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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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