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Devi Singh and ors. Vs. Hukam Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtHimachal Pradesh High Court
Decided On
Case NumberSecond Appeal No. 257 of 1967
Judge
Reported inAIR1977HP85
ActsPunjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953 - Section 3
AppellantDevi Singh and ors.
RespondentHukam Ram and ors.
Appellant Advocate A.C. Sud and; K.D. Sud, Advs.
Respondent Advocate Romesh Chand, Adv.
Cases Referred and Tek Singh v. Bur Singh
Excerpt:
- .....tenants (vesting of proprietary rights) act, 1953, the court is precluded from, going behind the entry recorded in the revenue records showing hira and smt. devku as occupancy tenants and determining whetherapart from the entry they can be held to be occupancy tenants?2. on october 10, 1953 the plaintiff instituted a suit in the court of the learned subordinate judge, kulu for recovery of possession of agricultural land. it was alleged that the land originally belonged to one rai bhagwant singh, that he had granted tenancy rights therein to hira under lease deeds covering different parcels of land. consequent mutations were made in favour of hira. on feb. 26, 1942 hira died, and mutation entries were made in favour of his widow, smt. devku. hira and in her turn smt. devku, were.....
Judgment:

R.S. Pathak, C.J.

The question referred for our consideration is:--

Whether, upon the facts of the present case, for the purpose of applying Section 3 of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953, the court is precluded from, going behind the entry recorded in the revenue records showing Hira and Smt. Devku as occupancy tenants and determining whetherapart from the entry they can be held to be occupancy tenants?

2. On October 10, 1953 the plaintiff instituted a suit in the court of the learned Subordinate Judge, Kulu for recovery of possession of agricultural land. It was alleged that the land originally belonged to one Rai Bhagwant Singh, that he had granted tenancy rights therein to Hira under lease deeds covering different parcels of land. Consequent mutations were made in favour of Hira. On Feb. 26, 1942 Hira died, and mutation entries were made in favour of his widow, Smt. Devku. Hira and in her turn Smt. Devku, were recorded in the revenue records as occupancy tenants. Rai Bhagwant Singh transferred his rights in the land to the plaintiff. On August 13, 1953, Smt. Devku transferred the rights belonging to her to the contesting defendants and put them in possession. The plaintiff alleged in the plaint that she had no right to do so. and he was entitled to recover possession from the defendants.

3. The suit was resisted by the defendants who, besides the plea that Hira, and after him Smt. Devku, were occupancy tenants, also asserted that with effect from June 15, 1952 the proprietary rights of Rai Bhagwant Singh stood extinguished and instead Smt. Devku became proprietor of the land. In consequence, it was said the defendants as transferees from Smt. Devku were entitled to proprietary rights therein.

4. The suit was decreed by the learned Subordinate Judge, but on appeal the learned Senior Subordinate Judge, Kangra at Dharamsla, set aside the trial court decree and dismissed the suit on the finding that as Smt. Devku was recorded in the revenue records as an occupancy tenant she satisfied the definition of 'occupancy tenant' set forth in Section 2 (f) of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act. 1953 and therefore by reason of Section 3 of the Act became absolute owner of the land. Although the trial court had held that Hira and Smt. Devku could not. on the evidence on the record, be treated in law as occupancy tenants, this finding on the merits was not disturbed in appeal. A second appeal was filed by the plaintiff in the High Court of Punjab and Tek Chand, J., considering it necessary that the question should be examined whether the entries in the revenue records showing Hira and Smt, Devku as occupancy tenants were erroneous, made an order dated Feb. 15, 1962 allowing the appeal and remanding the case for fresh decision.

After further proceedings in the Courts below and a further remand by the High Court, the lower appellate Court held that Hira and Smt. Devku did not acquire occupancy rights and therefore Smt. Devku did not become absolute owner of the land on June 15, 1952 under the Act of 1953. The suit was decreed in appeal. A second appeal was now filed by the defendants before the Himachal Bench of the Delhi High Court, which meanwhile had acquired jurisdiction in the case. One of the contentions raised by the appellant was that as Smt. Devku was recorded as an occupancy tenant on June 15, 1952, she became full owner of the land under the Act of 1953. Ansari, J., noticing a conflict between the decision of a learned single Judge of that Court and the view taken by a Division Bench of the Punjab High Court, referred the appeal to a larger Bench. The second appeal then came on before a Division Bench of this Court, which had by then become seised of this appeal, and the question framed above was referred to a Full Bench. This is how the* case is before us.

5. The point in controversy is limited to determining whether it is sufficient for the purposes of Section 3 of the Act, of 1953 that a tenant should be recorded as an occupancy tenant or it is open to the court to go behind the entry and determine whether on facts and in law the tenant can be described as an occupancy tenant and the recorded entry is erroneous. The point is a short one, and can be easily disposed of.

6. The Act of 1953, as its long title shows, is a Statute framed with the object of vesting proprietary rights in land held by occupancy tenants. Parliament, when enacting the statute, had in contemplation that disputes would arise whether a tenant was an occupancy tenant or not, and in order to cut short all controversy it embarked upon a principle which had by then appealed to other Legislatures also. By appropriately defining the expression 'occupancy tenant,' it made the recorded entry conclusive proof of the fact that the tenant so recorded was an occupancy tenant. Section 2 (f) of the Act says:

'2. (f) 'occupancy tenant' means a tenant who, immediately before the commencement of this Act, is recorded as an occupancy tenant in the revenue records and includes a tenant who, after such commencement, obtains a right of occupancy in respect of the land held by him whether by agreement with the landlord or through a court of competent jurisdiction or otherwise, and includes also the predecessors and successors in interest of an occupancy tenant.' Sections 3 (a) of the Act provides:

'3. Vesting of proprietary rights in occupancy tenants and extinguishment of corresponding rights of landlords;--

Notwithstanding anything to the contrary contained in any law, custom or usage for the time being in force on and from the appointed day,

(a) all rights, title and interest (including the contingent interest, if any. recognized by any law, custom or usage for the time being in force and including the share in the Shamilat with respect to the land concerned) of the landlord in the land held under him by an occupancy tenant shall be extinguished, and such rights, title and interest shall be deemed to vest in the occupancy tenant free from all encumbrances, if any, created by the 'landlord;

Provided that the occupancy ten ant shall have the option not to acquire the share in the Shamilat by giving a notice in writing to the Collector within ^ix months of the publication of this Act or from the date of his obtaining occupancy rights whichever is later:'

It is apparent that under Section 3 the rights of the original proprietor are extinguished with effect from the appointed day (June 15, 1952) and simultaneously an occupancy tenant acquires proprietary rights in the land. Who is an 'occupancy tenant' for the purposes of this Act is defined by Section 2 ff). The definition divides the tenant covered by it into two categories those who arr to be considered with reference to the date immediately Before thn commencement of the Act and those after such commencement. It will be noticed that the recorded entry has been made the test with respect to the first category. It is a special criterion, a departure from the normal rule, and Full effect must be given to it. The second category, which defines an 'occupancy tenant' by refernce to the usual modes of acquiring an occupancy tenancy embodies the normal rule. The different definitions in respect of the two categories demonstrates that a clear separationis intended between the two, and therefore when the first category is considered, it is the recorded entry alone which it material. It is only where the recorded entry is induced by fraud or void ab initio by reason of its being made by incompetent authority or otherwise, that the entry can be questioned and an enquiry taken behind it. The mere circumstance that, the entry is erroneous on its merits does not permit such an enquiry.

7. A somewhat similar provision was made by the U. P. Legislature in Section 20 (b) of the U. P. Zamindari Abolition and Land Reforms Act which reads;--

'20 Every person who-

(a) ...........

(b) was recorded as occupant-

(i) of any land (other than grove land or land to which Section 16 applies) in the Khasra or Khatauni of 1356 F prepared under Sections 28 and 33 respectively of the U. P. Land Revenue Act, 1901, or who wa-: on the date immediately preceding the dale of vesting entitled to regain possession thereof under Clause (c) of Sub-section (1) of Section 27 of the United Provinces Tenancy (Amendment) Act, 1947. or

(ii) .....

be called adhivasi of the land and shall, subject to the provisions of this Act be entitled to take or retain possession thereof.'

The interpretation of that provision gave rise to a long standing controversy similar in substance to the one before us. Ultimately, a Division Bench of the Allahabad High Court held in Bhal Singh v. Shop. 1963 All LJ 288 that Clause (b) (i) of Section 20 of the U. P. Act did not require proof of actual possession, but merely the existence of an entry of a person's name as an occupant in the khasra or Khaumni of 1356 fasli. It was pointed out that, the words are not 'every person whc was an occupant in 1356 fasli'; nor are the words 'every person who was recorded as an occupant in the year 1356 fa-,li, and who was also in possession in that year.' This view was endorsed by A Full Bench of that Court in Ram Dular Singh v. Babu Sukhu Ram. AIR 1964 All 498 (FB). Subsequently, the Supreme Court in Amba Prasad v. Mohaboob Ali Shah, AIR 1965 SC 54 affirmed it Thereafter, in Smt. Sonawati v Sri Ram, AIR 1968 SC 466 the Supreme Court said: 'The Civil Court in adjudging a claim of a person to the rights of an adhivasi is not called upon to make an enquiry whether the claimant was actually in possession of the land or held the right as an occupant. Cases of fraud apart, the entry in the record alone is relevant.' The observation was reiterated by the Supreme Court recently in Vishwa Vijay Bharati v. Fakhrul Hassan, AIR 1976 SC 1485.

8. We have been referred by the respondent to the view taken by the Punjab High Court in Bir Singh v. 'Mst. Bachni, ILR (1958) Punj 800; Chuni Lal v. Narain Singh, (1958) 60 Pun LR 599 and Tek Singh v. Bur Singh, (1961) 63 Pun LR 647. It seems to us that the learned Judges who decided those cases were impressed by the consideration that the reality behind the recorded entry called for investigation, and the recorded entry itself was not sufficient. Subject to the exceptions mentioned above, we find it difficult to accept that view. A certain legislative policy was given effect to when Section 2 (f) of the Act of 1953 was framed. The recorded entry was made the test for determining whether a person was an occupancy tenant. Had that not been the intention, it was unnecessary for the framers of the Act to refer to the recorded entry at all. It would have been simpler for them to make reference to the fact that a person was an occupancy tenant -as understood under the normal criteria of the Law.

9. It is urged by learned counsel for the respondent that Section 2 (f) requires the satisfaction of two ingredients, firstly, that the tenant is an occupancy tenant, and secondly, that he is recorded as an occupancy tenant in the revenue records. The submission is without force. If the tenant is in reality an occupancy tenant, there is no point in requiring that he should also be recorded as such. Emphasis has been laid on the recorded entry, and the recorded entry has been made conclusive proof that the tenant recorded is an occupancy tenant.

10. We are of opinion that if the revenue records show that on June 15, 1952, Smt. Devku stood recorded as an. occupancy tenant the court is precluded from going behind that entry in order to determine whether, for the purpose of applying Section 3 of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953, she can be held to be an occupancy tenant. As regards Hira, since he had died before that date, the entry in respect of him does not appear relevant. We are supported in this opinion by the view taken by Jagjit Singh, J. in Section A. No. 226 of 1967 (decided on 27-11-1969) (Punj), and the observations of M. H. Beg, C. J. (as he then was) and one of us (C. R. Thakur, J.) in LPA. No. 31 of 1970 (decided on 5-9-1973 (Him Pra).

11. Answering the question referred thus, we direct that the case be laid now before a single Judge for disposing of the appeal.


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