Joti Ram (Dead) Through L.Rs. and ors. Vs. Bhagat Singh and ors. Etc. - Court Judgment

Excerpt:
- lokeshwar singh panta, j.1. the above two appeals have been placed before us and we are called upon to answer the following question :--'whether a civil suit filed by a tenant who has been dispossessed without his consent from his tenancy or any part thereof is time barred having regard to the provisions of himachal pradesh abolition of big landed estates and land reforms act, 1953?'2. the facts so far as necessary for understanding the controversy may now bestated :jyoti ram had filed a suit for possession of lands situate is mauja taruwala, tehsil paonta sahib, district sirmaur on the allegations that the respondents-defendants had been owners in possession of the land in village taruwala, out of which they had sold 12 bighas 11 biswas to the appellant-plaintiff and others on 19-7-1960 and had kept with them 11 biswas of land out of khasra no. 104. they then migrated to uttar pradesh. in 1968-69, respondents-defendants came back to the village and they found the plaintiff in possession of the said 11 biswas of land. therefore, they allegedly dispossessed the plaintiff from the suit land and raised a house and have been in possession of theland since then. the plaintiff filed the present suit against the defendants alleging that the defendants had inducted him as tenant over 11 biswas of land in 1963 which was banjar kadeem consisting of thorny bushes. the plaintiff cleared some of the land and made it cultivable, whereas on the other portion be raised his jhuggis to be used as cattle sheds and storing of wheat as subservient to the agricultural purposes. it was further alleged by the plaintiff that on 6-5-1969, the defendants had dispossessed him from the suit land and raised construction over it, therefore, he had filed a petition under section 62 of the h.p. abolition of big landed estates act, 1955 (for short the 'act'), for the restoration of the possession of the suit land from the land-lords-defendants but his petition was dismissed as time barred. therefore, he had filed the present suit before the trial court alleging that he had been in possession of the suit land along with other as a tenant-at-will and consequential relief as prayed for restoration of the possession of the suit land by demolishing of the super structure raised by the defendants. during the pendency of the suit, since the suit land had been sold to sucha singh therefore, he was impleaded as party-respondent no. 2 before the first appellate court.3. the defendants in their written statement denied the claim of the plaintiff, that he had ever been inducted as a tenant over the suit land or that he had remained in possession of the suit land as such. the defendants stated that they had 13 bighas 2 biswas of land in the village, out of which they sold 12 bighas 11 biswas of land to the plaintiff and others vide mutation ex. dw2/a and kept the remaining 11 biswas of land in khasra no. 104 for the construction of gurudwara or their houses. it was alleged that there had been no occasion for them to induct the plaintiff as a tenant ever the said small piece of land of 11 biswas (including the suit land), nor they had inducted him as tenant. in 1968-69, when the defendants came to the village, the suit land was lying vacant and they had raised the construction over it as owners and, therefore, the' plaintiff had no cause of action. the defendants further pleaded that the plaintiff had filed an application under section 62 of the act before the revenue officer, but that application came to be dismissed and, therefore, he had no locus standi to file the suit for restoration of the possession as a tenant from the alleged defendants-landlords after the expiry of one year. other objections with regard to the jurisdiction of the civil court and that the plaintiff was entitled to damages as claimed by him or if the suit was within the time, were also raised by the defendants.4. sucha singh the vendee of the land had claimed himself as bona fide purchaser for consideration.5. the trial court decreed the suit of the plaintiff for possession of the suit land on 15-3-1996 along with damages of rupees 200/-. against the judgment and decree of the trial court, the defendants filed an appeal before the learned district judge. sucha singh had also filed separate appeal. both these appeals were taken up together and accepted by the learned district judge, solan and sirmaur districts at nahan on 18-5-1988, setting aside the judgment and decree of the trial court and the suit of the plaintiff was dismissed with costs. feeling aggrieved against the judgment and decree of the district judge, the plaintiff has filed these two regular second appeals in this court.6. during the pendency of the appeals, the plaintiff has died and his legal representatives have been ordered to be brought on record.7. these two regular second appeals came up for hearing before the single bench of hon'ble the chief justice, who ordered for constituting a full bench consisting of hon'ble the chief justice, justice lokeshwar singh panta and justice r. l. khurana, jj. for hearing of these two appeals. pursuant to the order dated 30-7-1999, the above appeals have been placed before us.8. the district judge though decided both the appeals on merit yet it has been held that a tenant if wrongfully dispossessed, has no remedy in the civil court after the expiry of one year as envisaged in section 62 of the act for restoration of the suit land. this finding has been recorded by the learned district judge relying upon a full bench judgment of punjab high court in bhag singh v. jawahar singh, air 1965 punjab 321 and followed by learned single judge in joginder singh v. chuhara, 1986 pun lj 388. we may point out that the full bench of the punjab high court in bhag singh's case (supra) had dealt with the scheme of the punjab tenancy act, 1887, which is different from that of the hp act in so far as thepresent controversy goes. it may, however, be pointed out that out of the five judges constituting the full bench of punjab high court, two judges were hesitant in agreeing with the view adopted by the other judges. we find that they did not record their express dissent from that view. the present controversy in our view is squarely and clearly settled at rest by the full bench of delhi high court (himachal bench at simla) in chuhary v. sirtu (1968) 4 delhi lt 412. the learned judges of the full bench of delhi high court (himachal bench), were posed with the same and identical question of law concerning the interpretation of the provisions of section 62 of the act. the ratio laid down in bhag singh's case (supra), upon which reliance has also been placed by the learned district judge was distinguished in chuhary's case (supra), mainly on the basis that there was material differences in the relevant acts contained in the punjab tenancy act and h.p. abolition of big landed estates and land reforms act, 1953. a learned single judge of this court (r. l. khurana, j.), had occasion to deal with the question 'whether a civil suit filed by a tenant, who has been dispossessed without his consent from his tenancy or any part there of is barred in view of the provisions contained in section 43 and 57 of the h.p. tenancy and land reforms act, 1972 (act no. 8 of 1974)', in dhannu alias dhani ram v. ramesh kumar, 1997 (1) sim lj 165, and held that the suits filed by the tenants to recover possession of the land, who have been forcibly dispossessed therefrom was maintainable and that all the provisions contained in section 62 and 110 of the h.p. abolition of big landed estates and land reforms act, 1953, are in pari materia with the provisions contained in section 43 and 57 of the h.p. tenancy and land reforms act, 1972, the learned single judge in recording his finding, has followed the ratio laid down in chuhary's case (supra), which was also followed by another learned single judge (ms. kamlesh sharma, j.), in gulabi v. rukmani, 1995(1) sim lc 159 : (1995 aihc 4821). in gulabi's case (supra), the learned single judge has dealt with the rights of the tenant to get back the possession under section 62 of the act, 1953 and recorded the finding that the question had already been answered by the full bench of the delhi high court (himachal bench) in chuhary's case (1968 (4) delhi lt 412) (supra).9. we may now consider the scheme of the h. p. abolition of big landed estates and land reforms act, 1953, so far as it is relevant. the act was enacted to provide for the abolition of big landed estates and to reform the law relating to the tenancies in the state. we are directly concerned with chapter-v headed as 'lease, relinqulsh-ment, abandonment and ejectment', and chapter-ix dealing with the 'jurisdiction and procedure'. the sections to which reference has been made at the bar and which deserves being read in-extenso, may now be reproduced. section 62 dealing with the relief for wrongful dispossession is in the following terms :--'chapter-v 62. relief for wrongful dispossession or ejectment :-- if a tenant has been dispossessed without his consent from his tenancy or any part thereof otherwise than in execution of a decree or than in pursuance of any order under section 57, he may, within one year from the date of his dispossession or ejectment, make an application for recovery of possession or for compensation, or for both. 64. bar to civil suits :-- no person whose application has been dismissed under section 62 may institute a suit in a civil court to contest his liability to ejectment, or to recover possession of occupancy rights or to recover compensation. 65. bar of relief by suit under section 9. act i of 1877 :-- possession of a tenancy or of any land comprised in a tenancy shall not be recoverable under section 9 of the specific relief act. 1877, by a tenant dispossessed thereof.' 'chapter ix 110. application and proceedings cognizable by revenue officers :-- (1) the following applications and proceedings shall be disposed of by revenue officers as such, and no court shall take cognizance of any dispute or matter with respect to which any such application or proceedings might be made or had :-- first group (a) to (c) ..... (d) application under section 62 for recovery of possession or for compensation or for both; (e) ..... 10. section 92 of the act. deals with the right of any person to establish his claim in respect of any land or part thereof by due process of law in the civil court having jurisdiction.11. now, it may be appropriate to appreciate the reasonings of the full bench of delhi high court recorded in chuhary's case (1968 (4) delhi lt 412) (supra). the reference before the full bench was as follows :--'whether a civil suit filed by a tenant dispossessed with his consent from his tenancy or any part thereof is barred having regard to the provisions of himachal pradcsh abolition of big landed estates and land reforms act. 1953?'12. distinguishing the judgment of the punjab high court in bhag singh v. jawahar singh (1965) 67 pun lr 226 : (air 1965 punjab 321), mainly on the basis that there was material difference between section 50, 50-a of the punjab tenancy act and section 62 of the act of 1953, the learned judges observed that :--'it is quite clear that the problem which the punjab high court was concerned with is materially different from the problem which arises in the case in hand. section 62 of the act does not provide for a suit in any court, but merely enables a tenant, who is forcibly dispossessed, to apply within one year of his dispossession to recover possession or compensation, or both. section 64 bars suit in a civil court at the instance of a person whose application under section 62 has been dismissed. it is obvious that the plaintiff before us does not fall within the category of section 62 because no application under section 62 was dismissed either at her instance or at the instance of her husband bhutu. the appellants' learned counsel, however, places reliance on section 110(1)(d). this provision, in our view, docs not seem to exclude the jurisdiction of the civil courts either expressly or by necessary intendment so far as the present controversy is concerned. it is undoubtedly true that according to this provision, an application under section 62 had to be disposed of by revenue officers as such, and as is clear from the language of section 62, such application has to be made within one year from the date of possession or ejectment. but the civil courts' jurisdiction is barred only from taking cognizance of to repeat the exact words, 'any dispute or matter with respect to which any such application or proceeding might be made or had'. to put more simply, it seems to us that the jurisdiction of the civil courts would only be barred regarding disputes or matters with respect to which an application might be made or a proceeding might be had. the language appears to us to prescribe the possibility of making an application or initiating proceedings in present at the time when cognizance of the civil court is invoked for the adjudication of any dispute on matter envisaged by section 62. now it is indisputable that an application under section 62 could only be made within one year of bhutu's dispossession. the present suit admittedly was instituted long after such period of one year. therefore, section 110(1)(d) on its plain reading, would not oust the jurisdiction of the civil courts in so far as the present suit is concerned. it is idiomatic that the exclusion of jurisdiction of civil courts is not to be readily inferred. it can be excluded only if either there is express language used to that end or such a conclusion flows by necessary intendment. the provisions excluding such jurisdiction have, on accepted principles, to be strictly construed. in the case in hand, the express language does not seem to us to exclude the civil courts' jurisdiction as just explained. in regard to the argument of necessary intendment it is noteworthy that section 62 merely provides for an application to a revenue officer and there is no procedure prescribed in regard to the nature of the enquiry to be held in its disposal. the right of a tenant to get back possession is an important right to property and it is not easy to impute to the law maker an intention to deprive a tenant of a right to approach the civil court for adjudication of such an important right, when all that is provided to him is an application to a revenue officer. had the remedy provided to the tenant been that of a suit in a revenue court, similar to the scheme of the punjab tenancy act, the argument in support of exclusion of the civil courts' jurisdiction would perhaps have possessed some cogency, but in the absence of any such provision of a suit, we find it extremely difficult to uphold the objection to the civil courts' jurisdiction in taking cognizance of a case like the present. it appears to us that all that the provisions reproduced above deprive a tenant of is. his right to institute a civil suit during the period of one year when he has the right to approach the revenue officer for relief for wrongful dis-possession or ejectment. the express bar of a suit under section 9. specific relief act, as provided in section 65 of the act, would also seem to lend some support to the view we are taking, because after excluding the summary remedy under the specific relief act, the tenant has been provided with a summary under section 62 available to him for a period of one year. thereafter, however, we find no cogent and rational reason, and certainly none has been placed before us, to deprive the aggrieved tenant of his right to approach the ordinary civil courts for relief against dispossession or ejectment.'13. the ratio of the judgment in chuhary's case (1968 (4) delhi lt 412) (supra), was referred to by later division bench of delhi high court (himachal bench at simla) in uttam chand v. jogeshwar, rsa no. 97 of 1967, decided on 8-10-1969 and the learned judges observed that the said decision'.....would have been further supported if the attention of the full bench had been invited to section 92 of the aforesaid act which provides that nothing in that act would affect the right of any person to establish his claim in respect of any land or part thereof by due process of law in the court having jurisdiction.'14. on behalf of the defendants-respondents. mr. k. d. sood learned counsel has placed reliance on the judgment of punjab high court in bhag singh's case (air 1965 punjab 321) (supra), but as would be obvious from the provisions of the punjab tenancy act, that decision deals with a somewhat different statutory scheme which is not incorporated in the scheme of himachal act of 1953.15. from the plain reading of the provisions of section 62 of the act, the necessary intendment of incorporating these provisions is merely to provide for an application to revenue officer who will decide the application in summary proceedings and there is no procedure in regard to the nature of inquiry to be held in its disposal and such application has to be made within one year from the date of dispossession or ejectment of the tenant who has been dispossessed without his consent from his tenancy or any part thereof otherwise than in execution of a decree, whereas under civil law, it is 12 years to challenge such order before the civil court. the right of a tenant to get back his possession is an important and vested right to property and the interpretation to section 62 and 64 of the act has to be given harmoniously construing the same with reference to the aim, object and scheme of the act is to form the law relating to the tenancies in the state and to provide vestment of tenancy rights of the tenants under the landlord. from the enactment of the act, it is not easy to impute to the law maker an intention to deprive a tenant of a right to approach the civil court for adjudication of such an important right. therefore, we are obliged to agree with the reasonings of the full bench of delhi high court (himachal bench) in chuhary's case (1968 (4) delhi lt 412) (supra) that all the relevant provisions reproduced above, deprive a tenant of his right to institute a civil suit during the period of one year when he has the right to approach the revenue officer for relief for wrongful dispossession or ejectment. the express bar of a suit under section 9, specific relief act, as provided in section 65 of the act, would also seem to lend some support to the view taken by the learned judges of the full bench because after excluding summary remedy under the specific relief act, the tenant has been provided with a summary remedy under section 62 available to him for a period of one year.16. the learned judges of the full bench of delhi high court had also placed reliance upon the judgment o the supreme court in durga singh v. tholu, air 1963 sc 361, and extracted a relevant paragraph in which the provisions of section 77(3) of the punjab tenancy act were dealt with. the observations are as under :--'there is no entry or item relating to a suit by or against a person claiming to be a tenant and whose status as a tenant is not admitted by the landlord. it would, therefore, be reasonable to infer that the legislature barred only these suits from the cognizance of a civil court where there was no dispute between the parties that a person cultivating land or who was in possession of the land was a tenant, this is precisely what has been held in the two decisions of the lahore high court relied upon by mr. achhru ram.'17. from the bare reading of section 65 of the act, it is clear that the provisions contained therein preserve the right of the possession of tenancy or of any land comprised in tenancy not recoverable under section 9 of the specific relief act by a tenant dispossessedtherefrom instead of destroying such rights.18. as noticed above, the vested right of a holder of property or property rights to file a suit to establish his claim in respect of any land or part thereof is a common law remedy and right and the same is found preserved and protected under section 92 which gives right to such person to establish his claim in the civil court having jurisdiction by a due process of law. the provision of a summary remedy under section 62 is no substitute to the right of suit and there is nothing in the act which disclose any intention to destroy such right of suit otherwise available to a person as an adjunct to his rights to or in immovable property.19. after appraisal and assessment of the relevant provisions of law under the act referred to above, we are of the considered view that the ratio of thejudgment of the full bench of delhi high court in chuhary's case (1968 (4) delhi lt 412) (supra) has rendered correct position of law holding that a civil suit filed by a tenant dispossessed without his consent from his tenancy or part thereof, would not be barred if it is instituted after the expiry of one year as provided in section 62 of the act and the jurisdiction of the civil court is not ousted. the vested rights of the tenants in the property who have been dispossessed without their consent from their tenancies or a part thereof could not be infringed or taken away by summary proceedings conducted by the revenue officer under section 62 of the act. the right of a tenant who has been wrongfully dispossessed or ejected from the tenancy rights has vested right to the property dehors the interest in the immovable property and he has a right to file a suit independently of summary proceedings. the expiry of period of limitation for instituting summary proceedings under section 62 of the art ordinarily only bars the remedy and in the absence of any statutory provisions of the contrary does not extinguish the right of a tenant to file a civil suit to establish his rights under the common law within the period of limitation provided under the limitation act, 1963 for the purpose. moreover, there is no question of ouster of the jurisdiction of the civil court in respect of matters falling within its jurisdiction and which are outside purview of the said act. it is only in respect of matters which are covered by the act that the decision of the revenue officer is binding on the parties. obviously, matters which are not subject-matter of decision before such a revenue officer, cannot be considered as final or binding between the parties. section 64 also provides for finality only in respect of decision of the revenue officer in respect of matters which are requested to be determined by him for the purpose of summary proceedings under section 62 of the act. the jurisdiction of the civil court, therefore, to determine title, right or interest to the lands in question or to determine whether the landlord has a right to evict the tenant from the lands wrongfully without his consent is not ousted in any manner by the act in the teeth of the relevant provisions of the sections extracted herelnabove. therefore, in these peculiar facts and circumstances, we are afraid to accept the submission of mr. k.d. sood, learned counsel, that the ratio of the judgment of the full bench in bhag singh's case (air 1965 punjab 321) (supra) will squarely apply to the facts of the cases on hand and not the settled proposition of law of the full bench of delhi high court.20. the next issue involves for our consideration is whether this bench is bound by the decision of the full bench of delhi high court in chuhary's case (1968 (4) delhi lt 412) (supra) being a successor high court. in order to appreciate the issue, we propose to deal with the various provisions of the state of himachal pradesh act, 1970.21. the high court of himachal pradesh has been established under section 21 of the state of himachal pradesh act. 1970. section 22 of the act no. 53 of 1970, provides appointment of the judges of the high court by the president if he thinks fit, direct that such of the judges of the high court of delhi holding office immediately before the appointed day as may be determined by him, shall on that day cease to be judges of the high court of delhi and become judges of the high court of himachal pradesh and shall have the jurisdiction in respect of any part of the territories comprised in the state of himachal pradesh, under the law in force immediately before the appointed day, which were exerclsable in respect of that part of the territories by the high court of delhi. the practice and procedure in the high court of delhi shall with the necessary modifications, apply in relation to the high court of himachal pradesh under section 25 of the act and the custody of seal of high court of delhi shall with the necessary modifications, apply with respect to the custody of the seal of the high court of himachal pradesh under section 26. forms of writs and other processes, used, issued or awarded by the high court of delhi shall, with necessary modifications, apply with respect to the form of writs and other processes used, issued or awarded by the high court of himachal pradesh under section 27. section 28 deals with the powers of the chief justice, single judge and division courts of the high court of delhi and with respect to all matters ancillary to the exercise of these powers shall with the necessary modifications, apply in relation to the high court of himachal pradesh under section 28. the jurisdiction of the delhi high court has ceased on and from the appointed day in respect of the territories comprised in the state of h.p. under section 30.22. from the relevant provisions of the act, no. 53 of 1970, it can be safely inferred that the high court of himachal pradesh is a successor of the high court of delhi.23. in m. subbarayudu v. state. air 1955 andhra 87, the full bench of the andhra pradesh high court was obliged to deal with the cases where the decision rendered by the madras high court before 5-7-1954 if became binding on andhra high court after the formation of the state of andhra and the transfer of territories from madras to mysore under andhra state act, 1953. the full bench held that the binding nature of the precedents of one court on another depends upon the fact whether such courts are courts of co-ordinate jurisdiction or not and co-ordinate jurisdiction does not connote the same idea as concurrent jurisdiction or simultaneous jurisdiction. the connotation of the word 'co-ordination' is not the same as that of the words 'concurrence or simultaneity'. simultaneity or coexistence is not a necessary ingredient of coordination. co-ordination is more comprehensive and takes in successive acts of the same status or level. the learned judges further held that it would not be inappropriate to call a successor court a court of coordinate jurisdiction with its predecessor, if their jurisdiction at the point of time they exercised it are similar to or co-extensive with each other. the full bench of andhra high court in that case followed the decisions of full bench of madras high court on the point involved in the case which came to be decided by the andhra high court, holding that the andhra high court is the successor high court of madras high court and the precedents and decisions of madras high court become the precedents of the courts co-ordinate of jurisdiction have to be considered as decisions of the co-ordinate bench of the predecessor high court and may not be considered as binding decisions of the successor high court. the high court of himachal pradesh was established independently after attaining the statehood of himachal pradesh but it is the successor high court of delhi high court and the precedents and decisions of the delhi high court are of co-ordinate high court and may not be considered having binding force of law on the co-ordinate bench of this court, but these have to be taken as precedents while considering the proposition of law involved in the present cases. therefore, the ratio laid down in chuhary's case (1968 (4) delhi lt 412) and gulabi's case (1995 aihc 4821) (supra), would be applicable to the facts of the present case on all fours. therefore, there is no escape from the conclusion that the suits filed by the plaintiff was maintainable before the civil court. we, therefore, held that the civil suit filed by a tenant dispossessed without his consent from his tenancy or part thereof, will in our opinion be not barred if it is instituted after the expiry of one year as provided under section 62 of the himachal pradesh abolition of big landed estates and land reforms act. 1953 and the jurisdiction of the civil court is not ousted to adjudicate upon the rights of the parties under the said act. the regular second appeal shall be decided by the learned single judge uninfluenced by any expressions or observations made by us in this judgment. no costs.