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Judgment
Sureshwar Thakur, J
The plaintiffs' suit for rendition, of, a declaratory decree, and, also for rendition, of, a decree, of, permanent prohibitory injunction, vis-à-vis, the, suit khasra Nos., and, against the defendants, stood decreed, (a) inasmuch as the reviewing order made, on 14.12.1999 upon mutation No. 239, wherethrough, hence the lease, as stood, initially granted, by the Sub Division Collector, Kandaghat, vis-à-vis, the predecessor-in-interest of the plaintiffs, one Ratti Ram, rather stood quashed, and, set aside, (b) however, the relief, of, permanent prohibitory injunction, was denied to the plaintiffs. In an appeal carried therefrom, by the aggrieved defendants, before the learned first appellate Court, the latter allowed, the, appeal, and, it set aside, the, verdict rendered, upon, civil suit No. 22-K/1 of 2002, hence by the learned trial Judge. The plaintiffs are aggrieved therefrom, and through casting, the, instant regular second appeal, before this Court, they strive to beget reversal, of, the verdict rendered, by the learned first appellate Court, upon, Civil Appeal No. 4-S/13 of 2007.
The facts of the case are that lease of land measuring 10 bighas denoted by khasra No. 205/1 which earlier was in the name of Gram Panchayat was granted by the Gram Panchayat in favour of Ratti Ram in the year 1997. On coming into force, Himachal Pradesh Village Common Lands (vesting and Utilization Act, 1974), the land came to be vested in the State of H.P. However, the Collector, in exercise of powers under Section 4 of this Act, regularized the lease of said Ratti Ram, vide its order, of, 28.6.1976, which initially was for five years and thereafter the lease was further extended from time to time. The last extension placed on record is in the year 1984. Ratti Ram died in the year 1999 leaving behind his only daughter Smt. Leela mother of plaintiffs. Upon his death the suit land was mutated in favour of the plaintiffs, on 21.4.1999 vide mutation No. 239. However, this mutation came to be cancelled subsequently as it was found that the land had been leased to said Ratia and the proceedings under Section 163 of the H.P. Land Revenue Act were initiated for resuming the possession of the land so leased. Feeling aggrieved of the cancellation order of the mutation a suit was filed by the respondents/plaintiffs in the trial Court claiming that the lease was valid upto 1999 and on the basis of inheritance the plaintiffs continued to be lessees and the proceedings initiated against the respondents/plaintiffs under Section 163 of the H.P. Land Revenue Act are illegal wrong and the respondents/plaintiffs was however resisted by the appellants/defendants. It was alleged that in fact Ratti Ram who was in possession of the suit land and after his death Leela Devi came into possession of this leased land. Therefore, the land never remained in possession of Sohan Lal and other sons of Shri Bhajan Dass as the leased land could not be willed or transferred by the person as per the provisions of H.P. Lease Rules 1993. Moreover the father of the plaintiffs owned landed property at village Kahli Kamlayaru Tehsil Kandaghat measuring 37 -11 bigha out of which he has relinquished 22-10 Bighas of land in favour of his son and daughter.
In order to decide the suit the learned trial Court framed the following issues on 23.10.2002:
(i) Whether the plaintiffs are entitled for the declaration that the order dated 14.12.1999 passed in mutation No. 239 cancelling the lease by Sub-Divisional Collector qua the suit land is illegal, null and void? OPP
(ii) In case issue No. 1 is proved to be in affirmative whether the proceeding for ejectment are also illegal and void? OPP
(iii) In case plaintiffs succeeded in proving issues No. 1 and 2, whether the proceedings for ejectment are also illegal and void? OPP
(iv) Whether the suit is not maintainable? OPD
(v) Whether the suit is not property valued? OPD
(vi) Whether the suit is bad for non-joinder of necessary parties, if so who are the necessary parties? OPD
(vii) Whether the plaintiffs have no cause of action as alleged? OPD
(viii) Whether the land cannot be transferred as per Rule 9(9) of Lease Rules, if so its effect? OPD
(ix) Whether this Court has no jurisdiction to entertain this suit? OPD
(x) Whether the suit is bad for non-compliance of provisions of Section 80 CPC/ OPD
(xi) Relief.
On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court partly decreed the suit of the plaintiffs. In an appeal, preferred therefrom by the defendants, before, the learned First Appellate Court, the latter Court allowed the appeal, and, reversed the findings, recorded by the learned trial Court.
Now the plaintiffs/appellants herein, have instituted the instant Regular Second Appeal, before this Court, wherein they assail the findings recorded, in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came, up, for admission, this Court, on 13.8.2008, admitted the appeal instituted by the appellant(s), against, the judgment and decree, rendered by the learned first Appellate Court, on, the hereinafter extracted substantial question(s) of law:-
(i) Whether the findings recorded by Lower Appellate Court that the lease granted to Shri Ratti Ram by the Panchayat was not protected under the provisions of H.P. Village Common Land Vesting and Utilization Act and came to end on the death of lessee?
(ii) Whether the Lower Appellate Court has recorded erroneous and perverse findings by holding that the lease granted in favour of Shri Ratti Ram was not heritable either by natural successor or on account of testamentary succession by way of Will?
(iii) Whether the Trial Court has held that the mutations No. 2, 3 and 9 were sanctioned in violation of the proof of natural justice and behind the back of the plaintiffs-appellants, has not the Lower Appellate Court acted in an erroneous and perverse manner by holding that presence of one of the plaintiffs was marked at the time of attestation of the mutation, who has not appeared as his own witness in support of the contentions that the mutation was recorded in his absence?
Substantial questions of Law No. 1 to 3
Un-controvertedly, one Ratti Ram, was allotted lands, by the Panchayat concerned, in the year 1997, and, the afore allotment, of, the suit land vis-à-vis, Ratti Ram, came to be made qua him, prior to its vestment, in, the government. Besides, the afore allotment, as made, qua Ratti Ram, came to be regularized, in the year 1976, hence, by, the Collector concerned,. The initial grantee, one Ratti Ram, un-controvertedly, executed a Will, vis-à-vis, the plaintiffs, and, qua the suit khasra Nos, and, on anvil of the afore Will, hence mutation was attested, on 21.4.1999, by the Assistant Collector, IInd Grade, Kandaghat, and, vis-à-vis, the plaintiff. However, the afore mutation made, vis-à-vis, the plaintiff, was reviewed, under, a mutation, recorded, on 14.12.1999, rather by the Assistant Collector, IInd Grade, Kandaghat. The reason(s) assigned, for hence disapprobating, the, Will executed, by one Ratti Ram, vis-à-vis, the plaintiffs, and, wherethrough he bequeathed, the, suit khasra Nos., qua the plaintiffs, ( a) is, embodied in the relevant lease rules, rather casting an interdiction against any bequest, being made, vis-à-vis, the suit khasra Nos, or, alternatively, the suit khasra Nos being un-bequeathable, by, Ratti Ram.
However, the afore assigned reasons, may, prima-facie, carry the fullest tenacity, as, a reading of sub-clause (2) of Section 3, of, the Himachal Pradesh Lease Rules, 1993, provisions whereof, stand extracted hereinafter:
"3(ii).Grant of land on lease- lease may be granted to any person out of lands vested in the State Government under Section 3 of the Himachal Pradesh Village Common Lands Vesting and Utilisation Act,1974 and the lands vested under Section 11 of the Himachal Pradesh Ceiling on Land Holdings Act, 1972, in the interest of the development of the State, if the State Government is satisfied that there are sufficient reasons to do so":
(a) as also, a, perusal, of, the proviso appended thereto, though, do permit, a lease being, made, vis-à-vis, any person, qua those lands, as, stand vested, in the State Government, under, Section 3, of, the Himachal Pradesh Village Common Lands (Vesting and Utilization (Amendment) Act, 1987, (hereinafter referred to as, "the Act", for short).
However, since, evidently, the lease made, vis-à-vis, the, initial grantee, one Ratti Ram, is not, visibly, of land, hence vested, in the State Government, under, the afore statutory provisions, rather, its allotment, is made by the Panchayat concerned, prior, to, the vestment, of, the suit khasra Nos, in the State Government, (i) thereupon, when the initial grant, is, not made, within the ambit, of, sub-section 2 of Section 3, of, the Lease Rules, 1993, (a) thereupon the afore Rules, do not, beget their attraction, vis-à-vis, the factual scenario, prevailing hereat, nor any interdiction, as cast, in Section 9, of, the afore Rules, hence barring the lessee, to make, any transfers, of, the leased lands, through mortgage or otherwise, "import whereof", also, carries a parlance, qua even through his making, a, testamentary disposition, his rather becoming barred, to, make any alienation, of, the allotted land, yet also does not concomitantly, beget its attraction hereat.
In aftermath, the afore Rules, cannot comprise, the relevant test, for determining qua the order, of, invalidation, of, the apposite testamentary disposition, hence made by the Sub-Divisional Collector, Kandaghat, rather holding or not holding, any, aura, of, validation. Contrarily, the apposite test for determining, qua the afore order acquiring, hence a virtue, of, validity, or the vice of invalidity, is, comprised, in the, notified scheme, as, formulated, by the state government, (a) wherethrough rather proprietary rights, stand conferred, upon, Chakotadars, vis-à-vis, the lands allotted, on a Chakota basis, hence by the Panchayat concerned, under, the Act. Even though, the afore scheme came into force, on 14.10.2015, however, the trite factum, of its, assuming force, during, the pendency of the lis before the Court, does enable, this Court, to, also, upon, the plaintiffs' visibly meteing satiation, of all the pre-requisite(s) carried therein, hence, declared the plaintiffs, to, stand entitled vis-a-vis, all the benefits conferred thereunder(s). The imperative statutory test, for applying, hereat, the, afore formulated scheme, is encapsulated, in, the statutory definition assigned, to, Chakotadar, hence in sub-clause (b), of, Section 2, of, the scheme, provisions whereof are extracted hereinafter:
"2 (b) "Chakotadar" means a person who have been leased out or allotted land on Chakota basis by the Panchayats under the Punjab Village Common Lands (Regulation) Act, 1961, and includes his legal heirs;"
(i) and when the grant, made vis-à-vis, Ratti Ram, is visibly, made by the Panchayat, before its vestment, in, the State Government, b) and also when the grant, is, evidently made, on, a Chakota basis, vis-à- vis, the initial grantee one Ratti Ram, and, when upon, the afore primary apposite rule ingredients, becoming satiated, did render, the initial grantee, to fall, within the apposite rule definition, of, Chakotadar (c) and when hence thereafter the grant, is, notified, to, subsist even vis-à-vis, his legal heirs, (d) thereupon when the plaintiffs, are, validly constituted, as, the legatees of, the initially grantee, one Ratti Ram, (e) thereupon the plaintiffs are entitled to succeed, as Chakotadars, qua the suit khasra Nos, emphatically, with the grant being not personal to Ratti Ram, rather it also surviving thereafter, vis-à-vis, his legatees.
Consequently, the appeal is allowed, and, the impugned verdict, is, quashed and set aside. However, even though, this Court sets aside the mutation, as attested on 14.12.1999, (a) nonetheless the concomitant effect thereof, is, of earlier thereto mutation attested on 21.4.1999, hence becoming enlivened, and yet it would hold the requisite fullest force, only when it falls, within the ambit of clause 4, of, the scheme, provisions whereof, are, extracted hereinafter:
"Maximum Limit- The proprietary rights shall be conferred on such eligible chakotadars to a maximum limit of 00-40-00 hectare (5 bighas/10 kanal) subject to the condition that his entire holding, including such leased out or allotted lands, by whatever name classified in the revenue record, should not exceed 1-50-00 hectare (20 bigha/40 kanal) after conferment of such proprietary rights."
Conspicuously when rather the defendants, plead in paragraph-4 of the written statement, vis-à-vis, the suit lands, attracting, upon themselves, the, condition embodied, in, clause-4, of, the scheme, and, also when consonant therewith documentary evidence, is, embodied, in, Annexure Ext. DW3/A, (a) thereupon the order, of, mutation, made by the Assistant Collector IInd Grade, on 21.4.1999, would obviously hold force, only upon, the, prohibitive recitals, borne in Ext. DW1/A, becoming not attracted hereat, inasmuch, as, only upon the apposite total land holding, not exceeding 20 bighas (40 kanals). Consequently, the, substantial questions, of, law, are, answered accordingly.
There is merit in the appeal, and, the same is allowed. The declaratory decree is granted, however, subject, to, the afore stated observations. The impugned judgment and decree, pronounced by the learned first appellate Court, is, quashed and set aside. All pending application(s), if any, are also disposed of. No costs.