Smt. Hari Devi and Kumari Sita Devi vs Smt. Kaushalya Devi and Smt. Nirmala Devi

Kuldip Singh, Judge

The plaintiffs having lost in both the Courts below have assailed the judgment, decree dated 22.11.2001 passed by learned District Judge, Kangra at Dharamshala in Civil Appeal No. 26-N/2000 affirming judgment, decree dated 27.10.1999 passed by learned Sub Judge 1st Class (II), Nurpur in Civil Suit No. 502 of 1994.

The facts in brief are that appellants had filed a suit for declaration that mutation No. 1178 dated 14.3.1980 regarding vesting of proprietary rights in favor of Punnu father of the respondents under H.P. Tenancy and Land Reforms Act, 1972 (for short ''Act'') regarding land comprised in Khasra No. 178, measuring 10 Kanals 2 Marlas, Tika and Mauza Jachh, Tehsil Nurpur, District Kangra is wrong, illegal and ineffective qua the rights of the appellants as no procedure was followed, nor the appellants or their predecessor Amin Chand deceased was ever summoned. The mutation No. 1179 regarding inheritance of Punnu, father of the respondents and husband of Vidya Devi attested on 14.3.1980 is also null and void qua the rights of the appellants. The consequential relief for possession has also been prayed.

The further pleaded case of the appellants is that as per jamabandi for the year 1973-74 the suit land was recorded in the ownership of Amin Chand and in possession of Punnu. The mutation of change of ownership under the Act was attested on 14.3.1980 without calling the appellants or without holding any inquiry or following the procedure laid down for attestation of mutation. On the death of Punnu, the suit land was mutated in favor of the respondents. The entire process was done by manoeuring. The appellants are not bound by the said mutation. The appellant No. 1 being the widow of Amin Chand and appellant No. 2 daughter of Amin Chand are entitled to succeed to the interest of Amin Chand. The appellants are entitled to declaration and possession of the suit land.

The suit was contested by the respondents by filing written statement in which preliminary objections of jurisdiction of the Civil Court to try the suit has been taken. It has been pleaded that Punnu cultivated the suit land as tenant prior to the year 1955-56 and on coming into force of the Act, he acquired the ownership u/s 104 of the Act which cannot be challenged in civil court. The mutation conferring proprietary rights in favor of Punnu was correctly sanctioned. The respondents are daughters of Punnu and they have right to hold and possess the suit land after the death of Punnu. The other preliminary objections of estoppel, locus-standi were taken. On merits, it has been pleaded that appellants are not related to deceased Amin Chand. The decision of the Civil Court relied by the appellants has no effect upon the rights of the respondents. The mutation of conferring proprietary rights in favor of Punnu was rightly attested. The claim of the appellants was denied.

The appellants filed replication and reiterated their stand while denying the case set-up by the respondents. On the pleadings of the parties, the following issues were framed:-

Whether the mutation Nos. 1178 & 1179 in respect of the suit land are illegal, void and in-effective qua the rights of the plaintiffs, as alleged? OPP

Whether the plaintiffs are entitled for a decree of injunction, as alleged? OPP

Whether this Court has no jurisdiction to try the present suit? OPD

Whether the present suit is not maintainable? OPD

Whether the plaintiffs are estopped by their act and conduct from filing the present suit? OPD

Whether the plaintiffs have no locus standi to file the present suit? OPD

Whether the suit is not within time? OPD

Whether the suit is bad for non-joinder of necessary parties? OPD

Relief.

The issues No. 1, 2, 4, 6 and 8 were answered in negative and issues No. 3, 5 and 5 in affirmative and the suit was dismissed by the learned Sub Judge on 27.10.1999. The learned District Judge on 22.11.2001 has affirmed the judgment, decree of the trial Court, hence second appeal which has been admitted on the following substantial questions of law:-

Whether the findings of the learned trial Court as affirmed by the learned first appellate Court are against the settled position of law?

Whether the impugned judgment and decree of the trial Court as affirmed by the first Appellate Court are result of mis-appreciation of evidence on record and perverse?

I have heard the learned counsel for the parties and have also gone through the record. On behalf of the appellants it has been submitted that the two Courts below have misconstrued and misinterpreted the evidence on record. The impugned judgments, decrees are perverse. The judgment and decree passed by the trial Court and affirmed by the learned lower Appellate Court are against the settled position of law. The submission has been made for acceptance of appeal and setting-aside of the impugned judgment. The learned counsel for the respondents has submitted that the two Courts below after due appreciation of material on record have recorded concurrent finding of facts. It has been submitted that no substantial questions of law is involved in the appeal. The learned counsel for the respondents has supported the impugned judgment and decree and has prayed for dismissal of the appeal.

The substantial questions of law No. 1 and 2 are interconnected, therefore, both of them are taken up together for decision. PW-1 Hari Devi has stated that she is the wife of late Amin Chand, who died 10-12 years ago, her statement, was recorded on 10.6.1998. The respondents are the daughters of Punnu, who obtained proprietary rights of the suit land. She or her husband did not induct Punnu as tenant. She was not informed in the mutation proceedings conferring proprietary rights in favor of Punnu. In cross-examination, she has stated that her marriage took place about 40 years ago. The appellants tendered in evidence Ex.P-1 copy of jamabandi for the year 1973-74 and mutation No. 1178 Ex.P-2 and closed the evidence in affirmative.

DW-1 Nirmala Devi has stated that she is the daughter of Punnu Ram. The disputed land was earlier owned by Amin Chand. Punnu Ram was tenant on the land, who lateron became owner and died lateron. Punnu Ram was cultivating the suit land before the partition of the country. Punnu Ram had died about 20 years ago and Amin Chand had died about 10-11 years ago. The statement of DW-1 was recorded on 2.6.1999. The respondents are in possession of the suit land as owners. In cross-examination, she has denied that respondents have no connection with the suit land.

Ex.P-1 is the copy of jamabandi for the year 1973-74 of the suit land showing Amin Chand owner and in possession of Punnu as non-occupancy tenant. In remarks column, it has been shown that vide mutation No. 1178 Punnu has become owner of the suit land on 14.3.1980. The mutation No. 1179 is regarding the succession of Punnu attested on 14.3.1980 showing respondents and others heirs of Punnu. Ex.P-2 is the copy of mutation No. 1178 conferring proprietary rights of the suit land in favor of Punnu u/s 104 of the Act. The mutation has been attested by Assistant Collector, 2nd Grade. Ex.P-3 is the certified copy of judgment dated 28.4.1992 in Civil Suit No. 45 of 1989 titled Smt. Hari Devi vs. Smt. Kaushalaya Devi and another. Ex.P-4 is the copy of decree in Civil Suit No. 45 of 1989. Ex.D-6 is the copy of special jamabandi for the year 1954-55 showing Amin Chand owner and Punnu non-occupancy tenant on the suit land, Ex.D-7 is the copy of jamabandi for the year 1955-56 showing same entry as shown in Ex.D-6, Ex.D-5 is the copy of jamabandi for the year 1963-64 in which Amin Chand has been recorded as owner and Punnu non-occupancy tenant over the suit land. This entry has again been repeated in Ex.D-4 which is copy of jamabandi for the year 1968-69. It is thus clear that from 1954-55 to 1973-74 Punnu has been shown non-occupancy tenant under Amin Chand over the suit land.

The proprietary rights of the suit land were conferred in favor of Punnu vide mutation No. 1178 dated 14.3.1980. PW-1 Hari Devi has stated that she or her husband Amin chand did not induct Punnu as tenant. The statement of PW-1 was recorded on 10.6.1998 and on that date she has stated that her marriage took place about 40 years ago. It means the marriage of PW-1 and Amin Chand was solemnized somewhere in the year 1958. DW-1 Nirmala daughter of Punnu Ram has stated that her father had been cultivating the suit land prior to the partition of the country as tenant. The statement of DW-1 got corroboration from Ex.D-6, the copy of special jamabandi for the year 1954-55 in which Punnu Ram has been shown non-occupancy tenant under Amin Chand over the suit land. Thus, there is no force in the contention of appellant that Punnu Ram was never inducted as tenant by anybody over the suit land.

PW-1 Hari Devi has stated that Amin Chand had died 10-12 years ago prior to recording of her statement on 10.6.1998. It means Amin Chand died in the year 1986-88. In other words, on the date of conferment of proprietary rights in favor of Punnu on 14.3.1980 Amin Chand was alive. PW-1 in her statement has not stated that no notice of mutation proceedings under the Act was given to Amin Chand prior to attestation of mutation No. 1178. Amin Chand was alive on 14.3.1980, therefore, there was no question of issuing notice to any legal representatives of Amin Chand prior to attestation of mutation No. 1178 conferring proprietary rights on Punnu Ram.

The learned counsel for the appellants has submitted that mutation No. 1178 has been attested by Assistant Collector 2nd Grade whereas under the Act and the Rules mutation conferring proprietary rights is required to be attested by Assistant Collector 1st Grade. It has been submitted that on this ground alone the mutation conferring proprietary rights in favor of Punnu is wrong, illegal and it does not confer any title over the respondents regarding the suit land. Sub section (3) of Section 104 of the Act provides that all rights, title and interest of a landowner other than a landowner entitled to resume land under sub-section (1), shall be extinguished and all such rights, title and interest shall with effect from the date to be notified by the State Government in the Official Gazette vest in the tenant free from all encumbrances.

In Daulat Ram and others vs. State of Himachal Pradesh and others 1979 Sim.L.C. 215 it has been held that the conferment of proprietary rights under the Act is automatic from the date of the issue of the notification by the State Government in the official Gazette, and the vestment of ownership shall be free from all encumbrances. The attestation of mutation No. 1178 dated 14.3.1980 by Assistant Collector 2nd Grade instead of Assistant Collector 1st Grade does not improve the case of the appellants in any way in the facts and circumstances of the present case. Amin Chand during his life time did not challenge the conferment of proprietary rights on Punnu Ram father of respondents. On facts, it has been proved that Punnu Ram was tenant under Amin Chand over the suit land prior to coming into force of the Act. Punnu Ram became owner automatically under sub section (3) of Section 104 of the Act read with rules framed under the Act. Amin Chand did not question tenancy or ownership of Punnu Ram over the suit land during his life time, even the appellants filed the suit on 2.8.1994 more than 13 years after the attestation of mutation No. 1178 in favor of Punnu Ram.

The learned counsel for the appellants has submitted that combined reading of remarks column of Ex.P-1 jamabandi for the year 1973-74 regarding mutation No. 1178 and mutation No. 1179 reveals that even Punnu Ram had died on the date of conferment of proprietary rights. The conferment of proprietary rights in favor of dead person on 14.3.1980 is wrong and illegal. This contention also does not improve the case of the appellants inasmuch as conferment of proprietary rights under the Act is automatic as held in Daulat Ram (supra). It is not the case of the appellants that Punnu Ram was not alive on the date of commencement of the Act and the Rules framed under the Act. The two Courts below have rightly appreciated the material on record while dismissing the suit of the appellants. There is no perversity in the impugned judgment and decree. The substantial questions of law No. 1 and 2 are decided against the appellants.

In view of above discussion, appeal fails and is accordingly dismissed with no order as to costs.