Punjab-Haryana High Court
Amar Singh Son Of Chanda Singh vs Madan Lal And Others on 31 July, 2013
Author: K. Kannan
Bench: K. Kannan
RSA No.2439 of 1986 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.2439 of 1986
Date of Decision.31.07.2013
Amar Singh son of Chanda Singh .....Appellant
Versus
Madan Lal and others .......Respondents
Present: Mr. Amit Jain, Advocate
for the appellant.
Mr. Ram Singh, Advocate
for the respondents.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the
judgment ? Yes
2. To be referred to the Reporters or not ? Yes
3. Whether the judgment should be reported in the Digest? Yes
-.-
K. KANNAN J. (ORAL)
1. The following substantial questions of law arise for consideration in the second appeal:-
(i) whether the defendant, who is admittedly in possession of property could be evicted at the instance of the plaintiff without showing better title than the defendant?
(ii) whether the Civil Court has jurisdiction to decide on the plaintiff's claim to title when the title of the property is set up in Gram Panchayat as evident through the revenue records?
2. The suit was filed on the basis that the plaintiff was a muafidar and he had mortgaged the property. The mortgagee in turn had created a lease of the property in favour of the defendant and the suit was filed on a contention that he had discharged mortgage and on such discharge, the tenancy also stood extinguished. The suit was, therefore, filed for recovery of possession of property. Kamboj Pankaj Kumar 2013.08.05 15:54 I attest to the accuracy and integrity of this document Chandigarh RSA No.2439 of 1986 -2-
3. The defendant set up title in himself claiming adverse possession to the property. He also contended that property belonged to Gram Panchayat and had been entered in the village records as such. He, therefore, would contend that the property involves position regarding title to the property of Gram Panchayat which was reserved in common and the Civil Court jurisdiction was ousted. The defendant would contend that in any event the plaintiff cannot secure possession without proving title to property and if the plaintiff was himself not the owner, the defendant could not be ejected.
4. Both the courts below held that the contention that Civil Court did not have jurisdiction was untenable and since the issue was not of a dispute between Gram Panchayat and an individual and if a suit had been brought for recovery of possession before a Civil Court on the basis of his entitlement and for recovery of possession, the Civil Court jurisdiction would not be ousted. The Court also found that the defendant had not prescribed title to the property by adverse possession but finding that the plaintiff had been recorded as muafidar, granted a decree for recovery of possession of property.
5. The substantial question of law that would require to be answered in appeal was whether the plaintiff could maintain an action for recovery of possession against a defendant without showing any better title. The issue of adverse possession itself would not require to be considered as the defendant could not establish his possession over the statutory period and therefore, the decision of the Court below is not required to be unsettled on that score. If the plaintiff could not prove the existence of a mortgage and also establish that the defendant Kamboj Pankaj Kumar 2013.08.05 15:54 I attest to the accuracy and integrity of this document Chandigarh RSA No.2439 of 1986 -3- was a tenant under such mortgagee, the redemption of mortgage cannot extinguish the defendant's right. The reasoning of the Court below that the title to Gram Panchayat as set up by the defendant cannot take away the Civil Court's jurisdiction in suit between two parties is also in my view a correct finding that could not require to be assailed. However, the plaintiff cannot secure a decree without either proving his ownership over the property or establishing a better title. The Court has examined the issue from the context of how in the jamabandi entry for the year 1954-55 under Ex.P3, the plaintiff had been drawn to be the muafidar under Section 4 of the Punjab Village Common Lands Act. Section 4 of the Punjab Village Common Lands Act deals with vesting of rights of Panchayat and non-proprietors. Clause (1) (a) refers to categories of property like shamlat deh which vests in Panchayat. Clause (2) states that any property vested in Panchayat under shamlat deh shall also be deemed to be vested in the Panchayat. Clause (3) refers to the excepted classes of properties which would not be vested in Gram Panchayat. The sub section would require to be extracted to set out the classes of properties that cannot be vested in Gram Panchayat:-
"(3) Nothing contained in clause (a) of sub-section (1) and in sub-section (2) shall affect or shall be deemed over to have affected the:-
(i) existing rights, title or interests of persons, who though not entered as occupancy tenants in the revenue records are accorded a similar status by custom or otherwise, such as Dholidars, Bhondedars, Butimars, Basikhuopahus, Saunjidars, Muqarrirdars;
(ii) rights of persons in cultivating possession of shamlat deh, for more than twelve years (immediately preceding the commencement of this Act) without payment of rent or by payment of charges not exceeding the land revenue and cesses payable thereon;Kamboj Pankaj Kumar 2013.08.05 15:54 I attest to the accuracy and integrity of this document Chandigarh RSA No.2439 of 1986 -4-
(iii) rights of a mortgagee to whom such land is mortgaged with possession before the 26th January, 1950."
6. Learned counsel for the appellant argues that amongst the classes of persons, a muafidar is himself not excluded. In a system of land tenure that allowed for retention of certain rights under various grants, there have been legislation providing for vesting of certain proprietary rights. A muafi land in the dictionary of Revenue Terms, Chawla Publications 2003 Reprint is given the meaning as extracted from the decision of this Court in Mahant Lachhman Dass Vs. State of Punjab. A muafidar is a person, who is a granted owner, who is allowed to be in possession for certain services. While the Village Common Lands Act takes away from the aspect of vesting certain classes of persons under Section 4 (3) which has been extracted above makes no exception with reference to a muafidar, unless the right was otherwise perfected by any assignment by the grantor or through any intervention of law, it shall not be possible for a person claiming to be a muafidar to secure possession of the property from the person, who is admittedly in possession. The principle must follow from how Section 110 of the Evidence Act is read:-
"110. Burden of proof as to ownership.- When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner."
7. This Section enacts a common law principle that possession is 9-points in law and a person cannot be evicted from his possession unless the person seeking ejectment shows better title. A mere reference to a person s a muafidar cannot secure to him a right to eject Kamboj Pankaj Kumar 2013.08.05 15:54 I attest to the accuracy and integrity of this document Chandigarh RSA No.2439 of 1986 -5- a person who is in possession unless such a muafidar had obtained vesting of title under any statute or grant that recognizes such transfer of ownership. With no better title emerging from the facts as stated, the Court could not have granted a decree for recovery of possession.
8. The decisions of the Court below are set aside and the second appeal is allowed. No costs.
(K. KANNAN) JUDGE July 31, 2013 Pankaj* Kamboj Pankaj Kumar 2013.08.05 15:54 I attest to the accuracy and integrity of this document Chandigarh