Virinder Singh vs Smt. Reshmo

T.U. Mehta, J.—This second appeal arises out of the aplication filed by one Shankar Lal, the deceased husband of the Respondent Shrimati Reshmoo, for acquiring proprietary rights over the land which was held by him as tenant u/s 11(1) of the Himachal Pradesh Abolition of Big Landed Estate and Land Reforms Act, 1953 which is hereinafter referred to as "the Act". This provision of Section 11 of the Act contemplates the acquisition of right, title, and interest of the landowner by a tenant, as defined in the Act, on payment of compensation which would be determined by the Compensation Officer as per provisions of the Act. The original application was filed by Shankar Lal before the Compensation Officer against one Shrimati Madanawati, the widow of one Mohan Singh. According to Sub-Section 2 of Section 11, the right to acquire right, title and interest of the landlord cannot be availed of if the landowner has no other means of livelihood, and is a minor, widow or a person suffering from physical or mental disability and is incapable of earning his livelihood. In the case of minor, the right cannot be acquired by the tenant during his minority, and in other cases, during the life time of the widow, or the person suffering from physical or mental disability.

Pending the petition u/s 11, Shankar Lal died leaving behind him the present Respondent Reshmoo and one Dawarkoo. Both these persons named Reshmoo and Dawarkoo claimed to be the widows of Shankar Lal and, therefore, applied to the Compensation Officer for being brought on record as Shankar Lal''s legal representatives. This inter se dispute between these two persons was decided initially by the Compensation Officer who held that the Respondent Reshmoo was not the widow of deceased Shankar Lal. It appears from the record of the case that the other person named Dawarkoo did not pursue her application for being joined as legal representative. The Respondent, Reshmoo, however, appealed to the District Judge against the order of the Compensation Officer requesting to join her as legal re-presentative of deceased Shankar Lal. This appeal was allowed by the District Judge. The landowner, Madanawati, thereupon preferred an appeal to the Court of the Judicial Commissioner, Himachal Pradesh being appeal No. 59 of 1962 against the order of the District Judge joining the present Respondent Reshmoo as legal representative of deceased Shankar Lal. However, that appeal failed and was dismissed by the Judicial Commissioner on 4-6-1962, with the result that Respondent Reshmoo continued to remain on the record of the case as legal representative of deceased Shankar Lal.

The record of the case, however, shows that on 18-10-1960 the landowner Madanavati transferred the land by a registered sale deed to the present Appellant Varinder Singh, who was at that time a minor, and on whose behalf his guardiun father Pannu Ram had purchased this land from Madanawati. On April 9, 1962 Madanawati filed an application to the Compensation Officer stating that she had sold away her right, title and interest in the land to the present Appellant Varinder Singh and, therefore, her name be struck of from the record. This application was allowed and present Appellant was substituted as the landowner in the proceedings before the Compensation Officer. The proceedings thereafter proceeded further accordingly.

After recording evidence, the Compensation Officer found that the transaction of purchase of the disputed land in favour of present Appellant Varinder Singh was Benami, as the consideration for the purchase came from the funds which were of the ownership of Panu Ram, the father of minor purchaser Varinder Singh. In the opinion of the Compensation Officer, therefore, it was Pannu Ram who was the real landowner and, therefore, there was no question of application of the Sub-Section 2 of Section 11 of the Act. On consideration of the merits of the case the Compensation Officer concluded that the present Respondent Reshmoo was holding the land as tenant, and was entitled to acquire the right, title and interest of the landlord u/s 11(1) of the Act.

On appeal before the District Judge, preferred by the present Appellant, the order passed by the Compensation Officer was confirmed with the result that the Appellant has preferred this second appeal.

When this second appeal was preferred, Varinder Singh was still minor. However, since for one reason or the other this matter has been prolonged in this Court, by this time, Varinder Singh has become major. This fact is admitted by both the sides this appeal.

On behalf of the Appellant, his learned Advocate Shri Malhotra initially contended that the Compensation Officer had no jurisdiction to decide the question as regards the rival contentions between Reshmoo and Dawarkoo to be impleaded as parties as legal representatives of deceased tenant Shankar Lal. This contention was, however, not pressed by Shri Malhotra, and right so, in view of the fact that the decision of the learned District Judge holding that Reshmoo was legal representative of deceased Shankar Lal has become final, and also in view of the fact that the definition of the word "tenant" given in Section 2(18) of the Act includes even the succssors-in-interest of a tenant and further in view of the fact that Section 67 of the Act specifically provides for the succession to the rights of tenancy.

The next question which was agitated by on behalf of the Appellant by his learned Advocate was that neither the Compensation Officer nor the learned Dictrict Judge had jurisdiction to decide the question whether the disputed land was purchased by Fanu Rem, the father of Appellant Varinder Singh "Benami" from the original landowner Madanawati. Even this question now does not remain to be decided in view of the fact that it is now an admitted fact that the Appellant Varinder Singh has, by this time, attained majority, and even if it is believed that the land was not purchased Benami, and that Varinder Singh is real owner of the property, there is not scope for application of the provisions contained in Sub-section (2) of Section 1.

The next contention which was raised on behalf of the Appellant was that Reshmoo Respondent cannot be considered as a tenant who would be entitled to make an application u/s 11 of the Act inasmuch as the evidence on the record of the case shows that she was not in actual pessession of the land atleast after the Kharif of the year 1 61.

In this connection, my attention was drawn to the fact that Ex. RW I-A and R.W. 1B which are copies of the khasra girdawris, showing that Respondent Reshmoo was a tenant but from the kharif 1961 the Appellant was in self-cultivation of the land. This change of the entry in the Kharif girdawri still continues.

In so far as the above referred question is concerned, record clearly shows that from Kharif 1949 to Ravi 1960 the original tenant Shankar Lal, and thereafter, Respondent Reshmoo, who is his widow, is shown to be in actual possession of the land in question. Jamabandi for the year 1960-61, regarding which there is a statutory presumption of truth, shows the Respondent as the non-occupancy tenant of the Appellant. The change in question seems to have come on account of entry in khasra girdawri from Kharif 1961. However, there is no corresponding change in the mutation entry because the mutation entries do not reveal that the Appellant was in actual possession of the land. The learned District Judge has negatived this contention of the Appellant by observing that there is nothing to show that the change in entry in khasra girdawari after Kharif 1961 was made within the knowledge and consent of Reshmoo. I find that the following observation of the learned District Judge in this connection are quite justified:

The sale in favour of the Appellant took place on 22-10-1960 vide a registered sale deed and the name of Smt. Reshmoo, Respondent continued as a tenant thereafter in the revenue paper for one year and the Appellant''s name appeared in the khud-kasht in kharif 1971. There is no evidence that the Respondent had been dispossessed or was not in possession at the time of the sale in favour of the Plaintiff.

The learned District Judge has also put reliance upon the admission of the patwari that even at the time of the girdawri 1961, Respondent Reshmoo was not present.

In this connection, it should be noted that it is not disputed that atleast till the kharif 1961 Respondent Reshmoo was shown in actual possession of the land in question. Therefore, the pertinent point to be considered is whether there is anything on the record to show that Reshmoo voluntarily relinquished the possession of the land, or whether she was evicted from the land in accordance with the procedure prescribed by the Act. If a reference is made to Section 54 of the Act, it will be found that non-occupancy tenant cannot be evicted from the land unless the procedure contemplated by this section is followed. It is not the case of the Appellant that this procedure was adopted and Reshmoo was at any time evicted from the land in question. As far relinquishment, the act makes provisions under Sections 49 and 50 which also prescribe a specific procedure to be adopted for the purpose of relinquishment. Even this procedure has not been adopted. Shri Malhotra, the learned Adovcate for the Appellant, however, contended that this was lakely to be a case of abandonment. For abandonment, the Act provides Section 52. There is nothing in the evidence to show that the provision contained in Section 5 are complied with. In fact, from the very beginning Reshmoo is contesting to safeguard her rights as a tenant in the land in question. She had, therefore, no reason to abandon her tenancy rights over the land.

From these circumstances, I see no reason to differ from the findings recorded by the learned district Judge and the Compensation Officer of this point.

During the hearing of this appeal, the Appellant has filed one application making an allegation that Reshmoo has already filed a civil suit in the Court of Senior Sub-Judge, Simla alleging that the she is a tenant who has acquired proprietory rights u/s 11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, and that the land in dispute is in possession of the Appellant who is, therefore, liable to be dispossessed therefrom. On behalf of Respondent Reshmoo, her learned Advocate admits that Reshmoo has filed a suit as alleged by the Appellant in this application. Shri Malhotra contended that this fact shows that Reshmoo, is dispossessed. In this connection Shri Malhotra prayed for an opportunity to be given to him for producing a certified copy of the plaint filed by Shrimati Reshmoo in that suit. I do not find any reason to give this opportunity to the Appellant. However, even if it is a fact that Reshmoo has filed such a suit claiming back the possession of the land in question on the ground that she has been dispossessed, it is difficult to comprehend how that fact would help the Appellant. If Reshmoo is dispossessed other wise than in accordance with the provisions of the Act, that dispossession would be illegal, and Reshmoo would still be entitled to claim the rights of her tenancy under the provisions of the Act. In my view, therefore, the fact that above referred suit is filed by Reshmoo is of no help to the Appellant in this matter.

It was then contended by Shri Malhotra learned Advocate on behalf of the Appellant that a tenant who wants to take advantage of the acquisition of right, title and interest of a landowner u/s 11 of the Act has to show that he is in actual possession of the land in question. In this connection he relied upon the prescribed form of application which is to be filed before the Compensation Officer u/s 11 read with Rule 130(1) of the Rules framed under the Act. This form contains a statement to be made by the terant to the effect that he is "the cultivating tenant".

I find that this contention is not helpful of the Appellant for the simple reason that the definition of the word "tenant", as given in Clause (17) of Section 2, does not require that the tenant in question should be the "cultivating tenant". This definition reads as under:

(17). "Tenant" means a person who holds land under another person, and is, or but for a contract to the contrary would be liable to pay rent for that land to that other person, but it does not include.

(a) an inferior landowner, or

(b) a mortgagee of the rights of landowner, or

(c) a person to whom a holding has been transferred or an estate or holding has been let in farm under the Punjab Land Revenue Act, 1887, as in force in Himachal Pradesh, immediately before 26th January, 1950 for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear, or

(d) a person who takes from the State Government a lease of unoccupied land for the purpose of subletting it;

This definition shows that the tenant is a person who "holds" land under another person, and is liable to pay rent for that land to that other person. Therefore, if it is found that there is a tenant who holds the land, and is liable to pay rent for that land to some other person, he would be a tenant within the definition of Section 11 whether he actually cultivates the same or not. Shankar Lal, the original tenant, was in actual possession of the land for many years, and after his death, even Reshmoo was in actual possession. Both of them, therefore, held the land and hence Respondent Reshmoo complies with the requirements of the definition of the word "tenant" as given in the Act. In that view of the matter, even if the prescribed form of application introduces the word "cultivating", it makes no difference whatever. It may be recalled here that there is no dispute about the fact that when Shankar Lal made this application u/s 11 of the Act, he was in actual possession of the land, and was, therefore, actually cultivating the land in question.

The next contention which was raised by Shri Malhotra was that since during the pendency of the application u/s 11 of the Act filed by Shanker Lal and continued by Reshmoo, the original landowner Madanawati is found to have assigned her right, title and interest in favour of the present Appellant, the tenant''s application u/s 11 has become infructuous in view of the decision given by a division bench of this Court in Chuhatali and Ors. v. Bratu reported in ILR 1975 H P 579, and thereafter in Smt. Bimla and Ors. v. Devia reported in ILR 1975 HP 607. The leading case is that of Chuhatali and Ors. v. Bratu wherein this Court has considered the scheme of Section 11 of the Act, and has come to the conclusion that two conditions constitute the, frame of reference within which alone an application u/s 11 of the Act is maintainable. These two conditions are: one, the tenant''s application under Sub-section (1) of Section 11 is directed against the right, title and interest of a particular landowner the existing landowner, and second, in the same context the circumstances of that landlord for the purposes of Sub-section (2) fall to be considered. It is observed that in view of this, the tenant''s application must be tried in a particular set of conditions and circumstances defined by the subsistence of the circumstances enumerated in Sub-section (2) peculiar to the then landlord. Having said this, the court has observed that the question whether a tenant is entitled to acquire the right, title and interest of the landlord falls to be determined not with reference to the date of his application but with reference to the date on which the proceedings are finally disposed of, whether that be the date of the Compensation Officer''s order where no appeal is preferred against it, or on the date when the ultimate appellate order is passed and the application can be said to have been finally disposed of According to the view taken by this Court, if during the pendency of the application, whether before the Compensation Officer, or in subsequent appeal, the bar imposed by Sub-section (2) drops into position and becomes operative by reason of the landlord becoming widow or a person suffering from physical or mental disability incapable of earning his livelihood or if the landlord ceases to have other means of livelihood, the tenant''s application must fail. Likewise, observed this Court, if after the tenant has made his application the existing minor landlord attains majority and has other means of livelihood, there is no reason why the tenant should not be held entitled to acquire the right, title and interest of the landowner in the tenancy land. In all cases, says this Court, it is the situation obtaining on the date of the order disposing of the proceedings finally which determines the question whether the tenant can succeed.

On the consequence of the death of the existing landlord during the pendency of the proceedings u/s 11, the Court has held that the tenant''s application having been directed against the right, title and interest, of that landowner and inasmuch as it depends for its success on the coexistence of the two conditions already mentioned, the application becomes infructuous if the landlord dies. According to the view taken by this Court in that case, the frame of reference in which the application was valid stands dissolved and exists no longer on the death of the landowner. The Court has further observed that in proceedings u/s 11, it is not possible to suppose the existence of any underlying cause of action in the sense of general law and hence no question arises on the death of the existing landowner during the pendency of the proceedings of any liability devolving on his legal representatives.

This is the reasoning given by Division Bench of this Court in the case of Chuhatali for taking the view that if during the pendency of the proceedings the existing landlord dies, then application of the tenant u/s 11 becomes infructuous and the remedy which is open to the tenant is to file a fresh application against the legal representatives.

The question is whether the ratio of this decision of the Division Bench can be carried even to the case where during the pendency of the proceedings u/s 11(1) of the Act the landlord prefers to assign his right title and interest in the disputed land in favour of a third person. After anxiously considering this point, I find that the decision given in Chuhatali''s case rests on the principle that a tenant''s application u/s 11 is directed against the right, title and interest of a particular landowner and hence if that landowner dies "no question then arises on the death of the existing landowner during the pendency of the proceedings of any liability devolving on his legal representatives". This ratio which is stated in context of the death of" a landowner obviously does not apply to a case wherein the landowner voluntarily transfers inter vivos his right, title and interest in the land to some one else pending the proceedings u/s 11, because in such a case the right, title and interst of the existing landlord passes on to the transferee with all the liabilities and obligations which are attached to them. If the ratio of the decision in Chuhatali''s case is applied even to the case in which the landlord transfers his rights, title and interest pending the proceedings u/s 11, it would be easiest for all the landowners to frustrate the tenant''s application as well as the very object of the Act by restoring to a very simple and easy method of transfer. No interpretation can be accepted which would result in the easy frustration of the object of a social legislation of this nature, and the substantive right to acquire the land which the statute grants to every tenant, cannot be allowed to be frustrated at the volition of the landowner who would always be interested in frustrating this right. In fact, application u/s 11 of the Act is also governed by the doctrine of his pendence a purchaser of a landowner''s right, title and interest pending such an application by a tenant, cannot be in a better position than the landowner himself, and takes the land subject only to the final result of proceedings. In my opinion, therefore, the ratio of the decision of this Court in Chuhatali''s case that tenant''s application u/s 11 would be rendered infructuous on the death of the existing landlord, does not apply to the facts of this case and cannot be extended to the cases wherein the existing landlord tranfers his right, title and interest at any stage pending the proceedings.

Even presuming for the sake of argument, that in view of the changed situation as regards the ownership of the land in dispute, Sub-section (2) of Section 11 requires to be considered in this case, it is evident that the Appellant landowner has now crossed his minority and has attained the age of majority, and hence he would not be entitled to avail of the advantage of the provisions of Sub-section (2) of Section 11. In that view of the matter, the only conclusion to which we can arrive is that this appeal should fail.

This appeal is, therefore, dismissed with costs.