Punjab-Haryana High Court
Ram Lal And Ors. vs Jagdish Singh And Ors. on 19 May, 2004
Equivalent citations: (2004)138PLR708
Author: J.S. Narang
Bench: J.S. Narang
JUDGMENT J.S. Narang, J.
1. The plaintiff-appellants filed a suit for posses- sion by way of pre-emption on the premises that they were not tenants over the suit land measuring 46 kanals 3 marlas as described in the plaint and situated at village Jahangirpur, Tehsil and District Ambala and that the owners sold away the said land to the defendants upon ostensible sale consideration of Rs. 70,000/- vide registered sale deed dated 16.6.1983, whereas, in fact only an amount of Rs. 46,000/- was passed on as consideration between the parties.
2. The defendant-respondents have contested the suit and have denied the allegations categorically to the effect that the plaintiff-appellants were ever the tenants of the erstwhile owner. However, it has been stated that in fact father of the plaintiffs was the tenant but the plaintiffs never ever came to be -tenants over the suit land. Entries in the khasra-girdawaries showing the plaintiffs to be in possession of the suit land as tenants have not been admitted.
3. Upon the respective pleadings of the parties, the issues have been framed and they have led their respective documentary as well as ocular evidence to prove the issues, the onus of which had been cast upon them respectively.
4. The trial Court has given a finding in favour of the plaintiffs to the effect that they were tenants at the time of the sale and at the time of filing of the suit. Thus, in view of Section 15 of the Punjab Pre-emption Act, they have preferential right, of preemption. Pursuant to this finding, the suit filed by the plaintiff-appellants has been decreed by way of judgment and decree dated 16.12 1986. Decree for possession has been granted by way of pre-emption subject to payment of Rs. 79,350/- less l/5th pre-emption amount already deposited, on or before 16.1.1987. In case of default of deposit of money the suit shall stand dismissed.
5. The defendant-vendees being dissatisfied with the aforestated judgment and decree filed an appeal before the lower Appellate Court. The finding on issue No. l has been assailed on the ground that the case is of collusion between Anant Ram, the father and the sons who are plaintiffs, as no tenancy had been created by the vendees in favour of the plaintiffs. It has also been averred that the vendees had filed an application for correction of khasra-girdawari which was allowed by the Revenue Authority in the first instance but the same was wrongly set aside by the appellate authority while allowing the appeal and that against the said order a revision was pending before the Commissioner.
6. However, the plaintiffs placed reliance on the receipt Ex.Pl stated to have been executed by the land owner in their favour for having received a sum of Rs. 1000/- on account of rent for the year 1982-83. The lower Appellate Court has noted that by virtue of Ex.P8 i.e., Jamabandi for the year 1978-79. Anant Ram father of the plaintiff was shown as a tenant upon the suit land under Mohan Lal, the vendor. Anant Ram has appeared as a witness PW3 and he has stated that he has been in cultivating possession of the suit land as a tenant of Mohan Lai -Vendor till 1982 and thereafter he left the cultivation and that since then his sons have been cultivating the same. It has been noticed that Anant Ram had given the reasons for this change in tenancy to the effect that he had asked Mohan Lal to permit his sons to cultivate the suit land. It shall be apposite to notice that Mohan Lai vendor has not been examined who was the best person to explain how this abrupt change in the tenancy occurred. He has also not been made party to the suit. Mohan Lal son of Anant Ram (this may not be understood as a vendor as the name of the sons of Anant Ram is the same as that of the vendor) has admitted in his cross-examination when he appeared as PW1 that no writing or document was prepared whereby Anant Ram was shown to have left cultivation of the suit land and that the plaintiffs stepped into his shoes as cultivating tenants in the suit land. The receipt Ex. P-1 as claimed by the plaintiffs is stated to have been executed on 19.10.1984 in token of having received a sum of Rs. 1000/- as rent from the plaintiff but Mohan Lal has not been produced or examined to establish the credibility of this receipt. Even otherwise the perusal of the record and the facts noticed by the Courts below shows that the vendees are stated to have purchased the land in question by way of execution of the sale deed dated 16.6.1983, as such, the vendor could not execute any receipt for having received rent of the crop of 1982-83 in the year 1984. It is nowhere the plea that the vendor after the execution of the sale deed in 1983 was entitled and permitted to receive the alleged rent for the year 1982-83. Thus, the receipt does not inspire confidence at all. Thus, by no stretch of imagination, the plaintiff could be accepted as the tenants upon the land and therefore, claim right of pre-emption. Apart from this jamabandi for the year 1978-79 produced as Ex.P8 categorically shows that Anant Ram was the tenant under the vendor. Further, nowhere it has been alleged that the impediment of tenancy has been spelt out in the sale deed executed in favour of the vendees.
7. Learned counsel for the appellant has argued that the factum of tenancy in favour of the plaintiff-appellant has been categorically found in favour of the plaintiff by the trial Court and that the lower Appellate Court has fallen into error in reversing the findings on issue No.l despite the fact that the revenue record, i.e., Khasra Girdawari categorically shows the possession of the plaintiffs as tenants. It has been further argued that the receipt Ex.Pl has been misread whereby the vendor has categorically stated that he was entitled to receive the rent in the year 1982-83 from the plaintiffs, who were his tenants as the said amount is stated to have been received as Chakota. He has further argued that the Financial Commissioner while passing order dated 28.9.1989 has rejected the version of the defendants claiming the correction in the khasra girdawari accordingly. In this regard, it has been contended that the revenue courts cannot decide the factum of tenancy and that the same falls within the domain of the Civil Courts. In this regard, reliance has been placed upon judgment of this Court rendered in Raja Ram and Anr. v. Raghbir Singh and Ors., 1970 P.L.J. 656.
8. The revenue petition i.e. R.O.R. No. 321 of 1987-88 filed by the defendant-respondents is stated to have been dismissed vide order dated 28.9.1989. CM. No. 505-C of 2000 had been filed by the plaintiff-appellant and after notice to the defendant-respondents, the application has been allowed vide order dated 16.8.2000 and that the order passed by the Financial Commissioner as aforestated has been ordered to be exhibited as Ex.PX and that jamabandi for the year 1993-94 has also been taken on the record and has been ordered to be exhibited as Ex.P-1. It may be noticed that both these documents despite the aforestated order passed by M.L. Singhal, J. have not been exhibited, though they are on the Court file.
9. On the other hand learned counsel for the detendant-respondent has argued that the lower Appellate Court has correctly reversed the findings.of the trial Court on issue No. l by categorically discussing the receipt Ex.Pl and so also the jamabandi for the year 1978-79, Ex.P8. It has been categorically noticed that Mohan Lai the vendor who is stated to have executed the receipt Ex. Pl, has not been produced by the plaintiff to spell out the correctness of the receipt. Thus, the factum of tenancy after Anant Ram has not been established by the plaintiff and that Anant Ram, who appeared in the witness box as PW3, has categorically admitted that he stopped cultivation from 1982 and thereafter, his sons with the consent and knowledge of Mohan Lal, the vendor continued to cultivate the land. This fact has also not been established by way of producing Mohan Lal vendor into the witness box.
10. After hearing learned counsel for the parties and perusal of the record, specifically Ex.P-1 the receipt dated 19.10.1984 stated to be relating to payment of rent by way of Chakota for the year 1982-83 and so also noticing the fact that the sale deed had been executed by Mohan Lai vendor in favour of the defendant-vendees on 16.6.1983 and that in the sale deed, an impediment of tenancy has not been shown or pleaded by the plaintiffs. The appeal deserves to be dismissed. The very fact that the receipt Ex.P-1 was executed on 19.10.1984 i.e. much after the execution of the sale deed which was executed on 16.6.1983 does not inspire confidence vis-a-vis the receipt by virtue of which it can be said that the plaintiffs were the tenants in the year 1982-83.
11. The plaintiff-appellants have miserably failed to establish the tenancy in their favour after 1982 and Anant Ram, the earlier tenant shown in the jamabandi for the year 1978-79, has not been able to establish his continuity of tenancy after 1982. It can be, therefore, correctly inferred that on the date of the execution of the sale deed the land in question was not under tenancy under Anant Ram or under the tenancy of the plaintiffappellants. Resultantly, the lower Appellate Court has correctly reversed the findings on issue No.l though the reasoning is different, however, the same is affirmed. Since the findings upon all other issues returned by the Trial Court have not been questioned and that the pivotal question raised with regard to issue No. l I have' already expressed my opinion as above, the appeal merits dismissal.
12. The citation which has been relied upon by the counsel for the appellant is not at all applicable to the facts of this case as it has been found as a matter of fact that the plaintiff-appellants were not the tenants on the date of execution of the sale deed in favour of the defendant-vendees.
13. No other argument has been addressed nor any question of law has been raised nor any arises for consideration of law has been raised nor any arises for consideration of this Court.
14. In view of the above, I find no merit in the appeal and the same is dismissed with no order as to costs.