Punjab-Haryana High Court
Amar Singh vs Kishan Dev on 21 July, 2016
Author: Surinder Gupta
Bench: Surinder Gupta
RSA-523-1986 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
(1)
Regular Second Appeal No.523 of 1986 (O&M)
Date of Decision: July 21, 2016.
Amar Singh and others
..........APPELLANT(s).
VERSUS
Kishan Dev (Dead) through LRs.
........RESPONDENT(s).
(2)
Civil Writ Petition No.12075 of 1996 (O&M)
Amar Singh (deceased) through his LRs and others
..........PETITIONER(s).
VERSUS
The Financial Commissioner and others.
........RESPONDENT(s).
CORAM:- HON'BLE MR. JUSTICE SURINDER GUPTA
Argued by: Mr. L.N. Verma, Advocate
for the appellant (s).
Mr. R.K. Gupta, and Mr. Amit Jain, Advocates
for the respondents.
*******
SURINDER GUPTA, J.
RSA-523-1986 This is second appeal against the concurrent judgments of the Courts below, whereby plaintiff Kishan Dev, since deceased, represented by his legal representatives (now respondent in this appeal) was declared owner-cum-landlord of the land in dispute and the appellants-defendants as 1 of 24 ::: Downloaded on - 27-07-2016 00:12:12 ::: RSA-523-1986 -2- tenant under him on payment of 1/3rd batai and necessary correction was ordered to be made in the revenue record i.e. in column No.9 of the jamabandies from the year 1961-62 onwards.
2. Case of the plaintiff Kishan Dev, in brief, is that father of defendants namely Gurditta was cultivating the suit land as tenant on payment of 1/3rd of the harvested crop to plaintiff. The land revenue and other taxes of the land were being paid by the plaintiff. Defendants- appellants after the demise of Gurditta continued cultivating the land on the same terms. Gurditta in collusion with revenue patwari, manipulated an entry in the column No.9 of the jamabandi for the year 1961-62 to replace the words 'batai tihai' to 'Bashahar Parta Malkan Ba Wajah Hone Be' (as owner due to sale). This entry continued in the jamabandi for the years 1966-67, 1971-72 and 1976-77. Gurditta kept on paying 1/3rd of the crop but the defendants after the death of Gurditta stopped the payment of share of crop in the year 1977. Plaintiff took the copies of jamabandies from the patwari and moved application before the revenue authorities for correction of entry in column No.9 in the jamabandi. On enquiry, this entry was found to be wrong and vide order dated 17.12.1978, it was ordered to be corrected. Patwari Halqa of village Neoli Kalan entered a rapat No.154 dated 21.01.1979 to rectify the wrong entry. Thereafter, patwari in connivance with defendants recorded another rapat No.165 dated 01.02.1979 to maintain the old entry. The matter was again brought to the notice of revenue authorities and Tehsildar, Hisar ordered that the entry in the jamabandies be got rectified through civil court which gave cause of action to the plaintiff to file the instant suit.
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3. The defendants contested the claim of plaintiff, inter-alia, pleading that defendants are owners in possession of the suit land. The possession of defendants was for the last 17/18 years and was adverse, open against the plaintiff and his ancestors, as such, they have attained title over the suit land by way of adverse possession. It was admitted that father of defendants was cultivating the land in suit as tenant but the defendants never cultivated the land as such, nor paid any share of produce to the plaintiff. To support the entry in column No.9 of the jamabandi for the year 1961-62 showing possession of Gurditta, father of defendants as owner, the defendants alleged that after the death of father of plaintiff, the land was owned by his wife i.e. mother of plaintiff. She out of her faith on Gurditta and affection for him, conferred ownership right of suit land on him but no sale deed was got executed as there was litigation of plaintiff with his mother. She, however, admitted the defendants as owners of the suit land and due to this reason, plaintiff did not file any suit for a period of 18 years after the entry in column No.9 of the jamabandi for the year 1961-62 was incorporated, showing the possession of Gurditta as owner of the suit land. The entry in column No.9 of jamabandi for the year 1961-62 was in the knowledge of Smt. Champa, mother of plaintiff.
4. Plaintiff re-asserted his case in the replication and pleadings of the parties led to the framing of issues as follows:-
(1) Whether the plaintiff is owner-cum-landlord of the land in question as alleged?OPP (2) Whether the defendants are tenants on the land in question on batai-tihai under the plaintiff and the entries in the jamabandies for the year 1961-62, 1966-67, 1971-72, 1976-77 are wrong, as alleged?
OPP 3 of 24 ::: Downloaded on - 27-07-2016 00:12:18 ::: RSA-523-1986 -4- (3) Whether the plaintiff is entitled to injunction as prayed for? OPP (4) Whether the suit of the plaintiff is frivolous and speculative? OPD (5) Whether the plaint has not been properly signed and verified as per law? OPD (6) Whether the suit has not been properly presented as per law? OPD (7) Whether the plaintiff has no locus standi to file the present suit? OPD (8) Whether the plaintiff has no cause of action to file the present suit? OPD (9) Whether the suit is barred by limitation? OPD (10) Whether the suit has not been properly valued for the purpose of court fees and jurisdiction? OPD (11) Whether the suit is not maintainable in the present form? OPD (12) Relief.
5. Learned trial judge discarded the plea of appellants-defendants that the entry in column No.9 of the jamabandi for the year 1961-62 reflecting possession of Gurditta in his capacity as owner due to purchase of the land was correct with the observations as follows:-
(i) It is admitted fact that Gurditta was previously tenant over the land in dispute and learned counsel for the defendant admitted the tenancy of defendants over the suit land till 1961-62.
(ii) Though the defendants put up a case that the land in dispute was purchased from Smt. Champa Devi for a sum of `1,000/- but this fact was beyond pleadings.
(iii) No sale deed was ever executed by Smt. Champa Devi in
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favour of Gurditta Mal or the defendants.
(iv) There is no specific denial with regard to the pleadings of
plaintiffs about the relationship of landlord and tenants and non-payment of batai after the demise of Gurditta, which the learned trial Judge treated as admission of claim of plaintiff.
(v) DW1 Amar Singh defendant admitted that Champa Devi has not got entered the entry of sale in the revenue record with the patwari.
(vi) The plea of defendants that they have become owners of the suit land by way of adverse possession, was also discarded and it was observed as follows:-
"No doubt in the above cited ruling (Ram Lal Vs. Chetu @ Chet Ram AIR 1958 Punjab 335), the possession of the tenant becomes an adverse possession when he starts claiming ownership and denies the right of the owner. But in the present case, the plaintiff was not at all aware of the rights of ownership claimed by the defendants because no notice by the revenue authorities was ever served upon the landlord at the time of making the change in the revenue record with regard to the alleged sale mentioned in the column No.9 of the jamabandi. The plaintiff first came to know about this after the demise of father of the defendants, Gurditta when the defendants refused to pay the batai, so the claim of the defendants with regard to become owner by way of adverse possession does not survive in the present case."
(vii) The change in the entry in column No.9 of the jamabandi for the year 1961-62 was made unauthorisedly by the patwari, without any material, at the back of the owner.
6. With above observations, the plaintiff was held as owner-cum-
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landlord of the suit land and the defendants as tenant. The plea of
defendants that the suit is barred by limitation, was also discarded with the observations that change of entry in the revenue record was at the back of the plaintiff and was without basis and has never threatened the right of plaintiff over the suit land till he came to know of this entry in the year 1978 and swung into action to get the same rectified.
7. In appeal before the first Appellate Court, the appellants- defendants raised three pleas to counter the case of plaintiff, firstly, the suit is barred by limitation; secondly, the civil Court has no jurisdiction to try the suit; and thirdly, the plaintiff has no case on merits. On the point of limitation, learned first Appellate Court observed that after coming to know of the change of entry in the jamabandi for the year 1961-62 in the year 1977, plaintiff immediately agitated the matter before the revenue authorities, who ordered the correction of the entry and later referred the parties to civil Court to settle the matter. In the previous jamabandi for the year 1957-58, Gurditta was shown as tenant on 'batai tihai' under Champa Devi and Kishan Dev but this entry and the corresponding entries were not carried forward correctly in the jamabandi for the year 1961-62. In para 9 of the judgment, learned first Appellate Court recorded another reason for discarding the plea of appellants-defendants that the suit was barred by limitation as follows:-
"9. another fact which compels me to decide the issue of limitation against the appellants is that it has nowhere been put in the cross-examination of Siri Kishan Dev PW.3 that the defendants had purchased this land from Smt. Champa Devi for a sum of Rs.1000/-. This shows that they continued as tenants on 1/3rd batai over the land 6 of 24 ::: Downloaded on - 27-07-2016 00:12:18 ::: RSA-523-1986 -7- in dispute......................"
8. Learned first Appellate Court observed that the limitation in this case is governed by Article 113 and not by Article 58 of Limitation Act.
9. The second plea that civil Court has no jurisdiction to decide the relationship of landlord and tenant between the parties as per the provisions of Section 77 of Punjab Tenancy Act, was also discarded in view of plea of appellants-defendants that their possession over the suit land was as owners being purchaser or in the alternative by way of adverse possession and it is only the civil Court which is competent to adjudicate such matters. In the absence of any evidence about purchase of suit land by Gurditta from mother of plaintiff and observation of learned trial judge that the entry in column No.9 of the jamabandi for the year 1961-62 was incorrect, learned first Appellate Court observed in para 17 as follows:-
"17. All the above discussed documents go to show that Gurditta, father of appellants, has been cultivating the suit land under Pahlad Raj, and after his death under his widow Smt. Champa Devi and son Siri Kishan Dev, plaintiff as tenant on 1/3rd Batai. There is no reliable and positive evidence led by the appellants to show that they ever purchased the suit land from Smt. Champa Devi and Gurditta or the appellants ever paid Rs.1000/- to Champa Devi as sale consideration. Moreover, as held upto the Hon'ble High Court, Champa Devi never became owner of any portion of the land or Pahlad Rai. It was the plaintiff who ultimately succeeded and got the inheritance of his father Pahlad Rai. When she had no title in the land in dispute, she could not pass a better title than what she had got. Thirdly, the other claim of the appellants that they became owner of the suit land 7 of 24 ::: Downloaded on - 27-07-2016 00:12:18 ::: RSA-523-1986 -8- by way of adverse possession is also not proved on the file. Rather, defendant Amar Singh did not dare to say even in his own statement that the appellants ever became owners of the suit land by way of adverse possession. Moreover, they never asserted their hostile title over the land in dispute qua the plaintiff or his father."
10. I have heard learned counsel for the parties and have perused the paper-book and record of the Courts below with their assistance.
11. Learned counsel for the appellants has raised substantial questions of law for determination in the present appeal, which were placed on file on 26.09.2015 and are reproduced as follows:-
"(1) Whether the finding of the learned Courts below to the effect that Guran Ditta (Gurditta) had been cultivating the land in dispute throughout as a tenant on crop rent, being based upon wholly irrelevant evidence like Lease-deeds Ex.P-1 to Ex.P-9, can be sustained?
(2) Whether where material and relevant evidence like the statement of DW-5 Tek Chand Patwari and Roznamcha Ex.DW-5/1, has not been considered, which if considered, would have led to an opposite conclusion, and where a finding recorded by relying upon irrelevant evidence, like the Lease-Deeds Ex.P-1 to P-9, which if omitted would have led to an opposite conclusion, in either situation, a substantial question of law would arise? (3) Whether a presumption of truth and correctness attaches to the entries made in the Jamabandies for the year 1961-62, 1966-67, 1971-72 and 1976-77, which are a Record of Rights?
(4) Whether the civil court is competent to issue a mandate to a tenant to make payment of arrears of crop rent to his landlord?
(5) Whether cause of action for filing the present suit accrued
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to the plaintiff, not being in possession of the land in dispute, from the date of adverse entry of purchase in place of crop-rent made in the Jamabandi for the year 1961-62?
(6) Whether the finding of the learned Courts below on issue No.9 of limitation to the effect that limitation for a suit for declaration commences from the date on which possession of the plaintiff is actually threatened, recorded relying upon AIR 1980 P&H 25(D.B.), which deals with a case where the plaintiff was in possession of the land in question, can be sustained?
(7) Whether the view of the learned Courts below that the present case is governed by Article 113 and not by Article 58 of Limitation Act, is sustainable in view of the facts of the case?
(8) Whether Article 113 of the Limitation Act is a general article and applies only where no other Article is applicable to the matter in controversy? (9) Whether reliance placed by the learned Courts below on Article 113 of the Limitation Act has led to the wrong decision of the present case?
(10) Whether concurrent findings of fact recorded by the learned Courts below even blatantly counter to authentic and unimpeachable evidence on record, are immune to challenge and interference in the second appeal?"
12. In view of the detailed discussion of the facts and observations made by the Courts below, I find that the substantial questions of law raised by learned counsel for the appellants do not arise in this appeal. Most of the points raised are not the questions of law but are questions of facts and are misconceived. Now, I proceed to look into the above points as follows:-
Questions No.1 and 2:-
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13. The first and second questions raised by learned counsel for the appellants is that the Courts below have wrongly placed reliance on lease deeds Ex.P1 to Ex.P9 to conclude that Gurditta was tenant on payment of 1/3rd produce of crop. The Courts below have though made reference to the lease deeds, yet relied on the entries in the jamabandies for the year 1934 onwards, which recorded the possession of Gurditta over the suit land as tenant on payment of 1/3rd share of produce. The appellants-defendants have admitted that Gurditta was tenant over the suit land till the year 1961-
62. The statement of DW5 Tek Chand Patwari make no difference with regard to the admitted position.
Question No.3:-
14. Third question raised is that the entries in the jamabandi for the year 1961-62 to 1976-77 carries presumption of truth. Similar proposition is attached to the jamabandies prior to the year 1961-62. There is no dispute with the proposition of law that entries in the jamabandies carries presumption of truth which is rebuttable. In this case, the Courts below have rightly rebutted the presumption of truth attached to the entry in column No.9 of the jamabandi for the year 1961-62 onwards on the basis of evidence on record and being without basis, and findings of Courts below call for no interference.
Question No.4:-
15. Fourth question that civil Court is not competent to issue a mandate to a tenant to make payment of arrears of crop rent to his landlord, is baseless. Learned counsel for the respondent has not disputed that no such relief in the shape of mandatory injunction can be allowed by the civil 10 of 24 ::: Downloaded on - 27-07-2016 00:12:18 ::: RSA-523-1986 -11-
Court but the arguments raised by learned counsel for the appellants are without any basis because neither the trial judge nor the first Appellate Court has issued any such relief of mandatory injunction. The operative part of judgments of both the Courts were read over by learned counsel for the appellants during the course of arguments and he could not point out any reason or basis for raising argument to this effect. Questions No.5 to 9
16. Questions No.5 to 9 raised by learned counsel for the appellants-defendants relate to point of limitation.
17. Learned counsel for the appellants has stressed during the course of arguments that Article 58 of Limitation Act governs the period of limitation for filing this suit and not Article 113. The Courts below have dealt with this point in detail, as discussed in para 7 above and have committed no error of law while reaching the conclusion that the period of limitation raised in this case is governed by Article 113 and not by Article 58 of Limitation Act. Hon'ble Apex Court in case of Daya Singh and another Vs. Gurdev Singh (Dead) by LRs and others 2010(2) Supreme Court Cases 194, has observed that mere adverse entry in the revenue record does not give rise to cause of action to file the suit. The cause of action accrues when there is a clear and unequivocal threat to infringe a right on the basis of that adverse entry. In case of Sarwan Singh Vs. Sawar Deen and others, 2014(1) RCR (Civil) 1032, Co-ordinate Bench of this Court has observed that correction of wrong entry in the revenue record can be sought at any point of time and it does not create a right in favour of a person in whose favour this entry has been entered. It was observed in para 11 of 24 ::: Downloaded on - 27-07-2016 00:12:18 ::: RSA-523-1986 -12- 3 by my learned brother Mr. Justice K. Kannan as follows:-
"3. If there is a revenue entry which is erroneous, I do not think there is any issue of limitation that could be urged. A revenue entry which is wrong in law could be an entry which can be corrected any time, for revenue entry by itself does not create any right and it merely records an act consistent with its user. I will not, therefore, take an objection relating to the issue of limitation as worthy of acceptance. I will find, therefore, that suit cannot be decided on the issue of limitation."
18. In this case, the entry in the revenue record was changed without any notice to the owner and was consequently unauthorised.
19. Hon'ble Apex Court in case of Durga (deceased) and others Vs. Milkhi Ram and others, 1969 PLJ 105, observed as follows:-
"3. Relying on Shri Raja Durga Singh of Solan v. Tholu (1963)2 S.C.R. 693 : 1962 P.L.J. 88, it was urged before the High Court, as before us, that the lower appellate Court had wrongly relied on the earlier revenue entries placing the burden on the defendants, whose names appeared in the later entries, to rebut the presumption.
This Court observed in that case as follows :-
"It was urged before us that there are prior entries which are in conflict with those on which the learned District Judge has relied. It is sufficient to say that where there is such a conflict, it is the later entry which must prevail. Indeed from the language of Section 44 itself it follows that where a new entry is substituted for an old one it is that new entry which will take the place of the old one and will be entitled to the presumption of correctness until and unless it is established to be wrong or substituted by another entry."
Grover, J., observed as follows :
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"It is clear from the pedigree-table set out in its judgment that Mathar Mal had three sons Jiwan, Amin Chand and Relu. Durga and Sidhu are the descendants of Jiwan whereas the plaintiff and defendant No. 3 are the descendants of Amin Chand and Relu. Now, in the entries prior to 1929-30 each one of the descendants of the three sons of Mathar Mal had been shown to have ⅓rd share and without any mutation the entries were changed in 1929-30. Admittedly, there is no order of the revenue authorities showing how the change was made. Thus, although the presumption would be in favour of the later entries but that presumption was a rebuttable one and it would stand rebutted by the fact that the alteration in the entries in 1929-30 was made unauthorisedly or mistakenly, there being no material to justify the change of entries."
Grover, J. distinguished Shri Raja Durga Singh of Solan v. Tholu (supra), thus :
"There is nothing to indicate that in the case decided by their Lordships such was the position. Moreover, the decision in that case proceeded largely on the finding of fact arrived at by the District Judge on a consideration of the evidence being not open to interference in second appeal. The finding in the present case of the lower appellate Court is also based on evidence from which it has been inferred that the later entries are not the correct ones."
We agree with the observations of Grover, J."
20. Learned counsel for the appellants has argued that the possession of appellants is to be protected under Section 53-A of Transfer of Property Act, 1882 as the father of appellants had purchased the suit land and the oral evidence has been produced to prove the same.
21. Section 53-A of Transfer of Property act reads as follows:-
"53A. Part performance.--Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee 13 of 24 ::: Downloaded on - 27-07-2016 00:12:18 ::: RSA-523-1986 -14- has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."
22. In this case, the appellants have not pleaded any agreement or payment of sale consideration, as such, the plea under Section 53-A of Transfer of Property Act is not available to them. Section 53-A requires the transfer of immovable property for consideration in writing and the transferee is in part performance of his right, taken possession of the property. The appellants were already in possession of the suit property. In the absence of any agreement or proof of payment of sale consideration, their plea of being possession of the suit property under an agreement to sell has no basis.
23. The land in suit was earlier owned by father of plaintiff and after his death, it devolved upon plaintiff and his mother. Gurditta was in possession of the land since long during the life time of father of plaintiff as 14 of 24 ::: Downloaded on - 27-07-2016 00:12:18 ::: RSA-523-1986 -15- tenant on 'batai tihai'. The entry in the revenue record continued in this manner till these were changed in the jamabandi for the year 1961-62. The appellants claimed to have purchased the suit land from the mother of plaintiff. In view of settled proposition of law that no sale of immovable property of the value of `100/- or above can be made except through a registered document, the plea of appellants-defendants is without merits. They neither have any agreement in their favour nor there is entry regarding payment of sale consideration. Any oral statement whether made by appellants or any of their witnesses including the attorney of mother of plaintiff cannot vest the defendants with the ownership right over the suit land. Plaintiff, after the death of his parents, continued to be the owner of the suit land and a wrong entry in the record of right without any basis and which is unauthorised, do not confer any right, title or interest in favour of appellants-defendants. The concurrent findings recorded by the Courts below are based on evidence on record. There is no misreading or wrong appreciation of evidence, calling for any interference with the same.
24. No substantial question of law as suggested by learned counsel for the appellants, arise for determination in this appeal, which has no merits.
25. Dismissed.
CWP-12075-1996
26. Petitioners Amar Singh and others challenged the order dated 16.08.1993 (Annexure P-3) passed by respondent No.2 Commissioner, Hisar Division, Hisar and order dated 20.03.1996 (Annexure P-4) passed by Financial Commissioner, Haryana affirming the order passed by Assistant 15 of 24 ::: Downloaded on - 27-07-2016 00:12:18 ::: RSA-523-1986 -16- Collector 1st Grade, Hisar whereby the petitioners were ordered to be ejected from the land in dispute by terminating their tenancy due to non-payment of rent.
27. Facts relating to possession of petitioners over the suit land and the plea of respondent No.3 Kishan Devi have already been discussed in Regular Second Appeal No.523 of 1986, as such, require no repetition.
28. Kishan Devi filed application on form-L in respect of the land measuring 28 kanals 16 marlas situated in village Neoli Kalan, Tehsil and District Hisar seeking ejectment of Amar Singh and others for non-payment of share of produce in respect of the crop from Rabi 1980 onwards.
29. Petitioners contested the application on the plea as raised in the civil suit claiming title over the land in dispute.
30. Assistant Collector 1st Grade, Hisar repelled the contentions raised by the petitioners that they had sufficient cause not to pay the rent and keeping in view the fact that civil suit and first appeal had already been decided against the petitioners and they have been held to be in possession over the suit land as tenant on payment of 1/3rd share of produce. This plea of petitioners that regular second appeal was pending, was also discarded on the ground that there was no stay order by this Court restraining the revenue authorities from proceeding with the application.
31. Learned counsel for the petitioners has argued that the ejectment of a tenant can be ordered under Section 9 of Punjab Security of Land Tenures Act only when the tenant fails to pay the rent regularly without sufficient cause. In this case, the petitioners had sufficient cause not to pay the rent as they were claiming title over the suit land on the basis 16 of 24 ::: Downloaded on - 27-07-2016 00:12:18 ::: RSA-523-1986 -17- of sale of the suit land by mother of respondent No.3 namely Smt. Champa Devi and entry in this respect was made in column No.9 of the jamabandi for the year 1961-62. The relationship between the petitioners and respondent No.3 as tenants and landlord was not clear and after the decision of civil suit and first appeal, petitioners have filed regular second appeal which was pending. Appeal is continuation of the suit, as such, the matter as to whether the petitioners were in possession over the suit land as tenants, was still sub-judice. The revenue Courts in ejectment proceedings were not competent to decide the relationship of tenants and landlord between petitioners and respondent No.3. In support of his contention, he has relied on observations in case of Richpal Singh Vs. Dalip, 1987 PLJ 572 and Jia Lal Vs. State of Haryana, 1971 PLJ 81(P&H).
32. He has further argued that in the event of regular second appeal filed by the petitioners being accepted, the order passed by the revenue authorities shall become redundant and resultantly, this writ petition will be allowed. However, if the regular second appeal is dismissed, the next question for consideration would be as to whether the pendency of civil litigation gave sufficient cause to the petitioners for not paying the rent. Relying on the observations in Ram Kishan and others Vs. Mast Ram 1985 PLJ 574, he has argued that the pendency of civil litigation was a sufficient cause for petitioners not to pay the rent. The only option available with the revenue authorities was to keep the application pending till the disposal of regular second appeal. Reliance has been placed on Sheo Karan Vs. Sheopal Singh, 1974 PLJ 220(Financial Commissioner, Haryana) and Dial Singh Vs. Ajit Singh 1985 PLJ 400 (Financial 17 of 24 ::: Downloaded on - 27-07-2016 00:12:18 ::: RSA-523-1986 -18- Commissioner, Punjab).
33. He has further argued that in view of the pending litigation, relationship of landlord and tenant between the parties was disputed, as such, respondent No.3 could not have re-course to summary proceedings for eviction under the Punjab Security of Land Tenure Act. He has relied on the observations in Raja Ram Vs. Ragbir Singh 1970 PLJ 656 and Ajit Singh Vs. The Financial Commissioner and other 1983 PLJ 150.
34. Before proceeding further, it will be relevant to have a note of the fact that during the pendency of regular second appeal, the matter regarding the non-payment of mesne profits of the suit land cropped up and vide order dated 03.03.1987, the appellants (petitioners in this writ petition) were directed to pay the arrears of rent/mesne profits. The order dated 03.03.1987 passed in Regular Second Appeal No.523 of 1986 read as follows:-
"In case the appellants bring all arrears of rent/Batai due from them irrespective of the fact whether they are within limitation from today or not, the application for ad interim order would be considered.
The land in dispute is 28 Kanals 16 Marlas, which is about 3½ Killas. The mesne profits per Killa are about Rs.1000/- per years and, therefore, the profits amount to Rs.3,500/- per year. The revenue courts have found that the appellants are in arrears since 1976. for ten years, the arrears would be Rs.35,000/-. The appellants should bring substantial amount out of the arrears on the next date of hearing.
To come up on 13th March, 1987."
35. On 13th March, 1987, the payment was not made and on the request of counsel for the18 appellants-petitioners of 24 that they have been ::: Downloaded on - 27-07-2016 00:12:18 ::: RSA-523-1986 -19- depositing the amount and the calculation is to be made about the amount due which may be a very small amount, the adjournment was allowed to place on record the detailed facts. The order dated 13.03.1987 reads as follows:-
"Shri Arun Jain, Advocate states that the opposite (sic party) had been filing application under Section 14(A)(ii) of the Punjab Security of Land Tenures Act, 1953, in which proceedings his clients have been depositing the amount and if the amount is deposited, then probably small amount may be due. Let the affidavit with detailed facts be placed on the record so that the other side can find out the facts and controvert the same if necessary. Advance copy of the reply be given to the opposite side three days before the date of hearing.
To come up on 30.03.1987."
36. Appeal was taken up on 31.03.1987 of which date the appellants-petitioners paid arrears of rent for the crop of Rabi-1986 to Rabi- 1987, amounting to `3,000/-. Affidavit was filed by petitioner Amar Singh submitting that certain amounts have been deposited by him in the revenue Courts for the crop of Rabi-1983 to Kharif-1985. The deposited amount can be withdrawn by respondent-Kishan Dev without prejudice to his right to get order dated 03.03.1987 executed. However, the petitioners refused to pay the rent from Rabi-1980 to Kharif-1983. The detailed order passed on 31.03.1987 read as follows:-
"Mr. Arun Jain has tendered Rs.3000/-
towards the arrears of rent out of the amount decreed for the crops Rabi 1986 to Rabi 1987. the amount has been handed over to Shri Jaswant Jain, appearing for the respondent. Shri Jain has accepted the amount under 19 of 24 ::: Downloaded on - 27-07-2016 00:12:18 ::: RSA-523-1986 -20- protest without prejudice to his client to claim the arrears as per order dated March 3, 1987.
According to the affidavit filed by Amar Singh, one of the appellants, certain amounts have been deposited by him in Revenue Court for the crops from Rabi 1983 to Kharif 1985. The deposited amount can be withdrawn by the respondent without prejudice to his rights to get the order dated March 3, 1987, executed.
Mr. Arun Jain, appearing for the appellants, says that his clients are not prepared to pay the rent for the period Rabi 1980 to Kharif 1983 for which the decree has been passed by the Revenue Court in the sum of Rs.3714.02 nor they are prepared to pay arrears from 1976 till Kharif 1979 in pursuance of order dated March 3, 1987 passed by this Court. Under the circumstances, I find no ground for passing any ad interim order in favour of the appellants. Accordingly, civil miscellaneous No.639-C of 1987 is hereby dismissed."
37. The purpose of discussing above orders is to ascertain the truth in the submissions by learned counsel for the petitioners that the arrears of rent were not paid as they had sufficient grounds not to pay the same because of their title over the suit land. Perusal of the order which incorporate submission of appellant Amar Singh that they have deposited the amount for the crop of Rabi 1983 to Kharif 1985 in the revenue Court, show that there was no ambiguity in their mind regarding their status of possession over the suit land and they were claiming to have deposited payment of the rent for the crops of Rabi 1983 to Kharif 1985. The above submissions were made much before the order dated 04.10.1988 passed by Assistant Collector 1st Grade, Hisar. The submission of petitioners through affidavit that they have been paying the rent but their refusal to pay the 20 of 24 ::: Downloaded on - 27-07-2016 00:12:18 ::: RSA-523-1986 -21- same for the period from Rabi 1980 to Kharif 1983 or to produce any proof of deposit of rent from Rabi 1983 to Kharif 1985, show that they have no sufficient ground to withheld the payment of arrears of rent. The status of Gurditta regarding his possession of land since 1934 was as a tenant on payment of 1/3rd share of produce. Regarding sale of land by Smt. Champa Devi, mother of respondent no.3 Kishan Dev, neither there was any documentary evidence regarding agreement to sell or payment of `1000/- nor this fact was pleaded by the petitioners in the civil suit that they had purchased the suit land on payment of `1000/- from Smt. Champa Devi.
38. The questions as to whether a person who procures an entry in column No.9 of jamabandi for his status of possession can proclaim on the basis of that entry that he has attained the status as mentioned in the entry and can refuse his status prior to coming into force that entry. The answer to this will be a big "No".
39. Besides the above factors, the civil Court has answered the question about status of possession of petitioners as tenant on paying 1/3rd share of produce while deciding the civil suit vide judgment dated 14.06.1985. The findings of learned trial judge were affirmed in appeal by first Appellate Court vide judgment dated 26.11.1985. It is not disputed that appeal is continuation of the suit. The petitioners filed regular second appeal, which was taken up for hearing and notice was issued to the respondents vide order dated 20.02.1987. Thereafter while taking up the application under Order 41 Rule 5 CPC seeking stay of the operation of judgment and decree of the Courts below, my learned predecessor vide order dated 03.03.1987 directed the appellants-petitioners to pay the arrears 21 of 24 ::: Downloaded on - 27-07-2016 00:12:18 ::: RSA-523-1986 -22- of rent, which was not paid and the application was ultimately declined on 31.03.1987, refusing to stay the judgment and decree of the Courts below.
40. Perusal of the order passed by Assistant Collector 1st Grade, Hisar (Annexure P-1) shows that respondent No.3 filed application for recovery of rent of crop from Rabi 1980 to Kharif 1982, which was allowed vide order dated 19.06.1986. Petitioners filed appeal against that order, which was dismissed by the Collector, Hisar vide order dated 24.02.1987. Revision petition filed by the petitioners before Commissioner, Hisar Division, Hisar was also dismissed vide order dated 31.07.1987 and ultimately, their appeal was dismissed by the Financial Commissioner, vide order dated 03.06.1988. Thereafter, respondent No.3 filed application under Section 14(A)(ii) on form-M in respect of crop of Rabi-1983 to Rabi 1984, which was allowed. Learned Assistant Collector 1st Grade, Hisar has taken note of the fact that the petitioners have not paid the share of produce and were regular defaulters.
41. The above facts and circumstances, when taken up together, clearly exhibit that the revenue Courts and the civil Court including this Court have been directing the petitioners to pay the arrears of rent/mesne profits but they had not been paying the same, as such, they are now debarred from raising the plea that they had sufficient cause for not paying the rent/mesne profits. The conduct and attitude of petitioners, rather, depict their arrogance and defiance to the orders passed by the competent authorities from time to time.
42. I have perused the citations referred by learned counsel for the petitioners which are not helpful to the petitioner in the facts and 22 of 24 ::: Downloaded on - 27-07-2016 00:12:18 ::: RSA-523-1986 -23- circumstances of this case. In case of Richpal Singh Vs. Dalip (supra), Hon'ble Apex Court has observed that the revenue Court has no jurisdiction to determine the relationship of landlord and tenant between the parties when the party in possession is denying the same. To similar effect are the observations in cases of Jia Lal Vs. State of Haryana (supra), Raja Ram Vs. Ragbir Singh (supra), Ajit Singh Vs. The Financial Commissioner and others (supra), Sheo Karan Vs. Sheopal Singh (supra), and Dial Singh Vs. Ajit Singh (supra). The above observations are not helpful to the petitioners because in this case, revenue Courts had relied upon the findings of civil courts about the status of petitioners and possession over the suit land, which have been affirmed while disposing of regular second appeal. Relationship of landlord and tenant was and admitted fact and also incorporated in the revenue record before 1961-62, when the entry in column No.9 of jamabandi was changed without any basis or order of competent authority or revenue court.
43. Learned counsel for the petitioners has also referred the observations in case of Ram Kishan and others Vs. Mast Ram(supra), while pressing upon his submission that petitioners have sufficient cause for non-payment of rent. In view of my discussion above, the plea raised by the petitioners that they had sufficient cause not to make payment of rent of the land in dispute, has no basis and is liable to be discarded. The observations made in Ram Kishan and others Vs. Mast Ram(supra) are not helpful to the petitioners in the facts and circumstances of this case.
44. Learned counsel for the appellant has raised another plea that the application was filed by respondent No.3 in form-L but it should be on 23 of 24 ::: Downloaded on - 27-07-2016 00:12:18 ::: RSA-523-1986 -24- form-K1 as Kishan Dev was a big landlord and there was some surplus cases pending. This plea is beyond the scope of pleadings either in the regular second appeal or even in this petition. He could not point out that this point was ever raised before the civil Court or revenue authorities at any point of time, as such, cannot be raised in this writ petition for the first time being a question of fact.
45. In view of judgment and decree passed in Regular Second Appeal No.523 of 1986 and as a sequel of my above discussion, this petition has no merits and is dismissed.
( SURINDER GUPTA )
July 21, 2016 JUDGE
Sachin M.
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