Chet Ram Thakur, J.
1. These appeals are directed against the judgment and order, dated 15th July, 1968. passed by the District Judge, Sirmur District at Nahan, whereby he accepted the appeal of Ram Sarup and dismissed the appeal of the present appellants. The landowners have filed separate appeals against this order and both of them will be disposed of by this judgment.
2. The facts in brief are that the land in question originally belonged to Mahant Gurdyal Singh, who gifted this land in favour of his minor sons, Gurpal Singh and Karanvir Singh, vide mutation No. 58, dated 17th January, 1966, along with other land. This land was in the tenancy of Ram Sarup who filed an application under Section 11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, (hereinafter referred to as the Act) for acquisition of the right, title and interest of the landlord in the land.
3. The minors who had become owners of this land by virtue of the gift made in their favour by their father opposed this application through their guardian-ad-litem and contended that the non-applicants-landowners were minors and lived separate from their father. They had no other source of livelihood and depended for their livelihood on the income of this very land. In view of this they pleaded that they were entitled to protection under Subsection (2) of Section 11 of the Act and the applicant was not entitled to the acquisition of their right, title and interest in the land.
4. The applicant put in a replication to the rejoinder and contended that the minors were living jointly with their father who had quite a big chunk of land and he was maintaining the minors. The father and the uncle of the non-applicants had enough of land in their self cultivation. This gift was made by Gurdyal Singh in favour of his minor sons to defeat the statutory rights of the tenants. The Compensation Officer framed only one issue to the following effect :--
'(I) Whether the land was transferred in favour of Gurpal Singh and Karanvir Singh, after the enforcement of the Act or before that ?'
5. The learned Compensation Officer came to the conclusion that the gift of the land was made by Gurdyal Singh in favour of his minor sons after the endorcement of the Act and was made with the object to defeat the rights of the tenants and he further held that the tenant was entitled to the ownership of the land applied for. However, he felt that in order to maintain pleasant relations between the parties it was proper if the parties should have the land in equal shares, meaning thereby that the application of the tenant be granted to the extent of one-half whereas the application with regard to the other half was to be dismissed and he accordingly passed an order on the 30th March, 1967 granting the proprietary rights to Ram Sarup tenant in one-half share of the land comprised in Khasra No. 2/23, measuring 27 Big-has and 3 Biswas on payment of Rs. 333.41 paise.
6. Against this order, both the parties went up in appeal to the District Judge, who vide his impugned judgment and order, dated the 15th July. 1968. accepted the appeal of Ram Sarup tenant thereby granting proprietary rights in the entire land measuring 27 Bighas and 3 Biswas on payment of Rs. 666.83 paise, but dismissed the appeal of the landowners. It was held that there was ample evidence on the record to prove that Gurpal Singh and Karanvir Singh. even if they were held to be the landowners, had other means of their livelihood. He relied upon the statement of Ram Kala Patwari who had deposed that out of the land gifted to the minor sons, 29 Bighas and 15 Biswas was in the Khud Kasht and that Mahant Gurdyal Singh had 168 Bighas and 2 Biswas of land in his self cultivation. The minors were living with their parents. Mahant Gurdyal Singh had enough income to bring up his minor sons and on the evidence produced it could not be said that the landowners had no other means of livelihood. He also repelled the contention of the counsel for the land-owners-appellants that the Compensation Officer had not framed any issue about the other means of livelihood of the non-applicants-appellants and that the case for that matter may be remanded. He feeling satisfied that there was enough of material on the record to hold that the minors had other means of livelihood, dismissed the appeal of the landowners. The landowners, therefore, have filed these second appeals.
7. I have heard the counsel for the parties. It has also been held by the learned District Judge that the gift having been made after the enforcement of the Act was made only to defeat the rights of the tenant. This finding has been assailed by the appellants' learned counsel and I think he is right in contending that there is no prohibition on the landowner to alienate his land after the enforcement of this Act except what is provided under Section 85 of the Act which reads as under :--
'85. Any contract or agreement made between the landowner and any other person on or after the 1st of April. 1952. which has the effect of directly or indirectly preventing the vesting of any land of the landowner in the State Government or. to defeat any other provision of this Chapter shall become void from the date of vesting.'
8. From the reading of this Section it is obvious that it relates only to such lands which will vest in the State Government after the enforcement of this Act and also it is further clear that it relates to lands which fall under Chapter VIII of the Act which provides for 'assumption of management and acquisition by the State'. Hence, the provisions of Section 85 cannot be applied to any alienation made by a landowner who has got land not exceeding the ceiling as provided in the Act. Even if the landowner has gifted the land in order to defeat the right of the tenant he is within his legal right to do so as there is no prohibition restraining him from alienating the land after the enforcement of the Act whereby to defeat the right of the tenant. Section 85 of the Act relates to such land which is to vest in the State Government after the enforcement of the Act. Therefore, this gift made by Gurdyal Singh in favour of his minor sons cannot be said to beinvalid.
9. I have gone through the pleadings of the parties and I find that the non-applicants had in paras 2 and 3 of the written statement, dated 2nd November, 1966 taken up the plea that they had no other source of livelihood except this land and they were entitled to protection under Sub-section (2) of Section 11 of the Act. This pleading of the non-applicants is met by the applicant by saying that they were being maintained by their father who had quite a big chunk of land in his self-cultivation. Now the question is whether the obligation of a Hindu father to maintain his minor child can be taken into account and treated as the other means for the purpose of subsection (2) of Section 11 of the Act. This question has been answered in an authority of a Division Bench of this Court decided on 18th of November, 1970, (Shri Vijai Kumar v. Shri Prem Singh). in the negative.
10. In the case cited above, Prem Singh. who was a tenant had filed an application under Section 11 of 'the Act for acquisition of the rights of the landowner in the land of his tenancy. Padam Singh the original owner of the land had made a gift of this land in favour of his minor sons Vijai Kumar and others. They opposed the application. The application was allowed by the Compensation Officer. An appeal to the District Judge was preferred but the same was dismissed on the ground that the father of the appellants was a Government Contractor and owned large property, as such the minors were not entitled to the benefit of Sub-section (2) of Section 11 of the Act. In second appeal the argument advanced on behalf of the appellants was that the fact that their father was a man of substantial means could not deprive them of the benefit of Sub-section (2) of Section 11 of the Act. The question, therefore, was referred to a larger Bench.
11. It was held therein that the plain reading of Sub-section (2) goes to show that it is the means of livelihood of the minor landlord and not of anyone else which have to be kept in view in deciding the above question. The words used in the section are 'if he has no other means of livelihood.'. The word 'he' has obviously reference to the minor landlord and not to anyone else, however closely related such other person may be to the minor landlord. Therefore, it is obvious that the means of the father cannot be taken into account in holding that the minors have got other source of livelihood. It has to be shown that they had got no other independent source except the land the acquisition of the proprietary rights of which is sought by the tenant. Hence this argument of the appellants succeeds that they have no other independent source of livelihood.
12. The contention of the appellants' learned counsel that there is no issue on the point which arose from the pleadings of the parties is quite correct and I find that the tenant also could not lead any evidence nor the minors could also lead evidence and they were definitely prejudiced in the trial of the case in the absence of any specific issue on the point. The only sentence on which reliance is placed by the learned counsel for the respondent to persuade me to hold that there is other source of livelihood of the minors is that out of the total area of gifted land, the minors have got 28 Bighas and 3 Biswas of land in their self-cultivation. But, in my opinion, this is not sufficient evidence to dispose of the appeal. The parties had definitely been prejudiced in the trial of the case in the absence of any issue when from the pleadings of the parties this issue did arise and the Court failed to strike the issue. Under Order 14. Rule I of the Code of Civil Procedure it is the duty of the Court to frame issues in the case that arise from the pleadings of parties. Hence both these appeals are accepted and the judgments of the District Judge are set aside and the order of the Compensation Officer also stands set aside and the case is remitted to the Compensation Officer through the District Judge to frame an issue in the light of the above observations and to afford an opportunity to the parties to lead their evidence and then dispose of the case in accordance with law. The parties are left to bear their own costs throughout. Parties directed to appear before the District Judge on 11-5-1971.