Punjab-Haryana High Court
Ishwar Singh vs Tara Chand And Ors. on 29 May, 2004
Equivalent citations: (2004)138PLR793
Author: Hemant Gupta
Bench: Hemant Gupta
JUDGMENT Hemant Gupta, J.
1. The defendant is in appeal before this Court aggrieved against the judgment and decree passed by the First Appellate Court whereby the suit for permanent injunction restraining the defendant-appellant from interfering in the possession of the plaintiff over the agricultural land measuring 35 kanals 7 tnarlas was decreed.
2. The plaintiff has sought injunction inter-alia on the ground that one Ram Diya was recorded in possession of the suit land as Giar Marussi. In the column of payment of rent, the entry was Bai Shera Malkan, Bai Vaja Kabza Derina. It was alleged that Ram Diya has never paid any Batai or lagan in cash of any kind and by prescription of time the said trespasser has become owner of the suit land. The plaintiff has alleged that he was inducted as tenant by Ram Diya vide lease deed dated 30.12.1968 and after the expiry of lease period, the plaintiff is in possession as a statutory tenant and thus the defendants cannot dispossess him.
3. Defendants No. l, 13 and 14 contested the suit and it was pleaded that Ram Diya was Dohlidar in respect of the suit land. He died unmarried and issueless. After the death of Ram Diya the suit land has reverted to the owners. It was denied that the respondents were threatening to dispossess the appellant. However, in a separate written statement, the defendant-appellant alleged that he was in possession of the land since 15.6.2000 when the suit land was lying vacant. After the expiry of lease period of 29.12,1998 the suit land has reverted to the original owner and the appellant is in possession thereof.
4. The first Appellate Court found that the plaintiff has not become owner of the suit land by way of adverse possession as Ram Diya during his life time has never said to be in adverse possession against the defendant. The plaintiff who is only a lessee from Ram Diya cannot be said to have become owner of the suit land by way of adverse possession. Thus the plaintiff is a tenant at sufferance after the expiry of lease period. However, the learned first Appellate Court granted injunction restraining the appellant from interfering in the possession of the plaintiff as it was found that there is no proof of surrender of possession in favour of the appellant. The first Appellate Court found that in normal course of events, a person in possession as a lessee-does not surrender the possession of his own. It is only when a person is compelled or forced, he surrenders the possession. Thus the first Appellate Court found that the plaintiff is entitled to the injunction.
5. Finding of fact has been recorded by the first Appellate Court that possession has not been surrendered by the plaintiff to the defendant and that the appellant has not taken over possession in June, 2000. Such finding does not call for any interference as it is a possible finding in law on the basis of appreciation of evidence.
6. Before this Court the learned counsel for the appellants has argued that after the expiry of lease period on 29.12.1998, the possession of the plaintiff was that of a tenant at sufferance. The tenant at sufferance is a trespasser and therefore, a trespasser is not entitled to injunction against a true owner. Reliance was placed upon Kewal Chanel Mimani (Dead) by Lrs. v. S.K. Sen, 2001(3) R.C.R. (Civil) 746: Prataprai N. Kothari v. John Braganza, 1999(2) S.L.J. 1466 and Roshan alias Roshan Lal and Ors. v. The Secretary, Govt. of Haryana and Ors., 1998(2) P.L.J, 260. However, the said argument of the learned counsel for the appellant has no merit. After the expiry of lease period, the status of the plaintiff is that of a tenant at sufference as there is no evidence of acceptance of rent by the landlord. He would be a tenant holding over if the landlord has accepted the rent. A tenant by sufference does not require notice before he could be evicted but whether the defendant has a right to take over possession of the land simply on the expiry of lease period is a question required to be decided in the present case.
7. In Badrilal v. Municipal Corporation of Indore, A.I.R. 1973 S.C. 508 the rights between a tenant at sufferance and tenant holding over ware considered after relying upon the earlier judgment A.I.R. 1949 Federal Court 124 Kai Khurshroo Bezonjee Capidia v. Baijerbai. The court held that after a resolution was passed by the corporation specifying a new rate of rent the deposit of rent at the old rate cannot amount to acceptance of rent by the Corporation and thus it will not be a case of tenant holding over. The following observations were made by the Court.
"8........ It cannot amount to the Corporation consenting to the appellant continuing as a tenant by paying the old rates of rent. There is thus no question of the appellant being a tenant holding over. But a person who was lawfully in occupation does not become a trespasser, even if he does not become a tenant holding over but is a tenant by sufferance."
9. The appellant being merely a tenant by sufference there is no need for any notice before he could be evicted. Thus the judgment of the High Court is correct, in sofar as it held the appellant was liable to be evicted."
8. In R.V. Bhupal Prasadv. State of A.P. and Ors., 6 1995(5) S.C.C. 698 the Court has found that tenant by sufference is merely a fiction to avoid continuance in possession operating as tresspass. It has been described as least and lowest interest which can subsist in reality. It cannot be created by contract and arise only by implication law when a person who has been in possession under a lawful title continuous in possession after title has been determined but without the consent of the person entitled. It was held by Hon'ble Supreme Court as follows:
8. Tenant at sufferance is one who comes into possession of land by lawful title, but who holds it by wrong after the termination of the term or expiry of the lease by efflux of time. The tenant at sufferance is, therefore, one who wrongfully continues in possession after the extinction of a lawful title. There is little difference between him and a trespasser. In Mulla's Transfer of Property Act (7th Edn) at page 633, the position of tenancy at sufferance has been stated thus: A tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It has been described as the least and lower interest which can subsist in reality. It, therefore, cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title has been determined, without the consent of the person entitled. A tenancy at sufferance does not create the relationship of landlord and tenant. At page 769, it is stated regarding the right of a tenancy holding over thus: the act of holding over after the expiration of the term does to necessarily create a tenancy of any kind. If the lessee remaining in possession after the determination of the term, the common law rule is that he is a tenant on sufferance. The expression "holding over" is used in the sense of retaining possession. A distinction should be drawn between a tenant continuing in possession after the determination of the lease, without the consent of the landlord and a tenant doing so with the landlord's consent. The former is called a tenant by sufferance in the language of the English law and the latter class of tenants is called a tenant holding over or a tenant at will. The lessee holding over with the consent of the lessor is in a better position than a mere tenant at will. The tenancy on sufferance is converted into a tenancy at will by the assent of the landlord, but the relationship of, the landlord and tenant is not established until the rent was paid and accepted. The assent of the landlord to the continuance of the tenancy after the determination of the tenancy would create a new tenancy. The possession of a tenant who has ceased to be a tenant is protected by law. Although, he may not have a right to continue to possession after the termination of the tenancy, his possession is juridical."
9. In Prataprai N. Kothari's case (supra) a three judge Bench of the Hon'ble Supreme Court has held that a person who has been in long continuous possession can protect the same by seeking an injunction against any person in the world other than the true owner. However, it has also been held that even the owner of the property can get back his possession by resorting to due process of law.
10. In Ramesh Chand Ardawatiya v. Anil Pcmjwani, A.I.R. 2003 S.C. 2508 the Court has reiterated the said principle when it held to the following effect:
36. So, the person in possession may not have title to the property yet if he has been inducted into possession by the rightful owner and is in peaceful and settled possession of such property he is entitled in law to protect the possession until dispossessed by due process of law by a person having a title better than what he has. A person in possession of the property cannot be forcibly dispossessed by another rank trespasser and even if the latter does so, the former may be entitled to restoration of possession, because the law respects peaceful possession and frowns upon the person who takes the law in his own hands."
11. Moreover, recently in Rame Gowda (dead) by LRs. v. M. Varadappa Naida (dead by Lrs. and Anr., (2004)1 Supreme Court Cases 769 a three Member Bench of Hon'ble Supreme Court has considered and interpreted the word "settled possession". It has been held that the settled possession must be effective, undisturbed and to the knowledge of the owner or without any attempt at concealment by the trespasser. The Court has concluded that a person in peaceful possession is entitled to retain his possession and in order to protect such possession he may use reasonable force to keep out the trespasser. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. It was held by Hon'ble Supreme Court to the following effect:
"8. It is thus clear that so far as the Indian law is concerned, the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take course to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better, title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner."
12. In Kewal Krishan Mimani's case relied upon by the appellants, the question decided by the Hon'ble Supreme Court was that a lessee after the expiry of a lease period and not in possession are entitled to restoration of possession after the expiry of order passed by the State Government under the East Bengal (Requisition and Acquisition) Act, 1948. The Court held that after the expiry of lease period the possession of the tenant is that of a tenant at sufferance but if he continues in possession he can be evicted only by due process of law. However, in case the tenant is not in possession, he is not entitled to seek possession. The difference between the lessee in possession and a lessee dispossessed was drawn by the Court. It was held to the following effect:
30. Further a person, whose lease has expired is still entitled to maintain possessory right so long and until he be evicted by due process of law, various decision have been cited before this Court, but we do not consider them relevant in the matter under consideration. The factual aspect of the matter has to be gone into to make the provisions of law or judicial precedence applicable - the proposition which is noticed above pertains to the possessory right and eviction in accordance with law. The lessee has lost his possessory right and the same stands shifted on the State. Once, however, the possessory right is transferred or shifted from the lessee and the lease deed stands terminated during this temporary interregnum when lessee was deprived of its possession, question of putting back the lessee on to the possession, after the expiry of the lease in accordance with the provisions of law, does not and cannot arise."
13. In Roshan's case (supra) a Full Bench of this Court was considering the case of a tenant in occupation of common land belonging to Gram Panchayat. It was held that Gram Panchayat can lawfully proceed against such unauthorised occupant of land under the provisions of Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961.
14. In Bachan Singh v. Sadhu Singh and Ors., 2004(1) Civil Court Cases 631, a Single Judge of this Court has upheld the decree in a suit, for permanent injunction wherein it was found that the plaintiff has failed to prove that he is in possession. Said judgment is clearly distinguishable.
15. In view of the above judgments, the status of the plaintiff is that of a tenant at sufferance but he can be evicted only in accordance with law and not by force. The appellant cannot be permitted to take law into his own hands. Consequently, I do not find and merit in the present appeal. Dismissed in line.