TARSEM LAL & ORS.versusRAM SARUP & ORS.

                       [2014] 8 S.C.R. 701


                      TARSEM LAL & ORS:                                    A
                                  v.
                      RAM SARUP & ORS ..
                (Civil Appeal N(). 4919 of 2014) ·
                          APRIL 28, ·2014                                  ·s
                                            '    <"' :-·
          [CHANDRAMAULI KR. PRASAD.~ ..
        SUDHANSU JYOTI M~~HQPl\O~~Y.c&kl~A

   H/MACHAL. PRADESH 'fEN~i;;i AND LAND
REFORMS ACT, 1972:  .   . ' . .                                            C

     s.36 rlw s.104(3) - Tenant's:ngbt,to,.Wfit{;t'..::0Teriant~joying
right to water immediately prior· to. ~riforcem8rJt        o( ·the Act -
Subsequent to lease deed, by virlue·.of.s.104(3) proprietary
rights conferred upon tenant - Held: !n, terms_ of          s.  104 (3),    0
plaintiff-tenant became owner of suit land by operation of Jaw
and continued to enjoy all the rights including right of irrigation
from the common source which was in posses_sion of original
landlord -- In view of provisions of s. 36; landlord shall not be
competent to curtail or terminate the supply of canal, ~uh/ or              E
use of well water enjoyed by a tenant immediately before
commencement of the Act; and breach of the· said.provision
shall constitute a cognizable offence punishable-ttrlder the law.

     The instant appeal filed by the heirs and legal
representatives of the original plaintiff-tenant arose out                  F
of the claim of the tenant, who under the lease deed, had
right of irrigation from a common source in the form of
well situated on the land belonging to the landlord, to the
said right of irrigation after he was conferred proprietary
rights over the suit land on coming into force of the H.P.                  G
Tenancy and Land Reforms Act, 1972.

     Allowing the appeal the Court

                                 701                                        H
    702     SUPREME COURT REPORTS                [2014] 8 S.C.R.


A      HELD: 1.1. The provisions of s. 36 of the Himachal
  Pradesh Tenancy and Land Reforms Act, 1972, 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·
B commencement of the Act and breach of the said
  provision shall constitute a cognizable offence punishable
  under the law. In the instant case, the original plaintiff, i.e.,
  predecessor-in-interest of the appellants, was inducted as
  tenant pursuant to a registered deed dated 23.8.1968
c executed by the land owner, with a right of irrigation from
  common source in the form of well situated on the land
  belonging to land owner. In view of s. 36, after enactment
  of law, the original plaintiff has a right to water to which
  he was entitled prior to the proclamation of the Act. [para
D 9 and 11] [705-G-H; 706-D, E]
       1.2. In terms of s. 104 (3), 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
E landlord. This has been rightly appreciated by the trial
  court '1nd the first appellate court which 'has also noticed
  that the mutation in respect of the land recorded in the
  revenue recCIJ'd of 25.4.1982 is clearly showing the well
  as source of irrigation of the land. Therefore, it was not
F open to the High Court to hold that a tenant on being ,
  land owner ceases to hold his right to water which he ·
  was enjoying prior to the Act. The High Court has failed .
  to appreciate s. 36 of the Act and erred in holding that s.
  36 is applicable to tenancy land and not to the land
G owned. The judgment and decree passed by the High
  Court is set aside and that passed by the trial court as
  confirmed by the first appellate court is affirmed. [para 13-
  15] [707 -C-G]

H
             TARSEM LAL v. RAM SARUP..                        703


    CIVIL APPELLATE JURISDICTION : Civil Appeal No. A
4919 of 2014.

    From the Judment and Order dated 02.05.2008 of the High
Court of Himachal Pradesh at Shimla in RS.A. No. 126 of 1996.

    Ravi Bakshi, Yash Pal Dhingra for the Appellants.                B

    Nitin Sangra, Gaurav Agrawal for the Respondents.

    The Judgment of the Court was delivered by

     SUDHANSU JYOTI MUKHOPADHAYA, J. 1. Leave C
·granted.

     2. This appeal is directed against the judgment and
decree dated 2nd May, 2008 passed by the High ~ourt of
Himachal Pradesh, Shimla in RS.A. No.126 of 1996. By the D
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 Himacha~I Pradesh Tenancy and Land Reforms Act, 1972
(hereinafter ;·eferred to as "the Act") is applicable to tenancy E
land and not to the ownership land owned by a person, and
therefore, not applicable to the appellants herein. The judgment
and decree rtated 21st November, 1995 passed by the learned
Additional L.strict Judge (1) Dharamshala Camp at Una in Civil
Appeal No.39/92, RBT No.206/94 were set aside and the suit F
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 G
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.                       H
    704     SUPREME COURT REPORTS                    [2014) 8 S.C.R.


A       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
B 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
c and Land Reforms Act, 1972, the property rights of the suit land
  was conferred on tenants, including the origin.al 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
D 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
E 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.
F
        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
G 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,
H assailed the judgment and decree dated 29th February, ·1992
             TARSEM LAL v. RAM. SARUP                             705
         [SUDHANSU JYOTI MUKHOPADHAYA, J.]

by way of appeal which, after hearing, was dismissed on merits            A
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:                                                                   B

     "(i)Whether the teamed courts below mis-appreciated the
     provisions of /aw~pplicable p/eddings of the parties and
     the evidence adduced by them in the case in hand
     correct/yand thus the findings as arrived at stand vitiated          C
     ?

     (ii)Whether suit for permanent injunction is maintainable
     against the true owner ?

     (iii)Whether the person held to be owner in possession               o
     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.        E
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                F
he will have to show his right to irrigate the land from the well
of the defendants situated on differ.ent parcel of land. The
plaintiff has no right to irrigate the suit land to which he had
become owner pursuant to agreement.
                                                                          G
    9. It is not1n 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
                                                                          H
    706       SUPREME COURT REPORTS                    [2014] 8 S.C.R.


A   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:
B         "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 waterenjoyed by tenant immediately
          before the commencement of this Act, and a breach of
c         this provision shall constitute a cognizable offence
          punishable· with fine which may extenq to one hundred
          rupees shall be triable by a Naya Panchayat competent
          to hear criminal cases."

0      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
E 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.

F         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)
G         shall be extinguished and all such rights,· title and interf!st
          shall with effect from the date to be notified by the State
          Government in the OfficialGazette vest in the tenant free
          from all encumbrances.

          Provided that if a tenancy is created after the
H
           TARSEM LAL v. RAM SARUP                            707
       [SUDHANSU JYOTI MUKHOPADHAYA, J.]
    commencement of this Act, the provision of this. sub-             A
    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   8
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 bfficial Gazatte on 21st     C
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.
                                                                      D
      14. The aforesaid faCt ha.s been rightly appreciated by the
Trial Court ana 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
pf irrigation of the land. In such circun:istances, it was not open·· E
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.                                            F

     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
Cour;t. The appeal is allowed. No costs.                              G

Rajen~ra Prasad                                     Appeal allowed.