IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA 222 of 1990. Decided on : July 24, 2010. Krishni …Appellant/Plaintiff. Versus Jhali & others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the appellant Mr. Ajay Kumar, Advocate. For the respondents Mr. Bhupinder Gupta, Sr. Advocate, with Ms. Charu Gupta, Advocate. Surjit Singh, J. (Oral) This regular second appeal by the plaintiff was admitted on the following substantial questions of law: 1. Whether in view of the admission of due execution of Ex.PW-1/A by the respondents, the learned lower appellate court could have ignored the same for want of proof? 2. Whether transfer of tenancy rights with due consent of the landlords is void? 2. Facts, relevant for the disposal of the appeal, may be stated. Land, measuring 26 bighas, 15 biswas, described in the plaint, was held as occupancy tenants, by four sets of persons, in equal shares. One of those four sets comprised of only one person, namely Changu, father of the 1 Whether reporters of Local Papers may be allowed to see the Judgment? - 2 - present appellant-plaintiff. On the death of said Changu, his 1/4th share was inherited by her widow Ruhansu, who was mother of the plaintiff. She inherited Changu’s share, by virtue of Section 67 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 (hereafter referred to as ‘Act’). When Ruhansu died in the year 1968 or 1969, a dispute arose between the plaintiff (daughter of Ruhansu) and three other sets of occupancy tenants, as to who was entitled to inherit Ruhansu’s rights as occupancy tenant. Plaintiff claimed that she had inherited such rights, while three other sets of occupancy tenants, who are respondents – defendants herein, claimed that they had inherited such rights, because after the death of widow of the original tenant, occupancy tenancy rights under the provisions of Section 67 of the Act, devolved upon collaterals of widow’s husband. A compromise was arrived at, in the form writing Ex.PW-1/A, which was signed by almost all the other occupancy tenants, as also by one of the land owners, namely Man Dei, who had only 1/9th share in the total holding. According to that writing, plaintiff was allowed to retain her mother’s share in the occupancy holding. Mutation was also attested on the basis of that writing. However, that mutation was challenged on the ground that under the law, occupancy tenancy rights could not have been inherited by the plaintiff, nor could have the other - 3 - occupancy tenants, on inheriting such rights, transferred the same to the plaintiff. On the basis of those objections, raised in appeal against the order of mutation, mutation was set aside and a fresh mutation was attested. Same is dated 4.1.1974, copy Ex.DA. After attestation of this second mutation, plaintiff-appellant filed the present suit for declaration to the effect that she had inherited occupancy tenancy rights of her mother Ruhansu, or in the alternative, she had become entitled to occupancy rights of her mother, on the basis of writing, Ex.PW-1/A. 3. Suit was contested by co-occupancy tenants of Ruhansu. They denied claim of the plaintiff and pleaded that under law, after the death of Ruhansu, they, being collaterals of Ruhansu’s deceased husband Changu, had inherited occupancy tenancy rights. They denied having executed writing Ex.PW-1/A. Also, they pleaded that the writing, even if proved, could not bind them, as it was contrary to the provisions of Section 68 of the Act. Several preliminary objections were also raised. 4. Trial Court concluded that occupancy tenancy rights, on the death of Ruhansu, had been inherited by the respondents-defendants and the writing Ex.PW-1/A, did not create any right in favour of plaintiff. Appellant-plaintiff filed appeal in the Court of District Judge. That has also been dismissed. - 4 - 5. I have heard the counsel for the parties and gone through the record. 6. Finding of the first appellate Court that writing Ex.PW-1/A is not proved as per law, does not seem to be correct. One of the respondents-defendants, namely Thutha, who appeared as DW-1, admitted, in no uncertain terms, that the writing had been executed by him and other occupancy tenants and that in accordance with this writing, plaintiff was in possession of 1/4th part of the suit land, measuring 6 bighas 14 biswas. Therefore, first appellate Court was not right in holding that the writing did not stand proved. Admission of a party is substantive evidence. It is far more superior evidence, being admission, compared to the testimony of other witnesses. However, writing Ex.PW-1/A does not come to the rescue of the appellant-plaintiff, for the reason, that an occupancy tenant cannot transfer his occupancy rights and such a transfer is void, in view of the provisions of Section 68 of the Act. Succession takes place, as soon as the death of the last holder of the property in question, takes place. That means, on the death of Ruhansu, occupancy tenants, comprising of three other sets, that is respondents – defendants, inherited the occupancy rights in respect of 1/4th share of the total holding, as soon as Ruhansu died, they being collaterals of Ruhansu’s husband Changu. Section 67 of the Act provides that occupancy rights of a - 5 - tenant are inherited by his male lineal descendants, failing such descendants, by his widow, until she dies or remarries or abandons her rights, and on the death of such widow, those rights are inherited by collaterals of widow’s husband. Now, when the respondents –defendants, on account of being collaterals of Ruhansu’s husband, had inherited the occupancy rights of Ruhansu, by virtue of Section 67 of the Act, they became occupancy tenants, in respect of Ruhansu’s 1/4th share also. An occupancy tenant cannot transfer his rights and if any transfer is made, the same is void, per Section 68 of the Act. Therefore, writing Ex.PW- 1/A, cannot operate as transfer of 1/4th share, in the occupancy rights in respect of the suit land, in favour of the plaintiff-appellant. Question No. 1 is answered accordingly. 7. Coming to question No. 2, Section 68 of the Act does not recognize any exception. The same is absolute. It says that transfer of occupancy rights by a tenant, is void. It does not say that if such transfer is with the consent or acquiescence of land owner, it would not be void. So, this question is also answered against the appellant-plaintiff. 8. For the fore-going reasons, appeal is dismissed. July 24, 2010 (PC). (Surjit Singh), J.