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Friday, May 9, 2014

Sec.36 and sec.104 (3) of Himachal Pradesh Tenancy and Land Reforms Act, 1972 - suit for permanent injunction restraining them from removing the pump set or interfering, in any manner,with the right of the plaintiff to irrigate his land - lower court decreed the suit - appeal was dismissed- in second appeal high court reversed the judgment of lower court - Apex court held that High court wrongly interpreted the sec.36 - as per sec.36 the tenant is entitled to draw water and as per sec.104(3) a tenant is conferred with all rights of ownership - but the High court held that the section is applicable to tenancy land and not to the ownership land owned by a person, wrongly - Apex court set aside the order of High court and restore the orders of lower court =TARSEM LAL & ORS. … APPELLANTS VERSUS RAM SARUP & ORS. … RESPONDENTS= 2014 ( April.Part) http://judis.nic.in/supremecourt/filename=41485

  Sec.36 and sec.104 (3) of Himachal  Pradesh Tenancy and Land Reforms Act, 1972  - suit  for  permanent  injunction restraining them from removing the pump set or interfering, in  any  manner,with the right of the plaintiff to irrigate his land   - lower court decreed the suit - appeal was dismissed- in second appeal high court reversed the judgment of lower court - Apex court held that High court wrongly interpreted the sec.36 - as per sec.36 the tenant is entitled to draw water and as per sec.104(3) a tenant is conferred with all rights of ownership - but the High court held that the section is applicable to tenancy land and not to  the  ownership  land  owned  by  a person, wrongly - Apex court set aside the order of High court and restore the orders of lower court =

Section  36  (wrongly
mentioned as Rule 36 in the  impugned  judgment)  of  the  Himachal  Pradesh
Tenancy and Land Reforms Act, 1972 (hereinafter referred to  as  “the  Act”)
is applicable to tenancy land and not to  the  ownership  land  owned  by  a
person,  and  therefore,  not  applicable  to  the  appellants  herein.  The
judgment and  decree  dated  21st  November,  1995  passed  by  the  learned
Additional District Judge (1)  Dharamshala  Camp  at  Una  in  Civil  Appeal
No.39/92, RBT No.206/94 were set aside and the suit was dismissed.=

The case of the original plaintiff was  that  he  was  inducted  as  a
tenant of suit land by the respondents, on an annual rent of  Rs.1614/-  for
a period of 10 years by registered  lease  deed  dated  23rd  August,  1968,
along with right of irrigation from a common source  in  the  form  of  well
situated on the  remaining  land  belonging  to  the  landlord.  He  was  in
possession  of  25  Kanals  16  Marlas   of   land   comprised   in   Khasra
Nos.114R/19/4, 21/2, 22/1, 115S/1/2,  2,3,  8/1,  9/1  and  26  situated  in
village Basal, Tehsil and District Una vide  Jamabandi  1981-82.  On  coming
into force of the H.P. Tenancy and Land  Reforms  Act,  1972,  the  property
rights of the suit land was conferred on  tenants,  including  the  original
plaintiff under sub-Section (3) of Section 104 of the Act.

5.    Further, the case of the plaintiff was that  the  whole  of  the  suit
land was irrigated from the well and pump set situated in Khasra  No.114R/29
situated in village Basal, Tehsil and District Una. The plaintiff was  given
right to irrigate 25 Kanals 16 Marlas pursuant to the agreement  dated  23rd
August, 1968 from well and pump  set  situated  in  Khasra  No.114R/29.  The
plaintiff, thereby, pleaded his right to irrigate the  land  from  the  well
under the Act and Rules and further submitted that the  defendants  have  no
right to interfere with such right of the plaintiff.  It  was  the  case  of
the plaintiff that the defendants have threatened him that  they  would  not
allow the plaintiff to use the  well  for  irrigation  and,  therefore,  the
plaintiff filed the suit.
Trial court decreed the suit - appeal was also dismissed - but High court reversed the same
=
Section 36 of the Act relates  to  tenant’s  right  to  water,  as  is
reproduced below:

           “Section 36.Tenant’s right to water  –  Save  in  proportion  to
           reduction in the tenancy, if  any,  a  landowner  shall  not  be
           competent to curtail or terminate the supply of canal,  Kuhl  or
           use of well water  enjoyed  by  tenant  immediately  before  the
           commencement of this Act, and a breach of this  provision  shall
           constitute a cognizable offence punishable with fine  which  may
           extend to  one  hundred  rupees  shall  be  triable  by  a  Naya
           Panchayat competent to hear criminal cases.”




11.   The perusal of Section 36 would show that the landlord  shall  not  be
competent to curtail or terminate the supply of canal, kuhl or use  of  well
water enjoyed by a tenant immediately before the  commencement  of  the  Act
and breach of the said  provision  shall  constitute  a  cognizable  offence
punishable under the law. In view of Section 36,  after  enactment  of  law,
the original plaintiff had a right to water to which he was  entitled  prior
to the proclamation of the Act, the land owner was not competent to  curtail
or  supply  of  water  enjoyed  by  the  plaintiff  immediately  before  the
commencement of the Act.

12.   Sub-Section (3) of Section 104 reads as under:

           “Section 104(3). – All rights, title and interest  (including  a
           contingent interest,  if  any)  of  a  landowner  other  than  a
           landowner entitled to resume land under sub-section (1) shall be
           extinguished and all such rights, title and interest shall  with
           effect from the date to be notified by the State  Government  in
           the  Official  Gazette  vest  in  the  tenant  free   from   all
           encumbrances.

                 Provided  that  if  a  tenancy   is   created   after   the
           commencement of this Act,  the  provision  of  this  sub-section
           shall apply immediately after the creation of such tenancy.”



13.   As  per  the  aforesaid  provision,  all  right,  title  and  interest
including a contingent interest of a land owner other than  the  land  owner
entitled to resume land under sub-section (1) shall be extinguished and  all
such rights, title and interest in respect of the land in question  vest  in
the tenant, i.e. original plaintiff, free from  all  encumbrances  from  the
date the Act came into force. The Act was published in the Official  Gazatte
on 21st February, 1974 vide Act No.8 of 1974. What  is  not  in  dispute  is
that the original plaintiff became owner of the suit land  by  operation  of
law and continued to enjoy all the  rights  including  right  of  irrigation
from the common source which was in possession of the original landlord.

14.   The aforesaid fact has been rightly appreciated  by  the  Trial  Court
and the First Appellate Court which has also noticed that  the  mutation  in
respect of the land recorded in the revenue record of 25th  April,  1982  is
clearly showing the well as source  of  irrigation  of  the  land.  In  such
circumstances, it was not open to the High Court to hold that  a  tenant  on
being land owner ceases his right to water which he was  enjoying  prior  to
the Act. The High Court failed to appreciate  Section  36  of  the  Act  and
erred in holding that Section 36 is applicable to tenancy land  and  not  to
the land owned.

15.   For the reasons aforesaid, we set aside the judgment and decree  dated
2nd May, 2008 passed by the High Court in R.S.A. No.126 of 1996  and  affirm
the judgment and decree passed by the Trial Court as confirmed by the  First
Appellate Court. The appeal is allowed. No costs.
2014 ( April.Part) http://judis.nic.in/supremecourt/filename=41485
CHANDRAMAULI KR. PRASAD, SUDHANSU JYOTI MUKHOPADHAYA
                                                               REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 4919 OF 2014
                  (arising out of SLP (C) No. 3353 of 2009)

TARSEM LAL & ORS.                                       … APPELLANTS

                                   VERSUS

RAM SARUP & ORS.                                    … RESPONDENTS


                               J U D G M E N T


Sudhansu Jyoti Mukhopadhaya, J.

      Leave granted.

2.    This appeal is directed against the  judgment  and  decree  dated  2nd
May, 2008 passed by the High Court of Himachal  Pradesh,  Shimla  in  R.S.A.
No.126 of 1996. By the impugned judgment and decree High Court reversed  the
concurrent finding of the Courts below and held  that  Section  36  (wrongly
mentioned as Rule 36 in the  impugned  judgment)  of  the  Himachal  Pradesh
Tenancy and Land Reforms Act, 1972 (hereinafter referred to  as  “the  Act”)
is applicable to tenancy land and not to  the  ownership  land  owned  by  a
person,  and  therefore,  not  applicable  to  the  appellants  herein.  The
judgment and  decree  dated  21st  November,  1995  passed  by  the  learned
Additional District Judge (1)  Dharamshala  Camp  at  Una  in  Civil  Appeal
No.39/92, RBT No.206/94 were set aside and the suit was dismissed.

3.    The factual matrix of the case is that predecessor-in-interest of  the
appellants, Faqir Chand, the original plaintiff filed a suit against  Daulat
Ram, Sukh Dev, Ram Sarup  and  Smt.  Vidya  Devi  for  permanent  injunction
restraining them from removing the pump set or interfering, in  any  manner,
with the right of the plaintiff to irrigate his land measuring 25 Kanals  16
Marlas from well and pump set situated in land measuring  8  Marlas  bearing
Khasra No.114R/29 situated in village Basal, Tehsil and  District  Una  vide
Jamabandi 1981-82.

4.    The case of the original plaintiff was  that  he  was  inducted  as  a
tenant of suit land by the respondents, on an annual rent of  Rs.1614/-  for
a period of 10 years by registered  lease  deed  dated  23rd  August,  1968,
along with right of irrigation from a common source  in  the  form  of  well
situated on the  remaining  land  belonging  to  the  landlord.  He  was  in
possession  of  25  Kanals  16  Marlas   of   land   comprised   in   Khasra
Nos.114R/19/4, 21/2, 22/1, 115S/1/2,  2,3,  8/1,  9/1  and  26  situated  in
village Basal, Tehsil and District Una vide  Jamabandi  1981-82.  On  coming
into force of the H.P. Tenancy and Land  Reforms  Act,  1972,  the  property
rights of the suit land was conferred on  tenants,  including  the  original
plaintiff under sub-Section (3) of Section 104 of the Act.

5.    Further, the case of the plaintiff was that  the  whole  of  the  suit
land was irrigated from the well and pump set situated in Khasra  No.114R/29
situated in village Basal, Tehsil and District Una. The plaintiff was  given
right to irrigate 25 Kanals 16 Marlas pursuant to the agreement  dated  23rd
August, 1968 from well and pump  set  situated  in  Khasra  No.114R/29.  The
plaintiff, thereby, pleaded his right to irrigate the  land  from  the  well
under the Act and Rules and further submitted that the  defendants  have  no
right to interfere with such right of the plaintiff.  It  was  the  case  of
the plaintiff that the defendants have threatened him that  they  would  not
allow the plaintiff to use the  well  for  irrigation  and,  therefore,  the
plaintiff filed the suit.

6.    The suit was contested and a common written  statement  was  filed  by
the original defendants. Stand of the defendants was that the plaintiff  was
a lessee for a fixed term and after the expiry of the  lease  the  plaintiff
ceased to have any interest  in  the  suit  property.  The  defendants  were
within their right to refuse the plaintiff to use the well.   The  plaintiff
filed replication to the written statement. The learned  Trial  Court  after
noticing Section 36 of the Act decreed the suit on 29th February, 1992.

7.     Ram  Sarup,  defendant  No.3-respondent  No.1  herein,  assailed  the
judgment and decree dated 29th February, 1992 by way of appeal which,  after
hearing, was dismissed on merits by the learned  Additional  District  Judge
on 21st November, 1995. Ram  Sarup  thereafter  came  up  in  second  appeal
against the judgment and  decree  dated  21st  November,  1995.  The  second
appeal was admitted on following substantial questions of law:

           “i)   Whether  the  learned  courts  below  mis-appreciated  the
                 provisions of law applicable pleadings of the  parties  and
                 the evidence adduced by them in the case in hand  correctly
                 and thus the findings as arrived at stand vitiated ?

           ii)   Whether suit  for  permanent  injunction  is  maintainable
                 against the true owner ?

           iii)  Whether the person held to be owner in possession  of  the
                 property can be restrained from using the same as  per  his
                 desire ?”



8.    The High Court by the impugned judgment  and  decree  dated  2nd  May,
2008 passed in second appeal held that Section 36 does not create any  right
rather it protects the right. In order to invoke  Section  36  to  have  the
facility of irrigation the  plaintiff  will  have  to  prove  his  right  of
irrigation on the tenancy land. Section 36 is not  applicable  to  ownership
land. The High Court while accepting the plaintiff as owner of  the  tenancy
land observed that once he became the owner of  the  tenancy  land  he  will
have to show his right to irrigate the land from the well of the  defendants
situated on different  parcel  of  land.  The  plaintiff  has  no  right  to
irrigate the suit land to which he had become owner pursuant to agreement.

9.    It is not in dispute  that  Faqir  Chand,  original  plaintiff,  i.e.,
predecessor-in-interest of the appellants was inducted  as  tenant  pursuant
to a registered deed dated 23rd August, 1968 executed by the land owner.  As
per the Lease Deed he was inducted as a tenant with a  right  of  irrigation
with common source in  the  form  of  well  situated  on  Khasra  No.114R/29
situated in village Basal, Tehsil and District Una.

10.   Section 36 of the Act relates  to  tenant’s  right  to  water,  as  is
reproduced below:

           “Section 36.Tenant’s right to water  –  Save  in  proportion  to
           reduction in the tenancy, if  any,  a  landowner  shall  not  be
           competent to curtail or terminate the supply of canal,  Kuhl  or
           use of well water  enjoyed  by  tenant  immediately  before  the
           commencement of this Act, and a breach of this  provision  shall
           constitute a cognizable offence punishable with fine  which  may
           extend to  one  hundred  rupees  shall  be  triable  by  a  Naya
           Panchayat competent to hear criminal cases.”




11.   The perusal of Section 36 would show that the landlord  shall  not  be
competent to curtail or terminate the supply of canal, kuhl or use  of  well
water enjoyed by a tenant immediately before the  commencement  of  the  Act
and breach of the said  provision  shall  constitute  a  cognizable  offence
punishable under the law. In view of Section 36,  after  enactment  of  law,
the original plaintiff had a right to water to which he was  entitled  prior
to the proclamation of the Act, the land owner was not competent to  curtail
or  supply  of  water  enjoyed  by  the  plaintiff  immediately  before  the
commencement of the Act.

12.   Sub-Section (3) of Section 104 reads as under:

           “Section 104(3). – All rights, title and interest  (including  a
           contingent interest,  if  any)  of  a  landowner  other  than  a
           landowner entitled to resume land under sub-section (1) shall be
           extinguished and all such rights, title and interest shall  with
           effect from the date to be notified by the State  Government  in
           the  Official  Gazette  vest  in  the  tenant  free   from   all
           encumbrances.

                 Provided  that  if  a  tenancy   is   created   after   the
           commencement of this Act,  the  provision  of  this  sub-section
           shall apply immediately after the creation of such tenancy.”



13.   As  per  the  aforesaid  provision,  all  right,  title  and  interest
including a contingent interest of a land owner other than  the  land  owner
entitled to resume land under sub-section (1) shall be extinguished and  all
such rights, title and interest in respect of the land in question  vest  in
the tenant, i.e. original plaintiff, free from  all  encumbrances  from  the
date the Act came into force. The Act was published in the Official  Gazatte
on 21st February, 1974 vide Act No.8 of 1974. What  is  not  in  dispute  is
that the original plaintiff became owner of the suit land  by  operation  of
law and continued to enjoy all the  rights  including  right  of  irrigation
from the common source which was in possession of the original landlord.

14.   The aforesaid fact has been rightly appreciated  by  the  Trial  Court
and the First Appellate Court which has also noticed that  the  mutation  in
respect of the land recorded in the revenue record of 25th  April,  1982  is
clearly showing the well as source  of  irrigation  of  the  land.  In  such
circumstances, it was not open to the High Court to hold that  a  tenant  on
being land owner ceases his right to water which he was  enjoying  prior  to
the Act. The High Court failed to appreciate  Section  36  of  the  Act  and
erred in holding that Section 36 is applicable to tenancy land  and  not  to
the land owned.

15.   For the reasons aforesaid, we set aside the judgment and decree  dated
2nd May, 2008 passed by the High Court in R.S.A. No.126 of 1996  and  affirm
the judgment and decree passed by the Trial Court as confirmed by the  First
Appellate Court. The appeal is allowed. No costs.



                                                    …………..……………………………………….J.
                                    (CHANDRAMAULI KR. PRASAD)






                                                    ………………..………………………………….J.
NEW DELHI,                   (SUDHANSU JYOTI MUKHOPADHAYA)
APRIL 28, 2014.

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