Behari Lal Vs Ramesh Chand

The present appeal is directed against the judgment and decree dated 15.3.2008, passed by learned District Judge, Kangra at Dharamshala, H.P. (learned Appellate Court) vide which the judgment and decree dated 31.3.2006, passed by learned Civil Judge (Junior Division-II) Kangra at Dharamshala, H.P. (learned Trial Court) were upheld. (The parties shall

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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hereinafter be referred to in the same manner as they were arrayed before the learned trial Court for convenience) .

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Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court seeking a declaration that he is the owner in possession of the suit land described in para. 1 of the plaint, review dated 14.3. 2000 of Mutation No. 344, already attested on 14.3.1997 based on LR-V, File No.1255, decided on 23.3.1999, is the result of fraud, misrepresentation and collusion, which has no bearing on the rights of the plaintiff. A consequential relief of Permanent Prohibitory Injunction for restraining the defendants from interfering with the possession of the plaintiff over the suit land was also sought. It was asserted that the plaintiff is the non-occupancy tenant of the suit land who became the owner after the commencement of the H.P. Tenancy and Land Reforms Act. A Mutation No. 345 was attested on 14.3.1997 to this effect. The defendants obtained an order in File No. 1255, dated 23.3.1999, in the plaintiff’s absence and got the mutation reviewed on 14.3.2000 in collusion with the revenue ofÏcial. Hari Ram, the predecessor in interest of the defendants, had not filed any application in LR-V. He was not entitled to

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resume the land because he was already in possession of more than 15 kanals of land. The defendants started interfering with the possession of the plaintiff on the basis of the order. Hence, the suit was filed to seek the relief mentioned above.

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The suit was opposed by the defendants by filing a written statement taking preliminary objections regarding lack of cause of action, jurisdiction and maintainability, the suit having not been properly valued for Court fees and jurisdiction, the suit being barred by limitation, and the plaintiff being estopped to file the suit by his act, conduct and acquiescence. It was admitted that Hari Ram, the predecessor-in-interest of the defendants, was recorded as the owner and the plaintiff was recorded as a tenant, and Mutation No. 344 was attested in the plaintiff’s favour on 14.3.1997. It was asserted that this mutation was correctly reviewed on 14.3.2000. Mutation Nos. 448 and 449 were based on the order passed in Case No.2124, decided on 23.3.1999, titled Hari Ram Vs. Gorkhu etc. The order was correctly passed by the revenue authorities, and there was no question of any collusion. The jurisdiction of the Civil Court is barred to determine the question raised by the plaintiff. Hence, it was prayed that the suit be dismissed.

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A replication denying the contents of the written

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statement and afÏrming those of the plaint was filed.

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The following issues were framed by the learned Trial Court on 7.3.2003: -

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Whether the plaintiff is owner in possession of the suit land as alleged? OPP.

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Whether mutation No.344 is result of fraud and misrepresentation and liable to be declared null and void, as alleged? OPP.

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Whether the plaintiff is entitled for the relief of permanent injunction, as prayed for? OPP.

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Whether the plaintiff has cause of action and locus standi to file the present suit? OPP.

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

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Whether the suit is not legally maintainable? OPD.

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Whether the suit is barred by limitation? OPD.

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Whether the suit has not been properly valued for the purpose of the court fee and jurisdiction? OPD.

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Whether the act, conduct and acquiescence of the plaintiff is bar to the present suit? OPD.

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Relief.

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The parties were called upon to produce the evidence,

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and the plaintiff examined himself (PW1) and Mehar Chand (PW2). The defendant No.2 examined himself (DW1).

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Learned Trial Court held that Hari Ram was the owner of the suit land and the plaintiff was cultivating the suit

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land as a tenant under Hari Ram. Hari Ram had filed an application LR-V No. 1255 in File No.2124 claiming the resumption of the land. This application was decided in the plaintiff’s presence. The plaintiff had a remedy of filing an appeal/revision against the order, which was not availed by him. The Learned Trial Court answered Issue Nos. 5 to 7 in the afÏrmative, the rest of the issues in the negative and dismissed the suit.

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Being aggrieved by the judgment and decree passed by the learned Trial Court, the plaintiff filed an appeal, which was decided by the learned District Judge, Kangra at Dharamshala, HP (learned Appellate Court). The learned Appellate Court concurred with the findings recorded by the learned Trial Court that Hari Ram had filed an application for the resumption of the land. The Land Reforms OfÏcer was competent to decide the application, and the plaintiff could have assailed the order by filing an appeal/revision. The order was passed on 23.3.1999, and the same was not assailed within the period of limitation. Mutations were rightly attested based on the order passed by the Land Reforms OfÏcer. There was no

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infirmity in the judgment and decree passed by the learned Trial Court. Hence, the appeal was dismissed.

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Being aggrieved by the judgment and decree passed by the learned Courts below, the plaintiff has filed the present appeal, which was admitted on the following substantial question of law on 20.4.2010: -

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Whether the findings of the Courts below are the result of complete misreading, misinterpretation of the evidence and material on record and against the settled position of law?

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I have heard Mr Arush Matlotia, learned counsel for

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the appellant and Mr Rahul Mahajan, learned counsel for respondents No.1 and 2.

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Mr. Arush Matlotia, learned counsel for the appellant/plaintiff, submitted that the learned Courts below erred in dismissing the plaintiff’s suit. The conferment of proprietary rights upon the plaintiff was automatic. The Land Reforms OfÏcer has no jurisdiction to review his order. He had acted beyond the jurisdiction while passing the order, and the jurisdiction of the Civil Court to go into the question was not barred. The LR-V application was not placed on record, and the order passed by the Land Reforms OfÏcer cannot be sustained. A

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void order does not have the limitation, and learned Courts below erred in holding that the suit was barred by limitation. Therefore, it was prayed that the present appeal be allowed and the judgments and decrees passed by the learned Courts below be set aside.

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Mr Rahul Mahajan, learned counsel for respondents No.1 and 2, submitted that the learned Courts below had rightly held that the land owner was entitled to resume the land. The proprietary right could not have been conferred upon the tenant without allowing the landlord to resume the land. The Land Reforms OfÏcer had correctly ordered the resumption of land by the land owner, and there is no infirmity in the order passed by the Land Reforms OfÏcer. The plaintiff had not challenged the order by filing an appeal/revision. Therefore, he prayed that the present appeal be dismissed.

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I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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Substantial Question of Law No.1:

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It is undisputed that Hari Ram, the predecessor-ininterest of defendants No.1 to 3, was the owner of the suit land

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and the plaintiff was recorded as a tenant under him. The order (Ex. D1) passed by the Land Reforms OfÏcer reads that Hari Ram

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had filed a resumption application on 18.11.1975, which was heard in the presence of Surinder. General Power of Attorney of his legal representatives and Mr R.C. Chaudhary, learned counsel for the tenants. It was found from the record that Hari Ram possessed 0-24-43 hectares, and he was entitled to resume 0- 36-33 hectares from the tenants. Hence, an order of resumption was passed in his favour and against the tenants.

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Section 104 of the H.P. Tenancy and Land Reforms Act deals with the acquisition of proprietary rights by tenants other than occupancy tenants. It provides that where the land owner has not exercised the right of resumption of tenancy at any time since 26.1.1955, such a land owner shall be entitled to resume before the date to be notified by the State Government, either 1½ acre of irrigated land or 03 acres of un-irrigated land under tenancy from one or more tenants for his personal cultivation and in case the land owner holds less than 1½ acres of irrigated land or 03 acres of un-irrigated land in his personal cultivation he shall be entitled to resume tenancy land only to make-up the land under his personal cultivation to the extent of

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1½ acres of irrigated land and 03 acres of un-irrigated land. The right, title and interest in the rest of the tenancy land of the land owner who is entitled to resume land under clause (i) and (ii) shall vest in the tenant free from all encumbrances with effect from the date to be notified by the State, in the ofÏcial gazette. Section 104(3) provides that all rights of the land owner other than the land owner entitled to resume land under Sub Section 1 shall be extinguished from the date to be notified by the State Government.

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It is apparent from the bare perusal of the Section that where a landlord is entitled to resume the land, the tenant will become the owner of the remaining land on the day to be notified by the State Government. It was laid down by a Division Bench of this Court in Smt. Sudarshna Devi Vs. Union of India and another 1978 Shim.Law Cases 330 that there is a distinction between the land owners who are entitled to resume the land from the tenant and the land owners who are not entitled to do so. While the right of the land owner who is not entitled to resume the lane would stand extinguished immediately, an inquiry would be necessary in case of the land owner who is entitled to resume the land. It was observed: -

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“57. Point No. 9 is with regard to the validity of Rules 24 to 27, which are all quoted above. It was contended that these rules are ultra vires the provisions of the Act because the mutation in favour of the tenants cannot be made before the notifications contemplated by section 104 (3) were issued. This contention requires a reference to the relevant provisions of section 104. It should be noticed from the scheme of section 104 that it makes a distinction between the landowners who are entitled to resume land from the tenants under subsection (1) and the landowners who are not so entitled in view of the fact that they are already holding irrigated land measuring more than one and a half acres or unirrigated land measuring more than three acres. So far as the first category of landlords is concerned, clause (iii) of sub-section (1) of this section provides that right, title and interest of the tenancy land which is more than the land resumed under sub-section (1) shall vest in the tenant free from all encumbrances "with effect from the date to be notified by the State Government in the ofÏcial Gazette". So, according to this clause (iii), the surplus land vests in the tenants only from the date which is notified by the State Government in the ofÏcial Gazette.

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Sub-section (3) of section 104 makes a similar provision, though in a different language, with regard to that category of landowners who are not entitled to any resumption under sub-section (1). For this category of landowners, sub-section (3) provides that their right, title and interest "shall be extinguished" and all such rights, title and interest shall vest in the tenant free from all encumbrances from the date to be notified by the State Government in the ofÏcial Gazette.

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The difference which is notable between the two provision is that while sub-section (3) or section 104 makes a specific reference to the extinguishment of the rights of a landowner and to the vestment of these rights in the tenant at a date which may be subsequent to the date of such, extinguishment, clause (iii) of sub-section

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(1) of section 104 makes no specific reference to "extinguishment".

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We thus find that while, according to sub-section (3), the rights of a landowner covered by that sub-section are subject to immediate extinguishment, there is no such stipulation of immediate extinguishment of the rights of a landowner who is covered by sub-section (1 ). We shall advert to the petitioners' contention with regard to this interpretation at a subsequent stage. But at this stage, we note the above difference between the two provisions with a view to appreciating whether Rules 24 to 27 are, in any manner, contradictory to these provisions.

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In our opinion, the legislature has contemplated this distinction between the provisions of sub-section (3) and clause (iii) of sub-section (1) for the apparent reason that in the case of the landowners who are entitled to resumption of tenancy, some enquiry is invariably necessary before ultimate mutations in favour of the tenants are recorded in the revenue register. It is apparent that in the case of the landowners who are entitled to resumption, questions as to from what tenant he would resume and to what extent are likely to arise. If the lands in the possession of the tenants are both irrigated and unirrigated, then a question would also arise as to in what proportion and from what tenant this resumption can be made. Therefore, unless all these enquiries are completed, it would be difÏcult to know how much land would vest in favour of a particular tenant, in case there is more than one tenant .

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So far as the landlords who are not covered by subsection (1) of section 104 are concerned, no such questions are likely to arise because these landowners are those who already possess at least the minimum of one and a half acres of irrigated land or three acres of unirrigated land. Therefore, for such landlords, subsection (3) of section 104 provides for the immediate extinguishment of rights and vesting of rights in favour of the tenants at a subsequent stage when notification is issued by the Government.” (emphasis supplied)

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It was laid down by this Court in Mehar Chand Vs. Rakesh 2006 (3) SLJ H.P. 2125 that the conferment of the proprietary rights is mandatory over the remaining land and is not dependent upon the procedural law. It was observed: -

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Coming to the short and simple but interesting question of law involved for consideration in this appeal, it is noticed that the learned lower Appeal Court by ignoring and overlooking the clear unambiguous and mandatory as well as binding nature of the statutory stipulation contained in sub-section (3) of Section 104 of 1972 Act and by merely relying upon an isolated provisions of law contained in Rule 24(1) of 1975 Rules held that unless the resumption applications of the land owners with respect of both the pieces of land were disposed of, the proprietary rights upon the nonoccupancy tenants could not be deemed to have been conferred. Yes, sub-Rule (1) of Rule 24 does prescribe a procedure for the resumption of the parts of land by the land owners after they file applications under Rule 21 of 1975 Rules and the Land Reforms OfÏcer passing an order about the extinguishment of the rights of the nonoccupancy tenants with respect to the parts of the land which have been ordered to be resumed in favour of landlords and consequently with respect to the remaining land conferment of proprietary rights upon the tenants. But a reading of Rule 24(1) in the light of the mandatory and unambiguous stipulation contained in sub-section (3) of Section 104 of 1972 Act and the more explicit stipulation contained in Rule 27 of 1975 Rules clearly suggests unambiguous legislative intent that the rights, title and interest of the landlords entitled to resume land (with respect to land other than sought to be resumed) shall stand extinguished and the extinguishment of such rights, title and interest with respect to such land shall be with effect from the date to be notified by the State Government. Sub-section (3)

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further stipulates, again unequivocally, categorically and clearly that from the said date the rights, title and interest with respect to the said land shall vest in the tenant free from all encumbrances. To give binding effect and to enforce and implement the aforesaid legislative intent contained sub-section (3) of Section 104 of 1972 Act, Rule 27 of 1975 Rules clearly suggests that rights, title and interests in the tenancy land of the land owners who have already under their personal cultivation three acres of unirrigated land or 1 14 of irrigated land shall vest in the non-occupancy tenants with effect from the date of the commencement of 1975 Rules. 1975 Rules came into force with effect from 3rd/4^th October, 1975.” (emphasis supplied)

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It was held by a Division Bench of this Court in Kanta

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Devi vs Durga Singh 2014 (3) Shim. LC 1685 that the conferment of the proprietary rights is automatic unless the landowner is entitled to resume the land. It was observed:

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“8. A bare perusal of the aforesaid provisions clearly shows that unless the tenant is entitled to resume the land on the appointed day, vestment of ownership rights in the tenant is automatic. Sub clause (iii) of Section 104 clearly lays down that the tenancy rights, title and interest in the tenanted land other than which can be resumed shall vest in the tenant free from all encumbrances from the appointed day. Subsection (3) also clearly lays down that all rights, title and interest of a landowner other than a landowner entitled to resume land under subsection (1) shall be extinguished and all such rights, title and interest shall, with effect from the appointed day, vest in the tenant free from all encumbrances. The landowner is only entitled to get compensation in terms of subsection (5) of Section 104 of the Act.” (Emphasis supplied)

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It was held in Neelam Sood vs Bhanuwati 2014 (2)

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Shim. LC 638 = Latest HLJ 2014(1) (HP) 524 that the conferment of proprietary rights is subject to the right of resumption. It was observed:

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Though vesting of proprietary rights on tenants is automatic under Section 104(3) of the Act of 1972. But such automatic conferment on coming into operation of the Act was subject to the provisions of Rule 27 of the Rules, and after settlement of the claim of the landowner and tenant, mutation was required to be attested by the revenue ofÏcer by virtue of Rule 28 of the Rules. Scheme of Section 104 of the Act of 1972 reveals that a land owner was entitled to resume land from a tenant not more than half of the tenancy land. The first option was to be exercised by the tenant, which portion of the land he wanted to retain and which to surrender to the landowner if he applied for resumption.

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Similarly, it was held in Bahadur Singh vs Vinod

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Kumar 2016 ILR (H.P.) 1854 = 2016(4) Him. L.R. 2022 that the conferment of proprietary rights is not automatic in the case of landowners entitled to resume the land. It was observed:

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“37. Reading of the aforesaid provisions suggests that immediately after commencement of this Act, all rights, title and interest of the original owner would be extinguished and all rights, title and interest would vest in the tenant free from all encumbrances. But careful reading of the same suggests that distinction has been carved out in the aforesaid Section 104(3), which specifically states that "other than the land owner entitled to resume land", meaning thereby that conferment of proprietary rights would not be automatic

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in the case of land owners, who are entitled to resume land under sub-section (1). Section 104(8) specifically provides that nothing contained in sub-section (1) to (6) would apply to the tenancy of land owners during the period mentioned for each category of such land owners in sub-section (9), who is a minor, unmarried woman or after marriage divorced or separated from husband or widow, person permanently incapable of cultivating land, person serving member of the Armed Forces and father of person who is serving in the Armed Forces up to the extent of inheritable share in the said property. Section 104(9) further provides that in case land owners mentioned in clause (a) to (d) of sub-section (8), the provisions of sub section (1) to (6) shall not apply in the case of minor during his minority and in case of other persons mentioned in clauses (a) and (b) of sub section 8 during their life time.

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Conjoint reading of the aforesaid provisions makes one thing clear that conferment of proprietary rights would not be automatically conferred upon the tenant in the case of land owners, who are entitled to resume land under sub-section (1) of Section 104. Plain reading of the aforesaid section suggests that in case there is a minor, unmarried woman, divorcee woman or widow, conferment of proprietary rights would not be conferred automatically, and these people will have the right to resume land to the extent prescribed under the provisions.”

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In the present case, the order (Ex. D4) reads that Hari

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Ram had filed an application for resumption on 18.11.1975. This application was taken up for consideration on 23.3. 1999, in the presence of Surinder Nath, legal representatives of Hari Ram and Mr R.C. Chaudhary, learned counsel for the tenants. Hari Ram was the owner of the land measuring 02-24-43 hectares

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and was entitled to resume the land to the extent of 0-36-33 hectares. Therefore, an order of resumption was passed in his favour, and the tenants were declared to be the owners of the remaining land.

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A careful perusal of this order clearly shows that the landowner Hari Ram was in possession of less than the prescribed land, and he was entitled to resume the land. Hence, the tenant could not have become the owner of the whole of the land, but was entitled to become the owner of the remaining land. Therefore, the Land Reforms OfÏcer had rightly ordered the resumption of the land and conferment of proprietary rights upon the tenants to the extent of the remaining land.

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It was submitted that the learned Courts below erred in holding that the suit was barred by limitation. This submission is not acceptable. It was laid down by this Court in Mangat Ram vs Gulat Ram, Latest HLJ 2011(1) (HP) 274, that a suit to challenge an order passed by an ofÏcial in his ofÏcial capacity is one year from the date of the order. It was observed:

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There is no dispute that in the partition proceedings initiated by Gulat Ram under the Act, an order for the mode of partition was passed by the authorities on 23.5.1993, which was afÏrmed by the competent authority

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on 29.10.1993. Admittedly, for assailing the same plaintiff has not resorted to the statutory mechanism provided for under the Act. The limitation for assailing the same, as provided for under Article 100 of the Limitation Act, 1963, is one year. Thus, keeping in view the ratio of law laid down by the Apex Court in Tundal (dead) by LRs and others vs. Munshi & Ors., 2006 (12) SCC 245 , the suit of the plaintiff, in any event, was barred by the prescribed period of limitation. I am conscious that no issue on the question of limitation was framed, but keeping in view the ratio of law laid down by the Apex Court in M. K. Ranganathan & anr. vs. Govt. of Madras & Ors., AIR 1955 SC 604 , this legal issue is being considered.

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A similar view was taken in Durga Ram vs Bohra Ram, AIR 2020 HP 54, wherein it was observed:

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As per Art. 100 of the Limitation Act, an order of an ofÏcer is to be challenged within a period of one year from the date of passing of the same. In this case, reliance is placed upon Ajudh Raj and others vs. Moti, (1991) AIR SC 1600 , which has been otherwise taken note of by the learned first appellate Court, wherein it has been held as under:

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"5. The principle for deciding the question of limitation in a suit filed after an adverse order under a Special Act is well-settled. If the order impugned in the suit is such that it has to be set aside before any relief can be granted to the plaintiff, the provisions of Article 100 will be attracted. If no particular Article of the Limitation Act is applicable, the suit must be governed by the residuary Article 113, prescribing a period of three years. Therefore, in a suit for title to an immovable property which has been the subject matter of a proceeding under a Special Act, if an adverse order comes in the way of the success of the plaintiff, he must get it cleared before proceeding further. On

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the other hand, if the order has been passed without jurisdiction, the same can be ignored as nullity, that is, non-existent in the eye of law, and it is not necessary to set it aside; and such a suit will be covered by Article 65. In the present case, the controversial facts have been decided in favour of the plaintiff-appellant, and the findings were not challenged before the High Court. The position, thus, is that the plaintiff was the owner in cultivating possession of the land and the defendant Moti was merely a labourer without any right of a tenant or sub- tenant. The question is as to whether, in this background, it is necessary to set aside the order passed in favour of the respondent under Section 27(4) of the Act before the suit can be decreed or whether the plaintiff can get a decree ignoring the said order as void, in which case the suit undoubtedly will be governed by Article 65."

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In the present case, the order was passed on 23.03.1999, and the suit was filed on 10.5.2001, beyond the period of one year, and it was clearly barred by limitation.

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Therefore, there was no misreading or misinterpretation of the evidence and material on record, and this substantial question of law is answered accordingly.

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Final Order:

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