hardeep kaur gandhi and others v. ajit lajwanti gujral trust and others

Sureshwar Thakur, J. - This Court, upon, allowing Civil Revision No. 7 of 2015, as stood, earlier instituted before this Court, by the Judgment debtors, hence, made an order of remand, vis-a-vis, the learned executing Court, for enabling the latter to make, a, pronouncement, vis-a-vis, the objection(s) raised by the judgment debtors qua the conclusively drawn decrees, of, possession, rather being void, (i) given the decree holders/trust, in contemporaneity, vis-a-vis, the registration, of the Trust, rather infracting the mandate, enshrined in Section 118, of, the Himachal Pradesh Tenancy and Land Reform Act, (ii) wherein also any alienation of land, vis-a-vis, any non agriculturist, inclusive of, a, trust stands rather prohibited. In pursuance to the order of remand, made by this Court, the executing court, has made, the impugned orders, and, has thereupon proceeded to dismiss, the objections, of the judgment debtors/petitioners herein, and, has in making the afore order of dismissal, hence, assigned the hereinafter extracted reasons, borne in paragraphs No. 26 to 32, of, the impugned order:-

"26. The next objection, which is raised by the learned counsel for the objectors that trust is having identity of nonagriculturist and the transfer of land/property on the name of Trust is clearcut violation of Section 118 of the HP Land Reform Act .

27. It is worth mentioning that while the objector filed civil suit No.38-S/1 of 1995/81 has not obtained leave of the court under Section 92 of the Code of Civil Procedure. It is statutory duty of the Court to examine whether the plaint is accompanied by an application under Section 92 of the CPC. How they can raise the plea that transfer of suit property on the name of Trust is barred by Section 118 of HP Land Reform Act.

28. It is worth mentioning that Trust is created under Trust Act, 1882, which is Central Act and the HP Tenancy Land Reforms Act is State Act. If there is any ambiguity then Central Act will prevail. There is nothing on the record to show that Trust is having entity of non-agriculturist. In the case in hand, the execution is pertaining to part of Kothi, which is a suit property. The provisions contained under Section 118 of HP Land Reforms Act are not applicable to residential building. Moreover, Trust is created for religious purposes and the person who has donated the land is also Himachali, because he inherited the property from Smt. Lajwanti, prior to coming into force Section 118 of HP Land Reforms Act. Moreover, the Will of Lajwanti never remained in dispute in the present litigation. Therefore, the objectors are precluded from taking this plea.

29. Apart from this, the plea of Section 118 cannot be raised before civil court as it is the sole duty of the Collector to make inquiry whether there is violation of Section 118, the record show that they moved an application tot he Land Reform Officer, the photo-state copy of which is placed on record, but no order of Land Reforms Officer/Collector is placed on record what any action he has ever been taken over their application.

30. So far as the reliance placed by the objector on the law laid down by our Hon'ble High Court in case Bharat Complex Loharin Vs. Government of H.P.,2012 3 HimLR 1475 (DB) is concerned, with due respect the fact sof the present case are completely different. The plea of applicant of Section 118 was also taken in the written statement. The same was decided against the objectors in the main suit. Moreover, the Trust has been created for the religious purpose and Reckdene estate building is devoted for religious purpose. Whereas, in Bharat Complex Loharian's case society was created with a view to advance education and there was no building, however, agricultural land was involved. But in the case in hand, the facts are completely different and the law laid down by the Hon'ble High Court in Bharat Compex Loharin's case supra are not applicable in the facts and circumstances of the case.

31. It has been contended by the learned counsel for the objectors that there was embezzlement of stamp duty while transferring the suit land on the name of Trust. Admittedly, the objectors have moved an application to Registrar-cumDeputy Commissioner under Indian Registration Act for cancellation of trust deed and transfer of property. The Registrar vide order dated 22.05.2015 EX. OW3/D observed as under:-

"Therefore, in view of the above facts, it is clear that the General Assistant to Deputy Commissioner, Shimla had the power of SubRegistrar at the relevant time and thus was empowered to register the trust deed therefore, the plea of the applicants that the General Assistant to Deputy Commissioner, Shimla had no power of Registrar or Sub Registrar at that relevant time is contrary to the facts. Therefor,e the Trust Deed in question registered under Registration No.348 dated 5.7.1982 is proved to be registered by the competent authority. The land comprised in Khasra No. 660, 661, 662, 663, 664, 666, 667, 674/1 and 703, measuring 2-17 bighas mentioned at serial No.4 of the Schedule-A of the Trust Deed is still a Government land and that part of the Trust Deed has neither been mutated in favour of the trust nor it has been transferred to the trust in any manner which is clear from the report dated 30th October, 2009 submitted by the Sub-Registrar, Shimla (Rural). As regards the rest of property as mentioned in the Schedule-A of the Trust Deed, there is no dispute with regard to these properties in the present application. Therefore, the present application is rejected being devoid of merit. Copies of this order to be sent to the parties concerned and file be consigned to the record room."

32.In view of order Ex.OW3/D, it cannot be said that registration of trust deed has not been done in acocrdance with law."

The judgment debtors being aggrieved therefrom, hence has cast a challenge, upon, the merit of the afore assigned reasons, hence by the executing court, wherethrough, it dismissed their objections, vis-a-vis, the execution petition, as stands preferred therebefore, by the decree holders/respondents.

2. The vigour of the afore contention, raised before this court by the learned counsel, appearing for the petitioners/JDs, is, founded, (i) upon the factum, qua the statutory bar contemplated in Section 118, of, the Himachal Pradesh Tenancy and Land Reform Act, wherethrough, a prohibition, is, cast against alienation of lands/buildings, as, occur, in contemporaneity, vis-a-vis, the registration of the Trust, (ii) and, also he submits that with the Trust not being an agriculturist, (iii) thereupon, the sway of the afore prohibition, as, contemplated in Section 118, of, the Himachal Pradesh Tenancy and Land Reform Act, also taking within its domain, the, Trust/decree holder, (IV) and, therefrom he contends, that, any order of THE Collector, borne in Ex.OW3/D, wherethrough, he hence validated the registration, of, the apposite Trust, being not construable, to also take rather within its ambit, the mandate of Section 118 of Himachal Pradesh Tenancy and Land Reform Act, (v) given the jurisdiction exercised, by the Registering Officer, under the Registration Act, being distinct, from, the proceedings, drawn, under the Himachal Pradesh Tenancy, and, Land Reform Act, (vi) and, when, the, Collector concerned, has not drawn apt proceedings, under, the Himachal Pradesh Tenancy and Land Reform Act, vis-a-vis, the decree holder trust, nor has on culmination, thereof, hence, disaffirmed, the, attraction, vis-a-vis, it, the prohibition of the mandate, as, encapsulated in Section 118 of the Himachal Pradesh Tenancy and Land Reform Act, (vii) thereupon, no merit being assignable, for the afore purpose, vis-a-vis, Ex.OW3/D, an order made by the Registering Officer concerned, hence, accepting the validity of the registration, of, the apposite Trust Deed. However, the afore submission cannot be accepted. (a) As a perusal of the written statement, instituted to the plaint, by the judgment debtors, rather unfolds qua his making the afore espousal also therein, (b) and, when the lis has travelled, upto, the Hon'ble Apex Court, and, the afore contention, has been thereupto, hence dwelt upon, (c) and, thereupon, now the Jds/petitioners, cannot hence proceed, to, on, the, afore anvil, make any contention, before this Court, for, nullifying therethrough, the conclusive, and, binding verdicts recorded, upon, the apposite civil suit, under, the purported pretext, vis-a-vis, the decree holder trust, though, attracting the bar of Section 118, of, the Himachal Pradesh Tenancy and Land Reform Act, hence it being interdicted to make any valid strivings, to, execute the apposite conclusive, and, binding decrees, (d) conspicuously, on anvil of hence, the binding and conclusive verdicts, being purportedly ingrained with any purported vices, of , voidness or being nonest, vices whereof, rather ensuing from, no, valid right, title or interest rather inhering in the decree holder trust, for hence it instituting a suit, for, therethrough, it, obviously hence obtaining, the, apposite verdicts or decrees.

3. Even otherwise, a perusal, of, the application, for, execution of the decree, instituted, before the learned executing Court, reveals, qua the decree holders rather espousing for coercive execution, of, decree of possession, visa-vis, the property detailed in Schedule-I.

4. The property occurring in schedule-I, appended with the execution petition, is, a built up property. However, the learned counsel for the JDs, has contended, with much vigour before this Court, (i) that with sub-section (vii) to Section 2, of, the Himachal Pradesh Tenancy, and, Land Reform Act, while defining "land", though, has assigned thereto, a, signification qua it, not including the site of any building occurring in a town or village, and, being occupied, and, has been let for agricultural purposes, or for purposes subservient to agriculture, or for pasture, (ii) yet when it brings, within the ambit of "land", any building hence occurring in, a, town or village, evidently let out, for agricultural purposes or for purposes subservient, to, agriculture or for pasture, thereupon, when the building mentioned, in Schedule-I, appended with the apposite execution petition, is let out, for agricultural purposes or for purposes subservient, to agriculture, (iii) thereupon, with the decree holder trust, being a non agriculturist, and, it attracting, the, prohibitive clout of Section 118, of the Himachal Pradesh Tenancy and Land Reform Act, , (iv ) and, besides when the building, is let out for agricultural purposes or for purposes subservient to agriculture, (v) thereupon, the operation of the prohibitive clout, is sweeping, and, hence disrobes, the decree holder trust hence to seek issuance, of, coercive processes, for, ensuring therethrough, delivery, of, physical possession thereof rather qua it.

5. However, the afore submission, made before, this Court by the learned counsel for the petitioners/JDs is rejected, (a) for the reason, that, yet any minimal/slightest iota, of, merit therein, being also fully obliterated hence for want(s) of any evidence, vis-a-vis, since the creation of the trust, the, "building" being ever and upto now, being ever let out for agricultural purposes or it being let out, for purposes subservient to agriculture. Consequently, for wants of evidence qua the afore facet, thereupon, the ingredients borne, in Section 2(vii) of the Himachal Pradesh Tenancy and Land Reform Act, hence, cannot be concluded, to, rather beget satiation, (b) and, or it can be concluded that "Kothi" or "building", stands included within the statutory definition, of, land nor it can be concluded, that the afore prohibitive clout, is, in the least manner attracted, vis-a-vis, the afore suit property.

6. For the foregoing reasons, there is no merit in the instant petition, and, it is dismissed. In sequel, the impugned order is affirmed and maintained. The parties are directed to appear before the learned executing Court, on 21st August, 2019. The learned executing Court is directed to forthwith, in accordance with law, put to coercive execution, the decree. All pending applications also stand disposed of. Records be sent back forthwith.