Point of Law: Section 8 of the Act reads as continuity of tenancy shall not be affected by - the death of the landlord, or the death of the tenant, except when the tenant leaves no male lineal descendants or mother or widow.

JUDGMENT :

By way of instant Regular Second Appeal, appellants have assailed judgment and decree dated 09.11.2006 passed by learned District Judge, Kullu, District Kullu, H.P. in Civil Appeal No. 44/2006 whereby the judgment and decree dated 31.05.2006 passed by learned Civil Judge (Sr. Divn.), Lahaul-Spiti at Kullu, H.P. in Civil Suit No. 58 of 2003 was affirmed.

2. The parties hereinafter shall be referred to by the same status as held by them before the learned trial Court. Appellants were the plaintiffs and respondents were defendants before the learned trial Court.

3. Chhapu son of Devi Ram was tenant at Will in respect of the land comprised in Khata/Khatauni No. 1284/1, 2090/1, Khasra Nos. 3494, 3513 and 3534 measuring 4-9-0 bighas, situated in Phati Nathan, Kothi Nagar, Tehsil and District Kullu, H.P. (hereinafter referred to as the ‘suit land’) under the landowners S/Sh. Hari Prakash and Davinder Parkash. Chhapu died in the year 1960. The rights held by Chhapu in the suit land were inherited by his mother Smt. Lahauli and his wife Smt. Johami in equal shares. Smt. Johami remarried on 27.1.1965.

4. Plaintiffs claimed that the rights inherited by Smt. Lahauli and Smt. Johami were limited till their lives or remarriage. On such premise, Johami was alleged to have lost her rights in suit land on her remarriage and further Smt. Lahauli was stated to have acquired exclusive ownership of the suit land under the provisions of Himachal Pradesh Tenancy and Land Reforms Act, 1972. Plaintiffs claimed right to the suit land on the basis of Will dated 26.10.1994 executed by Smt. Lahauli in their favour. Smt. Lahauli died on 29.10.1994.

5. Smt. Johami sold her share in the suit land to defendant No.1 vide sale deed dated 30.01.2003. Plaintiffs alleged the said sale deed to be illegal and without title and claimed the ownership over the entire suit land to the exclusion of Smt. Johami or her successors-in-interest in the suit land. In alternative, plaintiffs claimed ouster of Smt. Johami and her successors-in-interest from the suit land and claimed title over her share by way of adverse possession.

6. Defendant No.1 by way of written statement raised preliminary objections to the effect that he was bonafide purchaser, the suit was beyond limitation since defendant No.1 was in possession of the share of Smt. Johami, the suit for declaration without relief of possession was not maintainable, suit was bad for non-joinder of necessary parties and estoppel etc. On merits, it was submitted that defendant No.1 had purchased the land from Smt. Johami for sale consideration of Rs.1,35,000/- and the sale was absolutely legal and valid as Smt. Johami had subsisting right to transfer her share. It was also submitted that Chhapu was tenant at Will and after his death, his mother Smt. Lahauli and wife Smt. Johami inherited the rights as tenants at Will absolutely. It was further asserted that Smt. Johami was in possession of her share in the suit land and the same was delivered to defendant No.1.

7. Defendant No.2 also contested the suit. It was submitted that Smt. Lahauli and Smt. Johami were tenants at Will in respect of suit land after the death of Chhapu, who had died on 19.10.1960. After coming into force of H.P. Tenancy and Land Reforms Act, both Smt. Lahauli and Smt. Johami acquired proprietary rights under Section 104 of the Act ibid. The Will executed by Smt. Lahauli was challenged. Defendant No.2 asserted her possession on the suit land. It was also specifically averred that landlords had moved an application for resumption of the tenancy land including the suit land. The proceedings were contested by Smt. Lahauli and Smt. Johami before the Land Reforms Officer, Kullu. The suit land, as such, was allotted to Smt. Lahauli and Smt. Johami. It was specifically pleaded that Smt. Lahauli had re-married after the death of her pre-deceased son Chhapu.

8. On the basis of pleadings of the parties, learned trial Court had framed the following issues:

1. Whe