IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 166 of 2000. Judgment reserved on : 3.5.2010 Date of decision : 18.6. 2010. Jeeto ..Appellant. Vs Hari Singh and others ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Appellant : Mr. Anand Sharma, Advocate. For the respondents : Mr. K.D.Sood, Advocate for respondents No.1 to 4. Ms. Meenakshi Pathania, Advocate for respondents No. 5 to 7, 11 and 12. Kuldip Singh , Judge The plaintiff having lost in both the Courts below has come in second appeal against judgment, decree dated 28.9.1999 passed by learned District Judge, Chamba in Civil Appeal No. 32 of 1998 affirming judgment, decree dated 2.5.1998 passed by learned Sub Judge 1st Class, Chamba in Civil Suit No. 22 of 1993/ 318 of 1995/93. 2. The facts, in brief, are that appellant had filed suit for declaration and joint possession against respondents No.1 to 4 and Jaram Singh predecessor-in-interest of respondents No.5 to 12 on the grounds that appellant, respondents No.1 to 4 are real brothers and 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 Jaram Singh was also their real brother. Their father Hoshiara was owner in possession of suit land more specifically detailed in the plaint. Hoshiara died on 12.1.1990. The pedigree table of the parties is as follows:- Jhanju ↓ Bhimal ↓ ↓ Chanchala↔Hoshiara (dead) ↓ Narayan Singh (dead) ↓ ↓ Jeeto (Pt.) Hari Singh (defd. No. 1.) Kirpo (defd. No. 2.) Nidhia (defd. No. 3.) Raju (defd. No. 4.) Jaram Singh (defd. No. 5) (now dead) 3. The case of the appellant is that the suit property was owned and possessed in the previous settlement by Jhanju, the great-grand-father of the parties. The ancestors of the parties were occupancy tenants of the land under Laxami Narayan Temple, Chamba. In the recent settlement, it was found that Hoshiara and Narayan were the occupancy tenants of 24.2 bighas of land besides 1/3rd share of land measuring 4.6 bighas comprised in Khasra No. 349. On coming into force of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, the proprietary rights of 24.2 bighas of land were conferred upon Hoshiara and Narayan the real brothers. The land was partitioned vide mutation No.202 and the suit land came to the share of Hoshiara, who died leaving behind appellant, respondents No.1 to 4 and Jaram Singh, who lateron died. Hoshiara also left behind widow Chanchala, who also died. The 3 property of Chanchala was inherited by appellant and respondents No.1 to 4 and Jaram Singh. On the death of Hoshiara, mutation No. 218 was sanctioned in favour of respondents No.1 to 4 on the basis of will dated 22.1.1982. It has been alleged that the said will is a forged document and was procured by defendants No.1 to 4 under undue influence. On the same day, another will was executed by Narayan in favour of Jaram Singh which is also illegal and based upon incorrect statement of facts. Jaram Singh was not the adopted son of Narayan. The appellant is also not the adopted son of Kanshi and he acquired the property of Kanshi after paying compensation being a tenant. 4. It has been alleged that mutation No. 218 was wrongly attested in favour of respondents No.1 to 4. The property in the hands of Hoshiara was ancestral and he was only ‘Karta’ of the joint Hindu Family property. The alternative case of the appellant is that even if, the will executed by Hoshiara is held to be genuine, the property being ancestral and co-parcenary, Hoshiara could will only his share in the suit property which was 1/7th . On this ground also the alleged will of Hoshiara in favour of respondents No.1 to 4 is illegal. The appellant has a right to inherit the property in question by birth. The appellant has prayed for declaration that mutation No. 218 dated 24.5.1990 in favour of defendants No. 1 to 4 is wrong, illegal. He has prayed decree for joint possession of 1/6th share of the suit land to the extent of 1/36 share of the land bearing Khasra No. 349 measuring 4.6 bighas. 5. The respondents No.1 to 4 contested the suit by filing written statement. They took preliminary objections of maintainability, 4 limitation, estoppel and locus-standi of the appellant to file the suit. It has been alleged that appellant being an adopted son of Kanshi has no right to file the present suit. On merits, it has been admitted that Hoshiara died on 12.1.1990. it has been denied that suit property was owned by Jhanju. It has been alleged that the plaintiff is the adopted son of Kanshi and Jaram Singh is the adopted son of Narayan, real brother of Hoshiara. The property in the hands of Hoshiara or Narayan was not ancestral. Hoshiara became owner of the property in dispute after paying compensation and as such, it was his self acquired property. The respondents No.1 to 4 are the legal heirs of their father, who executed will in their favour. They pleaded that mutation No. 218 being valid. It has been pleaded that in the appeal which was filed by appellant, the Collector, Sub Division, Chamba has set-aside the mutation and remanded the case back for fresh decision to the Assistant Collector IInd Grade. Narayan had also executed a will in favour of Jaram Singh. The valuation of the suit for the purposes of Court fee and jurisdiction was also denied. It has been alleged that Civil Suit No. 762 of 1954 decided on 28.6.1955 titled as Kanshi Versus Jeeto, the appellant has been held to be the adopted son of Kanshi. The respondents No.1 to 4 prayed for dismissal of the suit. 6. Jaram Singh had also filed separate written statement and contested the suit. He took more or less the same pleas as taken by respondents No.1 to 4. He had not taken the plea that he was adopted son of Narayan Singh. He, however, pleaded execution of valid will by Narayan Singh in his favour. Jaram Singh also prayed for dismissal of the suit. 5 7. The appellant filed replication to the written statements and reiterated his stand. He denied that he is adopted son of Kanshi. It has been pleaded when Civil Suit No. 762 of 1954 was decided he was minor. Kanshi Ram disclaimed him as ‘Dharam Putra’. The suit land earlier was in possession of Bhimal father of Hoshiara and Narayan Singh as a tenant. On the death of Bhimal, the tenancy rights were inherited by his sons. 8. On the pleadings of the parties the following issues were framed:- 1. Whether mutation No. 218 dated 24.5.1990, attested by A.C.IInd Grade, Chamba regarding the estate of Hoshiara deceased in respect of suit land on the basis of will attested in favour of defendants No.1 to 4, is wrong, illegal and not binding upon the rights of the plaintiff as alleged? OPP. 2. Whether Shri Hoshiara was owner in possession over the suit land/property as Karta of family, and was not entitled to alienate it by way of will as alleged? OPP 3. Whether the plaintiff is entitled to joint possession of the suit land as alleged? OPP. 4. Whether the suit of the plaintiff is not maintainable in the present form as alleged? OPD 5. Whether the suit of the plaintiff is not within limitation as alleged? OPD. 6. Whether the plaintiff is estopped from filing the present suit on account of his act and conduct as alleged? OPD 7. Whether the suit is not maintainable, as mutation in question has been set aside by the revenue authorities in appeal as alleged? OPD 8. Whether the plaintiff is adopted son of Shri Kanshi as such, he has no right to sue as alleged? OPD 6 9. Whether defendants No.1 to 4 are only legal heirs of deceased Sh. Hoshiara and are entitled to inherit the property of Hoshiara as alleged? OPD. 10. Relief. The issues No.1 to 3, 8 were answered in negative, issues No. 4 and 9 in affirmative and issues No. 5, 6 and 7 were not pressed and the suit was dismissed on 2.5.1998 by learned Sub Judge. In appeal, the learned District Judge on 28.9.1999 has affirmed the judgment, decree dated 2.5.1998. Hence second appeal, which has been admitted on the following substantial questions of law:- 1. Whether the question of proprietary rights by a tenant the character of the property in his hand changes from ‘ancestral’ to that of ‘self-acquired’? 2. Whether the learned First Appellate Court being a final court of facts was not required to give a finding regarding the validity of ‘WILL’? 3. Whether the interpretation of the Punjab Occupancy of Tenants (Vesting of Proprietary Rights) Act, 1952 could be made the basis for deciding a case finally under the provisions of the H.P.Tenancy and Land Reforms Act? 4. Whether the learned Courts below were right in reaching a conclusion that the property in the hands of Hoshiara was self-acquired and not ancestral? 9. I have heard the learned counsel for the parties and have also gone through the record. On behalf of the appellant, it has been submitted that property in the hands of Hoshiara was ancestral property as it had come to Hoshiara from common ancestor Bhimal who in turn got the property from his father Jhanju. It has been submitted that in view of ancestral nature of the suit property, Hoshiara could not bequeath the property by will dated 7 22.1.1982. It has been submitted that the two courts below have not properly appreciated the legal position with respect to ancestral nature of the land in question. The learned counsel for the respondents have supported the impugned judgment, decree. 10. The substantial question of law No. 2 is taken first. The learned Sub Judge has upheld will dated 22.1.1982 Ex.DW-3/A. The learned counsel for the appellant in the lower appellate court had not disputed the validity of the will and it has been so recorded by the learned Appellate Court in para 11 of the impugned judgment. Once the validity of the will was not questioned before the learned lower Appellate Court, in these circumstances, the learned lower Appellate Court was not required to go into the question of validity of will. The substantial question of law No.2 is decided against the appellant. 11. The substantial questions of law No.1, 3 and 4 are inter- connected therefore, these substantial questions of law are taken up collectively for disposal. The appellant has pleaded in para 4 of the plaint that ancestors of the parties were occupancy tenants under Shri Luxmi Narayan Temple, Chamba and continued in possession whereof. However, in recent settlement it was found that Narayan and Hoshiara were occupancy tenants of 24.2 bighas of land besides 1/3rd share in land measuring 4-6 bighas comprising of Khasra No. 349. Ex.P-9 is the mutation No. 156 dated 26.6.1976 conferring proprietary rights on Hoshiara and Narayan regarding land measuring 6 – 7 bighas comprised in Khasra No. 499 under H.P. Tenancy and Land Reforms Act. Ex.P-11 Missal Haquiat Bandobast Kanuni indicates that Hoshiara, Narayan and others became owners vide mutation No. 35 dated 30.11.1958. In Ex.PC copy of Missal Haquiat Bandobast 8 Kanuni Sh. Thakur Laxmi Narayan is recorded owner whereas Hoshiara and Narayan were recorded as non-occupancy tenants. Hoshiara, Narayan partitioned their land after becoming owners and the suit land fell to the share of Hoshiara. The mutation No. 218 was attested on the basis of will of Hoshiara. In jamabandi for the year 1989-90 respondents No.1 to 4 are recorded owners in possession of the land measuring 12.1 bighas. The appellant in the plaint itself has pleaded that after coming into force of the H.P. Abolition of Big Landed Estates and Land Reforms Act, Hoshiara and Narayan acquired ownership of land 24-2 bighas which they lateron partitioned. Thus, land measuring 12-1 fell to the share of Hoshiara. 12. In Ram Asra and others Vs. Chinti and others, ILR 1984, HP Page 505, it has been held that once an occupancy tenant of the land had acquired proprietary rights therein by operation of law, it became his self acquired property. In Ram Asra, Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 was considered. In Krishan Chand and another Vs. Kaushalya Devi and another 1997 (2) S.L.C. 259, it has been held that in Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, morusi rights matured into proprietary rights under Section 3 of the said Act. After acquiring proprietary rights the land would become self acquired property. In the present case also, it is pleaded case of the appellant that Hoshiara became owner of 12-1 bighas of land by operation of H.P. Abolition of Big Landed Estates and Land Reforms Act. In Ram Asra and Krishan Chand (supra), it has been held that when ownership comes by operation of law to a tenant then property so acquired by him by operation of law is self acquired property and not 9 ancestral property. In the present case, Hoshiara and Narayan had become owner of 24-2 bighas of land which was under their tenancy by operation of law but on partitioned the suit land measuring 12-1 bighas fell to the share of Hoshiara and, therefore, the character of 12.-1 bighas of land in the hands of Hoshiara would be his self acquired property. The land comprised in Khasra No. 349 was separately acquired by Hoshiara and others which is clear from jamabandi Ex.P- 11. Thus, the suit property in the hands of Hoshiara was his self acquired property and he could bequeath the same by way of will. The will has not been disputed by the appellant as noticed above. The two courts below have rightly appreciated the material on record. There is no perversity in the impugned judgment, decree. No case for interference has been made out. The substantial questions of law No,1, 3 and 4 are decided against the appellant. 13. No other point was urged. 14. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ) Judge. June 18, 2010. (GR)