(1) This Second Appeal from the Judgment and decree of the learned Additional Senior Subordinate Judge Ii affirming the judgment and decree of the trial Court raises an interesting but difficult question of law. The appellant was defendant in a suit for possession brought against him by the respondents in respect of 17 bighas 8 bids was of land situate in village Barwala within the Union Territory of Delhi on the allegations that the respondents had purchased the land on 21st February, 1962 from one Ranjit Singh who in turn bad been alltoted the same by the Managing Officer appointed under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and that the aprellant was in un-authorised occupation of the said land.
(2) The suit was resisted by the appellant who pleaded that the Civil courts had no jurisdiction to try such a suit and that he was in lawful possession of the land. The validity of the sale in favor of Ranjit Singh and conseqaently in favor of the respondents was also challenged on the ground that Ranjit Singh was a 'Bhumidhar' and as such the sale contravened the provisions of Section 88 of the Delhi Land Reforms Act, 1954 and the East Punlab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 The parties went to trial on the following issues: -
(1) Whether the Civil Court has no jurisdiction to try this suit? Opd (2). Whether the plaintiff is (sic are) the owner (sice owners) of the suit land by purchase Opp (3) Whether the sale effected in favor of the plaintiff is void as alleged in para 2 of preliminary objection of the written statement Opd (3-A) Whether the defendant is in lawful possession of the suit land as alleged If so to what effect (4) Relief.
(3) The trial court found all the issues in favor of the reapondents and against the appellant. It was held that the Civil courts had jurisdiction to entertain the suit. It was also held that the respondents were owners of the suit land, that the sale in their favor was nto void and that the appellant had failed to prove that he was in lawful possession of the same. The appeal court affirmed the decision of the trial court dismissing the appeal with costs.
(4) The focal point of the appellant's attack in this second appeal is the finding of the courts below that Ranjit Singh was nto a' Bhumidhar' under the Act and thereforee the transaction of sal' by him in favor of the Respondents was nto hit by Sections 33 and 42 of the Act.
(5) It is common ground that the land in suit was evacuee property owned by a. Muslini migrant toPaki-tan fi-omind^ which was subsequently acquired by the Central Government under of the Displaced Persons (Compensation and Rehabitication) Act, 1)54 and eventually transferred to Ranjit Singb on 25th October, 1957. The factum of transfer of the land in favor of Ranjit Singh and by him to the respondents as per sale deed (Exhibit PI) dated 21st Feburary, 1962 is nto disputed by the learned counsel for the appellant.
(6) The Displaced Persons (Compensation and Rehabilitation) Act, 1954 caaie into force on 9th October, 19)4 and the Ntoitication under Section 12 of the said Act whereby the. property was acquired by the Central Government was issued in April, 1955 while the Delhi Land Reforms Act had come into force on 20th July, 1954.1t,therefore, follows that at the commencement of the Delhi Land Reforms Act, the land in suit was still evacuee property as defined in the Administration of Evacuee Property Act Xxxi of 1950.
(7) Section 192 of the Act saved from its operation all evacuee properties except evacuee land held by tenants under lease or agreement entered into before the 15th day of August, 1947 and evacuee's share in lands of common utility which would vest in the Gaon Sabha. The land in suit was nto covered by any such exception and was thus exempt from the operation of the Act.
(8) This exemption ceased to have effect a.a soon as the property lost its character as evacuee property by reason of its acquisition by the Central Government under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act 1954. The property, however, still continued to remain outside the purview of the Act by virtue of Section 1(2)(b) of the Act. The immunity of the land from the provisions of the Act was however short lived as on 25th October, 1957 it was transferred by the Managing Officer to Ranjit Singh and was thence-forth owned by him as its absolute owner.
(9) The question for determination, thereforee, is whether the rights vested in the new owner of the property were Bhumidhari rights and Ranjit Singh was Bhumidhar within the meaning of that expression, as used in the Act.
(10) The appellant contends that the objects of the Act as set out in the preamble are to provide for modification of zamindari system so as to create an uniform body of peasant proprietors without intermediaries, and for the unification of Punjab and Agra systems of tenancy laws in force in the territory of Delhi and to make provisions for toher matters connected therewith. It is well known that before the advent of independence the system of land tenures in vogue in this country was riddled with all kinds of complications. Various kinds of tenures, under-tenures and sub-tenures with their peculiar rights and incidents had come into existence which nto only. hindered production and improvement in agriculture but also exposed the actual tiller of the soil to rapacious exactions by a body of persons who in the garb of intermediaries robbed him of a major portion of the fruits of his toil leaving him in a state of utter penury and destitution. An ambitious programme of agrarian reform was, thereforee, under-taken by State Governments in the constituent units of the Union with the object of exterminating those parasitic intermediaries. The Delhi Land Reforms Act of 1904 being a step in that direction provides by Section 4 that there shall be, for the purposes of this Act, only one class of tenureholder, that is to say, 'Bhumidhar' and one class of sub-tenurg holder, that is to say. 'Asami'. This Section may, thereforee, be rightly characrised as the key-stone of the entire edifice under the Act
(11) Section 5 mentions the classes of persons who shall be Bhumidhars. The Section reads :-
'5.Every person belonging to any of the following classes shall be a Bhumidhar and shall have all the rights and be subject to all the liablities conferred or imposed upon a Bhumidhar by or under this Act, namely : - (a) a proprietor holding. Sir or Khudkasht land a proprietor's grove holder, an occupancy tenant tinder Section 5 of the Punjab Tenancy Act, 1887 paying rent at revenue rates or a person holding land under Patta Sawami, or Istamarari with rights of transfer by sale, who are declared Bhumidhars on the commencement of this Act; (b) Every class of tenants toher than those referred to in clause (a) and sub tenants who are declared Bhumidhars on the commencement of this Act ; or (e) every person who, after the commencement of this Act. is admitted to land as bhumidhar or who acquires Bhamidhari rights under any provisions of this Act.'
It would appear from the perusal of this Section that under clauses (a) and (b) a person becomes entitled to be a bhnmidhar immediately on the commencement of the Act and may be declared as such under Sections 11 and 13. In toher words these two clauses deal with the case of persons who possessed the necessary qualifications on or before the commencement of the Act and did nto apply to those who might acquire such qualifications after the commencement of the Act. Those oases are provided for in clause (e) which lays down that every person who after the commencement of the Act is either admitted to land as Bhumidhar or acquires Bhumidhari rights under any of the provisions of the Act shall also be a Bhumidhar having all the rights and liabilities of a person bearing that character. In order that such a person may also qualify for holding the character of a Bhamidhar he must either be admitted to that character as such or he should acqulre those rights under any provisions of the Act.
(12) The declaration under sections 11 and 18 of the Act as already stated, being In terms restricted to those persons who had earned the nccessary qualification before the commencement of the Act one has to look to some toher provisions of the Act dealing with the case of such a person. An examination of the provislons of the Act shows that in this case Bhumidhari rights may be acquired by him by means of transfer inter vivos in his favor from an existing Bhamidbar under Section 31 or by bequest from a Bhumidhar under Section 48 or by exchange or partitions be between Bhumidhars under Sections 40 and 55. Likewise a person may be admitted to Bhumidhari rights by the Gaon Sabha under Section 73 of the Act or where the land is of the type mentioned in Section 74, an Asami may be admitted to such rights under sub-section (4) of that Section. Similar rights may also be acquired by an Asami under Section 79 of the Act. Bhumidhari rights will also accure to a person taking or retaining possession of land against whom no suit is brought by the Gaon Sabha under Section 84 or if a decree opined in any such suit is nto executed within the period of limitation providing for the filing of the suit or the execution of the decree.
(13) It will thus be seen that a person claiming to have acquired Bhumidhan rights by transfer inter vivos under Section 31, has nit-he first instance to establish that the transfer made to him is by a Bimmidhar and that it also does nto contravene the conditions laid down in section 33 of the Act toherwise the transfer would be void under Section 42 of the Act.
(14) The transfer of the suit land in ''avour of Ranjit Singh being a transter inter vivos was admittedly nto made by a Bhumidhar, the transferer being the Managing Officer acting on behalf of the Central Government. Ranjit Singh has also nto acquired Bhumidhari rights under any toher provision of the Act nor his he been admitted to such lights He could nto thereforee confer on the respondents any rights that he himself did nto possess. A transfer made by him to the respondents was thereforee nto of Bhumldhari rights to which the provisions of Sections 33 and 42 of the Act ware attracted nor could the respondents be treated as Bhumidhars.
(15) The arguments of the learned counsel for the appellant however is that according to the provisions of Section 4 of the Act a person in possession of land within the areas to which the Act applies can either be a Bhumidhar or an Asami and thereforee by implication all the toher rights of ownership in land which do nto fall within these two categories should be deemed to have been abolished.
(16) In support of his argument, the learned counsel drew my attention to the provisions of Sub-section (2) of Section 4 which define a tenure holder. A tenure-holder according to that Section means a person who holds land directly under and is liable to pay land revenue for that land to the State. The argument of the learned counsel is that under sub-section (1) of Section 4 every tenure holder as defined in sub-Section (2) is required to be classified as a Bhumidhar. Ranjit Singh and after him the respondents are admittedly persons holding land directly under the State and they are also liable to pay land revenue to the State. It is thereforee nto neecasary that they should be either expressly admitted to land as Bhumidars or should acquire Bhamidhari rights under any of the provisions of the Act. Their entitlement to such rights arises by virtue of their holding land directly under the State and their liability to pay land revenue to the State for the same. The toher provisions of the Act relating to admission of persons to land as Bhumidhars may nto be applicable to their case but their right to be classified as such flows from Section 4 itself and since under clause (e) of Section 5 there can be acquisltion of Bhamidbari rights ander any of the provisions of that Act, Section 4(2) is one such provision in additition to Section 31,48, 55, 79 and 84 mentioned above. According to the learned counsel the provisions of Section 5 cannto be read so as to control the operation of Section 4.
(17) Mr. Dalal, learned counsel for tb(r) respondents contends on the toher hand that Section 4 merely deSne(r) the terms 'Bhamidhar' and 'Asami' which deutoe a certain status to which certain rights and obligations are attached by the Act. The classes of persons on whom such states is conferred are mentioned in Section 5 and Section 6 of the Act respectively Section 5 is exhaustive of all the categories of persons on whom the status of Bhamidhari is conferred by the Act and the only mods of its conferment after the commencement of the Act is as envisaged in clause (c) of Section 5. A person may either be admitted to land as Bhumidbar or he may acquire such rights under any of the provisions of the Act.. Section 4 being in the nature of a definition section only, its operation is controlled by Section 5 in so far as it relates to Bhumidhari rights.
(18) The contentions urged by the learned counsel on btoh sides have much to commend themselves in favor of the side represented by them. Section 4 has been enacted with a view to give expression to legislative intent of effectuating the object of the Act in creating a uniform body of peasant proprietors without intermediaries. This intention will obviously be defeated if it is held that while all rights of ownership in land existing before the commencement of the Act in respect of land which was previously exempt from its operation but which subsequently did fail within its purview were left un-touched. This goes against the very basic scheme of the Act.
(19) The argument for the opposite view is that the legislature having conferred by Section 5 the status of Bhumidars on persons possessing certain qualifications and having also laid down the manner in which such status could be acquired by those persons on and after the commencement of the Act it was nto open to any one to devise any toher methods of acquiring that status
(20) On a close and careful consideration of the matter I am inclined to agree with Mr. Dalal. It seems to me that this is an instance of casus omissus. The function of the court however is to interpret the statute as it finds it. It can neither re-write nor amend the statutory provision with a view to translate the supposedly real intention of the framers of the Act on grounds of inadvertence of the legislature. It js for instance, nto permissible to a court to insert by implication any matter thought to have been erroneously left out by legislature as that would nto be construing an Act bat altering or amending it.
(21) I am thereforee in agreement with the Courts below that Ranjit Singh or the respondents who derive their rights through him cannto be held to be Bhumidbars by implication under Section 4 of the Act as the Legislature cannto be held to hive left the question of the status of persons acquiring ownership rights in land which was evacuee property at the commencement of the Act bit which lost that character later on to be dealt with in a provision at the Act that is no more than a definition section.
(22) In this view of the matter no question arises about the transaction of sale by Ranjit Singh in favor of the respondents being bit by Sections 33 and 42 of the Act. The argument based on these two sections of the Act is also nto open to the learned counsel for the appellant on the ground of its being conoluded by a finding of fact against him. The trial court has held that the appellant had failed to prove that Ranjit Singh, even if he were held to be a Bhuimidar, was left with less than 8 standard acres after the sale of the land in suit to the respondents or that the respondents had become the owners of 30 standard acres of land after the purchase of the land from Ranjit Singh. This finding of the trial court has nto been disturbed by the first appellate court.
(23) The courts below have also held that the appellant had nto succeeded in proving that be was in lawful possession of the land in suit as a tenant.
(24) For the foregoing reasons, I further agree with the courts below that the civil courts had jurisdiction to try the suit. The decree for possession passed against the appellant is thereforee up heid and the appeal is dismissed but in the circumstances, theic will be no order a.s to costs. Considering the importance and difficulty of the question invol- ved in the appeal I certity that the case is a fit one for appeal to the Letters Patent bench of this Court.