PURAN CHAND Vs. GOBIND RAM

JUDGEMENT

(1.) The Divisional Commissioner, Dharamshala has recommended this case for interference in revision The facts of the case and the recommendation of the learned Divisional Commissioner are as under: "that the present respondents had filed a suit for recovery of arrears of rent in the court of the Tehsildar (A. C. IInd Grade) Kangra vide suit No. 3 of 1980 -81 titled Gobind Ram etc. v. Puran Chand and a decree for Rs. 114.06 with cost of Rs. 2\75 total Rs. 136.81 was passed on 17 -2 -1982. Since this decree was not satisfied, the respondents filed an application under sections 34, 38 read with section 57 (1) first group clause (d) of H. P. Tenancy and Land Reforms Act, 1972 for ejectment of the present petitioner/tenant from the land bearing Khata No. 75, Khatauni No. 210, Khasra numbers 178, 179, 194, 196 area measuring 0 -90 -94 hects. to the extent of l/3rd share measuring 0 -30 -31 hects. situated in Mohal Bhati, Mauzi Rajol, Tehsil and Distt. Kangra. The petitioner tenant was required by the A. C. 1st Grade Kangra to deposit the arrears of rent already decreed within ten days vide his order dated 20 -10 -83 from the receipt of the notice. However, the rent was not deposited till 11 -1 -84 when order of ejectment was passed by the A. C, 1st Grade Kangra. Aggrieved of this order? the petitioner filed an appeal before the Collector, Dharamshala who after hearing the parties dismissed the same vide his order dated 12 -12 -85. It is against this order that the present revision petition has been preferred before learned Divisional Commissioner, Kangra Division. Considering the facts of this case and having weighed the arguments of the learned counsel, learned Commissioner has come to the conclusion that both the courts below have mis -interpreted the provisions of law. Section 104 (I) (iii) clearly states that the right, title and interest in the rest of the tenancy land of the landowner, who is entitled to resume land under clauses (i) and (ii) shall vest in the tenant free from all encumbrances with effect from the date to be notified by the State Government in the official Gazette This date is the date on which the H. P. Tenancy and Land Reforms Rules were notified and that is 3 -10 -1975. Even though the date for making application for resumption of land stood prescribed under Rule 21 of the said Rules yet in his opinion, the effect for resumption even though the applications were decided later has got to be given with effect from 3 -10 -1975 the date of notification as provided under section mentioned above."

(2.) I have heard the parties and perused the Court record. The case of the petitioner/tenant is that he was ordered to be ejected from the land Khasra numbers 178, 179, 194, 196 area measuring 0 -90 -94 Hects. to the extent of 1/3 share measuring 0 -30 -31 Hects. in Mohal Batti Mauza Rajol, Tehsil and District Kangra in pursuance of a decree passed by the Assistant Collectorjst. Grade. I find from the record that on the one hand that the respondents land -owner had filed application for resumption regarding his land under tenancy and on the other hand he has sued the petitioner/tenant for non -payment of rent in the year 1980 -81 and the Revenue Courts bslow decreed the suit and ordered the ejectment of the petitioner/tenant under the provisions of H> P. Tenancy and Land Reforms Act, 1972 without having regard to the resumption application Under the H. P. Tenancy and Laud Reforms Act, 1972 all right, title and interest (including a contingent interest if any) of a land -owner other than land -owner entitled to resume land shall, stand extinguish and all such right, title and interest shall vest in the tenant free from all encumbrances w, e. f. 3 -10 -1975, bat in the instant case the land -owner had already moved the Revenue Officer for resumption of land under section 104 (1) of the Act ibid, therefore, in this case the land -owner is entitled to take back land from the tiller (petitioner/tenant) by way of resumption to the extent by which his holding including land already held by him should not exceed 1 -1/2 acre of irrigated or 3 acres of un -irrigated subject to the condition that a land -owner could not resume from a tenant more than half of a tenancy land. So, this makes the position clear that firstly after the coming into being the H. P. Tenancy and Land Reforms Act, 1972, all non -occupancy tenants had become owner of their tenancy land ipso facto w. e. f. 3 -10 -75, secondly, in cases where the land owner had filed applications for resumption on or before the prescribed date, the right, title and interest of the land -owner in the rest of the tenancy laud shall vest in the tenant free from all encumbrances and these provisions, thus, leads to conclusion that the land -owner could only resume land to the extent contemplated in section 104 (i) (ii) of the H. P. Tenancy and Land Reforms Act, 1972 and he in no case can derive two benefits, one by way of resumption and another by way of ejectment.

(3.) In view of the foregoing discussion, I accept the recommendation of the learned Commissioner, Kangra Division and set -aside the judgment/ orders passed by the Assistant Collector 1st. Grade and Collector Kangra in this case. The possession of the land be restored to the tenant and compliance reported to this court before 28th of February, 1989. In the circumstances of the case, petitioners are entitled to cost which is allowed to Rs. 500. Petition allowed