(1) This second appeal has been filed by Maharani Kamsandari of Dharbhanga, resident of Village Chharabra, Tehsil Kasumpti, Mahasu District, Himachal Pradesh under Section 104 read with section 12 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 (Act No. 15 of 1954), against the order of the District Judge, Mahasu, dated, September 3, 1968, whereby he couarmed the order of the Compensation Officer, Mahasu District, dated December 28, 1967, refusing the grant of proprietary rights to the appellant herein in respect of the suit land.
(2) The appellant herein filed an application before the Compensation Officer under Section 11 of the aforesaid Act (hereinafter referred to as the Act) for grant of proprietary rights to her in respect of the suit land comprising Khata Khatauni No. 11/16. Khasra No. 10 to 19, measuring 32 Bighasand 7 Biswas,and situated in Village Chharabra, Tehsil Kasumpti, District Mahasu, claimed to be under her tenancy and belonging to the State at Himachal Pradesh The respondent to the application was the State of Himachal Pradesh. A notice was served on the State of Himachal Pradesh through the Collector, Mahasu District, and the Sadar Kanuago of the Officer of the Collector, Mahasu District, filed objections on behalf of the State of Himachal Pradesh,
(3) The Compensation Officer framed the following issues which reflect the respective contentions of the parties : -
'(1)Whether there is no relationship of landowner and tenant between the parties (2) Whether .beland applied for does not fall within the definition of land because of existencs of trees thereon (3 ) Whether the area of the laed applied for under 'ABADF' does not fall within the detinition of land (4) Relief.'
(4) By his order, dated December 28, 1987, the learned Compensation Officer held on issue No. A that no relationship of landowbner and tenant existed between the parties, and on issues Nos 2 and that the whole of the land applied for was not not filling within the definition of. 'land' in Section 2 (5) of the Act. In the result, the application filed by the appellant herein was rejected.
(5) Against that order, the appellant herein prefered appeal, C. M. A. No.22 M/14 of 1968 to the Court of the Distict Judge, Mahasu and Kinnaur Districts.at Simla. In the appellate Court, the appellant berein was permitted to produce three title deeds Ex. A-1 to Ex. A-3. In his judgment, dated September 3,1968, the learned District Judge observed that after the filing of the said title deeds, 'no manner of doubt now remains concerning the title of the claimant' , that the only question for determination was whether the property in dispute is 'land' as de-fined in the Act, 'and held that he was unabie to differ from the finding of the learned Compensation Officer that the land in question is 'land' within the meaning of the Act. He accordingly dismissed the appeal. It is against that judgment that the present second appeal has been filed by the appellant herein.
(6) It is common ground that the suit land originally , to the erst while State of Koti, and one Sir E. J. Buck held the same under the State. On, August,11 1936. Sir E. J Bnck excecuted deed of gift (Ex.A 2)in favor of his daughter, Mrs L.C. Thomson. On the same date, the Rana of Koti State granted a Patta (Ex. A. 3) in favor Mrs. L. C. Thomson. It runs as folows :-
'ONan application filed by Sir, E. J. Buck, owner of the 'Bower Estate' (Comprising, of one residential .House and land measuring 33 bighas and 15 biswas) the State in consideration of a asum of Rs. 47/141- to be paid as annually rent by the-lessee hereby orders the transfer of the property aforesaid. to Mrs. Lorna Carmen Thomson, under the conditions appearing hereinafter:- 1. That Mrs.L. C. Thomson, shall regularly pay to the Koti State as sum of Rs.47/14.00 annually as ground rent. 2. That, Mrs.L. C. Thomson shall not dispose of the property aforesaid in any way without, informing the Koti Darbar and the Darbar shall have the right of pre-emption. in case Mrs. L, C. Thomson may desire to sell it, and such right of pre-emption will be for a period of 2 months. 3. That, if Mrs. L. C Thomson, desires to dispose of the whole or any part of the property aforesaid she shall have to register duly the transferred in the Court/of the Registrar Koti State, an / shall pay the usual registration charges. 4. That, in case the, property is sold by Mrs. L. C. Thoms to another person the ground rent of the property will be raised to a sum of Rs.60.00 annually. shall not cut down or remove any tree or trees without the sanction of the State and without paying the fair cost thereof. 6. That. Mrs.L.C. Thomson, shall not kill any cow and so injure the feeling of a Hindu, within the limits of the Estate afore said Violiation or ignoring of this condition will result in action described in condition 7th of this Patah, in addition to legal accion against the effeoder. 7. That the State shall be at liberty to eject the lessee without paying any compensation whatsoever if the lessee fails to comply with any or all of the conditions appearing heretofore, and the lessee shall have no objection to it. Dated Kiarkoti the Sd / R. Raghubir Chand 11th august 1936. Kaua of Koti State '
Subs-quently. Mrs. Thomson sold the land to the appeallant herein by the sale-deed (Ex.A-1), dated December 9, 1955. As stated by the learned District Judge. the title of the appellant to the property in question was established by theaforesaid title 'deeds/add the same was not disputed before me by me the learned counsel for the respondent.
(7) The question for determmation in this second appeal is as to whether the appellant is entitled to the grant of proprietary rights in respect of the suit property. Section 11(1) of the Act provides that -
'NOTWITHSTANDING-ANYlaw, custom or contract a tenant other than a sub-tenant shall, on application made to the compensation officer at any time after the commeocement of this Act, be entitled to acquire, on payment of compensation, the right, title Bad interest of the landowner in the land of the tenancy held by him under the landowner.'
It is common ground between the parties that the Government of Himachal Pradesh is the landowner in respect of the suit land within the meaning of Section 11. The appellant herein would be entitled to acquire, on payment of compensation, the right, tide and interest of the landowner if she is a tenant in respect of the suit land under the Government of Himachal Pradesh. The Patta (Ex.A-3) shows that the erstwhile Stat of Koti was the landowner, and that Mrs. L.C. Thomson held the property under the said State. The right, title and interest of the State of Koti devolved upon the Government of Himachal Pradesh, and the tenancy right of Mrs. Thomson devolved upon the appellant herein as is clear from Exs. A-2 and A-1. It is, thus, clear that the appellant herein is a tenant who held the land in dispute under the Government of Himachal Pradesh. She can, however, claim to be entitled to acquire the right, title and interest of the landbwner under Section 11 of the Act only if the land in dispute is 'land' as defined in Section 2(5) of the Act. The said definition runs as follows:-
'2(5).'land' means land which is not occupied as the site of any building in a town or village and is occupied or has been left for agricultur, 1 purposes or for purposes subservient to agriculture, or for pasture, and includes-- (a) the sites of buildings and other structures on such land, (b) orchards, (c) ghasnies.'
It has, thereforee to be considered whether the land in dispute is 'land' according to the above definition.
(8) As already stated, the learned Compensition Officer and the learned District Judge came to the conclusion that the land in dispute is not 'land' as 'defined 'in the Act. The land in dispute consists of Khasra Nos. 10 to 19. There is a Kothi situate in the said Khasra Numbers. The learned Compensation Officer stated in his order that he noticed during a local inspection of the land in dispute by him that the area inved is a sort of estate having a big Kothi, which is surrounded by a jungle, Ghasni, drakhtan (trees), lawns, small quarters on varous sides, interspersed with small and big paths and a Sinali orchard. He took the view that it is self-evident that the land applied for is essentially occupied as the site of a building and was not let for agricultural purpose or purposes subservient to agriculture He also observed that the building as well as the paths, the lawns, the quarters, the kitchen, etc , which exist on various Khasra numbers cannot be said to be subservient to any agricaltural purpose, and on the other hand, they are subservient to the Kothi The learned District Judge agreed with the said view and held that the various Khasra numbers around the building are just apportenant to it. But. the said conclusions of the lower Courts were just a surmise and not based on any evidence. Shri P. N Nag learned counsel for the respondents, has not been able to point out any evidence, oral or documentary, which supports the view taken by the learned District Judge and the Compensation Officer that the various Khasra numbers around the Kothi or building were just subservient to or appurtenances of the Kothi or building. It is, thereforee, necessary to examine the character of each Khasra number in the land in dispute.
(9) As already stated, the land in dispute consists of Khasra Nos. 10 to 19, Khasra No 10 is shown-in the jamabandi (Ex.PA) for the year 1904-65 as measuring 5 Bighas and 19 Biswas, and its described as 'ghasnies trees'. The said Khasra Number has been subdivided into 10/1, 10/2, 10/3 and 10/4. The area of 10/1 is shown as 3 bids was in the Tatima (Ex. CW-2/B and is described as 'gair-mumkin compound'. The learned Compensation Officer stated in his order that CW-2, Banka Ram Patwari. who prepared the Tatima stated in his cross-examination that the residential quarters of the Mali is situate in part of Khasra No. 10/1. It is more convenient to consider this sub-division No. 10/1 along with Khasra No. 11 which is stated to contain a cattle-shed in which the Mali is stated to reside. Sub-division No. 10/2 is shown in the Tatima (Ex. CW-2/E) as measuring 13 Biswas, and is described as 'ghasni'. Sub-divison No. 10/3 is shown in the Tatima (Ex. CW-2/G) as measuring 3 Bighas and 11 Biswas, and is described as 'ghasni'. Sub-division No. 10/4 is shown in the same Tatima as measuring 1 Bigha and 12 Biswas, and is described as 'ghasni'. Thus, a major portion of Khasra No. 10 is 'ghasni' and only 3 bids was therein, is 'compound'. A ghasni is speicifically included in the definition of 'land', and. thereforee, sub-division Nos. 10/2, 1013 and 10/4 of Khasra No. 10 are clearly 'land' within the meaning of the Act.
(10) Khasra No. 16 is shown in the Jamabandi (Ex. PA) and in the Khasia girdawari (Ex CW.2/C) as measuring Bighas and 1 Biswas, and is described as an 'orchard'. An orchard is clearly included in the definition of 'land' and, thereforee, Khasra No. 16 has to be held to be land within the meaning of the Act Khasra No. 13 is shown in the Jamabandi (Ex.PA) as measuring 10 Biswas, and is described as 'gair-mumkinabadi'. In the Tatima (Ex CW-2/A), it is described as 'gair-mumkin Kothi'. The question for consideration is as to whether the Khasra number on which the Kothi is situate is land within the meaning of the Act It is true that a land which is occupied as the site of any building in a town or village is excluded from the definition of 'land' in Section 2(1) of the Act. But, clause (a) of Section 2 (5) includes 'the sites of buildings and other structures on such land' within the definition of 'land' for the purposes of the Act. The question then is whether Khasra No. 13 is a site of a building in a village; All the Khasra Nos. 10 to 19 are situated outside the village Chharabra Neither the Jamabandi (Ex. PA) nor the Khasra-girdawari (Ex. CW-2/C) shows Khasra number 13 as an 'abadi' in the village of Chharabra. In column 6 of the Jamabandi there is a note that rent under Section 39 of the Act is fixed at one-fourth of the produce, and in column 7 a sum of Rs 12.34 is. mentioned as the land-revenue fixed for all the Khasra Nos 10 to 11' No rent or land revenae would be fixed for Khasra No. 13 it is an 'abadi' situate in the village and it would not be shown as being in the ownership of anyone, but it was mentioned in column 2 of the Jamabandi (Ex. PA) that the Provincial Government, Himachal Pradesh, was the owner of all the Khasra numbers including Khasra No. 13. It is, thus, clear that all the Khasra numbers including Khasra No. 13 are situate outside the village Chharabra, and Khasra No. 13 is not an 'abadi' in the village Chharabra. The said Khasra No. 13 is, thus, situate outside the village Chharabra, but in the midst of the various Khasra Nos. 10 to 12 and 14 to 19 two of which have been shown to be ''land' within the meaning of the Act. Khasra No. 13 is (thus a sits of building or structure on land within the meaning of clause (a) of Section 2 (5) of the Act. No doubt, the Khasra Number contains a large building which is used as the residence of the appellant. But, the size of the building is just in keeping with the status of the appellant, and merely because the building is large in size it cannot be held that the Khasra number ceased to be a site of building or structure within the meaning of clause (a) of Section 2(5). Khasra No. 13 has, thereforee, to be held to be 'land' within the, meaning of the Act notwithstanding the existence of a fairly large building or structure on it. Khasra No. 11 is shown in the Jamabanai (Ex PA) as measuring 4Biswas, and is described as ''gair-mumkin abadi'. in the Tatima (Ex. CW-2/A) this sub-division is described as 'gair-mumkin abadi for the residence of Mali ' CW.3/A is a list of trees standing in various Khasra numbers prepared by the Patwari, Banka Ram. In this list, Khasra No. 11 is described as;'cow-shed'. Banka Ram Patwari (C.W.-2) stated in his evidence that according to spot inspection there Is a cow-shed on Khasra No 11 in which implements, wood. etc., have been kept. He also stated that the residential house of the gardener (Mali) is constructed on part of No. 10/1. Thus Khasra Nos. 10/1 and 11 contain a cattle-shed and the residence of the Mali. The learned District Judge observed in his judgment that the Mali looks after the entire estate and not merely the garden There is no evidence at all in support of that statement. The learned District Judge also observed that there is no evidence that the cattle-shed was used for tying cattle for agricultural purposes and not merely for the domestic cattle. The cattleshed is situate in the midst of the various Khasra numbers which contain 'ghasni'. etc. thereforee, even if the cattle-shed is used for the domestic cattle of the appellant, the Khasra Nos. 10/1 an I it would still be sites of buildings or structures such as are mentioned in clause (a) of Section 2 (5), in view of the fin; ing given above that the appellant, is living in the building of Khasra No. 13 as a tenant Khasra No. 12 is shown in the Tatima (Ex.CW-2/A) as measuring 3 Biswas, and is described as 'gair-mumkin abadie kitchen '. It is adjacent to the Kotni.and the Khasra number would, thereforee, be a site of building or structure within the meaning of clause (a) of Section 2 (5) and as such is 'land' within the meaning of the Act. Khasra No. 1 is shown in the Jamabandi (Ex P.A) as measuring 1 Bigha and 4 bids was and is described is 'gair-mumkin abadi ' In the Khasra girdawari (Ex C W-2/C) it is described as 'gair-mumkin road' .The road is obviously a kind of passage leading from the Kothi to the orchard and other lands around. This Khasra number also is thus an adjunct to the Kothi for the use of the appellant, and hence 'land'. Khasra No 15 is of the extent of 2 Biswas, and is described in the Jamabandi as 'gair-mumkin tank'. But. the learned Compensation Officer and the learned District Judge have found that it is no longer being used as a tank and is being used for cultivation As such, this Khasra Number also would be 'land' within the meaning of the Act. Khasra No. 17 is shown in the Tatima 'Ex CW-2/A) as measuring 4 Biswas, and is described as 'gair-mumkin abadi' in which there is no residence. This Khasra number also being outside the village is a site of building within the meaning of clause (a) of Section 2 (5) of the Act, and as such is 'land' within the meaning of the Act. Khasra No. 18 is stated to be of an extent of 7 Bisws and is described as 'road'. This again is a kind of passage from the Kothi to the various Khasra numbers around, and as such is land used or occapred for agricutural purpose or for purpose subservient to agriculture. Lastly, Khasra No. 19 is shown in Jamabandi (Ex PA) an measuring 18 Bighas and 2 Biswas, and is described as 'gair mumkin open space.' In the Tatima (Ex CW-2/F), this Khasra number is sub-divided in 19/1 and 19/2. 19/1 is shown as measuring 1 Biswa and is described as 'gair-mumkin open space in the new form gair mumkin tank', while 19/2 is shown as measuring 18 Bighas and 1 Biswa, and is - described as 'gair-mamkin open space.' Thus, only 1 Biswa in Khasra No. 19 is a Tank, and the rest is stated to be open space. It is in the evidence of Banka Ram, Patwari, (CW-2), that on Khasra No 19/1 a water tank has been constructed by the Municipal Committee, and it is stated by the learned District Judge that the tank is now one of the sources of water supply to Simla This Khasra No. 19/1 measuring about 1 Biswa would not be 'laid' within the meaning of the Act As regards Khasra No. 19/2, Ex. CW-3/A, a list of trees prepared by the Forester and the Patwari, shows that there are about 571 trees thereon. The Mali (Public Witness 1) and the Range Officer (CW-2) also deposed to the same effect. The appellant has been in possssion of the said Khasra Number with the trees thereon. As held in Pavadai Pathan and another v. Ramaswami Chetin and Commissisner of Income-tax Weft Bengal Calcutta v. Bonoy Kumar Sahas Roy, the term 'agriculture' is of wide connotation and includes land with trees planted thereon, It is in the evidence of the Mali that the said trees were planted by him and the Chowkidar on the instruction of Major General Thomson, the father of Mrs .L.C. Thomson. It is, thereforee, clear that Ktiasra No. 19/2 is 'land' within the meaning of Section 2 (51 of the Act.
(11) The above discussion shows that the appellant has been residing in a house situate on Khasra No. 13. There is an orchard on KhasraNo. 16, and Khasra No. 10 is mostly a ghasni. Both Khasra Nos. 10 and 16 are 'lands' occupied by the appellant for agricultural purpases. The appellant lives in the house on Khasra No. 13, and Khasra No. 13 is situate outside the village Chharbara. Khasra Number 13 is, thereforee, a 'site of building' within the meaning of clause (a) of Section 2(5), and is 'land' within the meaning of the Act. the other Khasra Numbers on which there are structures or roads, are for the use of the appellant in connection with her enjoyment of the orchard and the ghasnies. It follows that all the Khasra Nos. 10 to 19, with the exception of 19/1 are 'lands' within the meaning of the Act, and the appellant is entitled to asquire, on payment of compensation, the right, title and interest of the Government of Himachal Pradesh in the land comprised in Khasra Nos. 10 to 19 excluding Khasra No. 19/1.
(12) For the above reasons, the second appeal is allowed, the orders of the learned District Judge and the learned Compensation Officer are , aside, and the case is remanded to the Court of the Compensation Officer who should take the case on his file and dertermine the compensation payable by the appellant for the acquisition of the right, title and interest of the Government of Himachal Pardesh in the land comprised in Khasra Nos. 10 to 19 excluding Khasra No. 19/1 of the extent of one Biswa under Sect ion 11 of the Act, and transfer the said right, title and interest to the appellant on the appellant paying the compensation as determined. In the circumstances of the case, the parties are directed to bear their own costs throughout.