Madan Kishore vs Major Sudhir Sewal & Ors

Madan Kishore ......Appellant

VERSUS

Major Sudhir Sewal and Ors. ... Respondents

JUDGMENT

TARUN CHATTERJEE, J

1. This appeal by special leave is directed against the judgment and

decree passed by a learned Judge of the High Court of Himachal

Pradesh in Regular Second Appeal No. 281 of 1988 reversing the

judgment and decree dated 19th of May, 1988 passed by the

Additional District Judge, Nahan and the judgment and decree

dated 30th of March, 1985 passed by the Subordinate Judge (First

Class - Paonta Sahib, Dist. Sirmaur), whereby the Second Appeal

filed by the plaintiffs/respondents was allowed and thereby, the

suit filed by them was decreed. Be it mentioned herein, the

1 original plaintiff died during the pendency of the suit and his heirs

and legal representatives were substituted in his place.

2. The case made out by the original plaintiff (since deceased) in his

plaint, may be summarized as follows :-

One, Randeep Singh, was the owner of the land measuring 83

bighas, 7 biswas comprising in Khata Nos. 11/38 to 11/41 in village

Amboa, Tehsil - Paunta Sahib, Dist. Sirmaur. The said land was

under the tenancy of Kundan Singh, Gulab Rai and Jaishi Ram, sons

of Sukh Dayal to the extent of 1/3rd share each. After the death of

Kundan Singh, Gulab Rai and Jaishi Ram, the tenancy rights were

inherited by their heirs and legal representatives. Bhanu Pratap

Singh, son of Kundan Singh, was residing, at the relevant point of

time, in Nigeria, whereas Jagdarshan Lal, son of Gulab Rai, was in

Government service in Uttar Pradesh. Accordingly, the above-

mentioned land was given in management to the defendant

No.1/appellant-Madan Kishore who cultivated the same for and on

behalf of all the heirs and legal representatives of the aforementioned

tenants. Out of the aforesaid land, comprised in Khasra Nos. 102,

104, 208 and 277, as described in the Jamabandi for the year 1974-75,

(hereinafter referred to as the "suit land") is the land, which is under

2 dispute. After coming into force of the Himachal Pradesh Abolition

of Big Landed Estates and Reforms Act, 1953 (in short the "Act"),

the defendant No.1/appellant got himself recorded as sub-tenant in

respect of the suit land and on the basis of such entry in the record of

rights obtained proprietary rights thereof on 23rd of March, 1967.

After obtaining the proprietary rights, some land, out of the suit land,

was sold by the defendant No.1/appellant to defendant No.

2/respondent. Defendant No.1/appellant also created mortgage in

respect of the remaining suit land in favour of defendant No.

3/respondent. Jagdarshan Lal (since deceased) who was the original

plaintiff in the suit and in his place his heirs and legal representatives

were brought on record came to know about the wrongful entry in the

revenue record in the name of the appellant in 1978. Jagdarshan Lal,

the original plaintiff (since deceased) further pleaded that the

defendant No.1/appellant was holding the suit land as a trustee and

licensee on his behalf and could not have acquired proprietary rights

in respect of the suit land under the Act and the sale and mortgage

effected by him in favour of defendant Nos. 2 and 3/respondents was

null and void and such transfer was not binding either on the

deceased plaintiff or on them being his heirs and legal

3 representatives. As noted herein earlier, the original plaintiff

Jagdarshal Lal died during the pendency of the suit and the present

respondents in this Court, being his sons, daughters and widow were

substituted in his place. Upon the aforesaid allegations made in the

plaint, the original plaintiff (since deceased) had filed a suit for

declaration of title and for possession in respect of the suit land

against the appellant and others.

3. The defendant No.1/appellant entered appearance and contested

the suit by filing a written statement denying the material

allegations made in the plaint. In the written statement, the

appellant, however, admitted that the suit land along with some

other land was originally under the tenancy of Kundan Singh,

Gulab Rai and Jaishi Ram, but he denied the exclusive possession

of Jagdarshan Lal (since deceased), original plaintiff, over the suit

land or that the same was given to him by deceased Jagdarshan Lal

as a trustee or licensee. It was further averred by the appellant in

his written statement that Jagdarshan Lal was residing in Uttar

Pradesh and he had inducted defendant No.1/appellant as a sub-

tenant in respect of the suit land and that on coming into force of

the Act, he acquired proprietary rights in respect of the same in

4 1967. He also pleaded in his written statement that a part of the

suit land was sold by him for consideration to defendant No.2,

while the remaining part of the suit land was mortgaged by

defendant No.1/appellant to defendant No. 3/respondent. A plea

of adverse possession was also taken in the written statement by

the appellant. Accordingly, defendant No. 1/appellant sought for

dismissal of the suit.

4. Defendant No. 2/respondent, in his written statement, pleaded that

since he was a bonafide purchaser for value without notice, it

could not be said that he had not acquired right, title and interest

in the suit land. Plea of limitation and maintainability of suit was

also raised. Accordingly, defendant No.2/respondent also pleaded

dismissal of the suit

5. So far as the case of the defendant No.3/respondent in his written

statement was concerned, he had advanced loan to defendant

No. 1/appellant in respect of the suit land after verification of the

revenue record and the possession of defendant No. 1 at the spot.

According to him, neither the plaintiffs/respondents nor their

predecessors in interest ever objected to the creation of mortgage

in his favour by defendant No. 1/appellant and, therefore, he

5 was entitled to recover the balance amount of loan by auction of

the suit land. Accordingly, defendant No. 3 also sought for

dismissal of the suit. On the pleadings, as mentioned above, the

Trial Court framed the following issues :-

i) Whether defendant No. 1 was in possession of the suit land as IMAMAT DAR, IZZATDAR or TRUSTEE for and on behalf of the plaintiff as alleged. If so, to what effect?

ii) If Issue No. 1 is proved, whether the plaintiff is entitled to the possession of the suit land covered by Patta?

iii) Whether the defendant No. 1 was in possession of the suit land as a tenant under the plaintiff and the Patta was granted accordingly?

iv) If issue No. 3 is not proved, whether the defendant No. 1 is in adverse possession of the suit land after the grant of Patta in his favour?

v) Whether suit is within time? vi) Whether the suit is not maintainable?

vii) Whether the plaintiff is estopped by his act and conduct from filing the present suit?

viii) If Issue No. 3 and 4 are not proved, whether defendant No. 3 is entitled to recover the suit amount from the owners of the suit land?

ix) Whether defendant No. 2 is a bonafide purchaser, if so to what effect?"

6 6. So far as Issue Nos. (i), (ii) and (v) are concerned, the Trial Court

found these issues against the plaintiffs/respondents, whereas,

Issue No. (iii) and (vi) were found to be in favour of defendant

No. 1/appellant. So far as Issue No. (vii) is concerned, it was

decided against the defendants and Issue Nos. (iv) and (ix) were

held to have become redundant in view of the findings on Issue

Nos. (i) to (iii). In respect of Issue No. (viii), defendant No. 3 /

respondent was held to be entitled to recover the amount from

defendant No. 1/appellant. Upon the aforesaid issues being

decided, the Trial Court dismissed the suit of the

plaintiffs/respondents, which was affirmed by the Appellate Court

in appeal.

7. Before us, the learned counsel appearing for the appellant, at the

first instance, submitted that since Kundan Singh, Gulab Rai and

Jaishi Ram (since deceased) were admittedly the occupancy

tenants of the suit land and on their death the suit land was

inherited by defendant No. 1/appellant, Bhanu Pratap,

Anand Kishore and Jugal Kishore. He had also drawn our

attention to the fact that it was an admitted position that Bhanu

Pratap, son of Kundan Singh was residing in Nigeria since long

7 and that deceased Jagdarshan Lal was serving in Uttar Pradesh

and, therefore, defendant No. 1/appellant used to look after the

suit land on behalf of all the tenants and that being the position, it

cannot be said that the entries in the revenue record in the name of

defendant No.1/appellant could be said to be wrong. The case put

forward by defendant No. 1/appellant was that of a sub-

tenancy and alternatively it was contended by the learned counsel

for the defendant No. 1/appellant that since the Patta was granted

in favour of defendant No.1 by the Compensation Officer under

the Act, therefore, he had acquired the proprietary rights over the

suit land and also the title by way of adverse possession.

8. The submissions so put forward, as noted herein earlier, were

contested by the learned counsel appearing on behalf of the

plaintiffs/respondents.

9. Having heard the learned counsel for the parties appearing before

us and after going through the judgment under appeal as well as

the judgments of the courts below and the materials on record

including the oral and documentary evidence, we are not in a

position to upset the judgment of the High Court in the second

appeal although the concurrent judgments of the courts below

8 were set aside by the High Court in the exercise of its power under

Section 100 of the Code of Civil Procedure.

10.It is not in dispute that proprietary rights conferred on defendant

No. 1/appellant in respect of the suit land were in terms of Section

27 (4) of the Act.

11. The first question that needs to be decided is whether a sub-

tenant under the Act is entitled to file an application for conferring

proprietary rights under the Act in respect of the suit land. To answer

this question, it would be appropriate for us to look into the scheme

of the Act and certain relevant provisions of the same.

12. Chapter III of the Act deals with acquisition of proprietary

rights by tenants. Section 11 of the Act confers a right only on the

tenant of the land to acquire interest of landowner. Section 11 reads

as under :

"(1) Notwithstanding any law, custom or contract to the contrary a tenant other than a sub-tenant shall, on application made to the compensation officer at any time after the commencement of this Act, be entitled to acquire, on payment of compensation, the right, title and interest of the landowner in the land of the tenancy held by him under the landowner;

Provided that a tenant not having...........................

9 (2).................................

(3)..................................

(4) The tenant may pay the amount of compensation as determined by the compensation officer under sub- section (3) either in one lump sum or in such number of instalments not exceeding ten as may be determined by the Compensation Officer during a period not exceeding five years; and such compensation shall be paid on such date or dates as may be fixed by the Compensation Officer in this behalf.

(5)...........................

(6) On and from the date of the grant of the certificate under sub-section (5) the tenant shall become the owner of the land comprised in the tenancy and the right, title and interest of the landowner in the said land shall determine.

(7).................

(8)......................"

13. Section 13 of the Act deals with total compensation payable by

a tenant. Now comes Section 14 of the Act which deals with

acquisition by the tenant of the rights of the landowner in a portion of

the lands of tenancy in certain circumstances. Section 14 is as under :

"(1) Notwithstanding anything contained in Section 11, a tenant other than a sub-tenant who holds a tenancy

10 exceeding twelve acres in area may at any time after the commencement of this Act, make an application to the Compensation Officer for surrender to the landowner an area equal -

(a) in the case of occupancy tenant, to one-fourth of the lands of the tenancy; and

(b) in other cases, to three-eighths of the lands of the tenancy. (2) When an application for surrender has been made under sub-section (1) of the Compensation Officer shall demarcate the area surrendered in favour of the landowner from the rest of the lands of the tenancy and deliver possession of the same to the landowner. (3) Upon such delivery of possession the tenant shall forthwith become the owner in respect of the rest of the lands of the tenancy and the right, title and interest of the landowner in the said lands shall determine."

14. On a plain reading and on consideration of the scheme of the

Act, it would be pellucid that it was only the tenant who could make

an application under the Act for acquiring proprietary rights in

respect of the suit land. In our view, the scheme of the Act and the

aforesaid relevant provisions do not indicate that any right was

conferred by the Act on the sub-tenant to acquire any proprietary

rights in respect of the suit land under the Act. A reading of the

provisions made in Sections 11 and 14 of the Act would clearly show

that the Legislature has specifically excluded the sub-tenant from

making any application for acquiring proprietary rights under the Act

11 because by using the expression in Sections 11 and 14 of the Act,

namely, "a tenant other than a sub-tenant", would clearly mean that

the sub-tenant was specifically excluded from making such

application before the Compensation Officer. However, an argument

was advanced by the learned counsel for the appellant for the purpose

of submitting that defendant No. 1/appellant, who was claiming to be

a sub-tenant, would be entitled to make such application under the

Act before the Compensation Officer in view of the expression used

by the Legislature in Section 27(4) of the Act, namely, "such tenant

who cultivates such land". We are not in a position to accept this

submission of the learned counsel for the appellant for the simple

reason that a Division Bench of the Himachal Pradesh High Court in

the case of Smt. Dev Lata Vs. Alam etc. [1975 ILR 40], has explained

the meaning of the expression used under Section 27(4), namely,

"such tenant who cultivates such land" in a lucid manner, which we

feel appropriate to reproduce hereunder :-

"Why did the statute refer to "such tenant who cultivates such land" in Section 27(4) when in Section 11 and Section 14 it refers to a tenant holding land in tenancy and does describe him by reference to the criterion of cultivation. An analysis of the scheme set out in Section 27 explains why. Section 27(2) contemplates two categories of land, land which is under the personal cultivation of the landowner and land which is not under

12 his personal cultivation. To the former Section 27 does not apply. It applies to the latter. It will be noticed that the Statute does not make this test relevant in Section 11 and Section 14. The criterion for applying Section 27 is that the land must not be under the personal cultivation of the landowner. The right, title and interest of the landowner in such land vests in the State Government and is transferred by the State Government to the tenant who cultivates the land. The word "who cultivates such land" are descriptive of the tenant, and indicate the tenant who holds the land. Section 27, as I have said before, refers to land which is not under the personal cultivation of the landowner but is cultivated by the tenant. It is true that when a tenant sub-lets the land to another, it is the sub-tenant who is in actual cultivatory possession. Possession in fact is not with the tenant. But looked at in contradistinction to the landowner it is the tenant who will be said to cultivate the land when the landowner cannot be described as cultivating it. I am unable to hold that reference in Section 27(4) was intended to a sub-tenant. Chapter III is concerned entirely with the transfer of rights from landowners to tenants."

15. Having considered the discussions made by R.S. Pathak,J. (as

His Lordship then was) as quoted hereinabove, in detail and in depth

and after considering the scheme of the Act and the relevant

provisions, as discussed herein earlier, we do not find any reason to

differ with the views expressed by His Lordship in the aforesaid

decision. Accordingly, we are in full agreement with the views

expressed by the High Court that a sub-tenant is not entitled under the

13 Act to claim proprietary rights before the Compensation Officer nor a

sub-tenant would be entitled to file any application for such

conferment of the right before him.

16. There is another aspect of the matter. The first Court of fact,

on consideration of the evidence, oral and documentary, on record,

came to the conclusion that the defendant No. 1/appellant could not

prove to be a sub-tenant in respect of the suit land. This finding of

fact was affirmed by the High Court by the impugned judgment in the

second appeal, which cannot be upset until and unless we come to the

conclusion that such finding of fact was perverse or arbitrary. For

this purpose, we looked into the evidence and other materials on

record and we are satisfied that the finding of fact arrived at by the

final Court of fact and affirmed by the High Court in the second

appeal, cannot be interfered with, as we do not find any infirmity for

which we can hold that such findings are perverse or arbitrary.

17. Therefore, even assuming that a sub-tenant is entitled to make a

claim before the Compensation Officer for acquiring proprietary

rights in respect of the suit land under the Act, even then, defendant

No. 1/appellant, not being a sub-tenant, as found by the First

Appellate Court and affirmed by the High Court in the second appeal,

14 could not at all apply for conferment or acquisition of proprietary

rights in respect of the suit land under the Act.

18. The next question that needs to be decided is whether the order

conferring proprietary rights on defendant no. 1/appellant by the

Compensation Officer in respect of the suit land was without

jurisdiction and, therefore, it was a nullity or not. In our view, the

High Court was perfectly justified in holding that the said order of the

Compensation Officer was without jurisdiction and that the

Compensation Officer was lacking jurisdiction in holding that the

defendant No. 1/appellant could be conferred proprietary rights in

respect of the suit land under the Act. While holding that the order of

the Compensation Officer conferring proprietary rights on the

defendant no. 1/appellant was without jurisdiction and, therefore, a

nullity, reliance could be straightway placed on a decision of this

Court in the case of Ayudh Raj & Ors. vs. Moti S/o Mussadi [AIR

1991 SC 1600], in which the High Court had also placed reliance on

the impugned judgment. In this case, the same Act was under

consideration. This Court held in that decision that the order passed

by the Compensation Officer lacked jurisdiction and, therefore, it was

a nullity and no order need be passed by the Civil Court to set aside

15 such type of order before seeking declaration of title and possession

of the suit land. It is not in dispute that if this position is accepted,

the suit filed by the predecessor in interest of the respondents was in

time as the suit was for possession based on title and, therefore, could

be governed by Article 65 of the Limitation Act.

19. For the reasons aforesaid, we are in agreement with the

judgment of the High Court holding that the suit was filed within the

period of limitation but before we conclude on the question of

limitation of the filing of the suit, we may refer to a decision of this

Court in the case of State of Punjab & Ors. vs. Gurdev Singh Ashok

Kumar [AIR 1991 SC 2219] as the same was relied on by the learned

counsel for the appellant to show that the suit was barred by

limitation.

20. In our view, that decision is not applicable to the facts and

circumstances of the present case. That suit was filed for declaration

that the dismissal of the respondent was wrongful or ultra vires.

While dealing with this fact, this Court in para 8 observed as

follows:-

"It will be clear from these principles, the party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the

16 order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for."

21. In view of our findings arrived at herein earlier that the order

passed by the Compensation Officer was a nullity and nonest in the

eyes of law and, therefore, without jurisdiction, we do not think that

this decision could be applied in the facts and circumstances as stated

herein earlier. So far as the other two decisions, namely,

T.Vijendradas & Anr. vs. M.Subramanian & Ors. [2007 (8) SCC

751] and A.V.Papayya Sastry & Ors. vs. Govt. of A.P. & Ors. [2007

(4) SCC 221] are concerned, we do not think that these decisions can

have any application to the facts and circumstances of the present

case. There is no quarrel about the proposition that if there was any

case of fraud, the question for setting aside the order which was

passed on fraud either on the court or on the party could not arise at

all. Accordingly, the aforesaid two decisions cannot come in the aid

to decide the present controversy raised before us.

22. So far as the case of bona fide purchase for value without

notice as made out by defendant no.1/appellant is concerned, there is

17 no infirmity in the finding of the High Court that defendant

no.2/respondent could not be said to be a bona fide purchaser for

value without notice and, therefore, the sale made by defendant

no.1/appellant in favour of defendant No. 2/respondent was not

binding on the plaintiffs/respondents. So far as the case of defendant

no.3 is concerned, we are in agreement with the findings of the High

Court holding that a case of mortgage as pleaded by defendant

no.3/respondent could not be accepted in the absence of any finding

to that effect.

23. For the reasons aforesaid, we are of the view that the appeal

has no merit and accordingly it is dismissed without any order as to

costs.

........................

....J. [Tarun Chatterjee]

New Delhi ............................J. September 02, 2008 [Harjit Singh Bedi]

18