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1991 Supreme(HP) 84
High Court Of Himachal Pradesh
D.P.SOOD
DEVI SARAN - Appellant
Versus
LEKH RAM - Respondent
R. S. A. No. 115 of 1982
Decided On : 06/12/1991
For the appellant(s)/petitioner(s):Shri A. K. Goel, Advocate. For the respondent(s):Shri B. Gupta, Advocate.
A tenant is precluded from transferring tenancy rights by way of a will under section 45 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972.
Headnote:
RES JUDICATA - CONSOLIDATED SUITS - SINGLE JUDGMENT - NO BAR OF RES JUDICATA - JURISDICTION OF CIVIL COURT - TENANCY RIGHTS - TRANSFER BY WILL - VOID-AB-INITIO - SUIT DISMISSED.
Fact of the Case:
Two suits were filed, one by Devi Saran (appellant) for perpetual injunction and damages, claiming ownership of disputed land through a will executed by Smt. Shibi, and the other by Krishnia and Smt. Palko (respondents) for declaration of ownership and possession of the same land. The suits were consolidated, evidence was recorded in one suit, and both suits were disposed of by a common judgment. The first appellate court dismissed Devi Saran's suit and decreed the respondents' suit.
Finding of the Court:
The court held that the plea of res judicata raised by the respondents was not valid since there was only one trial, one finding, and one common judgment in the consolidated suits, and the decision in one suit pursuant to the same judgment would not operate as res judicata in terms of section 11 of the Code of Civil Procedure. On the merits, the court found that Smt. Shibi was not a tenant over the disputed land and therefore could not have transferred her tenancy interest to the appellant by way of a will. The court also held that the will was void-ab-initio as a tenant is precluded from transferring tenancy rights by way of a will under section 45 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972.
Issues: 1. Whether the plea of res judicata raised by the respondents was valid. 2. Whether Smt. Shibi was a tenant over the disputed land. 3. Whether Smt. Shibi could transfer her tenancy interest to the appellant by way of a will.
Ratio Decidendi: 1. The principle of res judicata is based on the maxim that no one shall be vexed twice over the same matter. Res judicata is either estoppel by verdict or estoppel by judgment (on record), and there is no such thing as estoppel by a "decree". The determining factor is, therefore, not the decree but the decision in the matter of controversy. 2. Tenancy is a question of fact which has to be proved like any other fact. One of the requisites of tenancy is payment of rent subject to a contract to the contrary. No such contract was proved in this case. 3. Section 45 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 impliedly puts a bar upon the transfer of rights of the tenant. A tenant is precluded to transfer his or her tenancy rights by way of a will.
Final Decision: The appeal was dismissed with costs, upholding the judgment and decree of the courts below.
D. P. Sood, J.—This Regular Second Appeal is directed against the judgment and decree dated March 18, 1982, of the learned District Judge, Solan and Sirmour Districts at Solan, whereby the suit of Devi Saran, now appellant before this Court, was dismissed in its entirety.
2. The bone of contention in between the parties is the land measuring 7 bighas 16 biswas contained in khasra Nos. 106 and 137 khata khatoni No. 47/63 situated at village Kothi Deora, tehsil and district Solan, hereinafter referred to as the disputed land.
3. The disputed land originally belonged to one Shri Guni. He had two wives, namely, Smt. Ganeshoo and Smt Shibi, besides two sisters, namely, Smt. Palko and Smt Kahno. Devi Saran, appellant, filed a suit for perpetual injunction and damages amounting to Rs. 400 on the ground that Smt. Shibi was the owner in possession of the suit land and she had willed away the property to him. Admittedly Smt. Shibi died after the year 1976 but before the filing of the suit on 1st December, 1978 The allegations made by the plaintiff is that defendants threatened to illegally disposses the plaintiff and also interfered in his possession particularly on 26th November, 1978 when they removed grass stacked at khasra No, 137 measuring 4 bighas 3 biswas forcibly and also tried to cut and remove the remaining grass subsequently on 30th November, 1978 and thereby caused damages to the tune of Rs 400. Consequently, the appellant filed the instant suit for perpetual injunction and damages amounting to Rs. 400 against the defendants.
4. The respondents resisted and contested the suit by contending that the appellant was out of possession of the disputed land and he fraudulently got a mutation sanctioned in his name in connivance and collusion with the patwari halqa On the contrary they claimed to be the owners in possession of the disputed land. They also pleaded that late Smt. Shibi was never in possession of the disputed land while she was permitted to be in possession of 1 bigha 6 biswas of land.
5. The other suit No 116/1 of 1979 pertaining to the same land was filed by Krishnia and Smt. Palko the present respondents against Devi Saran the present appellant. That suit was also for declaration to this effect that they were owners in possession of the suit land. They also prayed for permanent injunction against the defendant Oevi Saran. Their case was as pleaded before the trial Court was that the suit land has been in their possession as owners and one Shibi has been wrongly recorded in possession of this land "Bilia Lagan Bawaja Rishtedari va Rajamandi." They also pleaded that Shibi was never inducted by them as tenant and therefore, mutation in her favour conferring proprietary rights upon her was void, it was also averred that after the death of Shibi the defendant Devi Saran bad filed a suit for permanent injunction against the present plaintiffs. On the basis of some document purporting to be the will of Shibi regarding the disputed land the defendant got sanctioned mutation in his favour. According to plaintiffs Shibi had no title to pass on to the present defendant by virtue of the alleged forged will. In the alternative the plaintiffs also prayed for possession. The case of Devi Saran in this suit was that this land was originally owned by one Guni and Shibi was his widow. Guni had given this land to Smt. Palko and others and Shibi and Ganesho widows of Guni had no source of livelihood or income, they were inducted as tenants by Palko and others by way of special contract on account of relationship on the suit land. It was also pleaded that both widows remained in possession as tenants and in the year 1963 Smt Ganesho died and Smt. Shibi was treated as sole tenant over the entire suit land. Smt. Shibi was granted proprietary rights under the provisions of H P. Tenancy and Land Reforms Act. As she had executed a valid will in favour of the defendant who came in possession of the suit land on the basis of the said will
