Smt. Chowli Devi and Others vs Rukam Din and Others

D.B. Lal, J.—These are eleven connected miscellaneous second appeals brought from the judgment dated 5th September, 1968 of the District Judge, Sirmur, wherein, reversing the order dated 31st August, 19(58 of the Compensation Officer in an application u/s 11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 (hereinafter to be referred as the Abolition Act, 1953), he has allowed the appeals and has granted proprietary rights to the tenants in several khasra numbers all comprising in village Lohgarh, Tehsil Paonta.

The brief facts are, that Ghowli Devi and Dayawanti wives of Karan Singh and Phul Singh respectively, are landowners of several khasra numbers of which the Respondents claim to be the tenants in cultivatory possession. The two ladies are stated to have acquired these lands under gifts as a result to compromise before Panchayat, from their husbands, as their relations were not cordial with them. Since the tenant-Respondents are holding under the appellant-ladies who are their landowners, they applied for specific khasra numbers before the Compensation Officer for aquisition of right, title and interest of the landowners u/s 11(1) of the Abolition Act, 1953. The primary contention of the landowners has been, that they are persons suffering from physical or mental disability so that they are incapable of earning their livelihood. As such they claimed benefit under Sub-section (2) of Section 11 of the Abolition Act, 1953. Besides this main contention, they further asserted that in any case compensation for trees and for houses standing over the land should be awarded to them. It was also pleaded, that the entire area was not in Cultivatory possession of some of the tenants and as such they could not be conferred proprietary rights in respect of such area.

The tenant-Respondents pleaded before the Compensation Officer, that the gifts in favour of the landowners were void, and that no compensation could be awarded either for the trees or for the houses which were constructed by them for agriculture purposes. It was also denied that the landowners are suffering from physical or mental disability so that they are incapable of earning'' their livelihood.

The respective parties produced both documentary and oral evidence before the Compensation Officer. The landowners produced Ex. DF and Ex. DG which arc two medical certificates relating to Chowli Devi and Dayawanti respectively. The certificate Ex. DF is issued by Dr. R.L. Kalra, Assistant Surgeon, Primary Health Centre, Ambala. The other certificate Ex. DC was issued by Dr. Rameshwar Dass Gupta of Jagadhari. The learned Compensation Officer believed these two certificates and held that the two ladies were suffering from physical and mental disability and hence were incapable of earning their livelihood. Therefore, he extended the benefit of Section 11(2) of the Abolition Act, 1953 to the landowners who are appellants in this Court and dismissed the applications of the tenants for acquisition of proprietary rights. The learned Compensation Officer also gave a finding that the tenants were not in cultivatory possession over specific portions of land. This finding he gave, because he had issued a commission to one Nanda Singh, Kanungo, and according to his report, some parcels of land were not found to be in possession of respective tenants. The learned Compensation Officer also held that the landowners would be entitled to compensation for the trees and for the houses.

The tenant-Respondents came in first appeal before the District Judge, Sirmur. It was held by the learned District judge that the two medical certificates Ex. DF and Ex. DG were devoid of any probative value because the respective doctors were not produced in Court. He further held that according to these certificates, the ladies could not be stated to be suffering from physical or mental disability so that they could be held to be incapable of earning their livelihood. Besides that, according to the learned District Judge, no other evidence existed which could establish the physical or mental disability with which the landowners might be suffering. Therefore, no benefit could be extended to them u/s 11(2) of the Abolition Act, 1953.

The learned District Judge also held that no compensation could be awarded for the trees which would go with the lands. As to the houses, his finding is that the tenants themselves constructed these houses and hence no compensation, either, could be awarded for such houses. As to the possession of tenant-Respondents, his finding is that the report of Nanda Singh, Kanungo, being contrary to entries made in the jamabandi, to which a presumption of truth arose, could not be relied upon. He has further observed that there was no evidence otherwise to prove that the tenants were not in possession over these parcels of land. According to him, a tenant could as well leave a small parcel of land uncultivated for sometime, but that would not deprive him of tenancy in respect of such parcel of land. Therefore, the learned District judge held that the tenant-Respondents were in cultivatory possession over the entire area which was the subject-matter of these applications.

Accordingly the learned District Judge granted proprietary rights to the tenant-Respondents for the respective khasra numbers and specified the compensation amount which they have to pay for the right, title and interest of the landowners thus conferred upon them.

The landowners being dissatisfied with the decision, have come up in these second appeals.

The main contention of the appellants in this Court has been, that they were entitled to the benefit u/s 11(2) of the Abolition Act, 1953. In other words, they have contended that they suffer from physical and mental disability and hence are incapable of earning their livelihood. The question as to whether they suffer from physical or mental disability is a question of fact and the finding has been that they do not suffer from any such disability. Similarly there is a finding of fact that they are not incapable of earning their livelihood. A petition u/s 11 cannot be construed to be a suit filed before Civil Court within the meaning of para 32 of the Himachal Pradesh (Courts) Order, 1948. As such, the said paragraph would not be applicable so as to permit the appellants to agitate questions of fact for re-consideration in second appeal. It has been held in Amba Dutt and Ors. v. Hira 1970 DLT 36, that Section 104 of the Abolition Act, 1953 which provides for second appeal before the High Court, does not provide for a procedure to be followed while hearing the appeal. Similarly in the Abolition Act, 1953, there is no provision prescribing the procedure to be followed in respect of the appeals filed in the High Court. In the (absence of any such procedure having been prescribed by the Act, the provisions of the CPC should be made to apply to such appeals. Accepting this proposition to be correct, in my opinion, the provisions contained in the CPC would be applicable. A question of fact thus would not be taken into consideration in second appeal.

Besides this, even if I enable the learned Counsel to re-agitate these questions of facts, I do not find any compelling reason to take a different view than what has been taken by the learned District Judge. Whether or not any probative value can be given to the two medical certificates Ex. DP and Ex. 1)G without production of the doctors themselves who hold the, opinion, would no doubt be a question of law. u/s GO of the Indian Evidence Act which would be applicable, once it is held that the CPC applied and the Compensation Officer was a Court for the purpose of Section 11. The mere filing of the two medical certificates would not have served the purpose. The two certificates referred to the opinion maintained by the doctors and the said opinion must be proved by the evidence of the persons who hold that opinion on the ground specified in the certificate. Therefore, the two certificates, without oral evidence of the doctors, did not really prove the expert opinion as to the disease if any suffered by the appellants. Besides this, the two certificates do not even specify any such disease which could render the two ladies infirm bodily or mentally so that they could not earn their livelihood. The lady-appellants themselves did not appear to give statements. Therefore, I endorse the finding of the learned District Judge that upon the material on the record, it could not be stated to be proved that the two ladies suffered from physical or mental disability or that they were incapable of earning their livelihood. The necessary inference, is that the benefit u/s 11(2) of the Abolition Act, 1953 could not be extended to them.

Regarding cultivatory possession of the ten int-Respondents in respect of individual parcels of land, the plea could be sustained only for M.S. As. 9/69, 11/69, 12/69, 13/69, 17/69 and 18/69. For the remaining second appeals, no such plea could be sustained. The learned District Judge pointed out, and rightly so, that such a plea was advanced in these appeals without any basis. The very report of Nanda Singh, Kanungo, in these appeals indicated that the tenant-Respondents were in cultivatory possession over the entire area. Moreover, the jamabandi entries also proved their cultivatory possession. Therefore, there was no material on the record in these appeals, for a finding that the Respondents were not in cultivatory possession over any parcel of land comprising the khasra numbers in dispute.

In respect of the other six second appeals, numbered above, the entry in five is "Naqabil jungle" and this entry exists for specific areas in individual khasra numbers. In the sixth appeal M.S.A. No. 17/69, the entry is "Gair Mumkin Khala". In fact, these entries do not show that the tenant-Respondents are not in possession so that they could be held to have lost tenancy rights. It is not unusual that small areas are left out inside a held and no crops are raised by tenants for some reason or the other. This does not mean that the tenancy comes to an end in respect of such area left out uncultivated. Proper relinquishment of tenancy rights has to be established. Therefore, the learned District judge is right in concluding that the Respondents never ceased to be tenants of such areas. Apart from this, it would again be a. question of fact as to whether any tenant was or was not in possession of a particular area within a field. The finding on this question of fact cannot be agitated in second appeal.

There could be no dispute and it is very well settled by a decision of the Supreme Court that while awarding u/s 11(1), to a tenant the right, title and interest of the landowner in the land of the tenancy held by him, trees would go with the land and no compensation would be payable to the landlord on account of such trees. Accordingly the learned Counsel for the appellants did not contest in this Court that any compensation was payable for the trees.

The learned District Judge has also held that the houses were constructed by the tenant-Respondents and hence no compensation could be awarded to the appellants for these houses. That is again a finding of fact which cannot be questioned in second appeal. Apart from this, even if this question is considered on merit, I do not find sufficient material to hold that these houses were constructed by the landowners. The tenants have been occupying these houses. They are meant for keeping implements of husbandry and also for the residence of the tenants who actually cultivate the lands. As such, the presumption is that these houses were constructed by the tenants themselves. This presumption has not been rebutted by any evidence by the landowners.

There was also some controversy raised before the learned Compensation Officer as to the validity of the gifts made by the husbands in favour of their wives who are the present appellants. Presumably such a plea was taken by the tenant-Respondents to defeat the claim of the landowner-ladies. But they had given up this plea before the learned District Judge. Similarly no such plea has been taken in this Court. It could not, therefore, be disputed that the appellants are the landowners.

In view of what I have stated above, I do not find any substance in these second appeals and I uphold the decision of the learned District Judge. All the eleven appeals are, therefore, dismissed, with costs.

This decision is being given in M.S.A. 8/69 and shall be decision in the remaining ten connected second appeals. Copies of the judgment shall be kept on the records of the other connected appeals.