MADAN KISHORE v. MAJOR SUDHIR SEWAL AND ORS

Citation: [2008] 12 S.C.R. 1154

Court: Supreme Court of India

Bench: TARUN CHATTERJEE, H.S. BEDI

Case summary

MADAN KISHORE v. MAJOR SUDHIR SEWAL AND ORS.pdf

Judgment text

[2008] 12 S. C. R. 1154 . ,.. - . , MADAN KISHORE v. MAJOR SUDHIR SEWAL AND ORS. (Civil Appeal No. 7179 of 2001) SEPTEMBER 2, 2008 [TARUN CHATTERJEE AND HARJIT SINGH BEOI, JJ. ] I -. Land Reforms: Himachal Pradesh Abolition of Big Landed Estates and Reforms Act, 1953 - ss. 11 and 14 - Acquisition of proprietary rights under the·Act - Entitlement of sub-tenant - Held: Subtenant is not entitled under the 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. The question which arose for consideration in the ~ present appeal was as to whether a sub-tenant is entitled "' to file an application for conferment of proprietary rights under the Himachal Pradesh Abolition of Big Landed Estates and Reforms Act, 1953. Dismissing the appeal, the Court HELD:1. 1.

On a plain reading and on consideration of the scheme of the Himachal Pradesh Abolition of Big Landed Estates and Reforms Act, 1953, it would be f. ~ 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. The scheme of the Act does 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 ss. 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 SEWAL & ORS. rights under the Act because by using the expression in ss. 11 and 14 of the Act, namely, "a tenant other than a subtenant", would clearly mean that the sub-tenant was specifically excluded from making such application before the Compensation Officer.

A sub-tenant is not entitled under the 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. [Paras 14, 15] [1163,C-F; 1165,B] 1. 2. There is another aspect of the matter. In the present case, the final 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 factwas affirmed by the High Court by the impugned judgment in the second appeal, which cannot be upset since, no infirmity has been found for which it can be held that such findings are perverse or arbitrary. 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, could not at all apply for conferment or acquisition of proprietary rights in respect of the suit land under the Act. _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. [Paras 16, 17, 18] [1165,C- ... D; 1165,E-F; 1165,H; 1166,A] Smt. Dev Lata. v. Alam etc. (1975) ILR -40 - approved. Ayudh Raj & Ors. v. Moti S/o Mussadi AIR (1991) SC · 1600 - relied on. , State of Punjab & Ors. v. Gurdev Singh Ashok Kumar AIR (1991) SC 2219; TVijendradas &Anr v. M. Subramanian & Ors. (2007) 8 SCC 751 and A. VPapayya Sastry & Ors. v Govt. of A. P & Ors (2007) 4 SCC 221 - distinguished. Case Law Reference (1975) ILR 40 approved Para .

14 r 't AIR (1991) SC 1600 relied on Para 18 AIR (1991) SC 2219 distinguished Para 19°- "' (2001) a sec 151 distinguished Para 21 (2007) 4 sec 221 distinguished Para 21 · CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7179 of 2001 ·· o From the final Judgment and Order dated 27. 6. 1997 of the High Court of Judicature of Himachal Pradesh at Shima in Ragular Second Appeal No. 281 of 1998 Shailendra Bhardwaj for the Appellant. Devendra Singh, Dr. Sushil Balwada and Ghanshyam for the Respondents. The Judgment of the Court was delivered by TARUN CHATTERJEE, J 1. This appeal by special leave is directed against the judgment and decree passed by a ;- I 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 ttie Second Appeal filed by the plaintiffs/respondents was allowed and thereby, the suit filed by them was decreed. Be it mentioned herein, the 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, Guiab Rai A -+ and Jaishi Ram, sons of Sukh Dayal to the extent of 113rd share each. After the death of Kundan Singh, Guiab 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 Guiab 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. 1' 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 i§suit land() is the land, which is under dispute. After coming into force of the Himachal Pradesh Abolition of Big Landed Estates and Reforms Act, 1953 (in short the i§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 defe. ndant 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 r~-.. 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 representatives. As noted s . herein earlier, the original plaintiff Jagdarshal lar died dudng ~I the pendency C>f the suit and the present respondents· in this +-- "'2 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. r 3. The defendant No. 1/appellant entered app. earance and 1-contested the suit by filing a written statement denying the material allegatio"ns made in the plaint.

In the written statement, the appellant, however, admitted that the suit land aJong with 1' some other land was originally under the tenancy of Kundan t - cultivation of the landowner and land which is not under 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. ~ 1'> Chapter Ill is concerned entirely with the transfer ofrights 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 Act to claim proprietary B . 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 se. cond 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, 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 holdin. g 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 .. Jr-be straightway placed on a decision of this Court in the case of Ayudh Raj & Ors. vs. Moti Sid 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 such type of order before seeking declaration of title and possession of the suit land. It is not in 0 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 byArticle 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 -it. observed as follows:- "lt 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 order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of /imitation. 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. VPapayya Sastry & Ors. vs. Govt. ofA. P & Ors. [2007 (4) sec 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 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. B. B. B. Appeal dismissed.