IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 162 of 2000 Reserved on: 8.4.2011 Decided on: 3.5.2011 Thakur Dass & Ors. …Appellants. Versus Tulsi Devi …..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellants : Mr. Neel Kamal Sharma, Advocate. For the Respondents : Mr. K.D. Sood and Mr. Rajnish K. Lall, Advocates Kuldip Singh, Judge This appeal is directed against the judgment, decree dated 20.1.2000 passed by the learned District Judge, Hamirpur in Civil Appeal No. 8 of 1992, reversing the judgment, decree dated 9.12.1992 passed by the learned Sub Judge First Class(II), Hamirpur in case No. 229 of 1989. All the appellants have died and they are now represented by their legal representatives. In these circumstances, the parties in this judgment are referred as plaintiff and defendants. 2. The facts, in brief, are that the plaintiff Tulsi Devi had filed a suit for declaration that she is joint owner with defendants in the suit land more specifically described in the plaint measuring 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 31 kanals 4 marlas to the extent of 1/8th share, measuring 3 kanals 18 marlas vide jamabandi 1985-86, Tika Jahu Kalan, Mauza Mewa, Tehsil Bhoranj, District Hamirpur being one of the heirs of Smt. Jindi widow of Achhar. The mutation No. 1058 has no effect on the rights of the plaintiff to succeed to the estate of Jindi. The defendants may be restrained from claiming 1/8th share of the plaintiff in the suit land and not to interfere in her possession. 3. The further case of the plaintiff is that she is the daughter of Amin Chand, brother of Achhar who was the husband of Smt. Jindi. The property was to be inherited by defendant No.1 to the extent of half share and remaining half share was to be inherited by the plaintiff and defendants No. 2 to 4 in equal shares. The plaintiff is thus entitled to inherit 1/8th share of Smt. Jindi. 4. Smt. Jindi had property in two Tikas, namely, Manwin and Jahu Kalan. Smt. Jindi died on 2.4.1989. The estate of Smt. Jindi in Tika Manwin was mutated vide mutation No. 628 on 24.5.1989 showing that the plaintiff has also inherited the share of Smt. Jindi as one of the heirs. The defendants intentionally without notice to the plaintiff got mutation No. 1058 of Tika Jahu Kalan attested in their favour in connivance with revenue officer and excluded the plaintiff from the suit land. The mutation No. 1058 has been sanctioned against law and is liable to be set aside. The plaintiff is also in possession of the suit land as an heir of Smt. Jindi along with the defendants. In case the plaintiff is not found in possession, she is entitled to decree of joint possession with the defendants. 3 5. The suit was contested by the defendants by filing written statement, in which preliminary objections of maintainability, estoppel, and non-joinder of necessary parties have been taken. It has been stated that Vipin Kumar and Lekh Ram are recorded tenants over the suit land, who are necessary parties. Nand lal is also necessary party. The suit has not been properly valued for purposes of court fee and jurisdiction. On merits, it has been stated that the defendants were tenants over the suit land and after the death of Smt. Jindi they have become owners of the suit land under Section 104 of the H.P. Tenancy and Land Reforms Act. The possession of the defendants over the suit land as tenants is prior to 1963-64 and before them their fathers were in possession of the suit land. The plaintiff is not an heir of late Smt. Jindi. 6. It has been admitted that Smt. Jindi had died on 2.4.1989. After the death of Smt. Jindi, the defendants are entitled to inherit the property, additionally the defendants were recorded as tenants over the suit land and therefore, under Section 104 of H.P. Tenancy and Land Reforms Act, the defendants shall be deemed to have become owners. The plaintiff is not in possession of any share of the suit land. 7. The plaintiff has filed replication and reiterated her stand. It has been denied that the defendants were tenants under Smt. Jindi. The sons and nephews cannot be tenants under their mother or aunt. 8. On the pleadings of the parties, the following issues were framed:- 4 1. Whether the plaintiff is joint owner to the extent of 1/8th share in the suit land, as alleged? OPP 2. Whether the suit is not maintainable? OPD. 3. Whether the suit is bad for non-joinder of necessary parties? OPD 4. Whether the plaintiff is estopped by his act and conduct from filing the suit? OPD 5. Whether the defendants were tenants over the suit land under Jindi deceased, as alleged, if so, its effect? OPD 6. Relief. Issues No. 1 and 4 were answered in negative, issues No. 2, 3 and 5 in affirmative and the suit was dismissed on 9.12.1991. The learned District Judge, Hamirpur allowed Civil Appeal No. 8 of 1992 on 20.1.2000 and held that the plaintiff is entitled to 1/8th share of the property of Smt. Jindi along with her brothers and the suit was decreed. The judgment dated 20.1.2000 has been assailed in Second Appeal, which has been admitted on the following substantial questions of law:- 1. Whether the provisions of Punjab Security of Land Tenures Act, which stands repealed under Section 126 of the H.P. Tenancy and Land Reforms Act, 1972 have been rightly applied by the learned first appellate court in this case. 2. That when in para 15 of the judgment, the learned first appellate court has specifically held that the defendants are cultivating the land as tenants on payment of rent to Smt. Jindi, whether the suit of the plaintiff should have been decreed? 9. I have heard the learned counsel for the parties and have also gone through the record. The aforesaid substantial 5 questions of law are interconnected, therefore, both the aforesaid substantial questions of law are taken up collectively for consideration. 10. It is admitted case of the parties that Smt. Jindi had died on 2.4.1989. The defendants have claimed ownership of the suit land on the basis of their alleged tenancy after the death of Smt. Jindi under Section 104 of the H.P. Tenancy and Land Reforms Act, 1972 (for short the ‘Act’). The Punjab Security of Land Tenures Act, 1953 has been repealed under Section 126 of the Act. The Act has come into force on 21.2.1974. Once the defendants have themselves projected their case of ownership under Section 104 of the Act, then there is no question of considering the case of the defendants under the Punjab Security of Land Tenures Act, 1953, which does not in any way improve the case of the defendants. In these circumstances, the defendants cannot take the benefit of Punjab Security of Land Tenures Act referred to by learned District Judge in the impugned judgment. 11. The connected question is regarding the alleged tenancy of the defendants on the suit land. The property of Smt. Jindi, situate at Tika Manwin after her death was mutated vide mutation No. 628, dated 24.5.1989 Ext.P-2 in favour of Ram Dass one share, Sant Ram, Nagina Ram, Narpat Ram and Tulsi Devi one share. The mutation No. 628 has not been challenged by the defendants. Thus, it can be safely concluded that the plaintiff, after the death of Smt. Jindi, is entitled to inherit her property as one of her heirs. 12. Ext.P-1 is the jamabandi for the year 1985-86, Tika Jahu kalan. In the remarks column of Ext.P-1, there is a note that 6 vide mutation No. 1058 attested on 24.5.1989 estate of Smt. Jindi has been mutated in favour of Ram Dass to the extent of half share Sant Ram, Nagina Ram, Narpat Ram to the extent of half share. In mutation No. 1058 there is no reference of plaintiff Smt. Tulsi Devi. The tenancy claim of the defendants apart, the plaintiff is entitled to inherit the estate of deceased Smt. Jindi as her one of the heirs. The omission of name of the plaintiff as heir of deceased Smt. Jindi in the mutation No. 1058 has not been explained by the defendants. The claim of the defendants of ownership of the suit land under Section 104 of the Act has nothing to do with the right of the plaintiff to inherit the estate of Smt. Jindi, after her death. Therefore, mutation No. 1058 whereby the property of Smt. Jindi in Tika Jahu Kalan was not mutated in favour of the plaintiff or in other words the plaintiff has been ignored as an heir of Smt. Jindi in mutation No. 1058 is not sustainable. 13. In para 15 of the impugned judgment there is an observation of the learned District Judge that perusal of oral evidence of the defendants, it is clear that they use to cultivate the suit land on payment of rent to Smt. Jindi. This appears to be typing mistake. In any case in the earlier part of the impugned judgment, the learned District Judge has not recorded a finding that the defendants were tenants under Smt. Jindi. On the contrary, the tenor of discussion in the impugned judgment is that a close relative like son cannot be a tenant of his father. In paragraph 15 of the impugned judgment itself the learned District Judge has observed that in such a situation no presumption of tenancy can arise. In paragraph 17 of the impugned judgment specific finding has been recorded by learned District Judge that 7 the defendants cannot be treated as tenants of Smt. Jindi and later on cannot become owners of the suit land under Section 104 of the Act. 14. Independent of aforesaid observation it is admitted case of the defendants that Smt. Jindi was the owner of the suit land. In the written statement, it has been pleaded that the possession of the defendants over the suit land as tenants is prior to 1963-64 and prior to that fathers of the defendants were in possession of the suit land. The claim of the defendants that they were tenants under Smt. Jindi establishes that they have not denied the ownership of Smt. Jindi on the suit land. The question is whether the defendants were at any time inducted as tenants by Smt. Jindi on the suit land. The tenancy is creation of contract, no such contract has been pleaded in the written statement. The defendants, however, pleaded that they are in possession over the suit land as tenants prior to 1963-64 and prior to that the fathers of the defendants were in possession of the suit land. The defendants have pleaded the possession of their fathers on the suit land but not in a capacity as tenants, under what capacity their fathers were in possession of the suit land that has not been explained. 15. DW-1 Narpat has stated that he is tenant on 15 Kanals 8 Marlas land of Smt. Jindi. He used to pay rent to Smt. Jindi. Ram Dass, Nand Lal, Vipin Kumar and Lekh Ram are cultivators in the khata. All of them were inducted tenants in the year 1965-66, then said they are coming tenants since the time of their forefathers. In cross- examination, he has stated that Smt. Jindi had not given the land to them for cultivation. They had 8 been cultivating the land prior to Smt. Jindi. Thus, DW-1 has very categorically stated that the land was not given to them for cultivation by Smt. Jindi. In the written statement the defendants have not pleaded that they were inducted tenants on the suit land before Smt. Jindi became owner. The defendants in their written statement have pleaded that they were inducted tenants on the suit land prior to 1963-64. 16. The claim of tenancy of the defendants on the suit land is not only vague but confusing. There is no specific evidence who inducted the defendants or their forefathers on the suit land as tenants. Smt. Jindi is recorded as owner in jamabandi Ext.P-4 for the year 1936-37 in Tika Jahu Kalan. The defendants have failed to establish that they were tenants under Smt. Jindi on the suit land. The appeal has not been admitted on substantial question of law regarding mis-interpretation of oral and documentary evidence or ignoring material evidence which goes to the root of the case. The substantial question of law No.1 is answered to the effect that reference of Punjab Security of Land Tenures Act, 1953 in the impugned judgment is of no consequence and does not improve the case of the defendants, substantial question of law No.1 is decided accordingly. The substantial question of law No.2 in the light of above discussion is decided against the defendants. 17. In view of above, the appeal is dismissed with no order as to the costs. ( Kuldip Singh ), May 3, 2011. Judge. (vt)