Punjab-Haryana High Court
Jaswant Rai vs Dalip Singh (Deceased) Through His ... on 16 December, 2008
R.S.A. No.2409 of 2007 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
****
Date of Decision:16.12.2008
1. R.S.A. No.728 of 2007
Jaswant Rai
.....Appellant
Vs.
Dalip Singh (deceased) through his legal heirs-cum-
legal representatives and others
.....Respondents
2. R.S.A. No.2409 of 2007
Jaswant Rai
.....Appellant
Vs.
Punjab Wakf Board, Ambala Cantt. and others
.....Respondents
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present:- Mr. Ramesh Goyat, Advocate for the appellant.
Mr. Abhinash Jain, Advocate for Mr. A.R. Takkar,
Advocate for respondents No.1 and 2.
Mr. Ashok Verma, Advocate for proforma respondent.
****
JUDGMENT
HARBANS LAL, J.
This judgment shall dispose of Regular Second Appeal No.728 of 2007 bearing caption Jaswant Rai v. Dalip Singh (deceased) through his legal heirs cum legal representatives as well as Regular Second Appeal No.2409 of 2007 titled Jaswant Rai v. Punjab Wakf Board and others as having arisen out of the same judgment/ decree dated 29.8.2006 passed by the Court of learned Additional District Judge, Hisar whereby he accepted Civil Appeal No.24 of 2002 titled Dalip Singh (deceased) through his legal R.S.A. No.2409 of 2007 -2- representatives v. Jaswant Rai as well as Civil Appeal No.28 of 2002 bearing caption Punjab Wakf Board, Ambala Cantt. and another v. Jaswant Rai and others, and dismissed the suit filed by the plaintiff by setting aside the judgment/ decree dated 29.4.2002 rendered by the Court of learned Civil Judge (Junior Division), Hisar whereby he decreed the suit for permanent injunction restraining the defendants- Punjab Wakf Board and others from interfering in the possession of the plaintiff over the suit land and from dispossessing the plaintiff forcibly without due process of law.
The brief facts which form the backdrop of the suit are that the suit land was allotted by defendant No.1 - Punjab Wakf Board, Ambala Cantt., as well as Administrator, Punjab Wakf Board to the plaintiff in the year 1983. The plaintiff has been in continuous possession of the same under these defendants on payment of fixed lagan (rent) since the said year. The lagan has been paid by him against a valid receipt. He requested many a times to these defendants to receive the fixed lagan from him for the future period, but they have totally refused to receive the same. The plaintiff has already installed a tubewell in his name in the disputed land since 1987 and he is in cultivating possession of this land. He has incurred huge amount over the improvement of this land with regards to which the notice was given to the aforesaid defendants, who have enhanced the lagan from Rs.1500 to Rs.2500 per year by agreeing that they will not evict the plaintiff from this land in future. It came to the knowledge of the plaintiff that these defendants want to dispossess him with the help of his co-defendants by issuing false receipts to their co-defendants. The plaintiff has also constructed a pucca room in the land in dispute by spending a huge amount and has been using the same since 1983. The defendants have got no right R.S.A. No.2409 of 2007 -3- to dispossess him from the suit land. They were asked to desist from interfering with the possession of the plaintiff over the suit land, but all in vain. On these allegations, the suit has been filed for permanent injunction. In their joint written statement, defendants No.1 and 2 have inter-alia pleaded that the plaintiff was lessee only in respect of the land measuring 50 kanal and not 61 kanals as alleged. He paid the lease money on 30.3.1992 for the years 1991-1992, whereafter he did not intend to get the lease extended and, therefore, vacated the land in dispute and handed over its vacant possession to the answering defendants, who further leased out this land to Dalip Singh and Hari Singh at the rate of Rs.8,000/- per annum in the year 1992-1993, at the rate of Rs.9,000/- per annum in the year 1993- 1994 and Rs.10,000/- per annum in the year 1994-1995 and they are paying lease money regularly. After Dalip Singh's death, the disputed land is on lease with his sons as well as Hari Singh. That the plaintiff is not in possession of the suit land. As alleged, the permission for installation of the tubewell was not obtained by the plaintiff. It has been denied that the development has been made by him in the suit land.
In their joint written statement, defendants No.3 to 6 have inter- alia pleaded that the plaintiff was lessee under the Punjab Wakf Board, but the lease deed in his favour was cancelled on 8.11.1988 by the Punjab Wakf Board, whereafter the disputed land was leased out to Dalip Singh, father of defendants who have been in possession of the suit land for the last 3 years. Dalip Singh- deceased had made payment of the lagan upto date whereas the plaintiff did not make payment of the same. Hence, if any entry in the revenue record is existing in his name, the same is illegal. He has no concern with the suit land. The answering defendants have been making the R.S.A. No.2409 of 2007 -4- payment of lagan as well as the electricity bill of the tubewell. The answering defendants have also compensated the plaintiff by making him payment in respect of the tubewell.
The following issues were framed by the learned trial Court:-
(i) Whether the defendants are liable to be restrained from interfering in the possession of the plaintiff over the suit property and also from dispossessing him from the same forcibly and illegally as alleged in the plaint? OPP
(ii) Whether the suit is not maintainable in the present from?
OPD
(iii) Whether the plaintiff has no locus standi to file the present suit? OPD
(iv) Whether the suit is time barred? OPD
(v) Whether the suit is bad for want of notice to defendants No.1 & 2? OPD 1 & 2.
(vi) Whether the plaintiff has not come to the court with clean hands, if so, its effect? OPD
(vii) Whether the plaintiff has no cause of action to file the present suit? OPD
(viii) Whether the plaintiff is estopped to file the present suit by his own act and conduct? OPD
(ix) Relief.
After hearing the learned counsel for the parties and examining the evidence on record, the learned trial Court decreed the suit in the terms as noted supra. Feeling aggrieved therewith, Dalip Singh- deceased through his legal representatives preferred an appeal, which was accepted by the R.S.A. No.2409 of 2007 -5- learned Additional District Judge, Hisar setting aside the judgment/ decree passed by the learned trial Court and dismissed the suit filed by the plaintiff. Inasmuch as Civil Appeal No.24 of 2002 ibid was preferred by Dalip Singh
- deceased through his legal representatives and another Civil Appeal No.28 of 2002 was filed by the Punjab Wakf Board, Ambala Cantt., and its Administrator posing a challenge to the judgment/ decree delivered by the learned trial Court, so the plaintiff Jaswant Rai has preferred the two appeals noticed at the outset, feeling aggrieved with the judgment/ decree dated 29.8.2006 rendered by the learned First Appellate Court, vide which his suit has been dismissed.
I have heard the learned counsel for the parties, besides perusing the findings returned by both the Courts below with due care and circumspection.
Mr. Ramesh Goyal, Advocate on behalf of the common appellant Jaswant Rai, in both the appeals maintained with great eloquence that as would transpire from the impugned judgment, the learned First Appellate Court did not record any reason for reversal of the findings returned by the learned trial Court. This apart, the learned Lower Appellate Court ignored the settled principle of law that even a trespasser can be evicted only in the manner authorised by law. It is admitted case of the parties that initially the plaintiff/ appellant was allotted the suit land by defendants No.1 and 2 in the year 1983, whereafter he continued in possession of the same as lessee on payment of lagan. Ex.P.2, the copy of jamabandi for the year 1993-1994 tends to show that the plaintiff is in possession of the disputed land as a lessee. Ex.D4, the copy of khasra girdawari too fortify this entry existing in Ex.P.2. This documentary R.S.A. No.2409 of 2007 -6- evidence go a long way in proving the possession of the plaintiff- appellant over the land in dispute on the date of institution of the suit, i.e., 20.5.1993. To add further to it, the defendants have also admitted that there is a tubewell and kotha (Room) in the suit land. The learned First Appellate Court has not assigned any cogent reason for reversing the findings returned by the learned trial Court on the basis of revenue record. The plaintiff- appellant being in admitted possession of the land in dispute is entitled to protect it against unlawful dispossession.
To tide over these submissions, Mr. Ashok Verma, Advocate representing the legal heirs-cum-legal representatives of the deceased Dalip Singh- defendant- respondent urged with great vehemence that as a matter of fact, the appellant had vacated the land in dispute and subsequently, it was leased out to Dalip Singh deceased and that being so, the legal heirs of the deceased Dalip Singh cannot be injuncted from cultivating the land.
Mr. Abhinash Jain, Advocate arguing on behalf of the Punjab Wakf Board, Ambala Cantt., as well as its Administrator- respondents pressed into service that in consequence of vacation of the suit land by the plaintiff- appellant, it was leased out in favour of Dalip Singh since deceased and that the legal heirs-cum-legal representatives of the deceased Dalip Singh had been making the payment of lease money regularly.
I have given a deep and thoughtful consideration to the rival contentions. The learned First Appellate Court in paragraph No.19 of the impugned judgment has observed as under:-
"The learned trial court held the plaintiff to be a lessee on land measuring 60 kanals, though the plaintiff himself admitted in his replication that he was lessee qua 50 kanals of land only. R.S.A. No.2409 of 2007 -7- Tubewell, which the plaintiff claims to have been installed in the land in question, was not in use as deposed to by PW-2 Des Raj, UDC, HPVN Adampur and the electric connection was disconnected on 17.9.1996 as consumer Jaswant son of Ram Narain had become defaulter. Lessees Dalip etc. are paying lagan money to the Punjab Wakf Board. The observations of the learned trial court that relationship of lessee and lessor existed between the parties as the plaintiff was ready and willing to pay the lease money. Relationship of lessee and lessor cannot be created by willingness of a person to pay lease money. For creation of lease, there has to be bilateral agreement between the parties."
In the first instance, it is to be noticed, as to whether the learned First Appellate Court was right in observing that the learned trial Court held the plaintiff to be a lessee of land measuring 61 kanals though the plaintiff admitted himself in his replication that he is lessee qua 50 kanals of land only. To my mind, its answer must be in the negative for the reason that a glance through the plaint would reveal that as a matter of fact, the suit has been filed qua the land measuring 60 kanal and 1 marla. By way of inadvertence or due to typographical mistake in the replication, the land has been shown as 50 kanals. Indeed, the plaint is the basic document of the pleadings. That being so, no serious note can be taken of the fact that in the replication, the plaintiff has alleged himself to be a lessee qua the land measuring 50 kanals. Further, the learned First Appellate Court observed that the tubewell being not in use, its connection was disconnected as the plaintiff had become defaulter. It is own case of the legal heirs-cum-legal R.S.A. No.2409 of 2007 -8- representatives of the deceased Dalip Singh, i.e., defendants No.3 to 6 that they have compensated the plaintiff by making him payment in respect of tubewell. This admission is clincher towards the fact that the tubewell in the disputed land was installed by the plaintiff- appellant. It is a separate matter that connection thereof has been disconnected in consequence of non-payment of the electricity charges pertaining to this tubewell. Mere disconnection of tubewell does not confer any right on defendants No.3 to
6. It is further observed by the learned First Appellate Court that Dalip Singh, etc., are paying lagan to the Punjab Wakf Board. It is apt to be borne in mind that defendants No.3 to 6 have come up with a specific plea that this lease deed in favour of the plaintiff was cancelled on 8.11.1988 by the Punjab Wakf Board and, thereafter, the land in dispute was leased out to Dalip Singh- deceased. The record is quite barren to show such cancellation of the lease deed. In the absence of such record, it would be just begging the question to say that such lease deed has been cancelled. All the defendants have admitted in their written statements in categoric terms that initially the land in dispute was leased out in favour of the plaintiff- appellant. The defendants No.3 to 6 could have been inducted as lessee in the land in dispute only in the event the plaintiff- appellant had either surrendered the lease or vacated the land in dispute. The defendants No.1 and 2 have come up with the plea that the plaintiff did not want to get the lease extended and thus, he vacated the land in dispute and handed over its vacant possession to them, whereas their co-defendants have put forth a different plea that the lease deed in favour of the plaintiff was cancelled. Ostensibly, they have taken up inconsistent pleas. Had the lease deed been cancelled, the defendants No.1 and 2 might have taken up such plea. As per R.S.A. No.2409 of 2007 -9- Ex.D.4, from kharif 1997, the defendants No.3 to 6 came in possession of the suit land vide Rapat Roznamcha No.105 dated 27.11.1997. As has been reflected in Ex.D.5 as well as Ex.D.6, they have been continuing in possession of the suit land. The defendant Rajpal had moved an application for correction of entries in the khasra girdawari in the Court of Assistant Collector-II Grade, Hisar, which was allowed vide order dated 12.11.1997, which was given effect to vide above-mentioned Rapat Roznamcha on the basis of which defendants No.3 to 6 have been shown in the cultivating possession of the suit land from kharif 1997 onwards. The said order was challenged by the plaintiff in the Court of Collector Hisar who set aside the same vide his order dated 22.9.2000 Ex.P.8. The learned trial Court rightly proceeded to observe that "Once order dated 12.11.1997 was set aside by Collector Hisar vide Ex.P.8, the entries in Ex.D.4, Ex.D.5 and Ex.D.6 in favour of defendants No.3 to 6 by virtue of Rapat Roznamcha No.105 dated 27.11.1997 lost their relevance." It is further observed that "it is also worth mentioning here that earlier also a similar application was moved by defendants No.3 to 6 in the Court of Assistant Collector-II, Hisar for correction of khasra girdawari, which was dismissed vide order dated 4.6.1997 Ex.P.9. In the said order, it was specifically observed by Assistant Collector-II Grade, Hisar that defendants No.3 to 6 and defendants No.1 and 2 are in connivance with the each other and in fact, the plaintiff has been in possession of the suit land as a lessee." It has also been rightly observed by the learned trial Court that "Ex.D.7 has not been passed in terms of para 9.9 of Punjab Land Records Manual as per which it was incumbent upon the concerned revenue authorities to inform the affected person before effecting any change in revenue entries."
R.S.A. No.2409 of 2007 -10-
As would be apparent from Ex.D.7, the notice for spot inspection was issued to the plaintiff who did not come present at the site. The spot inspection was undertaken at his back on 18.6.2001. Thus, by no stretch of imagination, it can be said that paragraph No.9.9 ibid was observed before effecting change in the entries in the revenue record. DW1 Mohammad Baksh in his cross-examination has stated that entry regarding plaintiff Jaswant Rai giving up his possession of the suit land is mentioned in the record of Wakf Board of 1992-1993. He stated that such record is lying in the head office and the same can be produced by Record Officer. As emanates from the record, no such effort was made by the defendants to summon such record from the Record Officer. There being no evidence with regards to the surrendering of the possession of the land in dispute by the plaintiff- appellant of his own, it is very difficult to accept such plea taken up by defendants No.1 and 2.
In consequence of the afore-referred discussion, the findings returned by the learned First Appellate Court are reversed and both these appeals are accepted setting aside the judgment/ decree dated 29.8.2006 rendered by the Court of learned Additional District Judge, Hisar and the judgment/ decree dated 29.4.2002 passed by the Court of learned Civil Judge (Junior Division), Hisar is restored. Of course, having regard to the peculiarity of the facts and circumstances of the case, the parties are directed to bear their own costs.
December 16, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes