IMPORTANT POINT
Section 36 of Himachal Pradesh Tenancy and Land Reforms Act, 1972 is applicable to the land owned.

JUDGMENT :

Sudhansu Jyoti Mukhopadhaya, J. –

Leave granted.

2. This appeal is directed against the judgment and decree dated 2nd May, 2008 passed by the High Court of Himachal Pradesh, Shimla in R.S.A. No.126 of 1996. By the impugned judgment and decree High Court reversed the concurrent finding of the Courts below and held that Section 36 (wrongly mentioned as Rule 36 in the impugned judgment) of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 (hereinafter referred to as “the Act”) is applicable to tenancy land and not to the ownership land owned by a person, and therefore, not applicable to the appellants herein. The judgment and decree dated 21st November, 1995 passed by the learned Additional District Judge (1) Dharamshala Camp at Una in Civil Appeal No.39/92, RBT No.206/94 were set aside and the suit was dismissed.

3. The factual matrix of the case is that predecessor-in-interest of the appellants, Faqir Chand, the original plaintiff filed a suit against Daulat Ram, Sukh Dev, Ram Sarup and Smt. Vidya Devi for permanent injunction restraining them from removing the pump set or interfering, in any manner, with the right of the plaintiff to irrigate his land measuring 25 Kanals 16 Marlas from well and pump set situated in land measuring 8 Marlas bearing Khasra No.114R/29 situated in village Basal, Tehsil and District Una vide Jamabandi 1981-82.

4. The case of the original plaintiff was that he was inducted as a tenant of suit land by the respondents, on an annual rent of Rs.1614/- for a period of 10 years by registered lease deed dated 23rd August, 1968, along with right of irrigation from a common source in the form of well situated on the remaining land belonging to the landlord. He was in possession of 25 Kanals 16 Marlas of land comprised in Khasra Nos.114R/19/4, 21/2, 22/1, 115S/1/2, 2,3, 8/1, 9/1 and 26 situated in village Basal, Tehsil and District Una vide Jamabandi 1981-82. On coming into force of the H.P. Tenancy and Land Reforms Act, 1972, the property rights of the suit land was conferred on tenants, including the original plaintiff under sub-Section (3) of Section 104 of the Act.

5. Further, the case of the plaintiff was that the whole of the suit land was irrigated from the well and pump set situated in Khasra No.114R/29 situated in village Basal, Tehsil and District Una. The plaintiff was given right to irrigate 25 Kanals 16 Marlas pursuant to the agreement dated 23rd August, 1968 from well and pump set situated in Khasra No.114R/29. The plaintiff, thereby, pleaded his right to irrigate the land from the well under the Act and Rules and further submitted that the defendants have no right to interfere with such right of the plaintiff. It was the case of the plaintiff that the defendants have threatened him that they would not allow the plaintiff to use the well for irrigation and, therefore, the plaintiff filed the suit.

6. The suit was contested and a common written statement was filed by the original defendants. Stand of the defendants was that the plaintiff was a lessee for a fixed term and after the expiry of the lease the plaintiff ceased to have any interest in the suit property. The defendants were within their right to refuse the plaintiff to use the well. The plaintiff filed replication to the written statement. The learned Trial Court after noticing Section 36 of the Act decreed the suit on 29th February, 1992.

7. Ram Sarup, defendant No.3-respondent No.1 herein, assailed the judgment and decree dated 29th February, 1992 by way of appeal which, after hearing, was dismissed on merits by the learned Additional District Judge on 21st November, 1995. Ram Sarup thereafter came up in second appeal against the judgment and decree dated 21st November, 1995. The second appeal was admitted on following substantial questions of law:

“i) Whether the learned courts below mis-appreciated the provisions of law applicable pleadings of the parties and the evidence adduced by them in the case in hand correctly and thus