REPORTABL E

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7179 OF 2001

Madan Kishore                                                                ……Appellant

VERSUS

Major Sudhir Sewal and Ors.                                           …

Respondents

J U D G M E N T

TARUN CHATTERJEE, J

1. This appeal by special leave is directed against the judgment and

decree passed by a learned Judge of the High Court of Himachal

Pradesh in Regular Second Appeal No. 281 of 1988 reversing the

judgment  and  decree  dated  19th of  May,  1988  passed  by  the

Additional  District  Judge,  Nahan  and  the  judgment  and  decree

dated 30th of March, 1985 passed by the Subordinate Judge (First

Class – Paonta Sahib, Dist. Sirmaur), whereby the Second Appeal

filed  by the plaintiffs/respondents  was  allowed and thereby,  the

suit  filed  by  them  was  decreed.  Be  it  mentioned  herein,  the

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original plaintiff died during the pendency of the suit and his heirs

and legal representatives were substituted in his place.  

2. The case made out by the original plaintiff (since deceased) in his

plaint, may be summarized as follows :-

One, Randeep Singh, was the owner of the land measuring 83

bighas, 7 biswas comprising in Khata Nos. 11/38 to 11/41 in village

Amboa, Tehsil  - Paunta Sahib,  Dist.  Sirmaur.   The said land was

under the tenancy of Kundan Singh, Gulab Rai and Jaishi Ram, sons

of Sukh Dayal to the extent of 1/3rd share each.  After the death of

Kundan Singh,  Gulab Rai  and Jaishi  Ram, the tenancy rights were

inherited  by  their  heirs  and  legal  representatives.   Bhanu  Pratap

Singh, son of Kundan Singh, was residing, at the relevant point of

time, in Nigeria, whereas Jagdarshan Lal, son of Gulab Rai, was in

Government  service  in  Uttar  Pradesh.   Accordingly,  the  above-

mentioned  land  was  given  in  management  to  the  defendant

No.1/appellant-Madan Kishore who cultivated the  same for  and on

behalf of all the heirs and legal representatives of the aforementioned

tenants.   Out of the aforesaid land, comprised in Khasra Nos. 102,

104, 208 and 277, as described in the Jamabandi for the year 1974-75,

(hereinafter referred to as the “suit land”) is the land, which is under

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dispute.  After coming into force of the Himachal Pradesh Abolition

of Big Landed Estates and Reforms Act, 1953 (in short the “Act”),

the defendant  No.1/appellant  got  himself  recorded as sub-tenant  in

respect of the suit land and on the basis of such entry in the record of

rights  obtained  proprietary  rights  thereof  on  23rd of  March,  1967.

After obtaining the proprietary rights, some land, out of the suit land,

was  sold  by  the  defendant  No.1/appellant  to  defendant  No.

2/respondent.   Defendant  No.1/appellant  also  created  mortgage  in

respect  of  the  remaining  suit  land  in  favour  of  defendant  No.

3/respondent.  Jagdarshan Lal (since deceased) who was the original

plaintiff in the suit and in his place his heirs and legal representatives

were brought on record came to know about the wrongful entry in the

revenue record in the name of the appellant in 1978. Jagdarshan Lal,

the  original  plaintiff  (since  deceased)  further  pleaded  that  the

defendant No.1/appellant was holding the suit land as a trustee and

licensee on his behalf and could not have acquired proprietary rights

in respect of the suit land under the Act and the sale and mortgage

effected by him in favour of defendant Nos. 2 and 3/respondents was

null  and  void  and  such  transfer  was  not  binding  either  on  the

deceased  plaintiff  or  on  them  being  his  heirs  and  legal

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representatives.  As  noted  herein  earlier,  the  original  plaintiff

Jagdarshal Lal died during the pendency of the suit and the present

respondents in this Court, being his sons, daughters and widow were

substituted in his place. Upon the aforesaid allegations made in the

plaint,  the  original  plaintiff  (since  deceased)  had  filed  a  suit  for

declaration  of  title  and  for  possession  in  respect  of  the  suit  land

against the appellant and others.  

3. The  defendant  No.1/appellant  entered  appearance  and  contested

the  suit  by  filing  a  written  statement  denying  the  material

allegations  made  in  the  plaint.   In  the  written  statement,  the

appellant,  however,  admitted that  the suit  land along with some

other  land  was  originally  under  the  tenancy  of  Kundan  Singh,

Gulab Rai and Jaishi Ram, but he denied the exclusive possession

of Jagdarshan Lal (since deceased), original plaintiff, over the suit

land or that the same was given to him by deceased Jagdarshan Lal

as a trustee or licensee.  It was further averred by the appellant in

his  written  statement  that  Jagdarshan  Lal  was  residing  in  Uttar

Pradesh and he had inducted defendant No.1/appellant as a sub-

tenant in respect of the suit land and that on coming into force of

the Act, he acquired proprietary rights in respect of the same in

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1967.  He also pleaded in his written statement that a part of the

suit  land was sold by him for  consideration  to  defendant  No.2,

while  the  remaining  part  of  the  suit  land  was  mortgaged  by

defendant No.1/appellant to defendant No. 3/respondent.  A plea

of adverse possession was also taken in the written statement by

the appellant.  Accordingly, defendant No. 1/appellant sought for

dismissal of the suit.   

4. Defendant No. 2/respondent, in his written statement, pleaded that

since  he  was  a  bonafide  purchaser  for  value  without  notice,  it

could not be said that he had not acquired right, title and interest

in the suit land.  Plea of limitation and maintainability of suit was

also raised. Accordingly, defendant No.2/respondent also pleaded

dismissal of the suit   

5. So far as the case of the defendant No.3/respondent in his written

statement  was  concerned,  he  had  advanced  loan  to  defendant

No. 1/appellant in respect of the suit land after verification of the

revenue record and the possession of defendant No. 1 at the spot.

According  to  him,  neither  the  plaintiffs/respondents  nor  their

predecessors in interest ever objected to the creation of mortgage

in his favour by defendant      No. 1/appellant and, therefore, he

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was entitled to recover the balance amount of loan by auction of

the  suit  land.   Accordingly,  defendant  No.  3  also  sought  for

dismissal of the suit.  On the pleadings, as mentioned above, the

Trial Court framed the following issues :-

i) Whether defendant No. 1 was in possession of the suit land as IMAMAT DAR, IZZATDAR or TRUSTEE for and on  behalf  of  the  plaintiff  as  alleged.   If  so,  to  what effect?

ii) If Issue No. 1 is proved, whether the plaintiff is entitled to the possession of the suit land covered by Patta?

iii) Whether the  defendant  No.  1 was in  possession  of  the suit  land as a tenant under the plaintiff  and the Patta was granted accordingly?

iv) If issue No. 3 is not proved, whether the defendant No. 1 is in adverse possession of the suit land after the grant of Patta in his favour?

v) Whether suit is within time?

vi) Whether the suit is not maintainable?

vii) Whether the plaintiff is estopped by his act and conduct from filing the present suit?

viii) If Issue No. 3 and 4 are not proved, whether defendant No.  3  is  entitled  to  recover  the  suit  amount  from  the owners of the suit land?

ix) Whether defendant No. 2 is a bonafide purchaser, if so to what effect?”

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6. So far as Issue Nos. (i), (ii) and (v) are concerned, the Trial Court

found  these  issues  against  the  plaintiffs/respondents,  whereas,

Issue     No. (iii) and (vi) were found to be in favour of defendant

No. 1/appellant.   So far  as  Issue  No. (vii)  is  concerned,  it  was

decided against the defendants and Issue Nos. (iv) and (ix) were

held to have become redundant in view of the findings on Issue

Nos. (i) to (iii).  In respect of Issue No. (viii), defendant No. 3 /

respondent  was  held  to  be  entitled  to  recover  the  amount  from

defendant  No.  1/appellant.   Upon  the  aforesaid  issues  being

decided,  the  Trial  Court  dismissed  the  suit  of  the

plaintiffs/respondents, which was affirmed by the Appellate Court

in appeal.   

7. Before us, the learned counsel appearing for the appellant, at the

first instance, submitted that since Kundan Singh, Gulab Rai and

Jaishi  Ram  (since  deceased)  were  admittedly  the  occupancy

tenants  of  the  suit  land  and  on  their  death  the  suit  land  was

inherited by defendant            No. 1/appellant,  Bhanu Pratap,

Anand  Kishore  and  Jugal  Kishore.   He  had  also  drawn  our

attention to the fact that it  was an admitted position that Bhanu

Pratap, son of Kundan Singh was residing in Nigeria since long

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and that  deceased Jagdarshan Lal  was  serving  in  Uttar  Pradesh

and,  therefore,  defendant  No. 1/appellant  used  to  look after  the

suit land on behalf of all the tenants and that being the position, it

cannot be said that the entries in the revenue record in the name of

defendant No.1/appellant could be said to be wrong.  The case put

forward by defendant             No. 1/appellant was that of a sub-

tenancy and alternatively it was contended by the learned counsel

for the defendant No. 1/appellant that since the Patta was granted

in favour of defendant No.1 by the Compensation Officer under

the Act, therefore, he had acquired the proprietary rights over the

suit land and also the title by way of adverse possession.

8. The  submissions  so  put  forward,  as  noted  herein  earlier,  were

contested  by  the  learned  counsel  appearing  on  behalf  of  the

plaintiffs/respondents.  

9. Having heard the learned counsel for the parties appearing before

us and after going through the judgment under appeal as well as

the  judgments  of  the  courts  below and  the  materials  on  record

including  the  oral  and  documentary  evidence,  we  are  not  in  a

position to  upset  the  judgment of the High Court  in the second

appeal  although  the  concurrent  judgments  of  the  courts  below

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were set aside by the High Court in the exercise of its power under

Section 100 of the Code of Civil Procedure.  

10.It is not in dispute that proprietary rights conferred on defendant

No. 1/appellant in respect of the suit land were in terms of Section

27 (4) of the Act.  

11. The first question that needs to be decided is whether a sub-

tenant under the Act is entitled to file an application for conferring

proprietary rights under the Act in respect of the suit land.  To answer

this question, it would be appropriate for us to look into the scheme

of the Act and certain relevant provisions of the same.    

12. Chapter  III  of  the  Act  deals  with  acquisition  of  proprietary

rights by tenants. Section 11 of the Act confers a right only on the

tenant of the land to acquire interest of landowner. Section 11 reads

as under :  

“(1) Notwithstanding any law, custom or contract to the contrary a tenant other than a sub-tenant shall, on application made to the compensation officer at any time after  the  commencement  of  this  Act,  be  entitled  to acquire, on payment of compensation, the right, title and interest of the landowner in the land of the tenancy held by him under the landowner;  

Provided that a tenant not having………………………

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(2)………………..………….

(3)…………………………….

(4) The tenant may pay the amount of compensation as determined  by  the  compensation  officer  under  sub- section (3) either in one lump sum or in such number of instalments not exceeding ten as may be determined by the Compensation Officer during a period not exceeding five years; and such compensation shall be paid on such date  or  dates  as  may  be  fixed  by  the  Compensation Officer in this behalf.

(5)………………………

(6) On and from the date of the grant of the certificate under sub-section (5) the tenant shall become the owner of the land comprised in the tenancy and the right, title and  interest  of  the  landowner  in  the  said  land  shall determine.

(7)……………..

(8)………………….”

13. Section 13 of the Act deals with total compensation payable by

a  tenant.  Now  comes  Section  14  of  the  Act  which  deals  with

acquisition by the tenant of the rights of the landowner in a portion of

the lands of tenancy in certain circumstances.  Section 14 is as under :

“(1) Notwithstanding anything contained in Section 11, a tenant other than a sub-tenant who holds  a tenancy

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exceeding twelve acres in area may at any time after the commencement  of this  Act,  make an application to the Compensation Officer for surrender to the landowner an area equal –

(a) in  the  case  of  occupancy  tenant,  to  one-fourth  of  the  lands  of  the tenancy; and

(b) in other cases, to three-eighths of the lands of the tenancy.

(2) When an application for surrender has been made under sub-section (1) of the Compensation Officer shall demarcate the area surrendered in favour of the landowner from the rest of the lands of the tenancy and deliver possession of the same to the landowner.

(3) Upon such delivery of possession the tenant shall  forthwith become the owner in respect of the rest of the lands of the tenancy and the right,  title  and  interest  of  the  landowner  in  the  said  lands  shall determine.”    

14. On a plain reading and on consideration of the scheme of the

Act, it would be pellucid that it was only the tenant who could make

an  application  under  the  Act  for  acquiring  proprietary  rights  in

respect of the suit land.  In our view, the scheme of the Act and the

aforesaid  relevant  provisions  do  not  indicate  that  any  right  was

conferred  by the  Act  on  the  sub-tenant  to  acquire  any  proprietary

rights  in  respect  of  the suit  land under the Act.   A reading of  the

provisions made in Sections 11 and 14 of the Act would clearly show

that  the  Legislature  has  specifically  excluded  the  sub-tenant  from

making any application for acquiring proprietary rights under the Act

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because by using the expression in Sections  11 and 14 of the Act,

namely, “a tenant other than a sub-tenant”, would clearly mean that

the  sub-tenant  was  specifically  excluded  from  making  such

application before the Compensation Officer.  However, an argument

was advanced by the learned counsel for the appellant for the purpose

of submitting that defendant No. 1/appellant, who was claiming to be

a sub-tenant,  would be entitled to make such application under the

Act before the Compensation Officer in view of the expression used

by the Legislature in Section 27(4) of the Act, namely, “such tenant

who cultivates such land”.  We are not in a position to accept this

submission  of  the learned counsel  for  the  appellant  for  the  simple

reason that a Division Bench of the Himachal Pradesh High Court in

the case of Smt. Dev Lata Vs. Alam etc. [1975 ILR 40], has explained

the  meaning  of  the  expression  used  under  Section  27(4),  namely,

“such tenant who cultivates such land” in a lucid manner, which we

feel appropriate to reproduce hereunder :-

“Why did the statute refer to “such tenant who cultivates such  land”  in  Section  27(4)  when  in  Section  11  and Section 14 it refers to a tenant holding land in tenancy and does describe him by reference to the criterion of cultivation. An analysis of the scheme set out in Section 27  explains  why.  Section  27(2)  contemplates  two categories  of  land,  land  which  is  under  the  personal cultivation of the landowner and land which is not under

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his personal cultivation. To the former Section 27 does not apply. It applies to the latter. It will be noticed that the Statute does not make this test relevant in Section 11 and Section 14. The criterion for applying Section 27 is that the land must not be under the personal cultivation of  the  landowner.  The  right,  title  and  interest  of  the landowner  in  such land vests  in the State Government and is transferred by the State Government to the tenant who cultivates the land. The word “who cultivates such land”  are  descriptive  of  the  tenant,  and  indicate  the tenant who holds  the  land.  Section  27,  as  I  have said before,  refers  to  land which is  not  under the personal cultivation  of  the  landowner  but  is  cultivated  by  the tenant. It is true that when a tenant sub-lets the land to another, it is the sub-tenant who is in actual cultivatory possession. Possession in fact is not with the tenant. But looked at in contradistinction to the landowner it is the tenant who will  be said to cultivate the land when the landowner  cannot  be described as  cultivating  it.  I  am unable  to  hold  that  reference  in  Section  27(4)  was intended  to  a  sub-tenant.  Chapter  III  is  concerned entirely with the transfer of rights from landowners to tenants.”

15. Having considered the discussions made by R.S. Pathak,J. (as

His Lordship then was) as quoted hereinabove, in detail and in depth

and  after  considering  the  scheme  of  the  Act  and  the  relevant

provisions, as discussed herein earlier, we do not find any reason to

differ  with  the  views  expressed  by  His  Lordship  in  the  aforesaid

decision.   Accordingly,  we  are  in  full  agreement  with  the  views

expressed by the High Court that a sub-tenant is not entitled under the

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Act to claim proprietary rights before the Compensation Officer nor a

sub-tenant  would  be  entitled  to  file  any  application  for  such

conferment of the right before him.   

16. There is another aspect of the matter.  The first Court of fact,

on consideration of the evidence, oral and documentary, on record,

came to the conclusion that the defendant No. 1/appellant could not

prove to be a sub-tenant in respect of the suit land.  This finding of

fact was affirmed by the High Court by the impugned judgment in the

second appeal, which cannot be upset until and unless we come to the

conclusion that such finding of fact was perverse or arbitrary.  For

this  purpose,  we  looked  into  the  evidence  and  other  materials  on

record and we are satisfied that the finding of fact arrived at by the

final  Court  of  fact  and  affirmed by the  High  Court  in  the  second

appeal, cannot be interfered with, as we do not find any infirmity for

which we can hold that such findings are perverse or arbitrary.   

17. Therefore, even assuming that a sub-tenant is entitled to make a

claim  before  the  Compensation  Officer  for  acquiring  proprietary

rights in respect of the suit land under the Act, even then, defendant

No.  1/appellant,  not  being  a  sub-tenant,  as  found  by  the  First

Appellate Court and affirmed by the High Court in the second appeal,

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could  not  at  all  apply for  conferment  or  acquisition  of  proprietary

rights in respect of the suit land under the Act.   

18. The next question that needs to be decided is whether the order

conferring  proprietary  rights  on  defendant  no.  1/appellant  by  the

Compensation  Officer  in  respect  of  the  suit  land  was  without

jurisdiction and, therefore, it was a nullity or not.  In our view, the

High Court was perfectly justified in holding that the said order of the

Compensation  Officer  was  without  jurisdiction  and  that  the

Compensation  Officer  was  lacking  jurisdiction  in  holding  that  the

defendant  No.  1/appellant  could  be  conferred  proprietary  rights  in

respect of the suit land under the Act.  While holding that the order of

the  Compensation  Officer  conferring  proprietary  rights  on  the

defendant  no. 1/appellant  was without jurisdiction and,  therefore, a

nullity,  reliance  could  be  straightway placed  on  a  decision  of  this

Court in the case of Ayudh Raj & Ors. vs. Moti S/o Mussadi [AIR

1991 SC 1600], in which the High Court had also placed reliance on

the  impugned  judgment.   In  this  case,  the  same  Act  was  under

consideration.  This Court held in that decision that the order passed

by the Compensation Officer lacked jurisdiction and, therefore, it was

a nullity and no order need be passed by the Civil Court to set aside

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such type of order before seeking declaration of title and possession

of the suit land.  It is not in dispute that if this position is accepted,

the suit filed by the predecessor in interest of the respondents was in

time as the suit was for possession based on title and, therefore, could

be governed by    Article 65 of the Limitation Act.   

19. For  the  reasons  aforesaid,  we  are  in  agreement  with  the

judgment of the High Court holding that the suit was filed within the

period  of  limitation  but  before  we  conclude  on  the  question  of

limitation of the filing of the suit, we may refer to a decision of this

Court in the case of State of Punjab & Ors. vs. Gurdev Singh Ashok

Kumar [AIR 1991 SC 2219] as the same was relied on by the learned

counsel  for  the  appellant  to  show  that  the  suit  was  barred  by

limitation.   

20. In our  view,  that  decision  is  not  applicable  to  the  facts  and

circumstances of the present case. That suit was filed for declaration

that  the  dismissal  of  the  respondent  was  wrongful  or  ultra  vires.

While  dealing  with  this  fact,  this  Court  in  para  8  observed  as

follows:-

“It  will  be  clear  from  these  principles,  the  party aggrieved  by  the  invalidity  of  the  order  has  to approach the Court for relief of declaration that the

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order  against  him  is  inoperative  and  not  binding upon  him.  He must  approach  the  Court  within  the prescribed period of limitation. If the statutory time limit  expires  the  Court  cannot  give  the  declaration sought for.”

21. In view of our findings arrived at herein earlier that the order

passed by the Compensation Officer was a nullity and nonest in the

eyes of law and, therefore, without jurisdiction, we do not think that

this decision could be applied in the facts and circumstances as stated

herein  earlier.   So  far  as  the  other  two  decisions,  namely,

T.Vijendradas  & Anr.  vs. M.Subramanian & Ors. [2007 (8) SCC

751] and A.V.Papayya Sastry & Ors. vs. Govt. of A.P. & Ors. [2007

(4) SCC 221] are concerned, we do not think that these decisions can

have any application  to  the  facts  and circumstances  of  the  present

case. There is no quarrel about the proposition that if there was any

case  of  fraud,  the  question  for  setting  aside  the  order  which  was

passed on fraud either on the court or on the party could not arise at

all. Accordingly, the aforesaid two decisions cannot come in the aid

to decide the present controversy raised before us.   

22. So  far  as  the  case  of  bona  fide  purchase  for  value  without

notice as made out by defendant no.1/appellant is concerned, there is

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no  infirmity  in  the  finding  of  the  High  Court  that  defendant

no.2/respondent  could  not  be  said to  be  a  bona fide  purchaser  for

value  without  notice  and,  therefore,  the  sale  made  by  defendant

no.1/appellant in favour of defendant         No. 2/respondent was not

binding on the plaintiffs/respondents.  So far as the case of defendant

no.3 is concerned, we are in agreement with the findings of the High

Court  holding  that  a  case  of  mortgage  as  pleaded  by  defendant

no.3/respondent could not be accepted in the absence of any finding

to that effect.

23. For the reasons aforesaid, we are of the view that the appeal

has no merit and accordingly it is dismissed without any order as to

costs.

                                                                                 …………………… ….J.

                                                     [Tarun Chatterjee]

New Delhi                                                      ……………………….J.

September 02, 2008                                                [Harjit Singh Bedi]

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