Himachal Pradesh High Court
Jeet Ram Alias Bhop Ram vs Whether On A Proper Construction ... on 18 October, 2022
Bench: Satyen Vaidya
1
Reportable/Non-reportable
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 18th DAY OF OCTOBER, 2022
BEFORE
.
HON'BLE MR. JUSTICE SATYEN VAIDYA
REGULAR SECOND APPEAL No. 16 OF 2007
Between:-
1. JEET RAM ALIAS BHOP RAM
SON OF SH. KUKAM RAM, SON OF OTTU,
RESIDENT OF VILLAGE PALJOT,
PHATI NATHAN, KOTHI NAGGAR, TEHSIL
AND DISTRICT KULLU, H.P.
2. RAM CHAND SON OF ABIR DASS,
SON OF SH. OTTU, (SINCE DECEASED)
THROUGH HEIRS AND LEGAL REPRESENTATIVES:
2(a) SMT. RAM DEI WIDOW OF LATE SH. RAM CHAND,
2(b) SH. BUDH RAM SON OF LATE SH. RAM CHAND,
2 (c )SH. DURGA DUTT SON OF LATE SH. RAM CHAND;
2(d) SMT. BHAGTI DEVI WIFE OF SH. MOHAN LAL,
RESIDENT OF VILLAGE JANA, P.O.ARCHANDI,
TEHSIL AND DISTRICT KULLU, H.P.
ALL RESIDENTS OF VILLAGE PALJOT, PHATI NATHAN,
KOTHI NAGGAR, TEHSIL AND DISTRICT KULLU, H.P.
3. KHUB RAM SON OF SH. ABIR DASS, SON OF
SH. OTTU, RESIDENT OF VILLAGE PALJOT, PHATI
NATHAN, KOTHI NAGGAR, TEHSIL AND DISTRICT
KULLU, H.P.
4. GANGA RAM SON OF SH. ABIR DASS, SON OF
SH. OTTU, (SINCE DECEASED) THROUGH HEIRS
AND LEGAL REPRESENTATIVES:
4(a) SH. BUDH RAM SON OF LATE SH. RAM CHAND;
4(b) SH. DURGA DUTT SON OF LATE SH. RAM CHAND;
BOTH RESIDENTS OF VILLAGE PALJOT, PHATI
NATHAN, KOTHI NAGGAR, TEHSIL AND DISTRICT
KULLU, H.P.
..APPELLANTS/PLAINTIFFS
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(BY MR. K.D. SOOD, SENIOR ADVOCATE,
WITH MR. HET RAM THAKUR, ADVOCATE)
AND
1. CHHERING ANGRUP SON OF SH. URGIAN,
.
RESIDENT OF GOURDOR, PHATI NATHAN,
KOTHI NAGGAR, TEHSIL AND DISTICT KULLU,
H.P. DECEASED THROUGH HIS LEGAL
REPRESENTATIVES:
1(a) MS. POONAM DAUGHTER OF LATE SH. CHHERING ANGRUP
1(b) SH. VIJENDER SON OF LATE SH. CHHERING ANGRUP
1(c) MS. NIRMALA DAUGHTER OF LATE SH. CHHERING
ANGRUP
ALL REIDENTS OF GOURDOR, PHATI NATHAN,
KOTHI NAGGAR, TEHSIL AND DISTRICT KULLU, H.P.
2. SMT. JOMI WIDOW OF SH. CHHAPU SON OF
SH. DEVI RAM, AT PRESENT WIDOW OF OAT RAM
SON OF SH. BALI JARGAR, RESIDENT OF VILLAGE
CHHAKI, PHATI AND KOTHI NAGGAR, TEHSIL
AND DISTRICT KULLU, H.P. SINCE DECEASED
THROUGH HEIRS AND LEGAL REPRESENTATIVES:
2 (a) SH. DAULAT RAM SON OF SMT. JOMI,
WIDOW OF CHHAPU;
2 (b) SH. CHET RAM SON OF SMT. JOMI, WIDOW OF
CHHAPU
BOTH RESIDENTS OF VILLAGE CHHAKI, PHATI AND
KOTHI NAGGAR, TEHSIL AND DISTRICT KULLU, H.P.
...RESPONDENTS/DEFENDANTS
(MR. MAAN SINGH, ADVOCATE, FOR
LEGAL HEIRS OF DECEASED RESPONDNT
NO.1 i.e. RESPONDENTS NO. 1(a) to 1 (c).
(MR. NAVEEN K. BHARDWAJ, ADVOCATE,
FOR RESPONDENTS NO. 2(a) & 2 (b).
3. SMT. NIMU WIDOW OF LATE SH. ABHIR
DASS SON OF SMT. LAHULI, RESIDENT OF
VILLAGE FALZOL, PHATI NATHAN, KOTHI
NAGGAR, TEHSIL AND DISTRICT KULLU,
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H.P. (DELETED VIDE COURT ORDER
DATED 12.10.2018).
4. SMT. GUDI DAUGHTER OF LATE SH.
ABHIR DASS, SON OF SMT. LAHULI,
RESIDENT OF VILLAGE FALZOL, PHATI
NATHAN, KOTHI NAGGAR, TEHSIL AND
.
DISTRICT KULLU, H.P.
5. SMT. ALI DAUGHTER OF LATE SH. ABHIR
DASS, SON OF SMT. LAHULI, RESIDENT
OF VILLAGE FALZOL, PHATI NATHAN,
KOTHI NAGGAR, TEHSIL AND DISTRICT
KULLU, H.P.
6. SMT. KRISHANA DAUGHTER OF LATE SH.
ABHIR DASS, SON OF SMT. LAHULI,
RESIDENT OF VILLAGE FALZOL, PHATI
NATHAN, KOTHI NAGGAR, TEHSIL AND
DISTRICT KULLU, H.P.
7. KUMARI HIRA DAUGHTER OF LATE SH.
HUKAM RAM, RESIDENT OF VILLAGE
FALZOL, PHATI NATHAN, KOTHI NAGGAR,
TEHSIL AND DISTRICT KULLU, H.P.
(RESPONDENTS NO. 4 TO 7 PROCEEDED
AGAINST EX-PARTE VIDE ORDER DATED
02.05.2018 PASSED BY THE HIGH
COURT).
...PROFORMA DEFENDANTS/RESPONDENTS.
Reserved on: 13.10.2022
Decided on: 18.10.2022
_______________________________________________________________
This appeal coming on for pronouncement of
judgment this day, the Court passed the following:-
JUDGMENT
By way of instant Regular Second Appeal,
appellants have assailed judgment and decree dated
09.11.2006 passed by learned District Judge, Kullu,
District Kullu, H.P. in Civil Appeal No. 44/2006 whereby
the judgment and decree dated 31.05.2006 passed by
learned Civil Judge (Sr. Divn.), Lahaul-Spiti at Kullu, H.P.
.
in Civil Suit No. 58 of 2003 was affirmed.
2. The parties hereinafter shall be referred to by the
same status as held by them before the learned trial Court.
Appellants were the plaintiffs and respondents were
defendants before the learned trial Court.
3. Chhapu son of Devi Ram was tenant at Will in
respect of the land comprised in Khata/Khatauni No.
1284/1, 2090/1, Khasra Nos. 3494, 3513 and 3534
measuring 4-9-0 bighas, situated in Phati Nathan, Kothi
Nagar, Tehsil and District Kullu, H.P. (hereinafter referred
to as the 'suit land') under the landowners S/Sh. Hari
Prakash and Davinder Parkash. Chhapu died in the year
1960. The rights held by Chhapu in the suit land were
inherited by his mother Smt. Lahauli and his wife Smt.
Johami in equal shares. Smt. Johami remarried on
27.1.1965.
4. Plaintiffs claimed that the rights inherited by Smt.
Lahauli and Smt. Johami were limited till their lives or re-
marriage. On such premise, Johami was alleged to have
.
lost her rights in suit land on her remarriage and further
Smt. Lahauli was stated to have acquired exclusive
ownership of the suit land under the provisions of
Himachal Pradesh Tenancy and Land Reforms Act, 1972.
Plaintiffs claimed right to the suit land on the basis of Will
dated 26.10.1994 executed by Smt. Lahauli in their
favour. Smt. Lahauli died on 29.10.1994.
5. Smt. Johami sold her share in the suit land to
defendant No.1 vide sale deed dated 30.01.2003. Plaintiffs
alleged the said sale deed to be illegal and without title and
claimed the ownership over the entire suit land to the
exclusion of Smt. Johami or her successors-in-interest in
the suit land. In alternative, plaintiffs claimed ouster of
Smt. Johami and her successors-in-interest from the suit
land and claimed title over her share by way of adverse
possession.
6. Defendant No.1 by way of written statement raised
preliminary objections to the effect that he was bonafide
purchaser, the suit was beyond limitation since defendant
.
No.1 was in possession of the share of Smt. Johami, the
suit for declaration without relief of possession was not
maintainable, suit was bad for non-joinder of necessary
parties and estoppel etc. On merits, it was submitted that
defendant No.1 had purchased the land from Smt. Johami
for sale consideration of Rs.1,35,000/- and the sale was
absolutely legal and valid as Smt. Johami had subsisting
right to transfer her share. It was also submitted that
Chhapu was tenant at Will and after his death, his mother
Smt. Lahauli and wife Smt. Johami inherited the rights as
tenants at Will absolutely. It was further asserted that
Smt. Johami was in possession of her share in the suit
land and the same was delivered to defendant No.1.
7. Defendant No.2 also contested the suit. It was
submitted that Smt. Lahauli and Smt. Johami were
tenants at Will in respect of suit land after the death of
Chhapu, who had died on 19.10.1960. After coming into
force of H.P. Tenancy and Land Reforms Act, both Smt.
Lahauli and Smt. Johami acquired proprietary rights
.
under Section 104 of the Act ibid. The Will executed by
Smt. Lahauli was challenged. Defendant No.2 asserted her
possession on the suit land. It was also specifically averred
that landlords had moved an application for resumption of
the tenancy land including the suit land. The proceedings
were contested by Smt. Lahauli and Smt. Johami before
the Land Reforms Officer, Kullu. The suit land, as such,
was allotted to Smt. Lahauli and Smt. Johami. It was
specifically pleaded that Smt. Lahauli had re-married after
the death of her pre-deceased son Chhapu.
8. On the basis of pleadings of the parties, learned
trial Court had framed the following issues:
1. Whether the plaintiffs are entitled to the
declaration prayed for? OPP
2. Whether the plaintiffs are entitled to the
prohibitory injunction as prayed for ?OPP.
3. Whether the plaintiffs are entitled to a decree for
possession of the disputed land as claimed? OPP.
4. Whether the plaintiffs have become the owners of
the suit land by way of the adverse possession of
the disputed land as claimed? OPP.
5. Whether late Smt. Lahauli executed a valid will
.
dated 26.10.1994 in favour of the plaintiffs as
alleged. If so, its effect? OPP.
6. Whether the sale deed dated 30.01.2003 is
wrong and illegal as alleged? OPP.
7. Whether the plaintiffs have a cause of action?
OPP.
8. Whether defendant No.1 is a bonafide purchaser
for consideration as alleged. If so, its effect? OPD.
9. r Whether the suit is not maintainable in the
present form? OPD.
10. Whether the suit is time barred? OPD.
11. Whether the suit is bad because of non-joinder of
the necessary parties? OPD.
12. Whether the plaintiffs have not come to the Court
with clean hands as alleged. If so, its effects?
OPD.
13. Whether the plaintiffs have the locus-standi to
sue? OPP
14. Whether the plaintiffs are estopped from filing the
present suit by their act and conduct? OPD
15. Whether the suit has not been properly valued for
the purposes of Court fee and jurisdiction? OPD
16. Relief.
Issues No. 1 to 4, 6 and 7, 9 to 12 and 15 were answered
in negative, issue No. 5, 13 and 14 were answered in
affirmative, whereas issue No. 8 was held to be redundant.
.
The suit of the plaintiffs was accordingly dismissed. It was
held that Chhapu was non-occupancy tenant and after his
death his tenancy rights were inherited by Smt. Lahauli
and Smt. Johami. The marriage of Smt. Johami on
27.01.1965 did not make any difference in her rights as
the inheritance in respect of non-occupancy tenancy at the
relevant time was governed under the Hindu Succession
Act. Reliance was placed upon the judgment passed by
this Court in Nathi vs. Neel Chand reported in 1997 (2)
Sim. L.C. 179.
9. Plaintiffs assailed the judgment and decree passed
by learned trial Court by filing appeal under Section 96 of
CPC before the learned Appellate Court, but again
remained unsuccessful, hence the present appeal.
10. Learned lower Appellate Court also affirmed the
findings of facts recorded by learned trial Court and by
placing reliance upon the judgment passed in Nathi
(supra), the appeal of plaintiffs was held to be without
merit.
.
11. The instant appeal was admitted on 02.04.2008
on the following substantial questions of law:
1. Whether on a proper construction of provision of
Punjab Tenancy Act, widow and non-occupancy
tenant on remarriage lost her right of tenancy?
2. Whether on the evidence on record and the
pleadings of the parties and assumption drawn
from the documents Ext. P-2/D-5, Ext.D-2, Ext.
r D-3, Ext.D-4, Ext.D-6, Ext. D-7 and Ext.D-8 and
the presumption of truth attached thereto stood
rebutted in view of the admitted remarriage of
Jomi with Chatru?
3. Whether on the proper construction of the
provisions of the Punjab Tenancy Act and H.P.
Tenancy and Land Reforms Act, it could be held
that Jomi could be continued as tenant even after
remarriage and become owner thereof under the
H.P. Tenancy and Land Reforms Act and the
order Ext. DA is binding on the appellant?
12. I have heard learned counsel for the parties and
have also gone through the records of the case carefully.
13. Both the learned Courts below have concurrently
held that Chhapu was a tenant at Will in the suit land.
After death of Chhapu on 19.10.1960, his rights in the suit
.
land were inherited by his mother Smt. Lahauli and wife
Smt. Johami in equal shares. Smt. Johami remarried on
27.01.1965. On coming into force of H.P. Tenancy and
Land Reforms Act, the proprietary rights were conferred
upon Smt. Lahauli and Smt. Johami to the extent of their
respective shares. Smt. Lahauli had executed a Will Ext.
PW-2/A on 26.10.1994. She died on 29.10.1994. Smt.
Lahauli had bequeathed her share in the suit land in
favour of the plaintiffs. Smt. Johami sold her share in the
suit land in favour of defendant No.1 on 20.3.2003
through registered sale deed for sale consideration of
Rs.1,35,000/-. The finding of facts recorded by learned
Courts below need no interference as they are borne out
from the evidence on record.
14. Admittedly, the area where the suit land is situate
was part of erstwhile State of Punjab prior to coming into
force of the Punjab Re-organization Act, 1966 and Punjab
Tenancy Act, 1887 (for short 'Act') was applicable to such
area.
.
15. In the Act, there was no specific provision for
inheritance of non-occupancy tenancy, whereas the
inheritance in respect of occupancy tenancy was governed
by Section 59 thereof. Section 59 of the Act, restricted the
right of inheritance of widow or widowed mother till her life
or till she remarried or abandoned the land. No such
provision was available for tenancy at Will or non-
occupancy tenancies.
16. It is more than settled that in absence of contrary
provisions in special law, the general law prevails. Thus,
in absence of any specific provision of inheritance in
respect of tenancy at Will or non-occupancy tenancy in the
Punjab Tenancy Act, 1887, the Hindu Succession Act
would apply and under said Act, the estate was inherited
absolutely. In such view of the matter, Smt. Johami had
inherited the right in respect of suit land absolutely and
her re-marriage in no manner could restrict such right.
Smt. Johami, thus, continued to be tenant at Will
alongwith Smt. Lahauli in the suit land and on coming into
.
force of the H.P. Tenancy and Land Reforms Act, acquired
proprietary rights therein to the extent of her share. The
sale made by her in favour of defendant No.1 in 2003 was
a legal and valid transfer.
17. The plea of adverse possession has also been
rightly declined by both the Courts below as the same was
not proved on record in accordance with law.
18. Learned counsel for the appellants contended that
Section 8 of the Punjab Security of Land Tenures Act, 1953
was applicable and as such Smt. Johami had no right in
the suit land after her re-marriage in 1965. The contention
so raised deserves to be rejected. Section 8 of the Act ibid
read as under:
"Continuity of tenancies. The continuity of
tenancy shall not be affected by -
(a) the death of the landlord, or
(b) the death of the tenant, except when the
tenant leaves no male lineal descendants or
mother or widow, and
(c) any change therein under the same
.
landowner: and for the purpose of sections
17 and 18 of this Act, such tenancy shall be
the last area so held."
19. The plain reading of aforesaid provision reveals
that it did not have relevance with inheritance but was
meant to deal with continuity of tenancies.
20.
Both the Courts below while dismissing the suit of
the plaintiffs, had rightly relied upon the judgment in
Nathi (supra) as the facts situation therein was the same
as involved in the instant case. While dealing with the
same fact situation, it was held as under: -
"34. Admittedly, save and except section 59,
Punjab Tenancy Act, 1887 there is no other
provision in the said Act governing succession to
the tenancy rights of a tenant-at-will. In the
absence of such a provision in the relevant tenancy
laws as in force at the relevant time, succession to
the tenancy rights of a tenant at will prior to the
coming into force of the H.P. Tenancy and Land
Reforms Act, 1972, in the areas to which the
provisions of Punjab Tenancy Act, 1887, were
applicable, would, therefore, be governed by the
general law of succession, viz, Hindu Succession
Act, 1956. Under section 8 of the said Act widow
.
and son(s) succeed to the estate of the deceased in
equal shares."
21. It also becomes evident from the record that Smt.
Lahauli had also remarried. In the document Ext. PW-2/A
i.e. the Will executed by Smt. Lahauli, she was described
as widow of late Sh. Ottu S/o Chenu, whereas, she had
inherited the tenancy rights in the suit land to the extent
of her share being mother of Chhapu, who was son of Devi
Ram. Meaning thereby that Smt. Lahauli was earlier wife
of Sh. Devi Ram, but later re-married Sh. Ottu. It being so,
she otherwise could not have raised the plea of limited
rights of succession in the suit property against defendant
No.2 Smt. Johami.
22. Resultantly, the appeal fails and the same is
dismissed. Accordingly, the judgment and decree dated
09.11.2006 passed by learned District Judge, Kullu,
District Kullu, H.P. in Civil Appeal No. 44/2006 affirming
judgment and decree dated 31.05.2006 passed by learned
Civil Judge (Sr. Division), Lahaul-Spiti at Kullu, H.P. in
Civil Suit No. 58 of 2003, is further affirmed.
.
Appeal is accordingly disposed of in the aforesaid
terms, so also the pending application(s), if any.
18th October, 2022 (Satyen Vaidya)
(GR) Judge
r to
