Punjab-Haryana High Court
Jit Singh vs Bhupinder Pal And Ors. on 4 September, 1992
Equivalent citations: (1993)103PLR263
JUDGMENT A.L. Bahri, J.
1. This appeal is by the defendant Jit Singh filed against the judgment and decree dated May 26, 1979, passed by the Additional District Judge IT, Hissar, whereby judgment and decree of the trial Court dated August 24, 1978 was reversed and plaintiff's suit was decreed. The trial Court bad dismissed the suit.
2. Bhupinder Kaur and her two minor children, Rajpal Kaur and Sukhpal Kaur, filed the suit for declaration to the effect that decree dated March 14, 1977, passed in civil Suit No. 310 of 1976, by the Sub-Judge I Class, Fatehabad, obtained by Jit Singh defendant was illegal and void not affecting the rights of the plaintiffs over the suit land and for possession of the suit land claiming ownership and further alleging that Jit Singh had illegally dispossessed the plaintiffs on March 14, 1977, after passing of the aforesaid decree. According to the plaintiff Jit Singh defendant took benefit of entries in the revenue records which in fact were in favour of another Jit Singh and playing a fraud on the Court and obtained the decree. While contesting the suit, Jit Singh defendant claimed to be in possession of the suit land since 1964. He denied having dispossessed the plaintiffs on March 14, 1977. The decree obtained by him was a valid decree. In the replication the plaintiffs reiterated their stand. The trial Court framed the following issues on the pleadings :-
(1) Whether the plaintiffs are owners with cultivating possession as co-sharers of the suit land, if so, to what effect ? OPP. (2) Whether the plaintiffs have not been dispossessed forcibly by defendant No. 1 after 14.3.197 7. If so, to what effect ? OPP. (3) Whether defendant No. 1 obtained decree dated 14.3.1977 against defendants Nos. 2 to 4 by fraud and in collusion in the plaint ? If so to what effect ? OPP, (4) Relief.
3. Issues Nos. 1 and 2 were decided together. The plaintiffs were held to be the owner of the suit land but ware not held to be in possession thereof. Jit Singh defendant did not dispossess the plaintiffs after March 14, 1977 He was in possession since Rabi 1964 as tenant at will on payment of 1/3rd batai. Under issue No. 2, the decree obtained by Jit Singh was held to be valid. Hence the suit was dismissed. The lower appellate Court reversed the finding of the trial Court with respect to the statuts of Jit Singh of a tenant at will. Other findings were affirmed i. e. Jit Singh was held to be in possession since Rabi 1964 but not as a tenant. He was in permissible possession as a helper Hence the suit was decreed while setting aside the judgment and decree of the trial Court.
4. I have heard counsel for the parties and I am of the view that the approach of the lower appellate Court is correct and the appeal deserves to be dismissed. It is well recognised that no evidence can be led or taken into consideration which is beyond the pleadings Jit Singh defendant in the written statement, neither claimed to be in possession as a tenant nor in adverse possession. His only stand has been that since Rabi 1964 he was recorded in possession. This would show that Jit Singh never claimed to be in possession as a tenant. On perusal of the evidence produced in the case no finding of Jit Singh as a tenant could be recorded. Exhibit P-I-Jamabandi for the year 1972-73 records in the column of lagan as under :-
"BATAI TIHARI MAL NIRA BILA KHARCH SAHAIK KHETI, KHATA NO. 10."
If the word SAHAlK or helper had not been incorporated in the Jamabandi, the contention of the counsel for the appellant that the status of Jit Singh would be that of a tenant might have been accepted. However, describing the cultivator Jit Singh as helper itself contradicts the presumption of tenancy, if any, arising from the entry aforesaid. Under the column of possession, no doubt, Jamabandi describes Jit Singh as "GHAIR MORUST" but that per se is not enough to clothe him with the status of a tenant. The entries in the Khasra Girdawaris are also to the same effect. Otherwise Jit Singh defendant did not produce any evidence of payment of rent or the produce. Placed in such a situation, learned counsel for the appellant referred to the judgment which was obtained by Jit Singh against father of the plaintiff Bhupinder Kaur Exhibit P-5. In the heading of the suit, as maintained in the judgment, it was described that Jit Singh claimed to be tenant over the land, However, perusal of the judgment shows that Jit Singh neither claimed to be tenant nor any finding was recorded in this respect. It appears that the defendants in that suit were not interfering with the possession of Jit Singh that they chose not to contest the suit and ex parte evidence was produced and the suit was decreed that the defendants in that case would not interfere with the possession of Jit Singh. Though such a judgment and decree could not be challenged by the present plaintiffs on the ground of fraud as the present plaintiffs were not parties thereto, however, this judgment is of no help to Jit Singh appellant, as no finding was recorded therein that he was a tenant.
5. Since the plaintiffs brought the present suit on the basis of their title being owners, which fact was not disputed, the relief of delivery of possession could only be declined if Jit Singh had either pleaded tenancy or adverse possession and proved the same. He having failed to prove either of these status, the lower appellate Court rightly decreed the suit.
6. For the reasons recorded above, this appeal is dismissed with costs.