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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4919 OF 2014 (arising out of SLP (C) No. 3353 of 2009)

TARSEM LAL & ORS.      … APPELLANTS

VERSUS

RAM SARUP & ORS.              … RESPONDENTS

J U D G M E N T  

Sudhansu Jyoti Mukhopadhaya, J.

Leave granted.

2. This appeal is directed against the judgment and decree dated 2nd  

May, 2008 passed by the High Court of Himachal Pradesh, Shimla in  

R.S.A.  No.126 of 1996. By the 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  Himachal  Pradesh  Tenancy  and  Land  Reforms  Act,  1972  

(hereinafter referred to as “the Act”) is applicable to tenancy land and  

not  to  the  ownership  land  owned  by  a  person,  and  therefore,  not  

applicable to the appellants herein. The judgment and decree dated  

21st November, 1995 passed by the learned Additional District Judge (1)  

Dharamshala Camp at Una in Civil  Appeal No.39/92, RBT No.206/94  

were set aside and the suit was dismissed.

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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 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.

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 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 and Land Reforms Act, 1972, the  

property rights of the suit land was conferred on tenants, including the  

original 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  in  Khasra  

No.114R/29  situated  in  village  Basal,  Tehsil  and  District  Una.  The

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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 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.

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  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, assailed the  

judgment  and  decree  dated  29th February,  1992 by  way  of  appeal  

which, after hearing, was dismissed on merits 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

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November,  1995.  The  second  appeal  was  admitted  on  following  

substantial questions of law:

“i) Whether  the  learned  courts  below  mis- appreciated  the  provisions  of  law  applicable   pleadings  of  the  parties  and  the  evidence   adduced by them in the case in  hand correctly   and  thus  the  findings  as  arrived  at  stand   vitiated ?

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

iii) Whether  the  person  held  to  be  owner  in   possession 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. 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 he will have to show his right to irrigate the land from the  

well of the defendants situated on different parcel of land. The plaintiff  

has no right to irrigate the suit land to which he had become owner  

pursuant to agreement.  

9. It  is  not  in  dispute  that  Faqir  Chand,  original  plaintiff,  i.e.,  

predecessor-in-interest  of  the  appellants  was  inducted  as  tenant

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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 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:

“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 water   enjoyed  by  tenant  immediately  before  the   commencement  of  this  Act,  and  a  breach  of  this   provision  shall  constitute  a  cognizable  offence   punishable with fine which may extend to one hundred   rupees shall be triable by a Naya Panchayat competent   to hear criminal cases.”

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  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.

12. Sub-Section (3) of Section 104 reads as under:

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“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)  shall  be  extinguished  and  all  such   rights, title and interest shall with effect from the date   to be notified by the State Government in the Official   Gazette vest in the tenant free from all encumbrances.

Provided  that  if  a  tenancy  is  created  after  the   commencement of  this Act,  the provision of  this sub- 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 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 Official Gazatte  

on 21st 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.

14. The aforesaid fact has been rightly appreciated by the Trial Court  

and 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 of irrigation of the land. In such  

circumstances, it was not open to the High Court to hold that a tenant

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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.

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 Court. The appeal is allowed. No costs.

…………..……………………………………….J.                      (CHANDRAMAULI KR. PRASAD)

………………..………………………………….J. NEW DELHI,             (SUDHANSU JYOTI MUKHOPADHAYA) APRIL 28, 2014.