IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.108 of 2002. Judgment reserved on 7th July, 2010. Date of Decision: 10th August, 2010. _______________________________________________________ Woodland Society, Andretta ..Appellant. Versus Smt. Pinki Devi and others ..Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant: Mr. Rajnish Maniktala, Advocate. For the respondents: Pt. Om Parkash, Advocate. ____________________________________________________ SURINDER SINGH, J. This Regular Second Appeal was admitted on the following substantial questions of law: (1) Whether the judgment and decree of the Courts below are perverse and contrary to the settled position of law? (2) Whether the findings of the Courts below that the defendants have become owners of the suit property, dehors of the evidence and contrary to the law? (3) Whether the impugned judgment and decree is vitiated by material irregularity and illegality by the exclusion from consideration the material documents including the Will executed by the admitted owner of the property? Whether reporters of the Local papers are allowed to see the judgment? - 2 - 2. The facts giving rise to the instant appeal can be summed up thus. The appellant-society was plaintiff before the learned trial Court. They filed the suit for injunction with respect to the suit land against one Smt. Sarswati Devi, successor-in-interest of Shri Jat and Shri Baldev Singh Thakur, Sarpanch of Gram Panchayat and Shri Chuni Lal, the vendees, the original defendants. During the pendency of the present appeal Chuni Lal died, as such his legal representatives No.3 (a) to 3(f) were brought on record. 3. The facts are that certain lands including the suit land were owned and possessed by Mrs. Nohra Richard, a foreigner who was residing in village Andretta, District Kangra. She executed a Will, which was duly registered, bequeathing her property in favour of the appellant-society and other persons. She was being assisted in her work by many persons including one Shri Jat for cultivating her agricultural land. He was also one of the beneficiaries to whom life interest in the suit land, was given. It is the case of the plaintiff-society that after the death of Shri Jat it was to be reverted back to the appellant-society. 4. The learned District Judge, Kangra at Dharamshala had granted probate in Probate Case No.4 of 1974 with respect to the Will of Mrs. Nohra - 3 - Richard. After her death the mutation was attested on 18.4.1972 in favour of Shri Jat reflecting an entry that it would revert back to the society. 5. It is alleged that since said Shri Jat was holding the suit land as a life interest, but he was wrongly shown as non-occupancy tenant, which resulted to the mutation of conferring the proprietary rights upon him against the facts. Said Shri Jat had died, on 16.12.1977 issueless, but the entries of his ownership and possession went on till it was mutated on 26.6.1990 in favour of Smt. Sarswati Devi as legal heir without notice to the appellant-society. On coming to know it was stated to be duly corrected by the revenue agency and the name of the plaintiff-society was incorporated in the latest Jamabandi. It is also alleged that in the second week of June, 1991 the original defendants named above, threatened to take possession of the suit land without any right, title and interest, hence sought injunction restraining them from causing any interference in the suit land and in case the defendants encroach upon the land during the pendency of the suit, in alternative for possession. 6. The defendants in suit had taken the objections of maintainability of the suit, jurisdiction, non- joinder of necessary parties, limitation and also - 4 - questioned the locus-standi of the plaintiff-society to file the suit. It was specifically averred that the exparte review of mutation No.61 without notice to defendants, in favour of the plaintiff-society was wrong and illegal. Infact Shri Jat was and also remained “Gair Maroosi” tenant of the suit land and had become owner of the same by operation of law, i.e., under the HP Tenancy and Land Reforms Act, in short “the Act”. After his death the mutation of his estate was rightly attested in favour of Smt. Sarswati Devi his legal heir who remained in possession of the land and later she sold it to defendant- respondents No.2 and 3, who are in its continuous possession. This was also averred that in mutation No.995 the word “Tahayat” (life interest) was interpolated, which is wrong and incorrect. However, they alternatively claimed adverse possession. 7. During the proceedings of the case Smt. Sarswati Devi died when the matter was pending in the learned trial Court. Thus Smt. Pinki Devi was impleaded and brought on record, as her legal representative. 8. On the pleadings of the parties, following issues were framed on 4.8.1992 and additional issues were also framed on 28.7.1995: 1. Whether the plaintiff is owner in possession of the suit land as alleged? OPP. - 5 - 2. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP. 3. Whether the suit is not maintainable as alleged? OPD. 4. Whether defendant No.1 inherited the suit land from Jat (since deceased) who became its owner, being non-occupancy tenant, as alleged? OPD. 5. Whether defendants have become owners of the suit land by way of adverse possession as alleged? OPD. 5-A) Whether the plaintiff is entitled to the possession of the suit land, as alleged? OPP. 5-B) whether the defendant has become the owner of the suit land under the provisions of HP Tenancy and Land Reforms Act, as alleged? OPD. 6. Relief. 9. After the complete trial, the learned trial Court answered issues No.3, 4, 5 and 5-B in affirmative and others in negative, as such suit of the plaintiff-society was dismissed. They also failed in appeal before the learned first appellate Court, as such the present Regular Second Appeal. 10. Shri Rajnish Maniktala, learned Counsel for the appellant-society made his oral submissions as well as filed his written arguments. The line of his argument has been that Section 104 read with Rules 24, 28 and 29 of the Act and Rules framed thereunder provides a procedure for attesting the mutation and conferment of - 6 - proprietary rights on the non-occupancy tenants. Since the revenue officer did not follow the prescribed procedure, therefore, the confirmation of the proprietary rights on Shri Jat is incorrect and the appellant-society was deprived of agitating the fact that said Shri Jat had only life interest and he was not a non-occupancy tenant. However, it is admitted that said Shri Jat was cultivating the land for Mrs. Nohra Richard, but the Will Ext.P.2 on the basis of which Probate Ext.P.1 was also issued. Said Shri Jat was having a life interest and the suit land was to revert back to the plaintiff-society. The main contention of the learned Counsel for the appellant has been that when the entry in revenue record was made in favour of Shri Jat the word “Tahayat” was not recorded, i.e. in the Missal Hakiat Ext.D.2 said Shri Jat was wrongly recorded as owner and there was no order of conferring the proprietary rights upon him in accordance with law. He also ventilated that review of the mutation was filed by the plaintiff-society, which was attested in the presence of Smt. Sarswati Devi, predecessor-in-interest of respondent No.1. He further ventilated that the Courts below wrongly held Shri Jat, a non-occupancy tenant and that he became owner of the suit land by operation of law, which are wrong and illegal. To support his version, the learned Counsel relied - 7 - upon various judgments of this Court as referred in his written arguments. 11. Contra, Pt. Om Parkash, learned Counsel for the respondents vehemently opposed the arguments advanced by the learned Counsel for the appellant on the ground that the facts on record clearly prove that Shri Jat was a non-occupancy tenant even before the execution of the Will. He was so recorded in the revenue record. He died in the year 1977. He further argued that the Act came into force in the year 1972 and after the enforcement of the Act and Rules framed thereunder w.e.f. 5.10.1975 the conferment of proprietary rights over a tenant was automatic in absence of plea that the appellant-society was entitled for resumption of land. Further, any document including the Will in question limiting his right is also void. He also argued that the procedure for the conferment of the proprietary rights as envisaged in the Act and the Rules framed thereunder is only prescribed to facilitate the revenue officer to complete the record. Thus, he supported the impugned judgments passed by the Courts below. 12. I have given my thoughtful consideration to the rival contentions of the parties and have carefully examined the record. - 8 - 13. The arguments advanced by Shri Rajnish Maniktala initially looked very attractive, but in view of the facts of this case, have no significance. The case law cited has no relevance in the facts in hand. 14. It is pertinent to note that the plaintiff-society filed the suit on the basis of the revenue entries made pursuant to the review of mutation, showing them as owner and in possession of the suit land and their case is for injunction, in alternative for possession, if the defendants are found to have been encroached upon the suit land by seeking amendment. 15. Admittedly, the land in dispute had been in possession of Shri Jat right from the time when Mrs. Nohra Richard was alive. It is also admitted fact that till the death of Shri Jat in the year 1977 he remained in possession thereafter it came to be possessed by Smt. Sarswati Devi on the basis of inheritance who was his legal heir. The mutation of inheritance was attested in her favour and she sold the suit land to defendants No.2 and 3 by registered sale deed, thereafter they had been in possession of the suit land. The plaintiff-society never came in possession of the suit land at any point of time. Further, they sought the review of the mutation in the year 1990 showing the life interest in favour of said Shri Jat Ext.P.4 the death of Shri Jat, when the suit property - 9 - was not in possession of the plaintiff-society, suit for injunction is bound to fail. 16. There is also no evidence to show that the plaintiff-appellant had come into possession of the land in suit or they were dispossessed or that the respondents are encroachers. Further, PW-2 Rasila Ram and PW-3 Loharu Ram categorically stated that Shri Jat was in possession of the suit property during his life time, thereafter it was being cultivated by respondents No.2 and 3. Even PW-1 B.C. Sanyal, Administrator of the plaintiff-society affirms this fact. Respondent No.2 Baldev Singh categorically stated having purchased this land from Smt. Sarswati Devi, who was owner and in possession thereof in the year 1990. He further stated that Shri Jat was a non-occupancy tenant of the suit land under the original owner Mrs. Nohra Richard and these entries were reflected in the revenue record, i.e., Jamabandi for the year 1968-69 Ext.D.1 paying half share of the crop to the landowner and when the Act came into force Shri Jat also remained in possession as “Gair Maroosi” tenant under the original landowner, thus, the Will aforesaid limiting his right is meaningless and void. - 10 - 17. In Daulat Ram and others v. State of Himachal Pradesh and others, 1979 SLC 215, this Court in para 15 has held as under: “Under sub-section (3) of Section 104 of the Act, all rights, title and interest (including a contingent interest, if any) of the landowner of the land held by tenants shall be extinguished, and all such rights, title and interest shall vest in the tenants free from all encumbrances created by the landowner, with effect from the date to be notified by the State Government in the Official Gazette, provided that if the tenancy is created after the commencement of this Act, the provisions of this sub-section shall apply immediately after the creation of such tenancy. It cannot be disputed that the entry of tenancy existed much before the promulgation of the Act, and the respondents cannot question the tenancy when it is so recorded in the revenue papers which is a conclusive proof of the factum of the existence of the tenancy. Once a person is entered as a tenant in the revenue record then notwithstanding any agreement etc. to the contrary, the person so entered shall become the owner by virtue of the provision of sub-section (3) of section 104 of the Act. The conferment of the proprietary rights under the Act is automatic from the date of the issue of the notification by the State Government in the Official Gazette, and the vestment of ownership shall be free from all encumbrances. Under rule 27 of the Himachal Pradesh Tenancy and Land Reforms Rules 1975, all rights, title and interests in the tenancy land of landowners…. shall vest in the non-occupancy - 11 - tenants with effect from the commencement of these rules. Similarly, the proprietary rights of tenancy land of the non-occupancy tenants on Government land shall also vest in the tenants from the commencement of these rules. These rules came into force on 3.10.1975. Therefore, from that date the ownership rights vested free from all encumbrances on the persons who were so recorded as tenants under the landowners or for the matter of that the State Government in that land. Therefore, the plea taken up by the respondents that they were not the tenants is wholly incorrect because they cannot set up this case when they are so recorded, and once they are so recorded they become the owner of the land by virtue of the operation of law and they actually became owners with effect from the date of publication of the rules.” 18. The ratio of above judgment applies mutatis mutandis to the present case. 19. The entries of tenancy in favour of Shri Jat were already there in the Jamabandi in Ext.D.1 for the year 1968-69, which existed even much prior to the enforcement of the Act, have not been disputed . Thus notwithstanding any agreement etc. to the contrary to it, is void. The conferment of the proprietary rights upon said Shri Jat is automatic w.e.f. 5.10.1975 when the Rules came into existence. Hence, the Courts below rightly concluded that the effect of the Will or Probate qua the suit land has become inconsequential qua the rights of - 12 - tenancy of Shri Jat. Once it is held that Shri Jat had become owner of the suit land possessed by him by operation of law, in that eventuality Smt. Sarswati Devi his successor-in-interest had rightly inherited his property. The review of the mutation sought by the plaintiff is of no consequence and said Smt. Sarswati Devi was competent to dispose of her property as per her wishes. Since it has come on record that defendants No.2 and 3 had purchased the suit property from Smt. Sarswati Devi, therefore, in view of this situation they have rightly been held in its possession as its owners. 20. Accordingly, I hold that judgments and decrees passed by the learned Courts below are legally and factually sustainable duly supported by the oral as well as documentary evidence and the substantial questions of law are accordingly answered. The appeal has no merit, as such dismissed. Parties are left to bear their own costs. August 10, 2010. (Surinder Singh), J. (rc)