BESRU Vs. SHIBU

JUDGEMENT

(1.) The Appellant is the Plaintiff whereas the Respondent is the Defendant and they will be referred to as such in this judgment. It is not in dispute that one Duglu was the owner of the land in dispute and after his death the Plaintiff as his sister became the owner by way of inheritance. The land in dispute has been with the Defendant as a tenant from the life time of Duglu. The ownership of the Plaintiff and tenancy of the Defendant was also entered in the revenue record as is clear from the Jamabandi for the year 1977-78, Ex. P-3. After the coming into force of the H.P. Tenancy and Land Reforms Act (hereinafter called 'the Act'), proprietary rights were conferred upon the Defendant vide mutation dated 5.12.1980. When on the basis of this mutation, the Defendant refused to pay Galla Batai in April 1986 to the Plaintiff, she was compelled to file the present suit seeking declaration that this mutation is void ab initio for the reasons that it was attested at her back without giving to her an opportunity to show that during her life time proprietary rights could not be conferred upon the Defendant as she was a widow, as provided under Sub-section (8) of Section 104 of the Act.

(2.) The Defendant resisted the suit and took a number of preliminary objections including that the Civil Court has no jurisdiction and the suit of the Plaintiff was barred by limitation. On merits, the case of the Defendant was that the Plaintiff is not the widow ass after the death of her former husband, namely, Bhinku, she has married on Gurkha namely Babu Ram. The Defendant had also put up the defence that at the time when the Act came into operation, Duglu was the owner and the conferment of proprietary rights was automatic on him and attestation of mutation in favour of the Plaintiff on a later date would not adversely affect his rights.

(3.) On the pleadings of the parties, the following issues were framed: