Punjab-Haryana High Court
Umesh Kumar vs Anil Kumar And Another on 27 March, 2014
Author: Hemant Gupta
Bench: Hemant Gupta
RSA No.234 of 1997 & other connected matters 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of Decision: March 27 , 2014
R.S.A. No.234 of 1997 (O&M)
Umesh Kumar ...Appellant
Vs.
Anil Kumar and another ...Respondents
R.S.A. No.233 of 1997 (O&M)
Madan Lal & others ...Appellant
Vs.
Anil Kumar and another ...Respondents
R.S.A. No.232 of 1997 (O&M)
Amir Chand ...Appellant
Vs.
Anil Kumar and another ...Respondents
R.S.A. No.79 of 1997 (O&M)
Vinod Kumar & another ...Appellants
Vs.
Anil Kumar and another ...Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
Present: Mr. Anil Khetarpal, Senior Advocate with
Mr. Gunjan Rishi, Advocate for the appellant(s).
Mr. C.B.Goel, Advocate, for the respondent(s).
HEMANT GUPTA, J.
This order shall dispose of aforementioned four regular second appeals, arising out of four separate suits for possession by way of pre-emption of land measuring 13 kanals 18 marlas each in respect of land sold by Om Parkash adopted son of Mst. Kakian Wali in favour of appellants. The plaintiffs Anil Kumar Vimal 2014.03.28 12:02 I attest to the accuracy and integrity of this document Chandigarh RSA No.234 of 1997 & other connected matters 2 Kumar son of Jagdish Chander and Sanjay Kumar son of Dina Nath claim right of pre-emption on the basis of tenancy over the land, subject matter of four sale deeds.
Om Parkash executed four separate sale deeds on 04.06.1993. Such sale deeds were made subject matter of suit for pre-emption by the plaintiffs, who alleged themselves to be tenants, therefore, in terms of section 15 of the Punjab Pre-emption Act, 1914, the plaintiffs claimed right to pre-empt the sale. In the written statement, the defendants denied tenancy and also asserted that the defendants were bona fide purchaser for value and consideration. It is pleaded that Mst Kakiyan Wali was owner of 111 kanals 19 marlas of land in village Sandhala. She transferred 1/2 share in favour of her adopted son Om Parkash by way of a civil court decree on 23.02.1970. After some time, she sold her remaining 1/2 share to one Neorati son of Banarsi. Thus, her son Om Parkash and Neorati became co-sharer in the land measuring 111 kanals 19 marlas. Therefore Mst Kakiyan Wali was not competent to induct any person, as a tenant over any part of the land comprised in Khewat No.54 and 92 and that the plaintiffs were never in cultivating possession of the suit land and could not be said to be tenant for the reason that they were of tender age at the time of alleged inception of their tenancy. It was asserted that Om Parkash actually entered into an agreement to sell the suit land with the defendants in the year 1986. It is also averred that Mst Kakiyan Wali filed a suit challenging the decree, whereby she had transferred 1/2 share of her land to Om Parkash on the ground of fraud. That suit was prosecuted by Jagdish Chand, father of Anil Kumar and uncle of Sanjay Kumar. It was also asserted that the plaintiffs were very much aware of the proposed sale of the suit land by Om Parkash in favour of the defendants. In the rejoinder, the plaintiffs asserted that defendants have filed an application for ejectment before the Assistant Collector Ist Grade, Jagadhri and that they defendants cannot deny the Kumar Vimal 2014.03.28 12:02 I attest to the accuracy and integrity of this document Chandigarh RSA No.234 of 1997 & other connected matters 3 relationship of land-lord and tenant or the competency of Mst Kakiyan Wali regarding induction of tenant.
After considering the evidence on record, the learned trial Court returned a finding that the plaintiffs have been proved to be tenants. Such finding of tenancy was primarily based upon proceedings for eviction initiated by the appellants against the plaintiffs and also for recovery of rent. On the basis of such findings, the suit was decreed. The first appeal has also been dismissed. The parties went on trial on the following issues:
1. Whether the plaintiffs have got a superior right to pre- empt the sale? OPP
2. Whether the sale consideration was fixed in good faith or was actually paid? OPP
3. If issue no.1 is not proved what was the market value of the suit land at the time of its sale? OPP
4. Whether the plaintiffs have no locus standi to file the present suit?
OPD
5. Whether the plaintiffs are estopped to file the present suit by their act and conduct? OPD
6. Whether the suit is not maintainable as alleged? OPD
7. Whether the 1/5th pre-emption amount has not been deposited, as alleged? OPD
8. Whether the stamp and registration expenses were borne by the vendees-defendants? OPD
9. Whether the vendees defendants are entitled to any improvement expenses as alleged? OPD
10. Relief.
During the course of evidence, the plaintiff namely Anil Kumar appeared as PW-1 in all the suits and also proved the documents Exs.P-1 to P-8. Kumar Vimal 2014.03.28 12:02 I attest to the accuracy and integrity of this document Chandigarh RSA No.234 of 1997 & other connected matters 4 Om Parkash, vendor, appeared in each suit as DW-2 besides one of the defendants in each case, who was examined as DW-1. The learned trial Court after appreciating the evidence primarily relying upon Form-L (Exs.P-4 and P-5) came to the conclusion that the plaintiffs had been cultivating the suit land as tenants prior to the sale, at the time of sale as well as at the time of decree, therefore they had a superior right to pre-empt the sale made by Om Parkash through four different sale deeds. Learned first Appellate Court examined the revenue record produced by the defendants and found that the defendants filed ejectment petitions against the plaintiffs claiming rent for Kharif, 1993 to Rabi, 1994, as the Kharif crop starts from May and ends with October of a particular year, therefore, the plaintiffs are proved to be tenants over the suit land prior to sale on 04.06.1993.
Before this Court, learned counsel for the appellant(s) has claimed the following substantial questions of law:
1. Whether a Stranger, who is not owner, can lease out the land and bring a relationship of landlord and tenant between real owner and the person inducted by stranger?
2. Whether in absence of anything in the revenue record with regard to payment of lease money/batai, the relationship of landlord and tenant can be inferred?
3. Whether merely because a ejectment petition has been filed by the vendee, the relationship with vendor can be presumed?
To deal with the above substantial question of law, the facts are being taken up from Civil Suit No.923-CS of 1994 titled 'Anil Kumar & another Vs. Madan Lal & others'. The evidence and the documents in all other cases are of similar in nature. In the said suit, the plaintiffs asserted themselves to be tenant of the land, but the period from which they are tenant and the amount of rent, if any, is not disclosed. The relevant para of the plaint reads as under: Kumar Vimal 2014.03.28 12:02 I attest to the accuracy and integrity of this document Chandigarh RSA No.234 of 1997 & other connected matters 5
"6. That the plaintiffs being tenant of the land have got superior right of pre-emption, requested the defendants to transfer the land to plaintiffs on payment of pre-emption money because the defendants got sale deed executed in their favour secretly, but the defendants refused to acced to the request of the plaintiffs, hence this suit."
In evidence, apart from tendering the sale deeds, the plaintiffs tendered jamabandi for the year 1991 (Ex.P3), wherein the vendor Mst Kakiyan Wali is recorded as owner and in possession through Anil Kumar and Sanjay Kumar on payment of chakota in Column No.11. Ex.P4 is an application dated 19.08.1994 filed by the defendants in Form-L, wherein it is stated that tenant has failed to pay rent regularly without sufficient cause from Kharif 93 to Rabi 94 total amounting to Rs.30,316.76. The said amount was paid on 15.09.1994. Ex.P7 is the other application dated 24.03.1994 on Form K-1 seeking ejectment of the tenants from the land measuring 55 Kanalas 11 Marlas. Ex.D-10 is the judgment and decree dated 25.05.1987 in a suit filed by Mst Kakian Wali against Om Parkash challenging Civil Court decree dated 23.02.1970. Ex.D-11 is the judgment in appeal against the judgment and decree (Ex.D10) dismissing the suit challenging the Civil Court decree.
The suit, challenging the consent decree suffered by Mst Kakian Wali in favour of her adopted son Om Parkash, was dismissed on 25.05.1987 (Ex.D-10). In the said suit, defendant Om Parkash, the vendor of the present appellants, asserted his actual physical possession, which was accepted by the Court. The relevant extract from the said judgment and decree (Ex.D-10) reads as under:
"13. Perusal of revenue record i.e. Ex.D3 jamabandi for the year 1981, Ex.D7 mutation which was sanctioned in strength of decree dated 23.02.1970 and moreover, Ex.D1 which is written statement filed by the plaintiff in partition proceedings clearly shows that decree in question was acted upon as plaintiff herself admitted in Kumar Vimal 2014.03.28 12:02 I attest to the accuracy and integrity of this document Chandigarh RSA No.234 of 1997 & other connected matters 6 para No.4 of Ex.D1 that defendant is in cultivating possession of land according to his share. However, defendant admit in his cross- examination that the possession of land was never delivered to him. But this admission of defendant does not find any corroboration with revenue record. Therefore, it is not conclusive proof to the effect that the said decree dated 23.02.1970 was never acted upon.
xx xx xx
16. Cause of action accrues to the plaintiff on the date when she suffered above said decree i.e. 23.02.1970. It is further accrued to the plaintiff when mutation Ex.D7 was sanctioned in favour of the defendant on 24.06.1970 and when she sold the land vide Ex.D6 on 06.06.1973 and it again accrued on 19.01.1979 when the plaintiff and defendant jointly mortgaged land in favour of Darshan Singh vide Ex.D5, which is a mutation in this respect. Perusal of the above said revenue record and jamabandi for the year 1981 clearly shows that decree dated 23.02.1970 was well within the knowledge of plaintiff from inception, but she did not challenge it within three years from the date of passing the same, so averments made by the plaintiff that she came to know in respect of said decree in the year 1984 carries no force. Hence, this issue is decided in favour of the defendant and against the plaintiff."
In an appeal against the said judgment and decree, the learned first Appellate Court vide judgment and decree Ex.D-11, returned the following finding:
"8. ......The aforesaid instances show that decree was acted upon in Jamabandi Ex.D3 belonging to the year 1980-81. Om Parkash has been shown in self cultivation of the land of his share. The khasra godawri Ex.D4 belonging to the year 1983 is also to the same effect..... "
Mohan Lal, defendant-appellant, while appearing as DW-1 has produced agreement dated 29.07.1986 for purchase of half share of land Kumar Vimal measuring 111 kanals 19 marlas i.e. 56 kanals 0 marlas as per the jamabandi for 2014.03.28 12:02 I attest to the accuracy and integrity of this document Chandigarh RSA No.234 of 1997 & other connected matters 7 the year 1980-81 in the sum of Rs.2,80,000/-. The sale deed was to be executed on or before 15.06.1987 and a sum of Rs.90,500/- was paid as earnest money. However, vide agreement dated 12.06.1987 Ex.D2, the period of executing the sale deed was extended up to 15.06.1988. Still further, vide agreement dated 10.06.1988 Ex.D3, the period for execution of sale deed was extended up to 15.06.1989. Still further, vide another agreement dated 09.06.1986 Ex.D4, the period for execution of sale deed was extended up to 15.06.1990. Thereafter, vide agreement dated 01.06.1990 Ex.D-5, the period for execution was extended up to 15.06.1991. Again vide agreement dated 07.06.1991 Ex.D6, the period for execution of sale deed was extended up to 15.06.1992. However, vide Ex.D8, a fresh agreement was executed on 22.08.1992 for sale of land measuring 55 kanals 11 marlas as per jamabandi for the year 1985-86 for a sale consideration of Rs.6,24,943/- out of which Rs.2,00,000/- was paid as earnest money. The sale deed was to be executed on 15.06.1993. It was in pursuance agreement Ex.D8, four sale deeds were executed on 04.06.1993.
In the jamabandi Ex.D12 for the year 1975-76, Om Parkash is recorded to be in self-cultivation of land measuring 56 Kanals 0 marlas. In the jamabandi Ex.D13 for the year 1980-81, again Om Parkash is recorded to be in self-cultiviation of land measuring 56 kanals 0 marla. In the jamabandi for the year 1985-86 Ex.P6, Om Prakash is recorded as owner and the plaintiffs were recorded as the person in possession, but there is no entry of payment of rent in column No.11 of the jamabandi. It is only in the jamabandi for the year 1990-91 Ex.P3, the plaintiffs are recorded in possession on payment of chakota under Mst Kakian Wali, who was not the owner at that time.
After the land has been transferred by Mst Kakian Wali by virtue of a civil court decree in favour of her adopted son Om Parkash in the year 1970, Mst Kakian Wali could not induct any person as a tenant, more so, when there is Kumar Vimal 2014.03.28 12:02 I attest to the accuracy and integrity of this document Chandigarh RSA No.234 of 1997 & other connected matters 8 no entry of payment of rent or chakota in the jamabandi for the year 1975-76, 1980-81 & 1985-86. The payment of chakota in the jamabandi for the year 1990- 1991 will not establish the relationship of land-owner or tenant, as the same appears to be an entry just before the sale may be purpose to seek pre-emption. The plaintiffs have not asserted that they are tenants under Om Parkash or earlier under Mst Kakian Wali. The plaintiffs cannot claim to be tenant on land without a landlord and payment of rent.
Both the Courts have relied upon the petitions filed by the appellants in Form-L and Form K-1 to return a finding that the plaintiffs are tenant over the land in dispute. In my view, such documents cannot be made basis to return a finding of fact that the plaintiffs are the tenant over the land in question. As per the revenue record, Mst Kakiyan Wali suffered a consent decree in favour of her adopted son Om Parkash on 23.02.1970. Thereafter, Om Parkash is recorded to be in self-cultivation of land in the jamabandi for the years 1975-76 & 1980-81. Though in the year 1985-86, Om Parkash is recorded as owner and the plaintiffs as the person in possession, but there is no entry in respect of payment of rent or chakota. The entry of payment of chakota is only in the jamabandi for the year 1990-91 i.e. the jamabandi immediately preceding the date of sale i.e. 04.06.1993. Such solitary entry in the jamabandi is not sufficient to prove that the plaintiffs are the tenant firstly, it being stray entry; and secondly, the plaintiffs have not given any details as to from when they are tenant and under whom. The present appellants entered into an agreement for purchase of the property on 29.07.1986 in the sum of Rs.2,80,000/-. The time of execution of the sale deed was extended from time to time presumably for the reason that civil suit challenging the consent decree was pending. However, the sale deed was executed in pursuance of agreement to sell dated 22.08.1992, when the sale consideration was increased to Rs.6,24,943/-. The plaintiffs are not recorded as tenant, when the agreement to Kumar Vimal 2014.03.28 12:02 I attest to the accuracy and integrity of this document Chandigarh RSA No.234 of 1997 & other connected matters 9 sell dated 29.07.1986 was executed. DW-2 Om Parkash has deposed that he is not taken any batai from the plaintiffs nor given the land for cultivation and that Jagdish Chander and Dina Nath are nephews of Mst Kakian Wali. In cross- examination, DW-2 Om Parkash admitted that he is cultivating the land since 1970 and continued to cultivate the same, when the possession was delivered to the vendees. In fact, such is the finding in a suit filed by Mst Kakian Wali. Thus, the plaintiffs are not proved to be tenant under Om Parkash, as there is no proof of induction of the plaintiffs as tenant by Om Parkash or Mst Kakian Wali.
PW-1 Anil Kumar, one of the plaintiffs, has deposed that they are in cultivating possession for the last 13/14 years on batai. However, in cross- examination, he stated that he has paid Rs.1000/- only to Mst Kakian Wali, when he has taken the land on rent before cultivating the same for the first time. There is no writing of the land being taken on lease. Such statement was made in the year 1995, therefore, they are claiming to be in possession as a lessee somewhere since the year 1980. However, Mst Kakian Wali was not the owner of the suit land having suffered a consent decree in favour of her adopted son Om Parkash in 1970. Though she has filed a suit, but such suit remained unsuccessful. In view of the said fact, Mst Kakian Wali was not competent to lease out the land and bring out the relationship of landlord and tenant between Om Parkash and the plaintiffs. The plaintiffs have not even claimed tenancy under the vendor Om Parkash nor could be inducted as tenant by Mst Kakian Wali. The plaintiffs have failed to prove tenancy under Mst Kakian Wali as well. Thus, the first substantial question of law is answered in favour of the appellants.
In respect of second substantial question of law, there is only one entry of payment of chakota i.e. in the jamabandi for the year 1990-91. The plaintiffs assert that they are cultivating the same for the last 15 years having paid Rs.1000/- to Mst Kakian Wali, when they started cultivating the land. In the Kumar Vimal 2014.03.28 12:02 I attest to the accuracy and integrity of this document Chandigarh RSA No.234 of 1997 & other connected matters 10 absence of any corresponding entry of payment of rent or chakota in the revenue record, which alone carries presumption of correctness, the oral testimony is not a sufficient proof of relationship of landlord and tenant between Mst Kakian Wali, which was not competent to induct tenant and/or Om Parkash and the present plaintiffs. Therefore, the relationship of landlord and tenant cannot be inferred on the basis of only one entry in the jamabandi for the year 1990-91. Thus, second substantial question of law is also answered in favour of the appellants.
The petitions in Form-L and Form K-1 were filed in the year 1994. In a suit for pre-emption, the plaintiffs have to establish the relationship of landlord and tenant. The plaintiffs have to stand on their own legs. The evidence of the defendants can be said to be corroborative in nature. In the absence of any positive proof of relationship of landlord and tenant, the filing of the ejectment petitions will not create a tenancy, when the rent claimed is from Kharif 1993, which period will start with the onset of monsoon in June/July i.e. corresponding to the period after sale. The claim of the rent can be for use and occupation of the land by the plaintiffs. It does not necessarily mean relationship of landlord and tenant. The filing of the ejectment petitions will not create relationship between landlord and tenant in the absence of any proof of tenancy led by the plaintiffs. Consequently, even the third substantial question of law is answered in favour of the appellants and against the plaintiffs.
In view of the above, while answering all the questions of law in favour of the appellants, the present appeals are allowed. The judgment and decree passed by the Courts below are set aside and the suits are dismissed.
March 27, 2014 (HEMANT GUPTA)
Vimal JUDGE
Kumar Vimal
2014.03.28 12:02
I attest to the accuracy and
integrity of this document
Chandigarh