IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 110 of 1999 Date of Decision : June 16 , 2009 Smt. Lachhmi Devi and others. Appellants Versus Shri. Sarvjeet Singh Respondent Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellants : Mr. Neeraj Kumar Sharma, Advocate, for the appellants. For the respondent : Mr. Ajay Sharma, Advocate, for the respondent. Sanjay Karol, J. (Oral) The appeal was admitted on the following substantial questions of law: “1. Whether impugned judgment, decree is liable to be set aside as learned District Judge on the point of tenancy of Amar Singh on the suit land has not considered the statement of PW1 Sarvjeet Singh, plaintiff and DW2 Joginder Singh son of Amar Singh? 2. Whether civil court has jurisdiction to try the suit in view of dispute of tenancy on the suit property in favour of Amar Singh predecessor of appellants? 1 Whether reports of Local Papers may be allowed to see the judgment? 2 3. Whether learned two courts below have mis-construed, misinterpreted the material on record and decisions given by them are not correct?” The respondent herein, as plaintiff filed a suit for possession on the basis of title against the defendants, the appellants herein. In the said suit the trial Court framed the following issues: “1. Whether the defendant (Late Sh. Amar Singh) was in permissive possession as alleged? … OPP 2. In case issue No. 1 is proved, whether the plaintiff is entitled to possession of the suit land on the basis of title as alleged? ..OPP 3. Whether the Civil Court has no jurisdiction to try the suit as alleged? …OPD 4. Whether the suit has abated as alleged? …OPD 5. Whether the deceased Amar Singh was in possession of the suit land as tenant as alleged? …OPD 6. Relief.” Based on the material placed on record by the parties including the evidence (oral and documentary), the Sub Judge, Ist Class, Nahan, District Sirmaur, H.P. decreed the plaintiff’s Civil suit No. 10/1 of 1991, titled as Sarbjeet Singh versus Amar Singh in terms of judgment and decree dated 6.8.1997. Keeping in view the provisions of sub section (4) of Section 2 of The Himachal Pradesh Tenancy and Land Reforms Act, 1972 (hereinafter referred to as the Act), the Trial Court held that the plea of tenancy taken by the defendant was untenable in law in as much as Shri Amar Singh, the original defendant could not have been the tenant under his father namely Shri Tulsi Ram. The Court also held that keeping in view the 3 ratio of law laid down by this Court in Chuhniya Devi versus Jindu Ram, 1991 (1) Sim. L.C. 223, the Civil Court had the jurisdiction to try the suit for the reason that the relationship of landlord and tenant was not admitted by the plaintiff. Aggrieved by the same the defendants-appellants herein, preferred an appeal No. 50-CA/13 of 1997, titled as Lachhmi Devi and others versus Sarvjeet Singh, before the District Judge Sirmaur District at Nahan, H.P. The first Appellate Court by taking into account the entire material placed on record upheld the findings returned by the Trial Court and dismissed the appellants’ appeal in terms of judgment and decree dated 14.1.1999. The relationship between the plaintiff and the defendants, as tenant and landlord was not admitted by the plaintiff, hence the Court below, after taking into account the ratio of law laid down by this Court in Chuhniya Devi (supra) rightly held that the Civil Court had the jurisdiction to try the suit. This position is also not disputed by the learned counsel for the appellant at the Bar. The substantial question of law No. 2 is decided accordingly. Sub-sections (4) and (5) of Section 2 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 reads as under: “(4) “to cultivate personally” with its grammatical variations and cognate expression means – (i) by one’s own account; (ii) by one’s own labour; (iii) by the labour of any member of one’s family; or 4 (iv) under the personal supervision of oneself or any member of one’s family by hired labour or by servant on wages payable in cash Explanation – In the case of a joint family the land shall be deemed to have been cultivated personally if it is cultivated by any member of such family; (5) “family” means husband, his wife and their children, including step or adopted children, and includes his parents, grand parents, brothers and unmarried, widowed, separated and divorced sisters.” The Trial Court has rightly dealt with the issue No. 5 and returned the following findings which are reproduced as under with affirmation: “8. So in the light of the aforesaid definition of the term “to cultivate personally”, it shall be taken that Tulsi Ram was cultivating the land himself since it includes the cultivation of the land by any member of ones family and defendant Amar being son of the owner Tulsi Ram therefore shall be deemed to be cultivating the land in dispute only on behalf of his father Tulsi Ram and not independently. The question of tenancy is not at all involved in the present suit. On this point, I also seek report from the case law cited as PLJ 1969 page 155 as per which cultivation by son is to be treated as cultivation on behalf of father and further that son cannot be a tenant of his father. Though the said case was under the provisions of Punjab Security of Land Tenure Act but the definition of “self cultivation” or “to cultivate personally” is the same as in the H.P. Tenancy and Land Reforms Act, 1972 since the word ‘family’ used in Section 2(4) of HP Tenancy and Land Reforms Act includes Husband and wife and children and therefore the defendant though recorded in the 5 possession of the suit land but it is to be taken for all intents and purposes that he was cultivating it simply on behalf of the owner Tulsi, his father and the said cultivation by the defendant will fall within the ambit of personal cultivation in the light of the provisions of Section 2(4) of the H.P. Tenancy and Land Reforms Act.” Admittedly Shri Amar Singh, original defendant was son of Shri Tulsi Ram under whom he was claiming tenancy. He could not have become a tenant in law. The frivolous plea was taken either in ignorance of law or with the object of delaying and procrastinating the proceedings. This being the position, in my considered view, no substantial question of law No.1 as framed arises for consideration in the present appeal. The Courts below have considered the material in its entirety and have rightly interpreted and construed the material on record as also the provisions of law. There is no illegality or infirmity in the same. The substantial questions of law are answered accordingly. For the aforesaid reasons the present appeal, without any substance is dismissed. (Sanjay Karol), Judge. June 16, 2009 (PK)