TaxTMI 
TaxTMI 
1984 (7) TMI 398
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....ing under Section 11 of the Act (Case No. 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 th....
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....the house on Khasra No, 13, and Khasra No. 13 is situate outside 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 lan....
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....g of land and buildings or as "The Bower Estate". 11. On the strength of these documents, the learned 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 oppo....
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.... Act, which relates to irregular transfer of the right of tenancy, reads as follows : "68. Any transfer of the interest 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....
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....in accordance with the law for the time being in force, or a periodical record in accordance with the provisions of Chapter IV of the said Act and 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 app....
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....culture and is not situate in a town or village would ordinarily be "land". Besides this, the definition enlarges its scope by including in it pastures, sites of buildings and other structures on such land, 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 cert....
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....ar land and private forest are not governed by any qualification..................... The first part has a special reference to those lands which are occupied or have been letfor agricultural purpose or for purposes subservient to agriculture or for pasture. This part of the definition excludes from its operation the site of any building in a town or village. But it covers within its 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 A....
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....on except that the different items mentioned in the inclusive clause are independent of each other and do not carry with them the qualifications mentioned in the main clause of the definition." In the aforesaid view of the matter, the Division Bench rejected the interpretation canvassed, namely, the inclusive clause is controlled by the main part of the definition. 21. Be it stated that though the last paragraph in the extracted portion of the decision is widely worded and that cursorily 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"....
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....of Koti in favour of the done, describes the suit property as the "Bower Estate" comprising one residential house and land admeasuring 33 Bhghas 15 Biswas and speaks of its "transfer" in consideration of payment of annual ground rent. There is also a reference in the patta to the trees standing on the suit property which were not to be cut down or removed without sanction and without payment of fair cost. The patta again is silent about the purpose of letting and makes no mention regarding the actual user of the land on the day on which it was granted. The conveyance, Ex. A -l, in favour of the respondent 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 th....
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.... interspersed with small and big paths and a small orchard. The learned Single Judge has recorded a clear finding with regard to the situation of the suit land and, accordingly, the whole of the suit land is situate outside the limits of village chharabra. 25. Against the aforesaid background we proceed to set out the material findings recorded by the learned Single Judge with regard to each khasra number comprising the suit land. 1* * * * * 26. The foregoing summary of the findings recorded by the learned Single Judge in respect of each piece or parcel of land comprised in a separate Khasra number yields the following net result ; S. No. Khasra No. Area Bigha(s) 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 To....
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....h the super -structures and compound exist is surrounded by land which is occupied for agricultural purposes. The size of Kothi is a matter of no consequence because, in fact, it is found to have been used by the respondent for her residence. The land occupied by road leading to the Kothi and to the orchard as well as to the surrounding land must apparently be regarded as having been occupied for agricultural purposes or for purposes subservient to agriculture and it has been right held so. For the self -same reasons, the portion of the suit land covered by building site has also been rightly found to be falling within the inclusive part of the definition [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 exerci....
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....t thereof is not occupied as the site of any building in a town or village and is occupied for agricultural purposes, or for purposes subservient thereto, or for pasture, or for any of the purposes set out in the inclusive part of the definition, the land would be regarded as one to which the provisions of Section 11(1) of the Act are applicable. Even if a small portion of such land is found to have been used by the tenant incidentally for an ancillary or even for an alien purpose, his entitlement to claim proprietary rights in respect of whole land is not thereby affected and it would not be proper or permissible to dissect the tenancy and to confine the conferment of prophet any rights to that portion of the land of the tenancy held by him 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 co....