Punjab-Haryana High Court
Kuldip Chand vs Jagdish Lal And Others on 22 January, 2014
Author: Paramjeet Singh
Bench: Paramjeet Singh
-1-
RSA No.185 of 1986
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.185 of 1986
Date of decision: 22.01.2014
Kuldip Chand
....Appellant
Versus
Jagdish Lal and others
....Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see
the judgment ?
2) To be referred to the Reporters or not ?
3) Whether the judgment should be reported in the Digest ?
Present: - Mr. G.S. Punia, Advocate, for the appellant.
Mr. Sanjay Majithia, Sr. Advocate,
with Mr. Jitender Kumar, Advocate, for the respondents.
*****
PARAMJEET SINGH, J.
This regular second appeal arises out of the suit for possession and recovery filed by respondents No.1 to 5/plaintiffs against appellant and respondent No.6. The Court of first instance vide judgment and decree dated 26.08.1983 decreed the suit of the plaintiffs. Against the judgment and decree passed by the Court of first instance, appeal preferred by appellant/defendant No.1 has been dismissed vide judgment and decree dated 02.12.1985.
The detailed facts of the case are already recapitulated in the judgments of the Courts below and are not required to be reproduced in detail. However, the facts relevant for disposal of this second appeal, as Singh Ravinder 2014.02.17 15:30 I attest to the accuracy and integrity of this document Chandigarh -2- RSA No.185 of 1986 alleged in the plaint, are to the effect that respondents No.1 to 5/plaintiffs filed a suit for possession against appellant - Kuldip Chand and respondent No.6 - Joginder Pal with respect to land measuring 26 kanals, described in the headnote of the plaint situated in Phagwara Sharki and for recovery of `5,331/- on account of mesne profits. It was pleaded in the plaint that Dhanpat Rai, father of plaintiffs No.4 and 5 soled the land in dispute to Amrit Lal and Jagdish Lal on 13.05.1968. Plaintiffs No.4 and 5 and appellant - Kuldip Chand filed two separate suits for possession of the suit land by way of pre-emption. The suit filed by plaintiffs No.4 and 5 was decreed and they obtained possession of the land in dispute after paying the sale price. But in absence of plaintiffs No.4 and 5 defendant entered into illegal possession in suit land in the year 1974. Thereafter, plaintiffs No.1 to 3 purchased the suit land and filed a suit claiming possession and mesne profits.
Upon notice, defendants contested the suit.
Appellant/defendant No.1 in his separate written statement admitted that plaintiffs No.1 to 3 were owners of the suit land but he denied plaintiffs' other allegations and inter alia pleaded that he was in possession of the land in dispute as a tenant so the suit was not triable by the civil Court. Defendant No.2 in separate written statement denied the allegations of the plaintiffs and contended that he never came into possession of the suit land.
Court of first instance, on perusal of pleadings of the parties, Singh Ravinder 2014.02.17 15:30 I attest to the accuracy and integrity of this document Chandigarh -3- RSA No.185 of 1986 framed following issues: -
"1. Whether this Court has no jurisdiction to try the suit as alleged in para No.1 of the written statement? OPD
2. Whether the suit is hit by the principle of res judicata as alleged in the written statement? OPD
3. Whether the plaintiffs are entitled to recover the suit amount by way of mesne profits for illegal use and occupation of property in question? OPP 1-A. Whether the suit is bad for misjoinder of plaintiffs and causes of action? OPD 1-B. Whether the plaintiffs are estopped to file the suit by their act and conduct as alleged in the written statement? OPD 1-C. Whether the plaintiffs No.1 to 3 are entitled to recover the mesne profits from the defendants, if so to what amount? OPP
4. Relief."
The Court of first instance, after appreciating evidence on record decreed the suit of the plaintiffs. Against the judgment and decree of the Court of first instance, appeal preferred by the appellant has been dismissed and the judgment and decree of the Court of first instance has been affirmed. Hence this regular second appeal.
I have heard learned counsel for the parties and perused the record.
At that time of admission, no substantial question of law was framed, however, during the pendency of the appeal, following substantial questions of law have been placed on record: - Singh Ravinder 2014.02.17 15:30 I attest to the accuracy and integrity of this document Chandigarh -4- RSA No.185 of 1986
"1. Whether the Courts below have misread the document Ex.D-2 and Ex.D-3 and Ex.PW6/1 in which possession of appellant since 1969 as tenant at will is recorded and misreading of documents itself raises a substantial question of law?
2. Whether pleadings are to be read as whole and mistake in pleading apparent on record can be treated as admission?
3. Whether the judgments of Courts below suffer from perversity, which itself is a substantial question of law?"
Learned counsel for the appellant vehemently contended that appellant is a tenant, he cannot be dispossessed by way of the suit for possession and the civil Court has no jurisdiction to try the suit. Learned counsel for the appellant made reference to Ex.D2, Ex.D3 and Ex.PW6/1 and contended that appellant is in possession since 1969 as tenant at 'will', there is complete misreading of these documents.
On the other hand, learned counsel for the respondents contended that documents have rightly been appreciated by both the Courts below. Word 'gair marusi' has been mentioned in column No.5 (cultivation column) but column No.9 (rent column) is lying vacant, therefore, appellant cannot be treated as 'tenant at will'. In support of his contentions, learned counsel for the respondents made reference to the judgment of Hon'ble Supreme Court in Shri Raja Durga Singh of Solan vs. Tholu and others, 1962 PLR 837 and judgments of this Court in Ram Karan vs. The Financial Commissioner and others, 1980 PLJ Singh Ravinder 2014.02.17 15:30 I attest to the accuracy and integrity of this document Chandigarh -5- RSA No.185 of 1986 295, Maman Singh vs. The Resident Magistrate, Gohana, 1965 PLJ 161, Rulhu Ram vs. Than Singh and others, 1966 PLR 866 and Jagjit Singh vs. The F.C. Haryana and others, 1982 All India Land Laws Reporter 99.
I have considered the contentions raised by learned counsel for the parties.
A perusal of jamabandi Ex.PA clearly indicates that in cultivation column word 'gair marusi' has been mentioned but column No.9, which is rent column, is blank. When rent column is left blank it does not mean that appellant is tenant of this land, he is only occupant. Entry in rent column i.e. column No.9 determines the capacity of the person in which he is occupant of the land.
Division Bench of this Court in Mukhtiar Singh vs. State of Haryana, 2013 (3) PLR 433 has held that phrase 'gair marusi' merely refers to an occupant of land and only if it was accompanied by an entry of payment of rent, in the relevant column of the revenue record, would raise inference of a tenancy. It is to be noticed that many a times word 'gair marusi' is mentioned in column No.5, however, in the rent column it is mentioned as lessee or on chakota. If the rent column is left blank then it will be deemed that possession of the appellant is not as tenant. Learned counsel for the appellant has failed to refer to any record to show appellant as tenant and tenancy subsisting since 1969.
In view of settled position of law and the concurrent findings Singh Ravinder 2014.02.17 15:30 I attest to the accuracy and integrity of this document Chandigarh -6- RSA No.185 of 1986 of fact recorded by both the Courts below, no question of law, muchless substantial question of law, as alleged, arises in this appeal.
Dismissed.
No order as to costs.
(Paramjeet Singh) Judge January 22, 2014 R.S. Singh Ravinder 2014.02.17 15:30 I attest to the accuracy and integrity of this document Chandigarh