(1.)M .S.A. No. 8 of 1972 has been referred to a Pull Bench by the then Hon'ble Chief Justice (T. U. Mehta) by an order dated 3rd July, 1979. At the time of hearing, M.S.A. No. 9 of 1972 was also connected with M.S.A. No. 8 of 1972. It is desirable to reproduce the said order:
"In this case, on behalf of the appellant, two point are submitted, namely (1) the original appellant Durga Dart has died pending this M.S.A. and, therefore, according to the decision given by this Court in Chuhatli v. Bratu reported in ILR (1975) Him Pra 579, the application of the tenant under Section 11 has become in fructuous, and (2) the ownership rights in favour of the tenant cannot be granted in view of the fact that one of the co owners Durga Datt was physically incapable. In support of this proposition reliance is placed on the decision given by a Division Bench of this Court in Paras Ram v. Bhuru, reported in ILR (1973) Him Pra 31. I have perused both these decisions and in my opinion both of them require to be reconsidered by a larger Bench. It is, therefore, ordered that both these matters be put before a Full Bench. M. S. A. No. 3 of 1978 and M. S. A. No. 4 of 1'978 be also connected with these matters and put before the Full Bench pursuant to the proceedings made in those cases on 28 2 1978."
(2.)THE facts relevant to M.S.A. No. 8 of 1972 may be stated in brief. The respondent tenant thereinafter to be referred as 'the tenant') filed an application under Section 11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act ('The Act' in short) for the grant of proprietary rights in the land in dispute. The appellant landlord thereinafter to be referred as 'the land owner') opposed the application. Inter alia, it was contended that the landowner was a disabled person, and the income from the land was his only source of livelihood. Issue to this effect was framed by the Compensation Officer, but the proprietary and other rights were granted to the tenant on payment of compensation to the landowner. An appeal was filed on behalf of the landowner, but the same was dismissed by the learned District Judge, on 27 12 71.
Aggrieved by the order and judgment passed by the learned District Judge, the landowner filed an appeal under Section 104 of the Act in this Court, It may be pointed out that the original landowner. Durga Dutt, and the co landowner. Bishan Singh, died during the pendency of the appeal in this Court.
(3.)WE shall deal with the first point first The then Chief: Justice (Mr. Justice T.U. Mehta) has referred to two decisions of this Court which are relevant to the points in issue. The judgment relevant to point No. 1, referred to in the referring order, is Chuhatli v. Bratu (lLR (1975) Him Pra 579). This is a judgment delivered by a Division Bench of this Court. Before we refer to the relevant decisions in this case, it is desirable to reproduce the relevant provision as contained in Section 11' of the Act The same reads as under:
"11. (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 hm under the landowner: Provided that a tenant not having a right of occupancy shall not be entitled to acquire the right, title and Interest of the landowner in the land of the tenancy from which he is liable to ejectment under Clause (d) or Clause (f) or Clause (g) of Sub section (1) of Section 54 (2) Nothing contained in Sub section (1) shall apply to a landlord, if he has no other means of livelihood and is a minor, widow or a person suffering from physical or mental disability incapable of earning his livelihood. In the case of a minor, Sub section (1) shall not apply during his minority and La other cases for his lifetime. (3) The application referred to in Sub section (1) shall be made in writing to the Compensation Officer who shall thereupon determine the amount of compensation payable to the landowner in respect of the land in accordance with the provisions, of Sections 12 and 13. (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 or such instalments of compensation shall be paid on such date or dates as may be fixed by the Compensation Officer in this behalf. (5) The amount of compensation or any instalment thereof shall be deposited by the tenant in a Government treasury and as soon as the compensation or the first instalment thereof has been deposited in the Government treasury, the Compensation Officer shall grant a certificate in the prescribed form declaring the tenant to be the landowner in respect of the land specified in the certificate. (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) An instalment of compensation which is not paid on the date fixed by the Compensation Officer, shall together with interest thereon at the rate of two and half per cent per annum be recoverable as an arrear of land revenue. (8) Where compensation is paid in instalments the unpaid amount of compensation shall be a charge upon the land."
While interpreting the aforesaid provisions, the Division Bench in para 4 of the aforesaid judgment observed as under: "The title of the tenant to acquire is determined by two conditions (1) He must be a tenant of the land respecting which he seeks to acquire the right, title and interest of the landowner, and (2) The bar imposed by Sub section (2) should not exist. It is only if both the conditions co exist that a tenant can successfully maintain an application for acquiring the right, title and interest of the landowner. The two conditions constitute the frame of reference within which alone such application is maintainable. If the tenancy ceases to subsist or if the bar imposed by Sub section (2) comes into operation a tenant's application will not lie and must fail, it will be noted in this context that the tenant's application under Sub section (1) is directed against the right, title and interest of a particular landowner the existing landowner and in the same context the circumstances of that landlord for the purposes of Sub section (2) fall to be considered. In other words, the tenant's application must be tried in a particular set of conditions and circumstances defined by the subsistence of his tenancy in the land in question and the absence of the circumstances enumerated in Sub section (2) peculiar to the then landlord." In para 5 of the judgment, the Court further observed as under: "I am of opinion that the question whether a tenant is entitled to acquire the right, title and interest of the landowner falls to be determined not with reference to the date of his application but with reference to the date on which the proceedings are finally disposed of, whether that be the date of the Compensation Officer's order where no appeal is preferred against it, or on the date when the ultimate appellate order is passed and the application can be said to have been finally disposed of. If during the pendency of the application, whether before the Compensation Officer or in subsequent appeal, the bar imposed by Sub section (2) drops into position and becomes operative by reason of the landlord becoming a widow or a person suffering from physical or mental disability incapable of earning his livelihood or if the landlord ceases to have other means of livelihood, the tenant's application must fail. Likewise, if after the tenant has made his application the existing minor landlord attains majority and has other means of livelihood, there is no reason why the tenant should not be held entitled to acquire the right, title and interest of the landowner in the tenancy land. In all cases it is the situation obtaining on the date of the order disposing of the proceeding finally which determines the question whether the tenant can succeed." Ultimately, in para 6 of the judgment, the following observations were also made: "Another event which can defeat a tenant's application is the death of the existing landowner. The tenant's application having been directed against the right, title and interest of that landowner, and inasmuch as it depends for its success on the co existence of the two conditions already mentioned, the application becomes in fructuous if the landlord dies. The frame of reference in which the application was valid stands dissolved and exists no longer. That is the position in law no matter what the stage at which the application is pending, whether it be the original or the appellate stage."