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TMI Blog1984 (7) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... . 68/66) refusing to grant proprietary rights to the respondent in respect of the suit land. 3. The respondent had preferred an application before the Compensation Officer under Section 11 of the Act on June 27, 1966 claiming to have become entitled to acquire, on payment of compensation, the right, title and interest of the appellant in the suit land comprising Khata/Khatauni No. 11/16, Khasra Nos. 10 to 19 totally admeasuring 32 bighas 7 biswas, situate in village Chharabra, Tehsil Kasumpti, District Mahasu. The claim advanced by the respondent was based on the plea that she held the suit land as a tenant under the appellant. Upon service of the notice of the proceeding, the appellant appeared before the Compensation Officer through the Sadar Kanungo of the office of the Collector, Mahasu District, who filed objections on behalf of the appellant. The Compensation Officer framed the following four issues ; (1) Whether there is no relationship of landowner and tenant between the parties ? (2) Whether the land applied for does not fall within the definition of land because of existence of trees thereon ? (3) Whether the area of the land applied for under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide the village Chhrabara. Khasra No. 13 is, therefore, a site of building within the meaning of Clause (a) of Section 2 (5), and is land within the meaning of the Act. The other Khasra numbers on which there are structures or roads, are for the use of the appellant in connection with her enjoyment of the orchard and the ghasnies. It follows that all the Khasra Nos. 10 to 19 with the exception of 19/1 are lands within the meaning of the Act, and the appellant is entitled to acquire, on payment of compensation, the right, title and interest of the Government of Himachal Pradesh in the land comprised in Khasra Nos. 10 to 19 excluding Khasra No. 19/1. In light of the above findings, the learned Single Judge allowed the appeal and set aside the decision of the learned District Judge as well as that of the Compensation Officer and remanded the matter to the Compensation Officer with a direction to readmit the case on his file and to determine the compensation payable by the respondent to the appellant for the acquisition of the right, title and interest of the appellant in the suit land (excluding Khasra No. 19/1) and to transfer such right, title and interest to the respondent o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... District Judge as well as the learned Single Judge have both found that the status of the respondent as a tenant of the suit property was duly established. Be it stated that at no stage of the proceeding the interest of the respondent in the suit property has been questioned by and on behalf of the appellant on the ground that the transfer made in her favour by virtue of the conveyance, Ex. A -l, dated December 9, 1955 was hit by the provisions of Section 68 of the Act which provide that any transfer of interest of a tenant except as permitted by the proviso to clause (c) of sub -section (1) of Section 54 shall be void. There is no such plea nor there is any evidence in support of such plea, although an issue as regards there being no relationship of landowner and tenant between the parties was raised and relevant evidence could have been led under the said issue to sustain the plea. Even when the conveyance, Ex. A -l, was produced at the appellate stage, no attempt to challenge the acquisition of interest by the respondent as tenant of the suit land was made and no opportunity to lead rebuttal evidence was sought. Indeed, no submission in this connection is show to have been made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of a tenant except as permitted by the proviso to clause (c) of sub -section (1) of Section 54 shall be void. It is not in dispute that the proviso to clause (c) of sub -section (1) of Section M is not attracted in the present case. It is also not in dispute that Mrs. Lorna Thomson held the land as a tenant under the appellant and that she transferred her right, title and interest in the land in favour of the respondent on December 9. 1955, that is, after the Act was brought into force. On these undisputed facts, the appellant urges that the provisions of Section 68 of the Act are attracted and that the transfer in favour of the respondent is void. If the ground sought to be urged on behalf of the appellant was to rest for its decision merely on the proof of the aforesaid facts, the principle laid down in Gurcharan Singhs case might have been attracted and the appellant could have possibly urged that the point should be allowed to be raised and that we should record our finding on the issue and decide the appeal in its favour. The difficulty in the way of the appellant, however, is that the determination of the issue does not appear to depend merely on the proof of the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rules thereunder, is to be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor. Under the circumstances, a presumption of truth would attach to the entries made in the Jamabandi which must be regarded as having been prepared in accordance with law. In the absence of any evidence to the contrary, it would not be unreasonable to proceed on the assumption that after the transfer of the suit land in favour of the respondent, she was accepted as a cultivating tenant by the appellant and the appellant was recovering rent from her. Even if such a presumption is not made, against the aforesaid background, the issue sought to be raised for our determination for the first time at this stage of the proceedings cannot be regarded as a pure question of law capable of being resolved on admitted or proved facts. The question requires, in the first instance, determination of nice questions of fact which cannot possibly be decided fairly on the evidence existing on the record of the case. To permit the appellant to raise the question for our determination at this stage would take the respondent by surprise and otherwise unfairly prejudice her. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, orchards and ghasnies. The learned Judge found that since in the definition of land , pastures and ghasnies have been included, most of the areas of banjar qudim, which contain grass which is fodder for cattle, would be prima facie land -. As regards the other categories of land such as Abadi , Gharat and Kohlu , the learned Judge found that if structures had existed on the sites, which were occupied or let for agricultural purpose or for purposes subservient to agriculture, they would not be land by themselves but the sites on which these structures existed would be land as defined in the Act, 20. In Gram Panchayat Khunyara Etc. v. State of Himachal Pradesh Etc. [ILR (1978) 7 H P 225], the question before a Division Bench of this Court was whether the provisions of the Himachal Pradesh Village Common Lands Vesting and Utilisation Act, 1974 (hereinafter referred to as the Common Lands Act ) applied to certain types of land such as quarry lands -, mines , forests , temples , orchards -, gair -mumkin lands etc. The precise issue was whether these types of land were covered by the definition of the term land to be found in Section 2 (h) of the Common Lands A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts ambit those lands which are occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture.......................... So far as the second part is concerned, it contains five items which are included within the main definition clause. One of the contentions advanced before the Division Bench was that land answering the description in the inclusive clause should also satisfy the requirement of the main definition clause which contemplates occupation or letting for agricultural purpose or for purposes subservient to agriculture. In other words, the contention was that land covered by the inclusive clause, such as orchards , ghasni5, banjar land - and private forests , would constitute land within the meaning of the Act, only if it was occupied or let for agricultural purpose or for purposes subservient to agriculture or for pasture. While rejecting the submission, the Division Bench observed : If the contention of the learned advocates of the petitioners in this regard is accepted, it would amount to reading some more words which are not found in the definition clause. As a matter of fact, such a reading would go against the accept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read in isolation it might leave an impression that all the different types of land covered by the inclusive clause are not required to satisfy the conditions mentioned in the main clause of the definition, a closer reading of the entire extracted portion would show that the relevant observations are to be read as confined to the categories of land other than that covered by clause (a), that is, the sites of buildings and other structures on such land . As the Division Bench has earlier pointed out, in view of the expression such land occurring in the said clause, the sites of buildings and other structures would be covered by the definition of the word land provided those sites and structures are situate in land which is not occupied as the site of any building in a town or village and is occupied or has been let for agricultural purpose or for purposes subservient thereto or for pasture. In other words, the sites of buildings and other structures, before they qualify as land within the meaning of the inclusive clause, will have to satisfy the requirement of the main clause because of the use of the expression on such land which governs the preceding words the sites of b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt describes the suit property, at the outset, as The Bower consisting of land and buildings. Towards the end, the suit property is more particularly described as consisting of land recorded in the Jamabandi of 1952 -53 as possessing an area of 32 bighas and 6 Biswas and entered in Khavat No. 10/1 min, Khatauni No. 15 min, and Khasra Nos. 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, in the said Jamabandi , The conveyance further recites that the Estate was held and possessed by the vendor in the manner and on the tenure as she did before the creation of the new State of Himachal Pradesh . The transfer under the conveyance is stated to be of ail the rights and interests of the vendor in the said Estate together with all residential or other building, structure of whatsoever and all kind standing on the said land or any part thereof and all the furniture, fittings and fixtures in or on the said Estate and all trees, plants, shrubs, pipes, drains, sewers, retaining and supporting walls, paths, roads, foot -paths, tanks, reservoirs, and all other constructions and things standing on the said land or the buildings and structures thereon or appertaining or reputed to appertain thereto. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Biswa(s) Purpose of occupation/actual user. 10/1 0 03 Gair -mumkin compound. 10/2 0 13 Ghasni. 10/3 3 11 do 10/4 1 12 do 2. 11 0 04 Gair -mumkin Abadi -residence of Mali -Cow, Shed. 3. 12 0 03 Gair -mumkin Abadi Kitchen. 4. 13 0 11 Gair -mumkin Abadi -Kothi. 5. 14 1 04 Gair -mumkin Abadi -Road. 6. 15 0 02 Gair -mumkin tank under actual cultivation. 7. 16 5 11 Orchard. 17 0 04 Gair mumkin Abadi -No residential building -Building Site. 18 0 07 Gair -mumkin Road. 19/1 0 01 Gair.mumkin Tank. 19/2 18 01 Gair -mumkin Open Total .. 32 07 Space -with 571 trees planted by the predecessor -in -in -terest of the respondent. The final outcome on the ascertainment of the net result reveals that different portions of the suit land, which totally admeasures 32 Bighas 7 Biswas, are put to distinct uses and/or occupied for various purposes as follows : -Not approved for reporting. Sr. No. Area Bigha(s) Biswa(s) Purpose of occupation/actual user. 1. 5 5 16 (nearly l/3rd of the suit 11 land) Ghasni Orchard Total 11 07 2. 18 01 (more than 1/2 of the suit land) Open land with planted trees. 3. 0 02 Land under actual cultivation. 4. 0 18 Land with super structures -Kothi, Kitchen, Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inition [Section 2 (5) (a)]. It would thus appear that the decision of the learned Single Judge that the suit land (excepting Khasra No. 19/1 admeasuring 1 Biswa) was land within the meaning of the Act, is on the whole unexceptionable. 27. The question may be examined from another angle. Under Section 11 (1) of the Act, a tenant is entitled to acquire the right, title and interest of the landowner in the land of the tenancy held by him under the landowner. The right conferred by Section 11(1) of the Act is thus exercisable in respect of the land of the tenancy held by a tenant. The two material words land and tenancy have both been defined. The true meaning and content of the definition of the term land has been examined at length and the question whether the suit land comprising several Khasra Lumbers is land within the meaning of the definition has been determined on the bans of evidence pertaining to the actual user of each Khasra number on the material date However, having regard to the fact that in Section 11 (1) of the Act, the word land - occurs in conjunction with the words of the tenancy held by a tenant, it would be more appropriate to determine the, r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m which is actually used for the stated purpose and to reject the claim qua that small portion which is incidentally used for ancillary or even alien purposes. Approaching the case in hand from that view point, it is manifest that a predominant or substantial portion of the suit land (29 Bighas 10 Biswas out of 32 Bighas 7 Biswas) is actually occupied for the purposes mentioned in Section 2 (5), Since predominant or substantial portion of land consists of Ghasni, Orchard, open land with planted trees and land under actual cultivation, incidental or ancillary use of a small portion of such land for the purpose of residence, road, Mali quarters and Cow -shed, etc cannot defeat the claim of the respondent to the conferment of proprietary rights in respect of whole of the suit land. The decision of the learned Single Judge, therefore, is eminently correct even if it is examined from this different angle. In fact, on the aforesaid reasoning, the respondent ought to have been held entitled to the con -fernment of proprietary rights even in respect of Khasra No. 19/1 and, to that extent, the learned Single Judges decision may be regarded as not being in conformity with law. There being no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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