IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 316 of 2010 Date of decision: 20.10.2010 _________________________________________________________________ Mohini & another. .....Appellants. Versus Hem Chand. .....Respondent. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? Yes. _________________________________________________________________ For the appellants: Mr. G.R. Palsra, Advocate. For the respondent: Mr. B.K. Malhotra, Advocate. V.K. Sharma, J (Oral). The dispute between the parties falls within the domain of Section 11 of the H.P. Abolition of Big Landed Estates and Land Reforms Act, 1953 (in short 'the Act'). Where as, the appellants are the landlords, the respondent is the tenant. The tenant moved an application under Section 11 of the Act for conferment of proprietary rights in respect of the tenancy land, which is in dispute in the present appeal, to the Compensation Officer (SDM) Sadar, District Mandi, H.P., who vide order dated 07.02.2007 granted the prayer of the tenant and ordered conferment of proprietary rights in respect of the said land in his favour. Being aggrieved and dissatisfied, the landlords took the matter in appeal to the court of the learned Additional District Judge, Mandi, H.P., unsuccessfully. It is how the impugned judgment of the learned Additional District Judge, Mandi, dated 29.05.2010, is under challenge in 1 Whether reporters of Local Papers may be allowed to see the judgment? No. ...2... the present regular second appeal. In essence, the appellants are challenging concurrent findings of fact rendered by both the courts below. 2. The appellants have formulated the following substantial questions of law in this appeal: 1. Whether the respondent is not entitled for the confirmation of proprietary rights under Section 11 of the Himachal Pradesh Abolition of Big Landed Estate and Land Reforms Act as he is not tenant under the appellants and his status was only as a sub tenant? 2. Whether there is clear violation of Section 11(2) of the Himachal Pradesh Abolition of Big Landed Estate and Land Reforms act as the appellant No. 1 is widow? 3. Whether the principle of res-judicata is applicable in the present case in view of the earlier decision dated 29.01.1998 as well as dated 18.8.1967? 4. Whether both the ld. Courts below have misread, misinterpreted and misconstrued the oral evidence as well as documentary evidence of the parties and also provisions of law? 5. Whether after the relinquishment of tenancy right by Smt. Lali, shri Ram Singh has no right over the suit land? 3. At the time of hearing the, learned counsel for the appellant has laid stress only on substantial questions No. 2, 3 and 5. 4. Insofar substantial question No. 2 is concerned, the relevant date for conferment of proprietary rights would be the date of filing of the application on which the rights under sub-section (1) of Section 11 of the Act are crystallized and such rights would not be defeated by any subsequent event. To this effect is the law laid down by this Court in Smt. Savitri Devi vs. Santa and others, ILR 1981, H.P. 563, vide para 17 of the report which is as under: “17. Now we shall consider point No. 2. While considering point No. 1 we have come to the ...3... conclusion that the rights of a tenant to acquire proprietary and other rights under sub-section (1) of Section 11 of the Act, are crytallised on the date of the filing of the application and the rights of such a tenant are not defeated by subsequent events. In the event of the death of a land owner during the pendency of the proceedings under sub-section (1) of Section 11, who was not entitled to the protection under sub-section (2) of Section 11 of the Act, his successors-in-interest even if suffering from any of the disabilities under sub-section (2) of Section 11, would not be entitled to such benefits. Otherwise also, 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 case to exist. It is an established principles 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 an 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 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 part of the tenancy land, cannot be sustained. It may be noticed that a tenant is not prohibited from making successive ...4... applications under sub-section (1) of Section 11 of the Act. A decision in previous proceedings would not operate as res judicata in subsequent proceedings. It cannot be disputed that a person, including a tenant, can purchase the share of a co- owner. Similarly, a tenant is not debarred from acquiring proprietary rights of a co-owner in a tenancy. In fact, the tenant on the acquisition of such a right will step into the shoes of the co-owner whose undivided share he has acquired under the Act. After such an acquisition, the tenant would be also entitled to seek partition of land. The ultimate result would be that a tenant would cease to be a tenant of that portion of the property of which he had become the owner under the Act, and in respect of the remaining land, he would continue to be a tenant. It would have no effect on the tenant continuing as such on the remaining land of other co-owners who are protected under sub-section (2) of Section 11 of the Act. It may be notice that such an interpretation of the provisions contained under Section 11 of the Act would enhance the intendment of the Act and achieve the object as envisaged under the Act.” 5. On the same analogy any event prior in point of time would also not affect the right of the tenant to seek conferment of proprietary rights. The learned counsel for the appellants submits that since appellant No. 1, Smt. Mohini, is a widow, she was protected under the provisions of the Act and proprietary rights could not leave have been conferred upon the respondent/tenant till the disability, i.e., her status as a widow, continues. However, the fact remains that neither it has been averred nor proved that when the respondent-tenant became ...5... entitled for conferment of proprietary rights, such disability was existing and rather it is admitted by the parties that Smt. Mohini became widow at a later stage. 6. It is next contended by the learned counsel for the appellants that since an earlier application moved by the respondent- tenant for conferment of proprietary rights had already been dismissed, a second application, out of which, the present appeal has arisen was barred by the principle of res judicata. In this regard also, suffice it to say that no such ground was averred before the Compensation Officer, as is evident from the order dated 07.02.2007, passed by him, as no such ground is covered under the issues framed by that court in the said application. Such a ground cannot be permitted to be raised for the first time in a regular second appeal. 7. Lastly, while coming to substantial question No. 5, it would be seen that the question, as framed, would not fall within the definition of substantial question of law and is essentially a question of fact which has already been decided against the appellants by both the courts below. 8. In view of the above, the appeal, being without any merit, is dismissed with no order as to costs. 9. In view of disposal of the main appeal, pending application(s), if any, shall also stand disposed of as infructuous. (V.K. Sharma) Judge 20th October, 2010 (virender)