To give binding effect and to enforce and implement the aforesaid legislative intent contained sub-section (3) of Section 104 of 1972 Act, Rule 27 of 1975 Rules clearly suggests that rights, title and interests in the tenancy land of the land owners who have already under their personal cultivation three acres of unirrigated land or 1 14 of irrigated land shall vest in the non-occupancy tenants with effect from the date of the commencement of 1975 Rules. 1975 Rules came into force with effect from 3rd/4th October, 1975." (emphasis supplied)

It was held by a Division Bench of this Court in Kanta Devi vs Durga Singh 2014 (3) Shim. LC 1685 that the conferment of the proprietary rights is automatic unless the landowner is entitled to resume the land. It was observed:

"8. A bare perusal of the aforesaid provisions clearly shows that unless the tenant is entitled to resume the land on the appointed day, vestment of ownership rights in the tenant is automatic. Sub clause (iii) of Section 104 clearly lays down that the tenancy rights, title and interest in the tenanted land other than which can be resumed shall vest in the tenant free from all encumbrances from the appointed day. Subsection (3) also clearly lays down that all rights, title and interest of a landowner other than a landowner entitled to resume land under subsection (1) shall be extinguished and all such rights, title and interest shall, with effect from the appointed day, vest in the tenant free from all encumbrances. The landowner is only entitled to get compensation in terms of subsection (5) of Section 104 of the Act." (Emphasis supplied)

It was held in Neelam Sood vs Bhanuwati 2014 (2) Shim. LC 638 = Latest HLJ 2014(1) (HP) 524 that the conferment of proprietary rights is subject to the right of resumption. It was observed:

Though vesting of proprietary rights on tenants is automatic under Section 104(3) of the Act of 1972. But such automatic conferment on coming into operation of the Act was subject to the provisions of Rule 27 of the Rules, and after settlement of the claim of the land-owner and tenant, mutation was required to be attested by the revenue officer by virtue of Rule 28 of the Rules. Scheme of Section 104 of the Act of 1972 reveals that a land owner was entitled to resume land from a tenant not more than half of the tenancy land. The first option was to be exercised by the tenant, which portion of the land he wanted to retain and which to surrender to the landowner if he applied for resumption.

Similarly, it was held in Bahadur Singh vs Vinod Kumar 2016 ILR (H.P.) 1854 = 2016(4) Him. L.R. 2022 that the conferment of proprietary rights is not automatic in the case of landowners entitled to resume the land. It was observed:

"37. Reading of the aforesaid provisions suggests that immediately after commencement of this Act, all rights, title and interest of the original owner would be extinguished and all rights, title and interest would vest in the tenant free from all encumbrances. But careful reading of the same suggests that distinction has been carved out in the aforesaid Section 104(3), which specifically states that "other than the land owner entitled to resume land", meaning thereby that conferment of proprietary rights would not be automatic in the case of land owners, who are entitled to resume land under sub-section (1). Section 104(8) specifically provides that nothing contained in sub-section (1) to (6) would apply to the tenancy of land owners during the period mentioned for each category of such land owners in sub-section (9), who is a minor, unmarried woman or after marriage divorced or separated from husband or widow, person permanently incapable of cultivating land, person serving member of the Armed Forces and father of person who is serving in the Armed Forces up to the extent of inheritable share in the said property. Section 104(9) further provides that in case land owners mentioned in clause (a) to (d) of sub-section (8), the provisions of sub section (1) to (6) shall not apply in the case of minor during his minority and in case of other persons mentioned in clauses (a) and (b) of sub section 8 during their life time.

Conjoint reading of the aforesaid provisions makes one thing clear that conferment of proprietary rights would not be automatically conferred upon the tenant in the case of land owners, who are entitled to resume land under sub-section (1) of Section 104. Plain reading of the aforesaid section suggests that in case there is a minor, unmarried woman, divorcee woman or widow, conferment of proprietary rights would not be conferred automatically, and these people will have the right to resume land to the extent prescribed under the provisions."

In the present case, the order (Ex. D1) reads that Hari Ram had filed an application for resumption on 18.11.1975. This application was taken up for consideration on 23.3. 1999, in the presence of Surinder Nath, legal representatives of Hari Ram and Mr R.C. Chaudhary, learned counsel for the tenants. Hari Ram was the owner of the land measuring 02-24-43 hectares and was entitled to resume the land to the extent of 0-36-33 hectares. Therefore, an order of resumption was passed in his favour, and the tenants were declared to be the owners of the remaining land.

A perusal of this order reveals that the landowner Hari Ram was in possession of less than the prescribed land, and he was entitled to resume the land. Hence, the tenant could not have become the owner of the whole of the land, but was entitled to become the owner of the remaining land. Therefore, the Land Reforms Officer had rightly ordered the resumption of the land and conferment of proprietary rights upon the tenants to the extent of the remaining land.

Learned Trial Court had rightly noticed that the order of resumption was passed in the presence of the learned counsel for the tenants. The learned Appellate Court was swayed by the fact that the Form LR-V was not produced on record. That was not required because it was rightly submitted on behalf of the respondents that an official act is presumed to be done regularly, and once it was mentioned that the LR-V application was pending, it had to be presumed, unless the contrary is proved, that such an application was in fact pending. Therefore, the burden was upon the plaintiffs to requisition the record and demonstrate that no such application was pending, and the order was passed without jurisdiction.

Therefore, an order of conferment of proprietary rights can be passed regarding the remaining land and not the whole land when a resumption application is pending. Hence, this substantial question of law is answered accordingly.

Substantial Question of Law No.2:

Learned District Judge had based his order on the absence of the LR-V Form, which was not material. The Learned District Judge had also held that the Land Reforms Officer was not competent to review the order when no such power was conferred upon him. In the present case, no order of review was passed. The Land Reforms Officer had passed an order of the resumption of the land in the landowners' favour and conferment of proprietary rights of the remaining land in the tenants' favour in accordance with the provisions of the H.P. Tenancy and Land Reforms Act. Therefore, the learned District Judge had recorded the findings contrary to the evidence and the law, and this substantial question of law is answered accordingly.

Final Order:

In view of the above, the present appeal is allowed; judgment and decree passed by the learned Appellate Court are ordered to be set aside, while those of the learned trial Court are ordered to be restored.

Pending application(s), if any, also stand(s) disposed of.

Records of the learned Courts below be sent down forthwith.