2014 Supreme(HP) 163

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Tarlok Singh Chauhan, J.
Shri Lekh Ram and others – Defendant-Appellants
Versus
Roop Ram and others – Plaintiff-Respondents
RSA No. 509 of 2001 with RSA No. 510 of 2001
Decided On : 07.03.2014

The order passed by the Compensation Officer which is solely based upon the wrong revenue entries is illegal and bad in law.

Headnote:

ABOLITION OF BIG LANDED ESTATES AND LAND REFORMS ACT - SUIT FOR DECLARATION - JURISDICTION OF CIVIL COURT - LIMITATION - ORDER 2 RULE 2 OF THE CODE OF CIVIL PROCEDURE - SAME CAUSE OF ACTION - SAME PARTIES - DECISION ON MERITS - REVENUE ENTRIES - PRESUMPTIVE VALUE ON TITLE.

Fact of the Case:

The appellants filed a suit for injunction on the ground that they were co-owners in possession of the suit land. The respondent filed a written statement, wherein, preliminary objections were raised that the suit land had been inherited from a common lineal ancestor of the parties and was fraudulently misappropriated by the predecessor-in-interest of the plaintiffs by depriving the defendant and another of their just and legal rights by taking undue advantage of minority of the defendant. Another objection regarding non-joinder of essential parties was raised by claiming that the legal heirs of respondent Sant Ram (son) and one of the legal heirs of late Shri Devia had not been joined as essential parties. The suit suffered from lack of better particulars. On merits, it was denied that the entire suit land was in possession of the plaintiffs. It was alleged that the suit land was partly in possession of the plaintiffs and partly with the defendant ever since 1975-76 when the joint family got separated, but the ownership of the suit land belonged to the common ancestor of the parties i.e. late Shri Devia, who was none-other than the father of the defendant and predecessor-in-interest of the plaintiffs. The exclusive possession of the plaintiffs was denied and it was alleged that the defendant had constructed a house on a portion of the Khasra No.28 after separation from the joint family. The defendant claimed right to the extent of 1/4th share in the suit land and the entire house which was constructed by him in the year 1975-76.

Finding of the Court:

The Courts below had the jurisdiction and, in fact, rightly declared the order of the Compensation Officer dated 02.11.1962 conferring proprietary rights upon the predecessor-in-interest of the appellants to be illegal and without jurisdiction. The suit titled Sukh Devi versus Punni Devi at least at the behest of Shri Dayal Chand, plaintiff No.2 was not maintainable in view of the earlier suit Ex.PW1/A preferred by him having subsequently been withdrawn vide Ex.PW1/B. The suit was not barred under the provisions of Order 2 Rule 2 of the Code of Civil Procedure.

Issues: 1. Whether both the Courts below have exceeded their jurisdiction in entertaining the suit for declaration, in which the challenge was made to the question of conferment of proprietary rights by the Compensation Officer in the year 1962 upon the predecessor-in-interest of the defendant-appellants under the provisions of The Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 (for short ‘Act’) and, therefore, the suit was not maintainable. 2. Whether both the Courts below have misunderstood the provisions of Order 2 Rule 2 of the Code of Civil Procedure and failed to hold that the suit of the plaintiff-respondents was barred under the said provisions? (1) Whether both the Courts below have acted beyond their jurisdiction in declaring the order of Compensation Officer dated 2nd November, 1962 conferring the proprietary rights on the predecessor-in-interest of the plaintiff-appellants to be illegal and without jurisdiction? Was not the jurisdiction of Civil Court barred to go into the question of conferment of proprietary rights under the provisions of H.P. Abolition of Big-Landed Estates and Land Reforms Act? (2) Whether the Lower Appellate Court has wrongly rejected the application filed by the Plaintiff-Appellants to lead additional evidence particularly when there was cogent ground entitling the plaintiff-appellants for leading such evidence and also when the Trial Court failed to afford proper opportunity to the plaintiff-appellants to lead evidence on the additional issues framed?

Ratio Decidendi: The inheritance to the tenancy rights under the Act is automatic. Section 67 of the Act reads as follows:- Succession 67 – When a tenant in any land dies, the right to right of shall devolve-tenancy:- (a) On his male lineal descendants, if any, in the male line of descent. (b) Failing such descendants, on his widow, if any, until she dies or re-marries or abandons the land or is under the provisions of this Act ejected therefrom. (c) Failing such descendants and widow, on his widowed mother, if any, until she dies or remarries or abandons the land or is under the provisions of this Act ejected therefrom. (d) Failing such descendants and widow, or widowed mother or, if the deceased tenant left a widow or widowed mother, then when her interest terminates under clause (b) or (c) of this sub-section, on his male collateral relatives in the male line of descent from the common ancestor of the deceased tenant and those relatives.

Final Decision: The present appeals are ordered to be dismissed with costs throughout. The judgments and decrees passed by both the learned Courts below are accordingly upheld.