V.K. Gupta, C.J.
1. A very short and simple but interesting question of law is involved for consideration in this case but the facts first.
2. Respondents filed a Civil Suit against the appellants in the Court of the then Sub Judge 1st Class (II), Palampur for obtaining a decree of possession on the ground that two pieces of land, details whereof are as under:
(a) measuring 0-35-30 hectares being half share in the land measuring 0-70-59 hectares comprising of Khata No. 46 min Khatauni No. 158 and Khasra Nos. 261, 325, 327, 328, 329, 330, 332, 337 and 1082 of Mohal Badehar, Mauza Patti, Tehsil Palampur; and
(b) measuring 0-37-71 hectares being half share in the land measuring 0-75-43 hectares comprising of Khatauni No. 163 and Khasra No. 353 of Mohal Badehar, Mauza Patti, Tehsil Palampur.
Even though recorded in the respective Jamabandis under the ownership of their respective owners being in the possession of late Gulaba Ram as a non-occupancy tenant, the said Gulaba Ram wrongly executed a Will in favour of appellants No. 1 to 4 and based on this invalid and wrong Will, mutations were illegally attested in favour of the said four appellants thus depriving the respondents of their rightful due and share in the said property. It was contended in the said suit by the respondents-plaintiffs that the Will allegedly executed by Gulaba Ram was the outcome of fraud, misrepresentation and undue influence. Alternatively it was contended that he could not have bequeathed the tenancy rights in favour of appellants No. 1 to 4 through the aforesaid Will and that in any case the Will could not have been executed in law thus, legitimately transferring any right of any nature in favour of the appellants.
3. The suit was dismissed by the learned trial Court. The appeal preferred against this judgment before the learned District Judge even though was dismissed on the ground relating to Sections 43 and 57 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 (1972 Act for short) nonetheless the learned Appeal Court modified the judgment of the learned trial Court to the extent that indeed Gulaba Ram was not competent to execute any Will in favour of appellants No. 1 to 4 in his capacity as a non-occupancy tenant because at the time the Will was executed (on 11.7.1983) Gulaba Ram had continued to have the status of only a non-occupancy tenant and since prior to his death (October, 1985) he had not been conferred the proprietaryship rights with respect to the aforesaid two pieces of land, he had no right in law to execute any Will with respect to the said property.
4. The following pedigree table would reveal the relationship between the parties.
GULABA-------------------------------------------------------| | Rameshwar (deceased) Bihari Lal (defendant No. 5)| |------------------------------- || | | | |Rakesh Rajesh Satish Sudesh |(Plaintiffs 1 to 4) |-------------------------------| | | |Mehar Subhash Onkar SanjayChand Chand Chand Kumar(defendant Nos. 1 to 4)
5. Based on the pleadings of the parties, following Issues were framed in the trial by the learned trial Court:
1. Whether the suit land is ancestral qua the parties and deceased as alleged? OPP.
2. Whether the parties are governed by agriculture custom in the matters of alienation and succession of ancestral property, as alleged, if so, what is that custom? OPP.
3. Whether Shri Gulaba Ram was not competent to execute the Will dated 11.7.1983, if so, its effect? OPP.
4. Whether the Will dated 11.7.1983, is the result of fraud, misrepresentation and undue influence, as alleged? OPP.
5. Whether Shri Gulaba Ram executed a valid Will dated 11.7.1983 in favour of defendants No. 1 to 4, as alleged? OPP.
6. Whether the suit of plaintiff is not maintainable in the present form? OPD.
7. Whether the suit is not within limitation? OPD.
8. Whether the suit is barred by the provision of H.P. Tenancy and Land Reforms Act? OPD.
9. Whether the plaintiffs are estopped by their acts and conduct, as alleged? OPD.
10. Whether this Court has no jurisdiction to the present suit, as alleged? OPD.
11. Whether the suit is not properly valued for the purposes of Court fee and jurisdiction, as alleged? OPD.
12. Relief.
6. Finding on Issue No. 3 as returned by the learned trial Court and as upset/modified by the learned Appeal Court is the only subject-matter for consideration by this Court in the present appeal filed under Order 43 Rule l(a) of the Code of Civil Procedure. The learned lower Appeal Court vide the impugned judgment dated 1st November, 1994, by relying upon Rule 24 of the Himachal Pradesh Tenancy and Land Reforms Rules, 1975 (1975 Rules for short) and by his interpretation of Section 104 of 1972 Act held that since as on the date of execution of the Will Gulaba Ram had not been conferred proprietaryship rights and since he continued to be a non-occupancy tenant and because tenancy rights cannot be transferred from a non-occupancy tenant in favour of someone else through the medium of a Will, Gulaba Ram was not competent to execute the Will and bequeath the property in question to appellants No. 1 to 4 and, therefore, the succession to the tenancy rights with respect to the said property would be governed by Section 45 of 1972 Act and because respondents-plaintiffs along with appellant No. 5 (defendant in the suit and father of appellants No. 1 to 4) would succeed to the tenancy rights in equal shares, i.e. respondents-plaintiffs to the extent of half share and appellant No. 5-defendant to the extent of remaining half share and that appellants No. 1 to 4 during the life time of appellant No. 5 would not succeed to the tenancy rights to any extent. Even though the learned lower appeal Court took this view upon the aforesaid interpretation that it put upon Section 104 of 1972 Act and the manner in which it applied the aforesaid Rule 24 of 1975 Rules, it nonetheless did not grant any relief to the respondents because according to the learned lower appeal Court, by a conjoint reading of Sections 43 and 57 of 1972 Act, the respondents-plaintiffs had to approach the concerned Revenue Officer through the medium of an appropriate application for seeking the recovery of the possession against the appellants on the ground that respondents were wrongly and illegally dispossessed from the property by or at the instance of the appellants. In this manner the learned lower Appeal Court took the view that the suit, in view of Sections 43 and 57 of 1972 Act was not maintainable in a Civil Court.
7. Sub-section (3) of Section 104 of 1972 Act, which sub-section alone is relevant for our purposes, reads thus:
(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.
8. Sub-rule (1) of Rule 24 of 1975 Rules reads thus:
(1) On the receipt of the application under Rule 21, the Land Reforms Officer shall issue a 10 days notice in Form LR-VII to the parties asking them to be present before him on the date and place (within Patwar circle) to be mentioned in the notice. On the date so fixed the Land Reforms Officer will hear the parties and if the selection of the land made by the land-owner under Rule 22 is mutually agreed upon by the parties, the Land Reforms Officer shall pass an order about the extinguishment of the rights of the tenant in such land. He shall further order that the possession of the land be given to the land-owner from the date to be specified in the order. At the same time regarding the remaining land of such tenant or tenants the Land Reforms Officer shall confer proprietary rights on such tenant or tenants, as the case may be.
Rule 27 of 1975 Rules reads thus:
27. Procedure for conferment of proprietary rights on tenants covered by Sub-section (3) of Section 104.-All rights, title and interests in the tenancy land of land-owners who have already under their personal cultivation 3 acres un-irrigated or 1 1/2 acres irrigated land shall vest in the non-occupancy tenants with effect from the commencement of these rules. Similarly, the proprietary rights of tenancy land of the non-occupancy tenants on Government land shall also vest in the tenants from the commencement of these rules.
9. Actually Sub-section (3) of Section 104 of 1972 Act clearly suggests that the conferment of the proprietary rights upon the non-occupancy tenant under this provision of law is automatic and it commences from the date of the issue of the notification. In the case of Daulat Ram and Ors. v. State of Himachal Pradesh and Ors. reported in 1979 Sim. L.C. 215, a learned single Judge of this Court while dealing with and interpreting Sub-section (3) of Section 104 of 1972 Act observed as under:
Under Sub-section (3) of Section 104 of the Act, all rights, title and interest (including a contingent interest, if any) of the landowner of the land held by tenants shall be extinguished, and all such rights, title and interest shall vest in the tenants free from all encumbrances created by the landowner, with effect from the date to be notified by the State Government in the Official Gazette, provided that if the tenancy is created after the commencement of this Act, the provision of this sub-section shall apply immediately after the creation of such tenancy. It cannot be disputed that the entry of tenancy existed much before the promulgation of the Act, and the respondents cannot question the tenancy when it is so recorded in the revenue papers which is a conclusive proof of the factum of the existence of the tenancy. Once a person is entered as a tenant in the revenue record then notwithstanding any agreement, etc. to the contrary, the person so entered shall become the owner by virtue of the provision of Sub-section (3) of Section 104 of the Act. The conferment of the proprietary rights under the Act is automatic from the date of the issue of the notification by the State Government in the Official Gazette, and the vestment of ownership shall be free from all encumbrances. Under Rule 27 of the Himachal Pradesh Tenancy and Land Reforms Rules 1975, all rights, title and interests in the tenancy land of landowners... shall vest in the non-occupancy tenants with effect from the commencement of these rules. Similarly, the proprietary rights of tenancy land of the non-occupancy tenants on Government land shall also vest in the tenants from the commencement of these rules. These rules came into force on 3.10.1975. Therefore, from that date the ownership rights vested free from all encumbrances on the persons who were so recorded as tenants under the landowners or for the matter of that the State Government in that land. Therefore, the plea taken up by the respondents that they were not the tenants is wholly incorrect because they cannot set up this case when they are so recorded, and once they are so recorded they become the owner of the land by virtue of the operation of law and they actually became owners with effect from the date of the publication of the rules.
10. Coming to the short and simple but interesting question of law involved for consideration in this appeal, it is noticed that the learned lower Appeal Court by ignoring and overlooking the clear, unambiguous and mandatory as well as binding nature of the statutory stipulation contained in Sub-section (3) of Section 104 of 1972 Act and by merely relying upon an isolated provision of law contained in Rule 24 (1) of 1975 Rules held that unless the resumption applications of the land owners with respect to both the pieces of land were disposed of, the proprietary rights upon the non-occupancy tenants could not be deemed to have been conferred. Yes, Sub-rule (1) of Rule 24 does prescribe a procedure for the resumption of the parts of land by the land owners after they file applications under Rule 21 of 1975 Rules and the Land Reforms Officer passing an order about the extinguishment of the rights of the non-occupancy tenants with respect to the parts of the land which have been ordered to be resumed in favour of the landlords and consequently with respect to the remaining land conferment of proprietary rights upon the tenants. But a reading of Rule 24 (1) in the light of the mandatory and unambiguous stipulation contained in Sub-section (3) of Section 104 of 1972 Act and the more explicit stipulation contained in Rule 27 of 1975 Rules clearly suggests unambiguous legislative intent that the rights, title and interest of the landlords entitled to resume land (with respect to land other than sought to be resumed) shall stand extinguished and the extinguishment of such rights, title and interest with respect to such land shall be with effect from the date to be notified by the State Government. Sub-section (3) further stipulates, again unequivocally, categorically and clearly that from the said date the rights/title and interest with respect to the said land shall vest in the tenant free from all encumbrances. To give binding effect and to enforce and implement the aforesaid legislative intent contained in Sub-section (3) of Section 104 of 1972 Act, Rule 27 of 1975 Rules clearly suggests that rights, title and interests in the tenancy land of the land owners who have already under their personal cultivation three acres of unirrigated land or 1 1/2 of irrigated land shall vest in the non-occupancy tenants with effect from the date of the commencement of 1975 Rules. 1975 Rules came into force with effect from 3rd/4th October, 1975.
11. Whereas, therefore, Rule 24(1) was more in the nature of a procedural piece of delegated legislation dealing with the procedural aspect relating to the disposal of the applications for resumption and the consequent conferment of proprietary rights upon the non-occupancy tenants for the remaining land, the substantive law relating to the right of the non-occupancy tenants to be conferred the proprietary rights is found in Sub-section (3) of Section 104 of 1972 Act and, in a manner of speaking in Rule 27 of 1975 Rules. Rule 24(1) cannot thus be termed as being a substantive law relating to the conferment of the proprietary rights and this being the position, the mandate as well as the legislative intent contained in Section 104 (3) of 1972 Act has to have primacy over the procedural law, being Rule 24.
12. On a totality of all the aforesaid circumstances, therefore, I have no manner of doubt in my mind that the learned Court below erred in taking the view that Gulaba had no right of executing the Will in 1983. I am saying this because as on 3rd/4th October, 1975, by virtue of the operation of law based upon Section 104 (3) of 1972 Act and Rule 27 of 1975 Rules, Gulaba had acquired the status of being the owner of the land in question and thus he was competent to execute a Will in favour of appellants No. 1 to 4 bequeathing his ownership rights in their favour with respect to the land in question. Mutation attested thus based upon this Will was legal in all respects.
13. The finding on Issue No. 3 returned by the learned District Judge, Kangra at Dharamshala in the impugned judgment dated 1st November, 1994 is set aside with all consequences. The judgment also is accordingly set aside and the appeal is allowed but without any order as to costs.