Punjab-Haryana High Court
Akhtar & Others vs Israil & Another on 9 October, 2012
Author: L. N. Mittal
Bench: L. N. Mittal
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA NO.2574 OF 2010
DATE OF DECISION : 9th OCTOBER, 2012
Akhtar & others
.... Appellants
Versus
Israil & another
.... Respondents
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
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Present : Mr. Lokesh Sinhal, Advocate for the appellants.
Mr. Sudhir Aggarwal, Advocate for the respondent No.1.
Respondent No.2 ex parte.
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L. N. MITTAL, J. (ORAL)
Plaintiffs Akhtar etc., grand sons of Rahmat, are in second appeal having lost in both the courts below.
Plaintiffs alleged that they have acquired occupancy rights in the suit land and have, therefore, become owners thereof, having been in possession of the suit land for more than two generations, without payment of any rent beyond the amount of rates and cesses. The plaintiffs' predecessors also reclaimed the suit land and made it cultivable. Plaintiffs accordingly sought declaration that they have become absolute owners of the suit land measuring 3 kanals 12 marlas having acquired occupancy RSA NO.2574 OF 2010 -2- rights and, therefore, having acquired ownership rights. Plaintiffs also claimed permanent injunction restraining the defendants from interfering in possession and ownership of the plaintiffs over the suit land.
Defendants controverted the plaint averments. Possession of the plaintiffs over the suit land in any capacity was denied. It was also denied that plaintiffs have acquired occupancy or ownership rights. Defendants claimed to be owners in possession of the suit land having purchased it vide sale deed dated 20.05.1998 from the previous owners Juhar Khan and Usman.
The defendants also made counter claim seeking permanent injunction restraining the plaintiffs from interfering in possession of the defendants over the suit land. Defendants also sought declaration that they are in possession of the suit land and revenue entries depicting possession of plaintiffs' grand father Rahmat, since deceased, are illegal and are liable to be modified. In the alternative, the defendants also claimed relief of possession of the suit land if plaintiffs are found to be in possession of the suit land, their possession being permissible.
Learned trial Court dismissed the plaintiffs' suit and decreed the counter claim of the defendants declaring them to be owners of the suit land and also passing decree for vacant possession of the suit land in favour of defendants. First appeal preferred by plaintiffs has been dismissed by the lower appellate Court. Feeling aggrieved, plaintiffs have filed this second appeal.
I have heard learned counsel for the parties and perused the case file.
RSA NO.2574 OF 2010 -3- At the outset, counsel for the appellants submitted that plaintiffs/appellants do not press their claim of declaration that they have acquired occupancy rights and consequently ownership rights over the suit land. The said claim is being given up because the same is not proved because in the revenue record, plaintiffs' grand father Rahmat has been recorded to be in possession of the suit land as tenant on payment of half batai. Consequently conditions for acquiring occupancy rights are not satisfied as tenancy was on payment of half batai.
Counsel for the appellants contended that plaintiffs having been proved in possession of the suit land as tenants, are entitled to permanent injunction and counter claim of defendants for possession of the suit land cannot be decreed by the Civil Court because plaintiffs as tenants can be evicted from the suit land only by revenue Court under the Punjab Security of Land Tenures Act, 1953 (in short, the Tenures Act).
On the other hand, counsel for defendants/respondents asserted that defendants are in actual possession of the suit land and revenue entries depicting possession of plaintiffs' grand father are wrong and illegal because plaintiffs' grand father Rahmat has already died long back.
I have carefully considered the rival contentions. The contention raised by the counsel for defendants/respondents cannot be accepted. Both the Courts below have concurrently held the plaintiffs to be in possession of the suit land as tenants and have accordingly passed decree for possession of the suit land in favour of defendants on the basis of their counter claim. Finding of the trial Court to this effect was not even challenged by the defendants in first appeal by filing cross objections or by RSA NO.2574 OF 2010 -4- filing separate first appeal. The said finding having been affirmed by the lower appellate Court also has not even been assailed in the instant second appeal by filing cross objection or by filing separate second appeal. Even otherwise, finding that the plaintiffs are in possession of the suit land as tenants is unassailable. Perusal of revenue record consisting of jababandis and khasra girdawaris since 1965-66 till Rabi 98 crop, for more than 30 years immediately preceding the filing of the suit reveals that plaintiffs' grand father Rahmat has been recoded to be in possession be of the suit land as tenant on payment of half batai. Entries in jamabandis have presumption of correctness. The said presumption has not been rebutted by the defendants. On the contrary, in the instant case, the presumption got further strengthened because the entries continued consistently for long period of more than 30 years. The mere fact that the entries continued in favour of plaintiffs' grand father Rahmat even after his death, would not mean that the defendants or their vendors automatically came in possession of the suit land on the death of Rahmat. On the contrary, following the death of Rahmat, his heirs automatically came in possession of the suit land as tenants. Consequently there is no infirmity, much less perversity or illegality in concurrent finding of the Courts below that plaintiffs are in possession of the suit land as tenants. No exception can be taken to the said finding. The said finding is not shown to be perverse or illegal or based on misreading or misappreciation of evidence. Therefore, there is no ground to interfere with the said finding.
RSA NO.2574 OF 2010 -5- The next question that arises for determination is whether the civil Court could have passed decree for possession of the suit land in favour of defendants, having found the plaintiffs to be tenants in possession of the suit land. Answer to this question has to be in negative i.e. in favour of tbe plaintiffs/appellants. Trial Court passed decree for possession of the suit land in favour of defendants observing that the plaintiffs having denied and contested the title of the defendants are not entitled to continue any more in possession of the suit land. However, this approach of the Courts below is patently perverse and illegal and cannot be accepted. In the instant case, the plaintiffs did not deny or contest the basic title of the defendants. On the contrary, the plaintiffs asserted their right of occupancy and consequent ownership over the suit land on the basis of statutory provisions of the Punjab Tenancy Act, 1887 and the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952. Assertion of said legal right by the plaintiffs, although they have failed to prove the same, would not deprive the plaintiffs of their right to continue in possession of the suit land as tenants. Consequently decree for possession of the suit land cannot be passed in faovur of the defendants by the Civil Court. Plaintiffs can be ejected from the suit land only in due course of law under the provisions of the Tenures Act. Plaintiffs are, therefore, entitled to permanent injunction to this effect whereas decree for possession of the suit land passed in favour of defendants in counter claim is also liable to be set aside.
Substantial question of law arises for determination in this second appeal as to whether the plaintiffs having been found to be in RSA NO.2574 OF 2010 -6- possession of the suit land as tenants could be directed to deliver possession thereof to the defendants by the Civil Court.
Answer to the aforesaid substantial question of law is in the negative i.e. in favour of plaintiffs/appellants for the reasons already recorded hereinbefore.
Accordingly, the instant second appeal is allowed partly. Judgments and decrees of both the Courts below are modified. Suit of the plaintiffs is decreed partly for permanent injunction only restraining the defendants from dispossessing the plaintiffs from the suit land as tenants except in due course of law. Counter claim of the defendants is also decreed partly to the effect that they are owners of the suit land. However, prayer of defendants for permanent injunction as well as for alternative relief of possession of the suit land is declined and, therefore, counter claim in this regard is dismissed.
In view of divided success, the parties are left to suffer their respective costs throughout.
9th October, 2012 (L. N. MITTAL)
'raj'
JUDGE