Telu Ram vs Hari Kumar and Another

Chet Ram Thakur, J.—The facts leading to the filing of these two petitions by Shri Telu Ram are as under:

Shri Telu Ram is entered as a non-occupancy tenant in respect of land in Khasra Nos. 7, 8 and 11, measuring 3 bighas 13 biswas, according to the jamabandi for the years 1966-67 of village Luhnu Mian, in Tehsil Sadar, District Bilaspur. The names of the owner as shown in the Jamabandi are Smt. Kanshi widow of Shankar, and Narainu, in equal shares. On the basis of this Jamabandi entry, Shri Telu Ram filed an application under the provisions of Section 11 of the Big Landed Estates and Land Reforms Act (shortly called the Act) for acquisition of proprietary rights in the laud.

Smt. Kanshi, who is the owner of 1 /2 share had earlier gifted her share to her son-in-law, Shri Hari Kumar. Therefore, he had stepped into the shoes of Smt. Kanshi in respect of 1 /2 share in the land. It may also be mentioned here that Shri Telu Ram, Appellant is the son-in-law of Shri Narainu, the other co-sharer in the land.

Shri Narainu put in his written statement agreeing to part with the ownership of his share of his land in favour of Telu Ram, whereas Hari Kumar opposed the application on the ground that there was no relationship of landlord and tenant between the parties. Further that Khasra No. 7 was not land within the meaning of land under the Act and that there were machinery etc. standing thereon.

The Compensation Officer before whom the application was filed by Shri Telu Ram, accepted the contention of Shri Hari Kumar that Khasra No. 7 was not land for the purposes of the Act and as such the right, title and interest of the landowner in the same could not be acquired under the Act. In so far as the other two Khasra Nos. are concerned, he found that the same was land and Shri Telu Ram was a tenant under the landowners viz. Shri Narainu, and Shrimati Kanshi and later Shri Hari Kumar, and therefore, he allowed the application in part and dismissed the application in respect of Khasra No. 7.

Both the parties went in appeal. The District Judge allowed the appeal of the landowners in respect of the grant of the proprietary rights in respect of Khasra Nos. 8 and 11. In respect of Khasra No. 7, he held that this khasra No. was also land but there was no relationship of landlord and tenant between the parties, both in respect of khasra No. 7 and the other two khasra Nos. and, therefore, he dismissed the appeal of Shri Telu Ram on that account. It is against the dismissal of his appeal and the acceptance of the appeal of the present Respondent, that Shri Telu Ram has filed these two appeals before this Court.

The only point that has been canvassed before this Court is about the relationship of landlord and tenant between the parties. According to the learned Counsel for the Appellant basing his reliance on the revenue entries Exs. P. A. to P. D. he is a tenant of the land. But the learned Counsel for the Respondent opposes this claim contending that Smt. Kanshi never created any tenancy with regard to her share in the land nor Shri Narainu had ever taken her consent for creation of a tenancy in respect of her share. Further the Appellant never paid any rent of any kind. The revenue entries also belied the claim of the Appellant.

Ex. P. A. jamabandi for the years 1966-67 no doubt shows that Shri Telu Ram has been entered as a non-occupancy tenant but under the column of rent it is recorded as "Bashra Malkan Bawaja Parwarish". Therefore, this entry in the column of rent negatives the claim of the Appellant with regard to his assertion of tenancy under the landowners. Mere entry as a non-occupancy tenant does not entitle a person to claim the right of tenancy because it is a usual practice that whenever a person is found in possession whether legal or illegal of any land that the revenue officers invariably make such an entry. Ex. P.B. is a khasra girdawari commencing from kharif 1961 to kharif 1964 and it shows the personal cultivation of the landowners viz Smt. Kanshi and Shri Narainu in respect of these three khasra Nos. for the Kharif and Rabi 1961 and 1962. For the first time the Appellant is recorded in clutivation of these three khasra Nos. w.e.f. kharif 1962 and there is no mention about how he came in possession of the land. Ex P.C. is a copy of khasra-girdawari from Kharif 1965 onwards till Rabi 1967. Ex; P. D. is a copy of khasra-girdawari from kharif 1967 till kharif 1970. The Appellant cannot draw any suppon from these khasra girdwaries except that he is entered in cultivation of the land without payment of any rent. The Appellant had in his application u/s 11 of the Act, averred that he was paying rent in kind i.e. l/4th of the produce to the landowners but it is contrary to the documentary evidence Ex. P.A. This has also been denied by Shri Hari Kumar in his written statement. Shri Telu Ram did not go into the witness box as his own witness. Therefore, mere assertion in the application without any proof will not establish his case about his tenancy and about the payment of rent by him. He made a statement on 19-11-1970 only to the effect that he tendered in evidence a copy of the appellate Court in civil appeal and which was Ex. P.A. and that he closed his evidence. Therefore, in these circumstances, there is no other evidence to show that the assertion made by him in the written statement about the payment of rent in kind, is correct. Smt. Kanshi appeared as a witness and deposed on oath that Shri Telu Ram was never inducted as a tenant in the land either on Batai or on account of service. Shri Narainu who had supported the application of Shri Telu Ram, also did not make any mention if he had ever inducted Shri Telu Ram as a tenant although what he stated was that he did not want to produce any witness and that he had no objection to the grant of proprietary rights to Shri Telu Ram. Therefore, the learned District Judge was also right in holding that once Smt. Kanshi had come in the witness box and had denied the relationship of landlord and tenant between the parties, it was obligatory on the part of Shri Telu Ram not only to examine himself but also to examine his father-in-law Shri Narainu to prove his tenancy. The learned Counsel for the Appellant contends that there is an admission of Narainu about the tenancy and, therefore, this admission by one of the co-sharers is receivable against Smt. Kanshi or for the matter of that of Hari Kumar. Reliance is placed on Mt. Ramjhari Kuer and Ors. v. Deyanand Singh and Ors. AIR (33) 1946 Pat 278. But this authority has got no bearing especially when Shri Narainu did not make any statement except that he had no objection to the grant of proprietary rights. He never made any statement that there was a relationship of landlord and tenant between the parties. Assuming that Shri Narainu had created a tenancy, that could not bind Smt. Kanshi or Shri Hari Kumar unless their consent was obtained. The tenant cannot contend that he is a tenant of the whole land by virtue of the tenancy created by one of the co-sharers. In Kahnu v. Hirda Ram etc. 1969 D.L.T. 183 decided by T.V.R. Tatachari, J., under the provision of this very Act it was held that where land is owned by two co-sharers one co-sharer cannot induct a tenant into his share as well as the share of the other co-sharer in the land so as to make the tenancy binding upon the other co-sharer except with the consent of the other co-sharer. In order to establish the relationship of landlord and tenant there has to be a contract between the owner of the land and the person inducted thereon as a tenant. The relationship can also be brought about by operation of law. But there is neither of these two conditions which has been established on the record. It has also been held in AIR 1927 39 (Oudh) that a right of permanent tenancy created by some tenants in the joint lands without the consent of all co-sharers is void, and exactly in the instant case also the tenancy if at all has been created by one of the co-sharer i.e. Narainu and without the consent of the other co-sharer the same is not binding on the other co-sharer.

On this ground, I, therefore, come to the conclusion that the Appellant has not been able to establish his tenancy and, therefore, the learned District Judge was justified in accepting the appeal of the present Respondents and in dismissing the appeal of Shri Telu Ram. Consequently I affirm the judgment of the lower Appellate Court and dismiss these two appeals by this single judgment. However, I leave the parties to bear their own costs.