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Daulat Ram and anr. Vs. Huma Nand and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtHimachal Pradesh High Court
Decided On
Case NumberFirst Appeal No. 4 of 1963
Judge
Reported inAIR1965HP64
ActsTenancy Law; ;Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1954 - Sections 9, 11, 12(2), 12(4) and 92
AppellantDaulat Ram and anr.
RespondentHuma Nand and ors.
Appellant Advocate Ram Nath and; Amar Chand, Advs.
Respondent Advocate Ramji Das,; Chhabil Dass and; Prithvi Raj, Advs.
DispositionAppeal dismissed
Cases Referredand Hanuman Prasad v. Board of Revenue
Excerpt:
- .....under section 11, for acquiring the right, title and interest of the landowner, is or is not a tenant. a compensation officer, under the abolition act, has jurisdiction to decide, in an application under section 11 of the abolition act, whether the applicant is or is not a tenant.11. the next point, to be considered, is whether the abolition act contemplates a fair enquiry before the compensation officer. rule 4 of the himachal pradesh abolition of big landed estates and land reforms rules, makes it obligatory for the compensation officer, after the receipt of the application, under section 11 of the abolition act and the ex parte determination of compensation, to serve a notice on all concerned, giving them one month's time, to prefer objections. if any objections are filed, the.....
Judgment:

Om Prakash, J.C.

1. This appeal, against a decree of the Senior Subordinate Judge, Mahasu, has arisen out of a suit, instituted by Huma Nand respondent, against the appellants and Bishan Lal respondent, for possession of land and buildings, standing thereon, situate in village Badah, Tehsil Kasumpti, District Mahasu and for the recovery of Rs. 1200/-, as mesne profits, and, in the alternative, for the recovery of Rs. 5200/-. The suit was based on the following allegations :

2. The property, in suit, belonged to Bishan Lal respondent. He had sold it to Huma Nand respondent, for the sale price of Rs. 4000/-, by a registered sale-deed, dated 18th March 1960. One of the conditions of the sale was that the vendor was bound to deliver vacant possession of the property sold, to the vendee. But Huma Nand respondent could get possession of half the building only. The rest of the property was in the unlawful possession of the appellants. Daulat Ram appellant had made an application, under Section 11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, before the Compensation Officer, Mahasu, for the acquisition of proprietary rights in the land, in suit. His application was dismissed. The Compensation Officer held that Daulat Ram had failed to prove that he was a tenant of the land. An appeal, by Daulat Ram, to the District Judge, Mahasu, failed. The District Judge affirmed the finding of the Compensation Officer that Daulat Ram appellant had failed to prove that he was a tenant of the land. Despite the rejection of the application and the appeal, the appellants continued to be in unlawful possession of the property and refused to deliver possession. Huma Nand respondent filed a suit, praying that he be put in possession of the property and granted a decree for Rs. 1200/-, as mesne profits for the unlawful possession of the property, by the appellants. There was an alternative prayer, in the suit, that in case, it be found, that the appellants were not liable to be ejected from, and to deliver possession of, the property, then a decree for Rs. 5200/-- Rs 4000/- the sale consideration and Rs. 1200/- as damages-be passed in favour of Huma Nand, against Bishan Lal, respondent.

3. The suit was contested by the appellants.Though they had filed separate written statements,yet the pleas, taken up, were substantially the same.The main plea of the appellants, which is relevantfor the decision of the present appeal, was that DaulatRam appellant was in lawful possession of the property, in suit, as a tenant and was not liable to beejected and that Chet Ram appellant was neither inpossession of the property nor had he any concernwith it. It was not denied that the application ofDaulat Ram appellant, for acquisition of proprietaryrights, was dismissed, by the Compensation Officerand an appeal, against that decision, was dismissed bythe District Judge.

4 Bishan Lal, respondent, in his written statement, admitted that he had fold the property, in suit, to Huma Nand respondent. He also supported the case of Huma Nand that the appellants were in unlawful possession of the property. He denied that he had undertaken to deliver vacant possession of the property, or that he was liable to refund the sale price or to pay damages.

5. The learned Senior Subordinate Judge held that the finding of the Compensation Officer, affirmed by the District Judge that Daulat Ram appellant was not a tenant, was final and binding on all concerned, and that the question, whether Daulat Ram appellant was a tenant could not be re-agitated in a Civil Court, The learned Senior Subordinate Judge, therefore, held that Daulat Ram appellant was not a tenant and was in wrongful ' possession of the property. The learned Senior Subordinate Judge, further, held that Chet Ram appellant was a tenant but he had relinquished the tenancy and that his possession was also unlawful. Thus, the conclusion ot the learned Senior Subordinate Judge was that both the appellants were in unlawful possession of the property and were liable to be ejected and to pay mesne profits, for their wrongful possession. He assessed the amount of mesne profits, from 18th March, 1960 to the 30th December 1961, the date of the suit, at Rs. 600/- and granted Huma Nand respondent a decree for the possession of the property, in suit, and for the recovery of Rs. 600/-. In view of this decree, the learned Senior Subordinate Judge did not think it necessary to record any finding, about the alternative claim of Huma Nand respondent, against Bishan Lal respondent.

6. Aggrieved by the aforesaid decree, the appellants, who are real brothers, have filed the present appeal. Bishnn Lal respondent died during the pendency of the appeal. His legal representatives were brought on record.

7. The important point, which requires decision, in the present appeal, is whether the finding of the Compensation Officer that Daulat Ram appellant was not a tenant, given in the application, under Section 11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, (hereinafter referred to as the Abolition Act) barred the jurisdiction of the Civil Court, to try the question of Daulat Ram's tenancy. It is not, in dispute, that Daulat Ram appellant had put in an application under Section 11 (1) of the Abolition Act for the acquisition of proprietary rights, in the land, in suit, and that his application was dismissed by the Compensation Officer on the ground that Daulat Ram had failed to prove that he was a tenant of the land. Ex. PW. 9/D is a copy of the order of the Compensation Officer. Daulat Ram appellant had gone up in appeal to the learned District Judge, Mahasu, against the decision of the Compensation Officer. His appeal was dismissed and the finding of the Compensation Officer was affirmed. Ex. PW. 9/E is a copy of the order of the District Judge. The contention, on behalf of the respondents, was that the finding of the Compensation Officer, affirmed by the District Judge, was final and binding and that the jurisdiction of the Civil Court to go into the question, whether Daulat Ram appellant was or was not a tenant, was barred, by reason of the provisions of Sub-sections (2) (c) and (4) of Section 12 of the Abolition Act. That Section reads as follows :

'(1) The amount of compensation payable by a tenant for acquisition of the right, title and interest of the land-owner in the land of the tenancy shall be determined by the compensation officer in accordance with the provisions of the Schedule.

(2) (a) Any person aggrieved by an order of the compensation Officer under Sub-section (1) may, within forty-five days from the date of the order, appeal to the District Judge.

(b) Where any such appeal is preferred to the District Judge, he shall cause to be published in the prescribed manner a notice requiring the land-owner or the tenant, as the case may be, to appear before him and after giving the parties a reasonable opportunity of being heard shall give his decision.

(c) As against the decision of the District Judge an appeal shall lie within such period as may Be prescribed to the Judicial Commissioner whose decision shall be final and shall not be liable to be called in question in any court Or before any authority.

(3) No decision of the District Judge or the Judicial Commissioner under Sub-section (2) shall be invalid by reason of any defect in the form of notice or manner of its publication,

(4) Every decision of the compensation officer under this section shall, subject to the provision of Sub-section (2), be binding on all persons claiming an interest in the holding concerned, notwithstanding any such person not having appeared or participated in the proceedings before the compensation officer, the District Judge or the Judicial Commissioner, as the case may be.'

8. Before discussing the question, whether Sub-sections (2) (c) and (4) of Section 12 bar the jurisdiction of a Civil Court to try the question whether a particular person was or was not a tenant, it will be useful to refer to the decision of their Lordships of the Supreme Court, in Addanki Tiruvenkata Thata Desika Charyulu v. State of Andhra Pradesh AIR 1964 S C 807. One of the questions, decided by their Lordships, in that case, was whether Section 9 (4) (c), read with Section 9 (6) of the Madras Estates (Abolition and Conversion into Roytwari) Act, bars the jurisdiction of a Civil Court from trying a question, decided by the Settlement Officer, under Section 9 (1) of that Act. Section 9 of the Madras Act, as quoted in the judgment of their Lordships, was as follows :

'9 (1) As soon as may be after the passing of the Act, the Settlement Officer may suo motu and shall, on application, enquire and determine whether any inam village in his jurisdiction is an inam estate or not.

(2) Before holding the inquiry, the Settlement Officer shall cause to be published in the village in the prescribed manner, a notice requiring all persons claiming an interest in any land in the village to file before him statements bearing on the question whether the village is an inam estate or not.

(3) The Settlement Officer shall then hear the parties and afford to them a reasonable opportunity of adducing all such evidence either oral or documentary as they may desire to, examine all such documents as he has reason to believe are in the possession of the Government and have a bearing on the question before him arid give his decision in writing.

(4) (a) Any person deeming himself aggrieved by a decision of the Settlement Officer under Sub-section (3) may, within two months from the date of the decision or such further time as the Tribunal may in its discretion allow, appeal to the Tribunal.

(b) Where any such appeal is preferred, the Tribunal shall cause to be published in the village in the prescribed manner, a notice requiring all persons who have applied to the Settlement Officer under sub s. (1) or filed before him statements under Sub-section (2) to appear before it, and after giving them a reasonable opportunity of being heard, give its decision.

(c) The decision of the Tribunal under this sub-section shall be final and not be liable to be questioned in any Court of Law.

(5) No decision of the Settlement Officer under Sub-section (3) or of the Tribunal under Sub-section (4), shall be invalid by reason of any defect in the form of the notice referred to in Sub-section (2) or Sub-section (4), as the case may be, or the manner of its publication;

(6) Every decision of the Tribunal and subject to such decision, every decision, of the Settlement Officer under this section shall be binding on all persons claiming an interest in any land in the village, notwithstanding that any such person has not preferred any application or filed any statement or adduced any evidence or appeared or participated in the proceedings before the Settlement Officer or the Tribunal as the case may be.

(7) In the absence of evidence to the contrary, the Settlement Officer and the Tribunal may presume that an inam village is an inam estate.'

9. On an interpretation of the various Sub-sections of Section 9, their Lordships of the Supreme Court held that the decision of the Settlement Officer, on the question, whether an inam village was or was not an inam estate was final and binding on the parties and barred the jurisdiction of a Civil Court to try the same question. Their Lordships observed:

'The very provision setting up an hierachy of judicial tribunals for the determination of the question on which the applicability of the Act depends, is sufficient in most cases, for inferring that the jurisdiction of the Civil Courts to try the same matter is barred. In addition we have the provision in Section 9(4)(c) read with Section 9(6) to which we have adverted. In these circumstances, we have no hesitation in holding that to the extent of the question stated in Section 9 (1), the jurisdiction of the Settlement Officer and of the Tribunal are exclusive and that the Civil Courts are barred from trying or re-trying the same question.' Page 816.

10. It will have been noticed that the provisions of Section 12 of the Abolition Act, setting up judicial tribunals for the determination of questions, which may arise in an application, filed, under Section 11, and making the decision of the Compensation Officer final and binding, are analogous to the provisions of Section 9(4)(c) and Section 9(6) of the Madras Act, which were considered by their Lordships in AIR 1964 S C 807. The observations of their Lordships, extracted above, and the principles enunciated, for interpreting Section 9 of the Madras Act will apply to the determination of the question whether Section 12(2)(c) and Section 12(4) of the Abolition Act bar the jurisdiction of a Civil Court to try an issue whether a particular person was or was not a tenant, when the Compensation Officer had already recorded a finding on that issue in proceedings, relating to an application under Section 11, which is closely connected with Section 12 of the Abolition Act, filed by that person.

The first point, to be considered is, whether the Compensation Officer had jurisdiction to decide that issue. It was contended, on behalf of the appellants, that the Abolition Act empowers a Compensation Officer to determine compensation only and that he has no jurisdiction to decide other matters, though incidentally, he may have to decide them, for exercising jurisdiction to determine compensation. This contention does not appear to be sound. Section 9 of the Abolition Act empowers a Compensation Officer, besides assessing compensation, to effect partitions and to settle disputes between the land-owners and their tenants. Section 14 authorizes him to demarcate the area, surrendered, by a tenant, and deliver ' possession of the same to the land-owner. Section 103 empowers a Compensation Officer to enquire into the validity of any transfer in respect of any land, made in favour of or by or on behalf of the land-owner. It is clear that a Compensation Officer has been invested with jurisdiction, under the Abolition Act, to decide various matters, in addition to the determination of compensation. Section 9 of the Abolition Act gives him jurisdiction to decide disputes, between a land-owner and his tenant. This will cover the dispute whether the person, applying under Section 11, for acquiring the right, title and interest of the landowner, is or is not a tenant. A Compensation Officer, under the Abolition Act, has jurisdiction to decide, in an application under Section 11 of the Abolition Act, whether the applicant is or is not a tenant.

11. The next point, to be considered, is whether the Abolition Act contemplates a fair enquiry before the Compensation Officer. Rule 4 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Rules, makes it obligatory for the Compensation Officer, after the receipt of the application, under Section 11 of the Abolition Act and the ex parte determination of compensation, to serve a notice on all concerned, giving them one month's time, to prefer objections. If any objections are filed, the Compensation Officer is to hear them. In disposing of the objections, the Compensation Officer can exercise the powers of a Civil Court, under the Code of Civil Procedure, for the purpose of taking evidence and ot enforcing the attendance of witnesses and compelling the production of documents, vide Section 25. The order of the Compensation Officer is subject to an appeal to the District Judge and a second appeal to the Judicial Commissioner. The intention of the Legislature was that the enquiry before the Compensation Officer should be fair and thorough.

12. The Compensation Officer had jurisdiction to decide whether Daulat Ram appellant was a tenant or not. After a full and thorough enquiry, conducted in accordance with the relevant provisions of law, the Compensation Officer had come to the conclusion that Daulat Ram appellant had failed to prove that he was a tenant. That conclusion was affirmed, on appeal, by the District Judge. Daulat Ram appellant did not lodge any appeal to the Judicial Commissioner, against the decision. Sub-section (4) of Section 12 of the Abolition Act makes the decision of the Compensation Officer binding on all persons, concerned. Section 12 (2)(c) lays down that the decision of the Judicial Commissioner shall not be liable to be called in question in any Court. It was held by their Lordships, in Kesoram Cotton Mills Ltd. v. Gangadhar, A I R 1964 S C 708, with respect to Section 9(4)(c) of the Madras Act, which provides that the decision of the Tribunal shall not be liable to be questioned in any Court, that, that sub-section, read with Sub-section (6) of Section 9, makes the decision of the Settlement Officer, as well, immune from challenge in a Civil Court. On the same reasoning, it is to be held that Section 12(2)(c), read with Section 12(4), of the Abolition Act, bars the jurisdiction of a Civil Court to question the correct-ness of the decision of the Compensation Officer. The Civil Court's jurisdiction to try the question, whether Daulat Ram appellant was a tenant or not was barred by reason of the provisions of Section 12(2)(c) and Section 12(4) of the Abolition Act.

13. Another contention, urged, on behalf of the appellants, remains to be examined. It was contended that Section 92 of the Abolition Act, which lays down that nothing in the Act shall affect the right of any person to establish his claim in respect of any land or part thereof by due process of law in the Court, having jurisdiction, overrides Section 12 (2) (c) and Section 12 (4) and that the Civil Court was competent to try the plea of Daulat Ram appellant about the tenancy, under that section, in spite of the fact that the Compensation Officer had given a decision against him. In my opinion, Section 92 is a general provision, and does not override the special provision contained in Section 12 (2) (c) and Section 12 (4). Section 92 will be applicable to those cases, which are not covered by Section 12 or any other specific provision of the Abolition Act or where a person, adversely affected, by the order of the Compensation Officer, was under some disability and was not properly represented or had no notice of the proceedings and had no opportunity to present his case. Section 92 is not intended to permit persons, whose rights were adjudicated by a competent tribunal, in a lawful enquiry, to have those rights re-opehed and again heard in another suit. This section does not destroy the finality, attached to the order of the Compensation Officer, or the District Judge for the Judicial Commissioner, by the provisions of Section 12 (2) (e) and Section 12 (4). The plea of Daulat Ram appellant had been tried and rejected by the Compensation Officer. The decision was affirmed by the District Judge. Daulat Ram cannot avail himself of the provisions of Section 92.

14. The authorities--Kishnu Sah v. Harinandan, AIR 1963 Pat 79 (FB), Firm Adarsh Industrial Cooperation v. Market Committee, Karnal, AIR 1962 Punj 426 ;and Hanuman Prasad v. Board of Revenue, AIR 1957 Raj 281,--cited, on behalf of the appellants, are not applicable to the case, in hand. The Patna authority was under the Bihar Buildings (Lease, Rent and Eviction) Control Act. That Act did not empower the Controller to decide finally about the existence of relationship of landlord and tenant. In the instant case, the Abolition Act confers jurisdiction on the Compensation Officer to give a decision on the dispute about the existence of relationship of landlord and tenant. In the Punjab case, the Punjab Agricultural Produce Markets Act, and in the Rajasthan case, the Ordinance, did not expressly or by implication, bar the jurisdiction of a Civil Court. In the present case, the jurisdiction of the Civil Court is barred by the provisions of Section 12 (4), read with Section 12 (2) (c) of the Abolition Act.

15. Daulat Ram appellant was admittedly in possession of the land. On the basis of the finding of the Compensation Officer, it is to be held that he was not a tenant of the land nor he had any other interest in the land. His possession was wrongful.

16. Chet Ram appellant denied that he was in possession of the land or had any concern with it. Bija Nand P. W. 1, Gaffar P. W. 4 and Balak Ram P. W. 5 stated that Chet Ram was in possession of the land. Appellants' own witness, Chaman Lal D. W. 3, admitted that the family of Chet Ram appellant resided with Daulat Ram on the land. The evidence, discussed above, leads to the conclusion that Chet Ram appellant was in possession of the land, with Daulat Ram.

17. The learned Senior Subordinate Judge was of the view that Chet Ram appellant was a tenant but had relinquished his tenancy. The case of Chet Ram appellant, throughout, even in this Court, has been that he had no concern with the land. The case of the respondents was that Chet Ram appellant was a trespasser. The learned Senior Subordinate Judge travelled beyond the pleadings of the parties and made out quite a new case, inconsistent with the pleadings, in holding that Chet Ram appellant was a tenant and had relinquished his tenancy. He was not justified in doing this. Neither will this Court be justified in entering into the discussion of that question. Chet Ram appellant was in possession of the land, without any right, title or interest. His possession, like the possession of his brother Daulat Ram, was unlawful.

18. The appellants were in wrongful possession of the property, in suit. They were liable to be ejected. Huma Nand respondent, who had purchased the property, from the original proprietor, was entitled to be put in possession. The appellants were, also, liable to pay mesne profits to Huma Nand respondent from, at least, the date of the purchase. It was in evidence that annual income from the property, in suit, was Rs. 1000/- or Rs. 1200/-. The learned Senior Subordinate Judge has awarded only Rs. 600/- as mesne profits from 18th March 1960 to 30th December 1961. The amount awarded cannot be said to be unreasonable, or excessive.

19. The result is that the appeal fails and is dismissed with costs of Huma Nand respondent. The legal representatives of Bishan Lal respondent will bear their own costs.


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