Tota vs Pyare Lal and Others

V.D. Misra, C.J.—This judgment will dispose of R.S. As Nos. 91, 95, 96 and 97 of 1982 since common questions of law and fact arise in all these appeals.

Tota, Ram Dass, Dandoo and Motha, all harijans, were tenants of different parcels of agricultural land which was shown in the revenue record owned by Shrimati Parmeshroo, widow of Paras Ram, Jagat Ram, Hira Lal, Pyare Lal, Mst. Daropti, Vidya and Mst. Godawari, sons and daughters of Paras Ram. The tenants made applications on various dates in 1962 and 1963 before the Compensation Officer, Bilaspur, under Sections 11 and 14 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 (the Act) for the grant of proprietary rights in the land. These applications were in the form laid down by Rule 3 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Rules, 1955 (the Rules). By an order dated 17th February, 1966 the Compensation Officer allowed the applications ex parte. The owners appealed to the District Judge u/s 104 of the Act. However, all the appeals were dismissed as being barred by time as provided u/s 106 of the Act. Now, among the owners Ved Prakash, Vidya, Godawari and Pyare Lal were minors. Four suits were filed by the minors against the aforementioned tenants challenging the order of the Compensation Officer. It was averred that the minors were not properly represented before the Compensation Officer and so his orders were null and void. It was also averred that there was a family arrangement/private partition among the members before applications u/s 11 were made by the tenants and as the land with the tenants fell to the shares of the minors, the tenants could not get the proprietary rights. The suits were decreed in favour of the land owners-Plaintiffs and the appeals were dismissed by the Additional District Judge. The present second appeals have been filed under Para 32 of the Himachal Pradesh (Courts), Order, 1948. This gives jurisdiction to this Court to go into the questions of fact and redecide the cases.

In order to appreciate the contentions raised by the learned Counsel for the parties about the legality of the orders pissed by the Compensation Officer, the provisions of Section 11 of the Act may be noticed. It reads:

"(1) Notwithstanding any law, custom or contract to the contrary a tenant other than sub-tenant shall, on application made to the Compensation Officer at any time after the commencement of this Act, be entitled to acquire, on payment of compensation, the right, title and interest of the landowner in the land of the tenancy held by him under the landowner:

Provided that a tenant not having a right of occupancy shall not be entitled to acquire the right, title and interest of the landowner in the land of the tenancy from which he is liable to enjectment under Clause (d) or Clause (f) or Clause (g) of Sub-section (1) of Section 54,

(2) Nothing contained in Sub-section (1) shall apply to a landlord, if he has no other means of livelihood and is a minor, widow or a person suffering from physical or mental disability incapable of earning his livelihood. In the case of a minor, Sub-section (1) shall not apply during his minority and in other cases for his life time.

(3) The application referred to in Sub-section (1) shall be made in writing to the Compensation Officer who shall thereupon determine the amount of compensation payable to the landowner in respect of the land in accordance with the provisions of Sections 12 and 13.

(4) The tenant may pay the amount of compensation as determined by the Compensation Officer under Sub-section (3) either in one lump sum or in such number of installments not exceeding ten as may be determined by the Compensation Officer during a period not exceeding five years; and such compensation or such installments of compensation shall be paid on such date or dates as may be fixed by the Compensation Officer in this behalf,

(5) The amount of compensation or any instalment thereof shall be deposited by the tenant in a Government treasury and as soon as the compensation or the first instalment thereof has been deposited in the Government treasury, the Compensation Officer shall grant a certificate in the prescribed form declaring the tenant to be the landowner in respect of the land specified in the certificate.

(6) On and from the date of the grant of the certificate under Sub-section (5) the tenant shall become the owner of the land comprised in the tenancy and the right, title and interest of the land ower in the said land shall determine.

(7) An instalment of compensation which is not paid on the date fixed by the Compensation Officer shall, together with interest thereon at the rate of two and half per cent per annum be recoverable as an arrear of land revenue.

(8) Where compensation is paid in instalments the unpaid amount of compensation shall be a charge upon the land."

This is a provision giving a right to a tenant to acquire interests of landowners in the land if the tenant has a right of occupancy. Sub-section (2) saves the interests of a landowner who has no other means of livelihood and is a minor or a widow or a person suffering from physical or mental disability incapable of earning his livelihood. This Sub-section further provides that in a case where the landlord is a minor, a tenant is not entitled to acquire his interest during the minority. In other words, minority of an owner by itself cannot prevent a tenant from acquiring the interest of the landlord. In addition to the owner being a minor it is further necessary that he has no other means of livelihood. The moment the minor becomes major a tenant gets a right to acquire his interest.

A Full Bench of this Court in Smt. Savitti Devi v. Santa and Ors. 1981 ILR 563 H.P., had an occasion to decide the ambit of Section 11 of the Act. It was observed thus:

"The main object of the Act is that a tenant of land should be its owner. The moment a tenant makes the requisite application, his rights become crystallised. The proceedings are to be held only to determine the essential conditions. If the conditions as required under the Act are satisfied, a tenant is entitled to acquire the rights conferred on him under the Act. A tenant cannot be made to suffer because of the change of circumstances arising out of the delay in finally deciding his application. The application of a tenant is not to be affected by the death of the landowner since his rights are fructified at the time of making the application and subsequent events cannot take away his statutory rights."

It was further held:

"...the right of a tenant to acquire proprietary and other rights in the land is matured the moment such disabilities as contained in Sub-section (2) of Section 11 of landowners cease to exist. It is an established principle of interpretation of statutes that the provisions of a special legislation are to be so interpreted as to enhance the purpose of the Act. In the event of a minor landlord becoming major, a tenant can acquire his rights. Similarly, it is possible that mental or physical disability of a landlord may be cured to such an extent that he may be capable of earning his livelihood. In such a situation, a tenant is entitled to acquire proprietary rights under that Act. It is also possible that a widow may re-marry. In that event too, a tenant is entitled to acquire her rights in the land. Similarly, the contention of the learned Counsel for the Appellant that a tenancy is indivisible and in case one or more of the landlords are suffering from any of the disabilities as specified under Sub-section (2) of Section 11, a tenant cannot acquire proprietary and other rights in respect of a part of the tenancy land, cannot be sustained. It may be noticed that a tenant is not prohibited from making successive applications under Sub-section (1) of Section 11 of the Act. A decision in previous proceeding would not operate as res-judicata in subsequent proccedings."

The order passed on 8th February, 1966 shows that the tenant and the landowners were represented by Counsel and the matter was adjourned to 17.6.1966 when orders were passed experte. It is true that in the applications made by the tenants it was not specifically stated that the present Plaintiff were minors. However, it is not disputed before me that Order 32 of the CPC does not apply to the proceedings before the Compensation Officer. Since the mother as well as the brothers, who were major, of the Plaintiffs were parties along with the miners and as they were represented by a lawyer the interests of the minors were looked after properly. By 5-3-1973 all the minors had become major. It may also be noticed that Section 11 does not prohibit passing of orders against minors since their proprietary interests can also be acquired by the tenants unless the minors can show that they have no other means of livelihood. It may also be noticed that though two tenants did not state about the minority of the landowners, other tenants mentioned this fact and even made applications for appointment of guardians though these applications were not decided.

I find that Shri Jagat Ram P.W. 3 who is the brother of the Plaintiffs, in suit filed by Godawari and others against Tota (RSA No. 91 of 1981) stated in cross examination that he was the guardian of the minors before the Compensation Officer and used to appear on their behalf. There is also nothing on the record to show that the minors had no other source of livelihood except the income from the land in question. It cannot, therefore, be said that the order passed by the Compensation Officer was not legal and binding on the parties.

As already stated, tenant was required to make the application under Sections 11 and 14 of the Act in form LR-I in terms of Rule 3. Now, the form required a tenant to give his name and the name of his father, give the khata and khasra numbers of the land as entered in the jamabandi along with a copy of the jamabandi the name of the Pargana, Tehsil and District and showing the name of the owner along with his father''s name as entered in the jamabandi. A copy of the jamabandi was required to be attached to the application. He was also required to mention the rent and the assessment of the annual land revenue on the land. Now, in the jamabandi the names of all the landowners were mentioned but it was not shown whether anyone of them is a minor. It may be remembered that it was not the duty of the tenant to find out whether the entry m the revenue record was correct or not, nor was it his duty to find out the actual residences of the landowners. It was also not his duty to find out if any landowner was a minor or suffering any disability under the Act, or if they had other means of livelihood. It was so because the purpose of the Act was to treat the jamabandi as final and on its basis grant the proprietary rights to the tenants under the Act. The legislature in its wisdom did not require the tenant to find out the actual place of residence of his land owners because it was possible that a tenant may not be in a position to do so. The address given in the jamabandi was treated as sufficient. In the instant cases all the tenants were chamars (harijans) and they complied with the requirements of law by properly filling the application forms and attaching a copy of the jamabandi.

Rule 4 enjoins upon the Compensation Officer to proceed to determine the amount of compensation to the landowner by the tenant in accordance with the provisions of Sections 12 and 13 of the Act [Sub-Rule (3) of Rule 3]. Rule 5 enjoins upon the Compensation Officer to publish or cause to be published a notice in form LR-III for the information of all concerned and to give one month''s notice to the parties to prefer their objections, if any. If no objections are received or in case the objections are received then after disposing them of, the Compensation Officer is required to determine the amount of compensation payable to the landowner and direct the tenant to deposit the same in the treasury or sub-treasury, as the case may be, within a period of two months. It will be noticed that Section 11 provides that the moment the first instalment is paid, the tenant is entitled to the requisite certificate since the amount ,of remaining instalments is to be treated as a charge on the land.

The scheme of the Rules show that in order to carry out the objects of the Act to grant proprietary rights to the tenants at an early date, a notice to the public as well as a notice to the'' parties to prefer their objections against the amount of compensation assessed was required to be given. It was expected that the moment a notice was issued, all the landowners will come forward and raise the objections which are available to them under the law. It was upto the landowner to come forward and say about his disability since it was not the duty of a tenant to find out if the landowner was suffering from any disability. Any other interpretation of the provisions of law would have resulted in denying the tenants the rights which were conferred on them. As already stated, the legislature had taken due notice of the fact that the tenants are likely to be illiterate and ignorant and, therefore, as soon as they produced a copy of the jamabandi, their job was over. After all mere disability was not a complete defence. It was further required that the landowners suffering from a disability mentioned in Section 11(2) of the Act should also show that they had no other source of their livelihood. In other words, it was not for the tenant to say whether any person was suffering from disability or whether he had any other source of livelihood or not.

Now, in the instant cases all the tenants duly supplied the requisite information in form LR-I. A copy of the jamabandi was also attached to each application. It is not disputed before me that the jamabandi recorded the names of all the owners of the land in question but did not show whether anyone of them was a minor. It is for that reason that requisite notices had been issued and the parties were represented by a Counsel of their choice. The copy of the order dated 8-2-1966, which has been produced in evidence, shows the presence of the Counsel. No order was announced on that day since the Presiding Officer was on tour. The matter was, therefore, adjourned to 17-6-1966 when the orders were announced. These were ex parte inasmuch as nobody put in appearance at the time the cases were called. But then none of the land owners filed objections within the period of one month as required under Rule 4. It is thus too late in the day to challenge the order of the Compensation Officer. As already discussed, the tenants were entitled to acquire the proprietary rights of the land owners who were not suffering from any disability and mere disability in terms of Section 11(2) was no bar to acquire such rights of those persons.

The next question to be decided is about the alleged family settlement recorded in Ex. PA. The first thing to be noticed is that this document was written in Sambat 2017 BK in the month of Fagun, Pravisthe 20. The document reveals that it was on this date that the family settlement is alleged to have been arrived at. Now, this will place the date according to the Gregorian calendar to the year 1960. The Act which was passed by the Legislature of this State on June 17,1953, received the assent of the President of India on November 23, 1954 and was published in English in the Gazette dated 4-3-1955. The Act was enforced with effect from 26-1-1955. In other words, when the Act came into force, Ex.PA was not in existence and the land remained undivided even by a family settlement. The Act gave a right to an occupancy tenant to acquire interests of the landowners from the date of its enforcement. It is true that it was for the tenant to make the application u/s 11 of the Act. It is also true that it was for the tenant to decide when he wanted to acquire the interests of the landowner. But then there is nothing on the record to show that at any relevant time the tenants were informed of any change in the ownership of the land which was under their tenancy.

Now, it is not denied that Ex. PA specifically gave the land under the tenants to the minors. According to this document the land under the tenancy of Tota goes to the share of Godawari (minor) and Parmeshwari (widow); cf Ram Dass to Godawari and Vidya, minors; of Dandoo to Pyare Lal, minor; and of Sundri to Godawari, minor, and widow Sundroo whereas the other parts of the land were given to the landowners who were not suffering any disability. Evidently this family settlement, which is an after thought and was arrived at after coming into force of the Act, was meant to frustrate its objects to enable the tenants to acquire the proprietary rights of the land owners. This document was admittedly not produced before the Compensation Officer nor in the appeal which was filed before the District Judge. It was also not produced before the revenue officials attesting the mutations. As already stated all the parties were duly represented before the Compensation Officer and if this document was in existence, there was no reason for its not being produced since it was likely to non-suit the tenants. This document is not even registered. The only authenticity claimed for this document is that it was written by a Petition Writer. The document is not stamped. Had this document been either stamped or got registered or mutations were effected in the revenue record on the basis of this document, there would have been some authenticity of its execution at the time when it is purported to have been executed.

It is submitted that the tenants have no right in the proceedings before the civil Court to challenge the family settlement since it was a settlement among the members of the family. I am afraid there is no force in this contention. I find that the learned Additional District Judge went wrong while accepting this contention. The tenants are vitally affected by the alleged family settlement and they had to question its validity since its purport was to deprive them of their right conferred by the Act. I also find that the learned Additional District Judge did not appreciate the Supreme Court judgment in Kale and Others Vs. Deputy Director of Consolidation and Others, I find that this judgment lays down that the family settlement must be a bonafide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family. It was further ruled that the registration would be necessary only if the terms of the family arrangement are reduced into writing and that a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. This authority nowhere lays down that no one except the family members of the family settlement can question it. As already stated, Ex. PA is not a registered document though it records the settlement which was arrived at the very time the document was written. The relevant part reads:

"To-day Sambat 20.17, Fagun Pravisthe 20, we have before the Panches arrived at a family settlement."

Then follows the statement:

"The family settlement has been effected according to the manner in which Paras Ram, deceased, had in his own life time divided the property."

And then are described the parcels of land which had fallen to the share of each one. The learned Additional District Judge failed to appreciate this fact. In case the deceased had in fact defined the shares, then after his death the parties would have got this fact noted at the time of mutation.

The facts discussed above leave no doubt in my mind that Ex. PA was not a memorandum of the alleged division made by Paras Ram, deceased, nor was it recorded before the tenants had applied for acquiring the proprietary rights under Sections 11 and 14 of the Act.

Mr. Kanshi Ram Sharma, learned Counsel for the Respondents, cites Sunder Singh and Ors. v. Lokka and Ors. 1971 SLJ 420 H.P., as well as Shri Amrit Lal and Ors. v. Shrimati Delumbi Devi 1976 SLJ 98 HP, in support of his contention that the finding of facts given by the first appellate Court cannot be disturbed in second appeal u/s 100 of the Code of Civil Procedure. There is no dispute about this proposition of law. However, as I have already stated, this appeal is under Para 32 of the Himachal Pradesh (Courts) Order which specifically gives a right to the High Court to go into the questions of facts and redecide the same.

The result is that the appeals are allowed and the impugned decrees are hereby set-aside and the suits of the Plaintiffs are dismissed with costs throughout.