V.P. Gupta, J.
1. This is a landlords' appeal against the judgment of the District Judge, dated 27th December, 1969, by which the learned District Judge allowed the application of the tenant (respondent) for acquisition of proprietary rights on payment of Rs. 693-12 as compensation under the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 (hereinafter called the Himachal Pradesh Act of 1953).
2. The brief facts are that Wazira respondent filed an application under Section 11 of the Himachal Pradesh Act of 1953 on 14th August, 1959 for grant of proprietary rights in land measuring 74 bighas 11 biswas situate in village Kandela, Tehsil Saddar, District Bilaspur, which was the ownership of the present appellants,
3. This application was contested by the appellants and it was alleged that a notice of ejectment under Section 45 of the Punjab Tenancy Act, 1887 (hereinafter called the Punjab Act) had been issued to the respondent on 27th September, 1949. The respondent contested this notice of ejectment and filed a suit in the court of Revenue Assistant, Bilaspur, which suit was dismissed on 2nd September, 1953. An appeal filed by the respondent was also dismissed by the Collector on 3rd December, 1953. It was also alleged that an execution petition was filed by the appellants in 1958 seeking possession of the disputed property but the proceedings in that execution petition were stayed on the objections of the respondent and for this reason the execution petition was also consigned to the record room on 18th June, 1958. The respondent's claim to acquire proprietary rights was denied.
4. On these pleadings of the parties the following issues were framed on different dales: Issues on 21-4-1961:
'1. Whether there is no relationship of landlord and tenant between the parties?
O. P. R.
Issues on 19-9-1964:
'1. Whether the H. P. Abolition of Big Landed Estates and Land Reforms Act, 1953 is contrary to Law and is beyond the powers of the Parliament?
O. P. R.
2. Whether the provisions of H. P. Abolition Act, 1953 have not been applied to Bilaspur properly?
O. P. R.
3. Whether this application on account of the previous decision in various cases relating to this dispute is not liable to be heard?
O. P. R.
Issues in July, 1968:
'1 (a) Whether there are buildings belonging to the respondents on the suitland, if so, how much compensation theyare liable to be paid?
O. P. R.
2 (a) Whether there has been a decree for ejectment against the applicant and if so how it affects this case?
O. P. R.
3 (a) Relief.
5. The Compensation Officer, vide his order, dated 19th July, 1969 dismissed the application of the respondent after holding that there was no relationship of landlord and tenant between the parties. The other issues were decided against the landlords.
6. An appeal was filed by the respondent and the learned District Judge vide his order, dated 27th December, 1969 held that there was relationship of landlord and tenant between the parties and that the respondent could be granted proprietary rights in respect of the whole of the disputed land. With these findings the order of the Compensation Officer was set aside and the appeal of the tenant was accepted.
7. Before the District Judge the findings on other issues were not contested by the parties.
8. In this appeal we have heard Shri A. K. Goel, Advocate, for the appellants and Shri Devinder Gupta, Advocate, for the respondent.
9. The learned counsel for the appellants contended that there existed no relationship of landlord and tenant between the parties on the date of the filing of the application and that the tenancy of the respondent had been terminated by a valid notice of ejectment which was contested by him in a regular suit, but this suit of the respondent was dismissed. It was contended that the order of dismissal of the suit, dated 2nd September, 1953 puts an end to the relationship of landlord and tenant between the parties and for this reason the respondent had no right to file any application for grant of proprietary rights on 14th August, 1959. The learned counsel for the appellants also in a lukewarm manner contended that findings of the District Judge that the whole of the disputed property was 'land' is not justified.
10. The learned counsel appearing on behalf of the respondent contended that the decree, dated 2nd September, 1953 dismissing the respondent's suit was invalid and inoperative under Section 23 of the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as the Punjab Act of 1953). It was contended that the disputed property was situate in Bilaspur and previously the provisions of Punjab Act were applicable regarding this properly but from 21st September, 1953 onwards the provisions of the Puniab Act of 1953 were also made applicable to Bilaspur area. The learned counsel also contended that the Himachal Pradesh Act of 1953 was enforced in Bilaspur area from 26th January, 1955. The learned counsel further contended that the appeal of the respondent was withdrawn on 3rd December, 1953 because of the fact that the decree under appeal had become invalid and not executable. On the next point, the learned counsel contended that there was no dispute between the parties as to whether the disputed property fell within the definition of 'land' or not and this matter was never put in issue in the pleadings of the parties or before the Compensation Officer and, therefore, the property would be deemed to be land and capable of acquisition by the respondent under Section 11 of the Himachal Pradesh Act of 1953. The learned counsel also contended that, in fact, the whole of the disputed property fell within the definition of 'land' and the finding of the learned District Judge is correct.
11. We have considered the contentions of the learned counsel for the parties and have also gone through the records of the case.
12. The admitted position between the parties is that prior to the enforcement of the Punjab Act of 1953, the provisions of the Punjab Act were applicable for disputed land. Section 45 of the Punjab Act reads as follows:--
'45. (1) On receiving the application of the landlord in any such case as is mentioned in Clause (b) of a Section 42, the Revenue Officer shall, if the application is in order and not open to objection on the face of it, cause a notice of ejectment to be served on the tenant.
(2) A notice under Sub-section (1) shall not be served after the fifteenth day of November in any agricultural year.
(3) The notice shall specify the name Of the landlord on whose application it is issued, and describe the land to which it relates, and shall inform the tenant that he must vacate the land before the first day of May next following, or that, if he intends to contest his liability to ejectment, he must institute a suit for that purpose in a Revenue Court within two months from the date of the notice.
(4). The notice shall also inform the tenant that if he does not intend to contest his liability to be ejected and he has any claim for compensation on ejectment he should, within two months from the date of the service of the notice, prefer his claim to the Revenue Officer having authority under the next following sub-section to order his ejectment in the circumstances described in that subsection.
(5) It within two months from the date of the service of the notice the tenant does not institute a suit to contest his liability to be ejected, a Revenue Officer, on the application of the landlord, shall, subject to the provisions of this Act with respect to the payment of compensation, order the ejectment of the tenant.
Provided that the Revenue Officer shall not make the order until he is satisfied that the notice was duly served on the tenant.
(6) If within those two months the tenant institutes a suit to contest his liability to be ejected and fails in the suit the Court by which the suit is determined shall by its decree direct the ejectment of the tenant.'
Thus the landlord could get a notice of ejectment issued to the tenant on an application and if this notice was not contested by the tenant within two months from the date of service of notice by instituting a suit then the landlord could secure an order of ejectment against the tenant. If the tenant, on the other hand, contested his liability to be ejected by filing a suit in the revenue court then the revenue court could either direct the ejectment of the tenant orcould cancel the notice. For getting a notice issued under Section 45 of the Punjab Act no grounds were to be mentioned by the landlord. In the present case, according to the admitted position, such a notice was got issued to the respondent and the respondent filed a regular suit contesting his liability to be ejected, but failed in that suit on 2nd September, 1953.
13. The Punjab Act of 1953 was enforced in Bilaspur on 21st September, 1953. Section 9 of the Punjab Act of 1953 reads as follows:
'9. Liability of tenant to be ejected.--(1) Notwithstanding anything contained in any other law for the time being in force, no land-owner shall be competent to eject a tenant except when such tenant.
(i) is a tenant on the area reserved under this Act or is a tenant of a small land-owner;
(ii) fails to pay rent regularly with sufficient cause; or
(iii) is in arrears of rent at the commencement of this Act or
(iv) has failed or fails without sufficient cause, to cultivate the land comprised in his tenancy in the manner or to the extent customary in the locality in which the land is situate; or
(v) has used or uses the land comprised in his tenancy in a manner which has rendered or renders it until for the purpose for which he holds it; or
(vi) has sub-let the tenancy or a part thereof: provided that where only a part of the tenancy has been sublet, the tenant shall be liable to be ejected only from such part; or
(vii) refuses to execute a Qabuliyat of a Patta, in the form prescribed, in respect of his tenancy on being called upon to do so by an Assistant Collector on an application made to him for this purpose by the land-owner.
Explanation: For the purposes of Clause (iii) a tenant shall be deemed to be in arrears of rent at the commencement of this Act, only if the payment of arrears is not made by the tenant within a period of two months from the date of notice of the execution of decree or order, directing him to pay such arrears of rent.
(2) Notwithstanding anything contained hereinbefore a tenant shall also be liable to be ejected from any area whichhe holds in any capacity whatever in excess of the permissible area:
Provided that the portion of the tenancy from which such tenant can be ejected shall be determined at his option only if the area of his tenancy under the land-owner concerned is in excess of the area from which he can be ejected by the said land-owner:
Provided further that if the tenant holds land of several land-owners and more than one land-owners seek his ejectment, the right to ejectment shall be exercised in the order in which the applications have been made or suits have been filed by the land-owners concerned, and in case of simultaneous applications or suits the priority for ejectment shall commence serially from the smallest land-owner.
Explanation: Where a tenant holds land jointly with other tenants only his share in the joint tenancy shall be taken into account in computing the area held by him.'
The tenant could only be ejected on the conditions which are given in Section 9 of the Punjab Act of 1953, meaning thereby that a tenant could not be ejected except as provided under Section 9 of the said Act.
14. The Punjab Act of 1953 also abrogated pending decrees, orders and notices, etc. Section 23 of the Punjab Act of 1953 reads as follows:
'23. Abrogation of pending decrees, orders and notices. No decree or order of any Court or authority and no notice of ejectment shall be valid save to the extent to which it is consistent with the provisions of this Act.'
15. The respondent had not been evicted from the disputed land till 21st September, 1953 with the result that the decree or order which had dismissed the plaintiff's suit became invalid under Section 23 of the Punjab Act of 1953. It is not the case of the parties that any of the grounds mentioned in Section 9 of the Punjab Act of 1953 had been mentioned in the notice of ejectment served upon the tenant. Hence the decree which had been passed on 2nd September, 1953 was not consistent with the provisions of the Act of 1953, and, therefore, the same had become invalid.
16. The respondent withdraw the appeal filed against the decree, dated 2nd September, 1953 on 3rd December, 1953, and the natural presumption is that there was no idea in pursuing with this appealbecause the decree passed on 2nd September, 1953, as stated before, had become invalid. Even if the appeal had not been withdrawn still there was no valid executable decree in existence on 3rd December, 1953.
17. If the decree passed on 2nd September, 1953 is ignored and is held to be invalid then naturally there is no valid order of ejectment against the respondent. Even the notice of ejectment issued under Section 45 of the Punjab Act is to be deemed to be invalid under Section 23 of the Punjab Act of 1953 and so the respondent did not lose his tenancy rights in the suit land. In view of the aforesaid facts on 14th August, 1959 when the application for acquisition of proprietary rights under Section 11 of the Himachal Pradesh Act of 1953 was filed by the respondent, the respondent was in possession of the disputed land in his capacity as a tenant under the appellants and, therefore, he had a right to acquire the proprietary rights. The finding of the learned District Judge to the effect that there is a relationship of landlord and tenant between the parties is correct and is thus affirmed.
18. There was no contest between the parties that the disputed land or a part of it did not fall within the definition of 'land' and no issue to that effect was framed. This point seems to have been raised before the learned District Judge and the learned District Judge after discussing the factual position has rightly held that the entire disputed land falls within the definition of 'land' and is capable of being acquired by the respondent. The learned counsel for the appellants also did not press this point.
19. In view of the above discussion, this appeal fails and the same is hereby dismissed, with no order as to costs.