Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Regular Second Appeal No. 132 of 2003. Judgment reserved on: 11.8.2010. Date of Decided: August 19, 2010. Sh. Gulzari Lal and others. ….Plaintiffs-Appellants. Versus Shri Gurbax and others. ……Defendants -Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting? Yes. For the appellant : Mr. Sanjeev Kuthiala, Advocate. For the respondent No.1 : Mr. N.K. Thakur, Advocate. Surinder Singh, J. This second appeal was admitted on 9.4.2003, on the following substantial question of law:- 1. Whether the learned first Appellate Court has misread and mis-appreciated the oral and documentary evidence on record especially the statements of PW-1, PW-2 and PW-3, DW1, DW4, Ext.D1, Ext.D2, Ext.D3, Ext.D6 mutation Nos. 175 dated 22.4.1976, Ext.DW5/A statement of Hans Raj and Ext.DW6/A? 2. Whether under the provision of Section 45 of the H.P. Tenancy and Land Reforms Act, the succession to right of tenancy, on the death of original tenant would devolve upon the male lineal - 2 - descendents in entirety, and where no relinquishment or voluntary surrender of such tenancy rights is there, inference to the contrary, without their being any documents or order of competent Court or authority could be inferred? 3. Whether the devolution of interest of tenancy can be relinquished by some of the joint tenants and whether such relinquishment would not jeopardize the interest of remaining/pending joint tenants and they would continue to be tenants for entire tenancy, as tenancy being joint and indivisible? 2. In short the facts can be stated thus. The plaintiffs appellants had filed a suit for declaration and permanent injunction in alternative for joint possession of land measuring 22 Kanals 16 marlas initially comprising of following two parcels of land: (a) 18 kanals 15 marlas, which was in the possession of the predecessor-in-interest of the parties one Bhonthoo as non occupancy tenant and (b) 4 kanals 1 marla being in the ownership and possession of the predecessor of said Shri Bhonthoo. 3. In the suit plaintiffs-appellants(sons of Bhonthoo deceased) pleaded that their father said Shri Bhonthoo died on 13.2.1974 and the land falling in part (a) above - 3 - was succeeded by them and defendants-respondents No. 1 and 2 as tenants as per the provisions of Section 45 of the H.P. Tenancy and Land Reforms Act, 1972(hereinafter referred to as the “Act”) whereas land in part(b) above was inherited by the plaintiffs-appellants and defendants-respondents No. 1 to 5 in equal shares being the class one heirs of deceased Bhonthoo but the defendant-respondent Gurbax wrongly got its mutations No. 175 and 230 attested in his favour on the basis of alleged Will which was never executed by Bhonthoo, thus the subsequent entries being wrong and illegal, hence sought declaration with a consequential relief of permanent injunction to restrain defendant No.1 Gurbax aforesaid from alienating the land or oust them from the suit land, in the alternative prayed for joint possession. 4. Out of defendants, only defendant Gurbax Singh contested the suit. He filed a written statement and claimed that he alone was residing with his father Bhonthoo and served him till his death. The plaintiffs- appellants and other defendants were living separately from him. He averred that Shri Bhonthoo had executed a Will in his favour with respect to the land in part (b) above which was presented by him before the revenue officer - 4 - he attested the mutation and did not return it. Defendant No.1 claimed himself to be in exclusive possession of the land(Parcel ‘b’) qua the other parcel of land (Parcel ‘a’) his case was that he alone was in possession of the land and others had no interest and they had virtually relinquished/abandoned the tenancy. He fought the case against the land owner, therefore, his brothers had no concern or interest therein. 5. On the pleadings of the parties, the following issues were framed:- 1. Whether the suit land was possessed by Sh. Bhontu the father of the parties, if so its effect? OPP. 2. Whether the defendant is owner in possession of the suit land by way of will, as alleged? OPD. 3. Whether the suit is within time? OPP 4. Whether the suit is not maintainable? OPD. 5. Whether the plaintiff has no locus-standi to file the suit? OPD. 6. Whether the plaintiff is estopped by his act and conduct? OPD 7. Relief. 6. The learned trial court held that the disputed land was possessed by Bhonthoo. In view of this issue No.1 was answered in affirmative. The case of the defendant - 5 - Gurbax that he was in possession of entire disputed land by way of Will was answered in negative. As such, findings on issues No. 2 were returned against him. The other issues were also decided against the defendant-respondent. Consequently, the suit was decreed holding that Ram Dass, Ram Saran, Gulzari Lal, Gurbax and Hans Raj sons of Bhonthoo deceased to be in joint possession of the tenancy land in part(a) as having been inherited by them. Similarly qua second parcel qua which Bhonthoo was the owner; both the parties to the suit being his legal heirs were declared as joint owners. Thus the decree for joint possession was passed. 7. Feeling aggrieved and dissatisfied by the impugned judgment and decree passed by the learned trial court, the defendant Gurbax filed an appeal before the learned District Judge. It was only contested by appellants herein. The first Appellate Court upheld the findings with respect to the land in part (b) above that defendant Gurbax was not exclusive owner-in-possession of this parcel of the land. The plaintiffs and defendants No. 1 to 5 (in the suit) were the joint owners in possession of the said land, but with respect to tenancy land in part(a) the findings were reversed and set aside holding - 6 - Gurbax in exclusive possession of the said land as tenant after the death of his father Bhonthoo as the plaintiff- appellants had abandoned their rights therein. Therefore, defendant Gurbax alone was entitled to remain in possession of the land and the suit of the plaintiff- appellant with regard to this land was dismissed. As such the instant appeal by the plaintiff-appellants. 8. Shri Sanjeev Kuthiala, learned counsel for the appellants vehemently argued that the learned first appellate court had misread and mis-appreciated the evidence on record and also failed to consider the provisions of Section 45 of the H.P. Tenancy and Land Reforms Act qua parcel(a) of the suit land whereby the succession of right of tenancy on the death of tenant would devolve initially upon male lineal descendents and further that there could be no relinquishment by other male lineal descendent, nor it was proved on record. It is also argued that joint tenants would continue to be tenants and the rights of tenancy being joint and indivisible would be devolved upon male lineal descendents, which fact the first appellate court had failed to appreciate. - 7 - 9. Contra, Shri N.K. Thakur, learned counsel for the respondent submitted that the evidence on record proves that the said land, after the death of Bhonthoo came in possession of defendant Gurbax Singh alone. Other brothers had not agreed to maintain their father and it was Gurbax alone who maintained. He further pointed that the then land owner Shri Chint Ram had filed a suit against the plaintiff-appellants and also against Gurbax. Even in that suit his brothers did not claim tenancy rather it was only Gurbax who asserted his exclusive possession over the land mentioned in para (a) above. It has also been contended that defendant respondent Hans Raj at that time had sided with the then owner, did not support Gurbax rather made a statement in his favour that the tenancy land was in ownership and possession of said Shri Chint Ram. According to him all these facts go to show that Gurbax defendant alone remained in possession as tenant. Therefore, the findings of first appellate court cannot be faulted. 10. I have considered the rival contentions of the parties and have carefully gone through the record. 11. The present controversy is only with respect of tenancy land of Bhonthoo mentioned in - 8 - part (a) above. It is admitted case of the parties that their father Shri Bhonthoo was in possession of tenancy land till his death. Admittedly he died on 13 .2.1974 when the H.P. Tenancy and Land Reforms Act had come in force. It is by now settled that the tenancy rights cannot be disposed of or willed away. Section 45 of the said Act governs the inheritance of the tenancy which reads as under: “45. Succession to right of tenancy- When a tenant in any land dies, the right shall devolve- (a) on his male lineal descendants, if any, in the male line of descent; and (b) failing such descendants, on his widow, if any, until she dies or remarries or abandons the land or is under the provisions of this Act ejected therefrom; and (c) failing such descendants and widow, on his widowed mother, if any, until she dies or remarries or abandons the land or is under the provisions of this Act ejected therefrom; and (d) failing such descendants and widow, or widowed mother or, if the - 9 - deceased tenant left a widow or widowed mother, then when her interest terminated under clause(b) or (c) of this section, on his male collateral relatives in the male line of descent from the common ancestor of the deceased tenant and those relatives.” 12. The Section aforesaid confines the right to succession, irrespective of nature of tenancy strictly to the male lineal descendants in preference. The rule enshrined in this section cannot be substituted or modified even on the ground of custom or personal law. This rule is absolute and exclusive. 13. Thus in view of the above declaration of law, after the death of their father the plaintiffs and defendants No. 1 and 2 being the male lineal descendants would jointly inherit the tenancy of the land aforesaid. Thus the tenancy continues to be joint until it is partitioned with the consent of landlord. Although defendant No.1 Gurbax alone was cultivating the suit land after the death of his father - 10 - Bhunthoo but there is both backward and forward presumption of continuity of things as held by the Hon’ble Apex Court in Ambika Parsad Thakur and others vs. Ram Ekbal Rai, AIR 1966 S.C. 605. The fact that Hans Raj @ Hansu had sided with the landlord plaintiff in the earlier suit and made a statement in his favour and also that Gulzari was proceeded exparte in that suit would not in any manner jeopardise the interest of joint tenants. Once it is held that after the death of their father all the male lineal descendants had inherited the tenancy, the tenancy becomes joint and indivisible. Therefore, the plea either of relinquishment of tenancy rights by the plaintiffs or for that matter by Hansu or even after the death of their father only Gurbax held the land as tenant deserves to be out rightly rejected. 14. The learned first appellate Court failed to take notice of the judgment Ext.D-1, Ext.D-2 in Suit No. 703 of 1975, Chint Ram v. Gurbax Singh and others, which was upheld in appeal by the then learned District Judge vide his judgment Ext.D-3 wherein - 11 - statement Ext.DW-5/A of Shri Hans Raj in favour of Chint Ram was critically examined and rejected. 15. In appeal with regard to land measuring 18 kanal 15 Marlas also, there was no dispute on the point that this land was being cultivated by Bhonthu as a tenant during his life time under the land-owners. Bhonthu has died on 13.2.1974 and son Bhonthu has not acquired the proprietary rights in this land under the provisions of H.P. Tenancy and Land Reforms Act, 1972. Bhontu continued to remain the tenant of his land uptill his death and so the tenancy rights in the disputed land would have devolved upon the plaintiffs and defendants No. 1 & 2 under the provisions of H.P. Tenancy and Land Reforms Act. 16 Against the aforesaid background the findings of the first appellate court that since Gurbax Singh alone remained in possession of tenancy land and defendant No.2 Hans Raj had abandoned the rights of tenancy cannot be upheld, as the tenancy is joint and indivisible irrespective of the fact that the area of the said land was being cultivated by one or - 12 - other brother. Therefore, the findings arrived at by the learned first appellate court qua parcel of the tenancy land are hereby reversed and set aside, the learned first Appellate court committed error in appreciating the documentary and oral evidence on record to this effect. Consequently, the judgment and decree passed by the learned trial court is hereby restored. The suit filed by the plaintiff-appellants stands decreed in toto. The plaintiffs and defendants No. 1 and 2 being sons of Bhonthoo are held to be in joint possession of the aforesaid land. Substantial questions of law stands accordingly answered. 17. No other point urged or pressed. 18. In result appeal is allowed. 19. The parties are left to bear their own costs. 20. CMP No.341 of 2003 was moved by the appellants under Order 41 Rule 27 of the Code of Civil Procedure for producing on record the Jamabandi for the years 1971-72, 1985-86, 1997-98 and the pedigree table to show that Bhonthoo was a tenant over the parcel of land mentioned above. Since the fact of tenancy of Bhonthoo is not disputed by the defendants and otherwise also there - 13 - is enough evidence on record to substantiate this fact. Therefore, the application is rejected. (Surinder Singh )Judge August 19, 2010. (vt)