Punjab-Haryana High Court
Har Kaur (Since Deceased) Through Lrs ... vs Balbir Singh And Others on 24 July, 2013
Author: K. Kannan
Bench: K. Kannan
RSA No.1170 of 1986 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.1170 of 1986 and
X Obj No.20-C of 1986
Date of Decision.24.07.2013
Har Kaur (since deceased) through LRs alleged d/o Phangan Singh
.....Appellant
Versus
Balbir Singh and others .......Respondents
Present: Mr. Santosh Sharma, Advocate for
Mr. Akshay Bhan, Advocate
for the appellant.
Mr. Ashok Singla, Advocate
for the respondents No.1 and 2.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the judgment ? No
2. To be referred to the Reporters or not ? No
3. Whether the judgment should be reported in the Digest? No
-.-
K. KANNAN J.
1. The following substantial questions of law arise for consideration in the second appeal:
i) Whether the plaintiff could have been denied the relief of recovery of possession when the Court had found that the defendants 1 and 2 had set up title in themselves and had consequently, forfeited the right to take the benefit of any tenancy legislation providing for exclusive jurisdiction to authorities constituted under the Act?
ii) Whether the Will set up by defendants 1 and 2 was established in accordance with law and the decisions of the courts below in discarding the evidence of the marginal witnesses in preference to the handwriting expert justified?
iii) Whether in any event the defendants 1 and 2 are entitled to secure the benefit under the tenancy legislation to non-suit the plaint for recovery of possession before a Civil Court?
2. The second appeal is at the instance of the plaintiffs, who Kamboj Pankaj Kumar 2013.07.29 12:34 I attest to the accuracy and integrity of this document Chandigarh RSA No.1170 of 1986 -2- sought for declaration and injunction or in the alternative for recovery of possession. The suit was decreed for declaration and possession at the trial Court but reversed at the Appellate Court. The suit was filed for declaration on the ground that the property had belonged to one Harnam Singh and after his death, the plaintiffs and the defendants 10 to 18 were the heirs at law but the property was, however, held by defendants No.1 and 2 claiming to be owners of the property and the 3rd defendant, who was the father of defendants No.1 and 2, was colluding with defendants No.1 and 2 to deny the plaintiffs their entitlement to the property.
3. The defence by defendants No.1 and 2 was that the property had been originally obtained on lease from Harnam Singh but he had bequeathed the property by way of Will in his favour on 19.12.1974 that came into effect on 11.07.1979 on his death. The mutation of revenue entry had also been taken in the names of defendants No.1 and 2 which indeed was the cause of action for the plaintiff for the recovery of possession. Their contention, therefore, was that the plaintiff was not entitled to recover possession of the property. It was also their contention that the defendants had been tenants of the property previously and the suit for ejectment cannot be instituted otherwise than under the procedure referred to under the Punjab Security of Land Tenures Act, 1953 and Punjab Tenancy Act.
4. Defendant No.3 contested the suit independently on the ground that the suit for recovery of possession itself was not maintainable and he was holding the property as a mortgagee and the suit should have been filed only for redemption of mortgage. His Kamboj Pankaj Kumar 2013.07.29 12:34 I attest to the accuracy and integrity of this document Chandigarh RSA No.1170 of 1986 -3- contention was that the suit was not properly framed.
5. During the course of trial, the defendants No.1 and 2, in order to prove the Will that was propounded by them, examined two persons who were said to be witnesses. One was Tara Singh, who was the brother of 3rd defendant. Yet another witness was Mohinder Singh said to be a resident of the same village. Admittedly, defendants No.1 and 2 were themselves not relatives of the deceased Harnam Singh and therefore, the recitals of the Will had to be properly explained to remove the suspicious circumstances. Both the Courts found that the Will was not true and that even the recitals were artificial. The Will was said to have made a deviation from the normal line of succession and referred to defendants No.1 and 2 as his nephews. It was admitted in the evidence that they were not nephews but the reliance of the defendants was plaintiff's witness PW-4, who had admitted that defendants No.1 and 2 were always "treated as nephews." Learned counsel appearing on behalf of the respondents read to me the recitals in the Will which is in the vernacular language and by rough translation he was making a reference as he was referring to defendants No.1 and 2 as his own nephews and that he was making a bequest in their favour and that his relatives shall not claim any right in the property. He has also made an averment in the Will that he was getting old and he was making a Will to ensure that the property was enjoyed by persons without any obstruction from his relatives.
6. The Will was said to have been written on 19.12.1974 and registered the following day on 20.12.1974. Harnam Singh had died nearly four years after the alleged execution of the Will and the Kamboj Pankaj Kumar 2013.07.29 12:34 I attest to the accuracy and integrity of this document Chandigarh RSA No.1170 of 1986 -4- evidence was also that he was mentally stable till he died. During the course of the trial, the Court had sent the document to forensic lab and secured the report and allowed the parties to serve interrogatories who had given the opinion. The plaintiff had served interrogatories relating to the manner of assessment of the thumb impressions by comparison with the admitted mortgage document executed in favour of the 3rd defendant. The defendants No.1 and 2 chose not to serve any interrogatories. I would find this exercise to be rather unusual for the interrogatories are served only on parties and not on witnesses. However, if the Court had secured a report from the forensic lab, it was trying to elicit what was best possible since the science of thumb impression is perceived to be an exact science and if the Will contained the thumb impression of the deceased, it should have served definitely a proof of one part of the requirement in law, namely of the element of the existence of the signature/thumb impression in the execution of the document. The report was to the effect that the thumb impressions found in the Will did not tally with the thumb impressions found in the mortgage. The Court witness to whom the interrogatory had been served had also made an assertion of the fact that he had also examined it and he had filed the magnified copies of the document containing the thumb impression and was of the view that the thumb impressions in the mortgage did not tally with the thumb impression as found in the document.
7. Learned counsel appearing on behalf of the respondents, who have come on a cross objection relating to the finding regarding the Will argued that the Will is invariably an instrument to deviate from the Kamboj Pankaj Kumar 2013.07.29 12:34 I attest to the accuracy and integrity of this document Chandigarh RSA No.1170 of 1986 -5- normal line of succession and the mere fact that the Will was executed in favour of defendants No.1 and 2 who were strangers to the family was not to be taken as a suspicious circumstances. He would also refer to the evidence PW4, who had given evidence that defendants No.1 and 2 were treated as nephews and this according to him would also indicate their own stand of the recital in the instrument that the bequest was in their favour only because they were treated as the nephews of the deceased. The counsel would contend that the respondent was not himself married and he did not have children and it was nothing unusual for a person to be executing the instrument in his favour.
8. I will not take the report of the forensic expert itself as most material. However, in this case, there were truly suspicious circumstances which the defendant had to explain. When there were sisters and sisters' children, an utter lack of reference to them was most unusual. Mere reference to the fact that he did not want the bequest to go to relatives seems hardly sufficient. At least there was an occasion to explain but none of the witnesses in the Will had explained as to why the deceased did not even make any reference as to why he wanted to disinherit relatives and what was the unusual filialty to defendents No.1 and 2, who were but tenants A bequest to the tenants seem rather unusual, for if he had intended to benefit them there was simply no reason to allow the property to be retained by them as tenants. He could have simply allowed them the continuance of the property as his own licencees. Here again, it must be noticed that the property had been mortgaged to the 3rd defendant and the persons who were propounding their Will and who were cited as witnesses were immediate Kamboj Pankaj Kumar 2013.07.29 12:34 I attest to the accuracy and integrity of this document Chandigarh RSA No.1170 of 1986 -6- privies of 3rd defendant viz; his sons, defendants No.1 and 2. One of the witnesses was the brother of the 3rd defendant. Yet another witness was a person of the same village. They could not explain properly the reason for disinheritance of the only relatives of the deceased and I would think that the Courts were perfectly justified in finding that the Will was not genuine and it could not be acted upon.
9. Learned counsel has the argument to make that the Will is a registered instrument and it obtains credibility in terms of Section 60 of the Registration Act. I find this argument to be not sound, for the Will itself is not an instrument which is required to be registered under Section 17 of the Registration Act. Neither the absence of registration nor the effect of actual registration would prove one way or the other regarding the genuineness of the Will. The entire body of a case that law abound on the subject of Will arise from the interpretation given to Section 68 of the Indian Evidence Act and Section 63 of the Succession Act by the Supreme Court in H. Venkatachala Iyengar Vs. B.N. Thimmajamma AIR 1959 SC 443. The Will is invariably a document that speaks from the grave and it is imperative that the judicial conscience is satisfied and all the suspicious circumstances are properly removed. It is no doubt true that a Will is invariably an instrument to carry out the testator's intention to bequeath to persons that deviate from the normal line of succession. But that precisely is the issue reason that a person, who propounds the Will has to take burden himself and discharge the same. In this case, the quality of evidence was skeletal. The attempt of the defendants to disprove the suspicious circumstances of total disinheritance of the near relatives was Kamboj Pankaj Kumar 2013.07.29 12:34 I attest to the accuracy and integrity of this document Chandigarh RSA No.1170 of 1986 -7- completely lacking and coupled with this fact, the thumb impressions did not tally which were sure enough reasons to discredit the defendants' version to hold that the Will was not genuine. I find no reason to take a different view from how the Courts below have dealt with and hold that the Court's rejection of the Will was not merely on the basis of the report of the forensic expert but on the inconsistencies and suspicious nature of the instrument that was propounded by the defendant Nos.1 and 2.
10. The most crucial issue that falls for consideration however is whether the defendants who pleaded in defence an instrument of Will and set up title in themselves could seek for revival of interest as tenants and resist the action for recovery of possession of property. This depends upon the consideration of whether there existed a challenge to the plaintiffs' title of the property or not. On this I have no doubt that the defendants who were resisting the suit were not at any point of time conceding title of the plaintiffs. The suit itself came to be instituted only when the defendants had changed a mutation from Harnam Singh as the owner to their own names in the ownership column. When the defendants were doing an overt act of setting up title in themselves, it is difficult to believe that they were merely setting up a Will and they were not at any point of time denying title of the owner. In this case, the defendants No.1 and 2 were setting up title in themselves as owners by virtue of bequest in Will and the Court was holding that the Will was not genuine. It is an outstanding illustration of the defendants defying the title of the landlord and claim succession of interest that annihilates the plea by the person as tenants. Therefore, I Kamboj Pankaj Kumar 2013.07.29 12:34 I attest to the accuracy and integrity of this document Chandigarh RSA No.1170 of 1986 -8- have no doubt in my mind that their conduct in setting up a Will amounted to denial of the title of the landlord.
11. The point that is still required to be seen is that if there is denial of title by the landlord, would that forfeit tenancy or would still require the action to be taken under the agricultural tenancy legislation. Learned counsel refers to me two enactments as coming in the way of the owners to seek for recovery of possession. One is the Punjab Security of Land Tenures Act which according to him gives specific provisions for enforcing ejectment and the Civil Court's jurisdiction itself is barred. I have seen through the provisions. I shall not be able to accept the contentions taken by the respondent. The liability of tenant to be ejected under Section 9 sets out circumstances under which the landlord will be entitled to seek for ejectment. This section does not refer to any exclusive jurisdiction but merely set out the grounds on which ejectment is possible under the Act. Section 14A of the Act sets out the procedure for ejectment and for recovery of possession. Section 14A would be invoked in cases where a landlord applies for ejectment and if such an application is made Section 14A details the procedure to be adopted. Section 25 of the Act talks about the exclusion of Courts and authorities. Since we are examining a case from the point of view of whether there is an exclusion of jurisdiction, the Section would require to be reproduced.
"25. Exclusion of courts and authorities - Except in accordance with the provisions of this Act, the validity of any proceedings or order taken or made under this Act shall not be called in question in any court or before any other authority."
12. This Section is not an exclusion of the jurisdiction of the Kamboj Pankaj Kumar 2013.07.29 12:34 I attest to the accuracy and integrity of this document Chandigarh RSA No.1170 of 1986 -9- Civil Court. I find it talks about the procedure to assail an order passed by any of the authorities under the Act. For example, if there is an application filed under Section 9 and the authority, who is called as the Revenue Court takes a decision in the manner or in respect of the procedure established under Section 14A, the decision of the authority cannot be challenged otherwise than under the provisions of the Act. The provisions of the Act contain a particular form of challenge and it shall not be possible for a challenge to the order in any Civil Court. We are not considering a situation of such as challenge to an order passed by any authority and therefore, I do not find that Section 25 constitutes any bar.
13. The only Act to which we have to turn our attention will be the Punjab Tenancy Act. Section 85 of the Punjab Tenancy Act sets out a procedure for ejectment and sets out also a jurisdiction of authorities who can exercise power to issue order of ejectment. Section 75, 76 and 77 refer to the jurisdictional provisions under the Act. Section 77(3) is relevant, according to the counsel, which refers to the classes of suits which can be instituted. Clauses (d) and (e) provide as follows:-
"77(3) The following suits shall be instituted in, and heard and determined by Revenue Courts and not other Court shall take cognizance of any dispute or matter with respect to which any such suit might be instituted :
xxxx xxxx xxxx
(d) suits by a tenant to establish a claim to a right of occupancy or by a landlord to prove that a tenant has not such a right;
(e) suits by a landlord to eject a tenant;
xxxx xxxx xxxx"
Section 42 of the Act is also material for it contains a provision relating Kamboj Pankaj Kumar 2013.07.29 12:34 I attest to the accuracy and integrity of this document Chandigarh RSA No.1170 of 1986 -10- to restriction on ejectment. The Section reads as follows:-
"42. Restriction on ejectment - A tenant shall not be ejected otherwise than in execution of a decree for ejectment, except in the following cases, namely :-
(a) when a decree for an arrear of rent in respect of his tenancy has been passed against him and remains unsatisfied;
(b) when a tenant has not a right of occupancy and does not hold for a fixed term under a contract or a decree or order of competent authority."
14. Learned counsel appearing on behalf of the respondent cites before me two decisions relating to the applicability of these enactments and the exclusion of the jurisdiction of the Civil Court. The judgment in Avtar and another Vs. Israil AIR 2012 (4) 797 dealt with a situation that required a consideration of whether a person who claimed right of occupancy as tenant could be said to be a person who was denying the landlord's title. I do not think that I should detain myself on this judgment for a person that claims occupancy is not same, like a person who sets up title in himself. I do not think this judgment applies. Learned counsel also refers to a judgment in Kirpal Singh Vs. Nathan and others 1985 (1) PLR 661. It was a case relating to a land owner filing a suit for recovery of possession on the ground that the defendant was a licensee, whose licence stood revoked. The defendants' contention was that they were tenants. That was really not a case relating to denial of landlord's ownership but any way the Court had dealt with the issue of the effect of reputation by a tenant of the landlord's title. The judgment refers to Division Bench ruling of this Court and that holds that a denial of title of the landlord does not entail forfeiture of tenancy. The judgment makes a reference to Harphul and Kamboj Pankaj Kumar 2013.07.29 12:34 I attest to the accuracy and integrity of this document Chandigarh RSA No.1170 of 1986 -11- others Vs. Sehja (1967) 69 PLR 901 and Sohawa Singh Vs. Kesar Singh ILR 13 Lahore 432. The latter judgment was taking up a reasoning which is reproduced in the judgment as follows:-
"It cannot, therefore, be legitimately argued that the denial by the defendants in their written statements put an end to the relationship of landlord and tenant between the parties. The Single Bench authority of Harnam Singh J. in Fqiria V. Kolu Mal, that "tenancy of agricultural land is forfeited by repudiation by the tenant of the tenancy by claiming in himself the title to the land" cannot be regarded as good law........."
It was further held in this judgment that:-
"The circumstances in which a tenant can be ejected are specifically mentioned in sub-section (1) of section 9 and nowhere is it said that disclaimer of landlord's title would entail the penalty of forfeiture to enable him to seek his tenant's ejectment."
15. A reading of this judgment shows that a denial of title does not entail in determination of tenancy. The provision under Section 111
(g) that stipulates of consequence of forfeiture in case of denial of title cannot be applied to the petitioner in view of the fact that the said provision is not applicable to agricultural tenancies, by virtue of Section 117 of the Transfer of Property Act that exempts the provisions of Transfer of Property Act for agricultural tenancies. We will have to, therefore, only look to any particular provision relating to actions against the tenant in a local legislation. Neither the Punjab Tenancy Act nor the Punjab Security of Land Tenures Act provided for forfeiture of tenancy for denial of title. We have already extracted the relevant provisions under the Punjab Tenancy Act that provides for suit by a landlord to eject the tenant could be done under Section 77(3)(e) of the Act. Section 77(3) itself states that the suit of the nature provided under the various clauses can be determined only by the Revenue Court Kamboj Pankaj Kumar 2013.07.29 12:34 I attest to the accuracy and integrity of this document Chandigarh RSA No.1170 of 1986 -12- and not any other Court. This constitutes a complete bar for a Civil Court to entertain a relief for ejectment against an agricultural tenant.
16. The questions of law, therefore, are answered to the effect that the Will set up by defendants No.1 and 2 is not true and the denial of title in this case did not result in forfeiture of tenancy. The plaintiff cannot have the relief of recovery of possession in the Civil Court and the plaintiff's remedy shall be only to approach the competent Revenue Court of jurisdiction for securing the appropriate reliefs. The judgment of the lower Appellate Court is set aside and the appeal is partly allowed reserving however to the respondent a right of recovery of possession of property in the manner referred to above.
17. The cross objection also takes up the issue of heirship of the plaintiffs to Harnam Singh the admitted original owner. I reject the plea before this Court, as an issue of fact concluded already in favour of the plaintiffs. The cross objection is dismissed.
18. No costs.
(K. KANNAN) JUDGE July 24, 2013 Pankaj* Kamboj Pankaj Kumar 2013.07.29 12:34 I attest to the accuracy and integrity of this document Chandigarh