Punjab-Haryana High Court
Mandar Thakar Ji vs Gurbax Singh on 4 May, 1994
Equivalent citations: (1994)108PLR725
JUDGMENT S.K. Jain, J.
1. Civil Suit No. 1 of 1.1.1979 (60 of 7.8.1978) was filed by Mandar Thakar Ji through its Managing Committee against Gurbax Singh and seven others for their ejectment from the land bearing Khasra No. 146 measuring 3 kanals, 15 marlas, khewat No. 36/55, situated in the abadi of village Alamgir. It was pleaded that land bearing khasra No. 3542/2160 min measuring 4 kanals was owned by the plaintiff and in lieu thereof land bearing khasra No.1 46 measuring 3 kanals 15 marlas was allotted to them as a result of consolidation of holdings in the village. The said land was taken on lease by Tara Singh and Gulwant Singh for a period of twenty years at the rate of Rs. 80/- per annum through registered lease deed dated 1.10.1958. The rent was payable six monthly at the rate of Rs. 40/- on every lohri and Rs. 40/- on every namani. Before filing the suit Tara Singh and Gulwant Singh having died, respondents 1 to 3 as legal representatives of Tara Singh and Gulwant Singh having died, respondents 1 to 3 as legal representatives of Tara Singh and respondents 4 to 7 as legal representatives of Gulwant Singh were sued. Chanan Singh, defendant No. 8 had died during the pendency of the suit and his legal representatives were also brought on record. The case of the plaintiff was that the period of lease having expired, they wanted to take possession of the land.
2. The suit was contested by the defendants and the parties fought the litigation on the following issues:-
(1) Whether the plaintiff has locus standi to sue? OPP.
(2) Whether the suit is tenable and maintainable? OPP.
(3) Whether Amar Chand is competent to file this suit ? OPP.
(4) Whether the defendants have matured their title in the suit . property by adverse possession for more than the statutory period ? OPP. (5) Whether it is necessary to obtain in the sanction of the Government to file this suit? OPP. (6) Whether the suit is properly valued for the purpose of court fee and jurisdiction ? OPP. (7) Whether the pre-consolidation land measuring 4 kanals bearing khasra No.3542/2160 was owned by the plaintiff as alleged? OPP. (8) In case above issue is proved, whether Khasra No. 146 measuring 3 kanals, 15 marlas was mapped in lieu of the aforesaid land during the consolidation proceedings and whether the plaintiff is its owner? OPP. (9) Whether the plaintiff leased out the suit property to Tara Singh, Gulwant Singh and Chanan Singh for twenty years vide lease deed dated 1.10.1958 as alleged? OPP. (10) In case above issue is proved, whether the defendants are in occupation of the suit property as heirs and successors of the original lessees and whether there is relationship of landlord and tenant between the parties ? OPP. (11) Whether the lease has been determined by elapse of time ? OPP.
(12) Whether a valid quit notice has been served by the plaintiff on the defendants ? OPP. (13) Whether there is a committee to manage the plaintiff Mandar Thakar Ji as alleged ? OPP. (14) Whether the Civil Court has got jurisdiction in this suit ? OPP.
(15) Whether the plaintiff is entitled to a decree for possession of the suit property by ejectment of the defendants ? OPP. (16)Relief."
3. The learned Court vide its judgment and decree dated 30.10.1980 decreed the suit for possession of the disputed land by ejectment of the defendants, who were directed to remove the malba. Feeling aggrieved, the defendants preferred Civil Appeal No. 179 of 8.12.1980 (141 of 1.7.1981) which was heard and decided by Sh. G.S. Kalra, Additional District Judge, Kapurthala who vide his judgment and decree dated 17.10.1983, accepted the appeal and set aside the judgment and decree of the learned trial Court.
4. It is that judgment and decree of the first Appellate Court which has been challenged by the plaintiff in this regular second appeal and which requires my examination for its sustainability
5. I have seen the pleadings in the suit, evidence adduced by the parties in the suit and judgments of both the courts below.
6. Learned trial Court in its judgment had returned the following findings:-
"(i) that the Mandar Thakur Ji is the owner of the suit land and has locus standi to file the suit through its Managing Committee;
(ii) the suit is maintainable in the present form;
(iii) that Amar Chand is competent to file the suit on behalf of the Managing Committee;
(iv) defendants had failed to prove that they have become owner of the suit land by adverse possession;
(v) that there is no evidence on record to rebut the evidence led by the plaintiff to the effect that Khasra No. 3542/2160 min measuring 4 kanals was the subject matter of lease deed;
(iv) that relationship between the plaintiff and defendants who were predecessor-in-interest of Tara Singh, Gulwant Singh and Chanan Singh, is that of landlord and tenant and the tenancy was monthly;
(vii) that the lease deed Ex. P-2 is an invalid document because it has not been executed by lessee or lessors in accordance with Section 107 of the Transfer of Property Act. However, in view of the ratio of law laid down by the Supreme Court in Ram Kumar Das v. Jagdish Chandra Deo Dhabal Deb and Anr., A.I.R. 1952 S.C. 23, a monthly tenancy has come into existence between the parties.
(viii) a valid notice has been served on the defendants while filing the suit."
The learned first Appellants Court on the other hand differed with the trial Court and instead found:
(a) that the plaintiff cannot be said to be the owner of the land in dispute;
(b) that the plaintiff has not been able to show, that Khasra No. 146 measuring 3 kanals 15 marlas had been allotted in lieu of old Khasra No. 3542/2160 measuring 4 kanals during the consolidation proceedings;
(c) that Amar Chand cannot be held to be competent person to file the suit;
(d) that the document Exh. P-2 did not create any valid agreement between the parties;
(e) that six months' notice as required under Section 111 of the Transfer of Property Act was not served on the defendants before filing the suit land;
(f) that the defendants had become owners of the suit land by adverse possession;
7. Learned counsel for the appellant in order to show that Khasra No. 146 measuring 3 kanals 15 marlas had been allotted in lieu of old khasra No. 3542/2160 min, measuring 4 kanals during the consolidation of holdings and that Mandar Thakar Ji was its owner has taken me through Exh.P-19 which consists of Khatauni ishatmal for the year 1958-59 and Jamabandi for the year 2007-2008 Bikrmi, Ex.P-20, copies Ex. PA to Ex. PF and has vehemently argued that in the Khatanui ishatmal which is a part of Ex. P-19, Parkash etc. have been shown to be the owner of Khasra No. 3542/2160 measuring 9 kanals 1 marlas and the plaintiff has been shown to be in possession. The same position is reflected in the excerpt i.e. the Missal Haqiat for the year 1962-63 and Jamabandi for the year 1967-68 as well as Jamabandi for the year 2007-2008 Bikrmi Ex.P-20, Entry in remarks column of Ex.P-20 has also been pressed into service where mutation No. 2097 relating to change in cultivation in favour of the plaintiff has been entered. This entry has been referred to in Note No.1, which is a part of Ex.P-19 as mentioned hereinbefore. Referring to the judgments and orders Ex. PA to PF he urged that these documents go a long way to show that the plaintiff had brought a suit against Sadhu Singh and others in respect of Khasra No. 2160 measuring 9 kanals 4 marlas on the ground that a muafi had been granted in respect of said land in favour of the plaintiff and that an ex-parte decree for possession, was passed in his favour. The application for setting aside the ex parte decree was also 'dismissed and so was the appeal. This argument attractive at first sight is, in my opinion, not tenable on the sound appreciation of these documents. Firstly, the defendants or their predecessors in interest were not party to the litigation embraced by the said documents and, therefore, the defendants were not bound by these judgments and orders. Secondly, in these documents Exh. PA to Exh. PF, the land involved is khasra No.2160, measuring 9 kanals 4 marlas whereas in Exh, P-19 the land mentioned is khasra No. 3542/2160 measuring 9 kanals 1 marla. Therefore, it cannot be said that these documents pertain to the land in dispute. A perusal of Ex, P-19 and jamabandi for the year 2007-2008 Bikrami, Exh. P-20 would show that this land has not been mentioned as Muafi land. The fact that it was muafi land could also be proved by placing on record a copy of the entry made to the register of muafi lands, letter known as Fehrist Muafiat. But for the obvious reasons, these documents have not been placed on record. On the basis of Khatauni Ishatemal for the year 1958-59 and Missal Haqiat for the year 1962-63, it cannot be said that the land bearing khasra No. 146 measuring kanals 15 marlas was allotted in lieu of old khasra No. 3542/2160 measuring 4 kanals during the consolidation of holdings.
8. In view of the above discussion, I do not find any Fault with the well reasoned finding of learned First Appellate Court, returned to the effect Chat the plaintiff was not the owner of the land in dispute and there is nothing to show that land bearing khasra No.146 measuring 3 kanals 15 marlas. had been allotted in lieu of old khasra No. 3542/2160 measuring 4 kanals.
9. In order to show that Amar Chand was competent to file the suit, teamed counsel for the appellant has relied on the order of Deputy Commissioner, Kapurthala dated 26.10.1951, which is exhibited as P-19 and resolution dated 24.11.1978 Exh. P-1 passed by the Managing Committee of Mandar Thakar Ji. A perusal of these two documents would show that Exh. P-1 vide which Amar Chand and Parshottam Lal were authorised to institute and prosecute the suit has been signed by the following members besides Sh. Raj Kumar Sharma, President of the Committee:-
(i) Sh. Surinder Kumar, Vice-President.
(ii) Sh. Dharamvir, Cashier.
(iii) Sh. Parshottam Lal.
(iv) Sh. Pyara Lal.
(v) Sh. Ved Parkash Joshi.
(vi) Sh. Madan Lal.
(vii) Sh. Kewal Krishan Sharma, Secretary.
10. On the application of residents of Kala Sanghian, District Kapurthala with regard to management of Mandar Thakar Ji, the Collector on the report of gardwar Kanungo vide order dated 26.10.1951 had constituted a Managing Committee comprising of following members: -
(i) Ch. Ujjagar Singh, Lumberdar.
(ii) Sh. Karan Chand.
(iii) Sh. Malhar Chand.
(iv) Sh. Kapur Chand.
(v) Sh. Jeeva Ram.
(vi) Sh. Vidhya Parkash.
(vii) Sh. Kundan Lal.
(viii) Sh. Baba Ram Lal.
(ix) Sh. Chiranji.
(x) Sh. Faquir Chand.
(xi) Sh. Labhu Ram.
11. Thus, it is evident that Exh. P-l was not passed by the Managing Committee of Mandar Thakar Ji. Therefore, learned First Appellate Court has rightly held that Amar Chand had no power to institute and prosecute the suit.
12. The point that has now fallen to my lot for decision is as to whether Exh. P-2 created monthly tenancy or a yearly tenancy for manufacturing purposes requiring six months notice under Section 111 of the Transfer of Property Act for termination thereof. Plaintiffs own case is that through document Ex. P-2 a yearly tenancy had been created whereas the rent was payable six monthly. In order to decide this point, it is expedient to examine notice Exh. P-3 dated 10.4.1978. Last para of this notice rsads as under:-
"that by this notice you are requested to remove the malba from the said land before 30.9.1978 and deliver its vacant possession along with arrears, if any, to my client, otherwise my client will claim Rs. 5,000/- per year as compensation for use and occupation of the said land till the delivery of vacant possession to him."
Even from the date of notice, the period of notice comes to 5 months 20 days. Therefore, the First Appellate Court has rightly held that six months notice had not been served on the defendants and tenancy had not been validly terminated.
13. As mentioned in the earlier part of the judgment, plaintiff has not been able to prove that the land in dispute bearing khasra No. 146 was allotted in lieu of old khasra No. 3542/2160 during the consolidation of holdings. There is also no oral or documentary evidence brought to my notice that defendants or their predecessor-in-interest had ever paid any rent to the plaintiff. The case of the plaintiff as set up in the plaint is that vide Exh. P-2 dated 1.10.1958, the defendants were in possession of the suit land. Nothing has been brought to my notice to show that the plaintiff had ever asserted their right of ownership in respect of the said land. Lease deed Exh. P-2 has been found to be invalid document by both the Courts below holding that it has not been signed by the lessors. Thus, it is evident that the defendants had been enjoying the property in husband like manner. Their possession was open, hostile, continuous, without any outside interference and for a long period of more than 20 years as owners. It had, therefore, ripened into ownership by adverse possession.
14. As a sequel to the above discussion, no fault can be found with the well reasoned judgment of the First Appellate Court which is hereby affirmed. Resultantly, this Regular Second Appeal fails, which be and is hereby dismissed. However, the parties are left to bear their own costs.