Punjab-Haryana High Court
Balwant Singh & Others vs Harnam Singh on 9 February, 2012
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
RSA No.1940 of 2011 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
RSA No.1940 of 2011(O & M)
Date of decision:09.02.2012
Balwant Singh & others ......Appellants
Vs
Harnam Singh ......Respondent
CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA
Present: Mr.M.S.Dhami, Advocate, for the appellants.
G.S.SANDHAWALIA J.(ORAL)
1. The present appeal has been filed by the plaintiff who is aggrieved against the judgment and decree of the lower appellate Court dated 08.02.2011 whereby the lower appellate Court, while partly allowing the appeal, has held that the suit was not maintainable and the remedy available to the plaintiff was to file a suit for ejectment before the competent Court as per the provisions of law as the plaintiff himself has taken the plea that the defendant was inducted as a tenant who used to pay chakota to the plaintiff.
2. The plaintiff filed the suit for possession of land measuring 4 marlas after removing the superstructures and for permanent injunction restraining defendant No.1 from encroaching the suit land measuring 6 marlas comprising in khewat No.1823 khatoni No.2025 khasra No.66R//5/3/1 min(0-6) in Village Miani Tehsil Dasuya, District Hoshiarpur by raising the construction on the same. The allegation in the plaint was that the plaintiff along with defendants No.2 & 3 are owners of the suit property measuring 4 marlas bearing khasra No.66//5/3/1(0-4) and defendant No.1 was occupying the suit land as tenant but from the last one year, he had not paid any rent and thus, had become trespasser and defendants No.2 & 3 were performa respondents and joint owners and were RSA No.1940 of 2011 2 not available at the time of filing of the suit. The plaintiff made several requests to the defendant not to interfere and encroach the suit land but to no effect. Resultantly, the present suit was filed.
3. The suit was contested on various grounds that it was time barred and the plaintiff was estopped by his own conduct and once the defendants were in possession since for the last more than 18 years and had raised construction, their status as tenant was also denied and the plea of adverse possession was raised. It was also alleged that the defendants were in possession of the property of the Punjab Wakf Board. Counsel for the defendants had made a statement dated 18.01.2011 that the relief of permanent injunction may be granted to the plaintiff and it was noticed that the plaintiff along with defendants No.2 & 3 were joint owners of the suit property bearing khasra No.66//5/3/1 min(0-6), and accordingly, the defendants were restrained from interfering in the peaceful possession and in the construction of the suit property.
4. The trial Court, while examining the khasra girdhawaris (Exhibit D2 & D6) and the jamabandi (Exhibit D1), came to the conclusion that the defendants were in possession of the suit land since for more than 18 years and the permissive possession could not be converted to adverse possession and since the property was agricultural in nature, the plaintiff had a remedy to file an ejectment petition but since there was a dispute regarding ownership, therefore issues No.1 and 5 regarding the relief of possession was granted in favour of the plaintiff, and accordingly, the suit was decreed vide judgment and decree dated 19.01.2010.
5. The defendants carried the matter in appeal before the lower appellate Court which came to the conclusion that the plaintiff himself had RSA No.1940 of 2011 3 come to the Court with the averment that the defendants were tenants, and therefore, the remedy available to the plaintiff was to file a suit for ejectment before competent authority as per the provisions of law. The fact that the plaintiff and defendants No.2 & 3 were owners of the suit land was proved from the revenue records, and accordingly, it was held that the plaintiff was not entitled to the relief of possession of the suit land and the suit of the plaintiff for possession of 4 marlas was dismissed but the injunction continued. The defendants were restrained from raising construction in the suit property. Resultantly, the present regular second appeal has been filed.
6. Counsel for the appellant, Mr.M.S.Dhami has vehemently contended that the lower appellate Court was not justified once the defendants had been denying the title, and therefore, the Addl.District Judge, Hoshiarpur was in error in reversing the finding and holding that the suit for possession was not maintainable. Submission of the counsel for the appellant is sans any merit because admittedly, the case of the plaintiff himself is that defendant No.1 is a tenant and is not paying rent for the last one year, and therefore, had become trespasser in the suit property. Once the grouse was regarding the non-payment of rent and there was an admission on behalf of the plaintiff himself, then the appropriate remedy for seeking ejectment was the revenue Court and not the civil Court. The dispute regarding title was never earlier raised by defendant No.1 and it has been raised for the first time which has been rightly negatived by the trial Court. The plaintiff had only been relegated to the proper remedy as both the Courts below have noted that the land is agricultural.
7. Accordingly, no fault can be found in the judgment and decree RSA No.1940 of 2011 4 of the lower appellate Court whereby it has been held that the civil Court had no jurisdiction regarding the relief for possession once the plea of tenancy has been taken by the plaintiff himself. No fault can be found in the reasoning given by the lower appellate Court. Accordingly, since the lower appellate Court has already given the plaintiff the remedy to approach the competent Court for ejectment of defendant No.1, no other observations are called for and the present appeal is dismissed in limine, up-holding the judgment of the said Court.
09.02.2012 (G.S.SANDHAWALIA) sailesh JUDGE