Punjab-Haryana High Court
Ajmer Singh And Anr. vs Surjit Singh And Ors. on 24 February, 1992
Equivalent citations: (1992)102PLR189
JUDGMENT G.R. Majitbia, J.
1. This Regular Second Appeal is directed against the judgment and decree of the first appellate Court reversing on appeal those of the trial Judge and dismissing the suit of the plaintiff-appellants for possession of the suit land.
2. The facts :-
The suit land was owned by one Sahnu Ram, who sold the same to Bugar Singh and others vide sale deed, dated November, 26, 1957 and the latter sold it to the plaintiff-apellants (hereinafter the plaintiffs) vide sale deed dated May 27, 1959. Mutation on the basis of the sale deed was sanctioned in favour of the plaintiffs on January 31, 1962. The plaintiffs instituted the suit for possession on February 3, 1976.
The defendant-respondents (hereinafter the defendants) pleaded that their father Nek Singh was in possession of the suit land since 1950 and on his death they entered into possession of the suit land and had become owners thereof by adverse possession.
3. The pleadings of the parties gave rise to the following issues :-
(1) Whether the plaintiffs are the owners of the suit land ? OPP.
(2) Whether the defendants have since become owners of suit land by say of adverse possession ? OPD.
(3) Whether the plaintiffs have no cause of action to file this suit? OPD.
(4) Relief.
4. During the course of arguments at the trial, learned counsel for the defendants had conceded that the plaintiffs were owners of the suit land and issue No. 1 was decided in favour of the plaintiffs. Under issue No. 2 it was held that the defendants had failed to establish that they had become owners of the suit land by adverse possession The trial Judge also took note of the fact that the defendants were not able to show the starting point of their adverse possession. The trial Judge decreed the suit of the plaintiffs for possession.
5. The defendants aggrieved against the judgment and decree of the trial Judge assailed the same in the first appeal. The first appellate Court did not disturb the finding of the trial Judge under issue No. 2, but of its own accord jumped to the conclusion that the defendants were in permissive possession of the suit land. It was not the case of the defendants either in pleadings or in evidence that they were in permissive possession of the suit land. The plea of permissive possession is destructive to the plea of adverse possession These pleas cannot be taken simultaneously because one runs counter to the other Having taken the plea that they were in adverse possession, it was not open to the defendants to take a somersault and urge that they were in permissive possession. A reading of the judgment of the first appellate Court gives an impression that the same has been rendered for some extraneous reasons. However, I leave the matter at this.
6. Even otherwise, the documentary evidence does not advance the case of the defendants that they were in occupation of the suit land as tenants-at-will The defendants are recorded in cultivating possession of the suit land in the revenue record, but the column of rent is blank and it does not indicate that any rent was paid by them to the landowner. The column of rent and the column of cultivation in the revenue record have to be read together to determine whether or not the person in occupation is a tenant on the land. Non-payment of rent negatives the existence of relationship of landlord and the tenant. Thus, the case set up by the first appellate Court that the defendants were in permissive possession cannot be sustained either on facts or at law.
7. For the reasons stated above, the appeal succeeds the judgment and decree of the first appellate Court are set aside and those of the trial Judge are restored with costs. Counsel fee is assessed at Rs. 1,000/-.