Punjab-Haryana High Court
Net Ram Son Of Debu vs Virender Kumar Son Of Asa Nand on 8 August, 2013
Author: K. Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Regular Second Appeal No.2868 of 1986 (O&M)
Date of decision: 08.08.2013
Net Ram son of Debu, resident of F.P. Jhirka, Tehsil F.P. Jhirka,
District Gurgaon.
...Appellant
versus
Virender Kumar son of Asa Nand, resident of Mohalla Gadh Ander
Ferozepur Jhirka, Tehsil F.P.Jhirka, District Gurgaon. .
....Respondent
CORAM: HON'BLE MR. JUSTICE K. KANNAN
----
Present: Mr. A.P. S. Sandhu, Advocate,
for Mr. Piyush Bansal, Advocate,
for the appellant.
None for the respondent.
----
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. A suit for recovery of possession brought at the instance of the plaintiff on a contention that the defendant was a trespasser of land was resisted by the defendant, contending that he was a tenant. The trial Court decreed the suit and rejected the defendant's contention. The appeal confirmed the same. The second appeal is brought for admission against the concurrent decree providing for recovery of possession. The Court had ordered notice of motion on Kumar Sanjeev 2013.08.14 10:32 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2868 of 1986 (O&M) -2- 02.11.1986 and on later date on 19.03.1987 directed the status quo with regard to possession to be maintained and admitted the appeal and ordered notice. At the time when the admission was sought, the appellant relied on Ex.D2 and contended that the courts below have not dealt with that document or considered. On the basis of the pleading and the document which was issued, I would formulate, therefore ,the following substantial question of law:-
Whether the non-consideration of the document Ex.D2 material for consideration of the defence and the judgments of the courts below vitiated by such non- consideration?
2. I requested the counsel to read to me the recitals of the document Ex.D2 which is in vernacular. The counsel states that it was the statement recorded by the patwari of the village in the year 1980, that is, 3 years prior to the institution of the suit, that he had inspected the property and recorded the defendant as a person in possession. The suit itself was filed on the basis that the defendant has gained unlawful entry into possession of the property and obtained false entries with the connivance of the village officials.
The patwari appears to have been examined as DW1, but the counsel is unable to help with what his evidence was and how he supports his contentions. If the basis in defence was Ex.D2 and neither the evidence of DW1 nor the document show the character of Kumar Sanjeev 2013.08.14 10:32 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2868 of 1986 (O&M) -3- possession as a lessee, then even the failure of consideration of the document could not have been material. The document in order that he relied on must be what is require to be adjudicated by the Court. The issue, in this case, was whether the defendant was entitled to remain in possession as a tenant and non-suit the plaintiff's suit for ejectment. Section 109 of the Evidence Act allows for some continuation of relationship to be presumed viz., that a tenant in possession of the property continues to be a tenant till the status is modified by any other transaction. Section 109 of the Evidence Act reads as follows:-
"109. Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent.-When the question is whether persons are partners, landlord and tenant, or principal and agent, and it has been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand, to each other in those relationships respectively, is on the person who affirms it."
If the status of the defendant had been admitted as a tenant, then such continuation of jural relationship may be presumed. On the contrary, if the suit is filed on a plea by an owner, whose ownership is admitted and the defendant pleads a case of tenancy in his favour unless the tenancy is established, he cannot resist an action for Kumar Sanjeev 2013.08.14 10:32 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2868 of 1986 (O&M) -4- recovery of possession brought at the instance of the owner. This would follow what Section 102 of the said Act states that the test for finding the burden of proof shall be to examine what would happen if the evidence is not given by either of the parties. Section 102 of the Evidence Act reads as follows:-
"102. On whom burden of proof lies.-The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side."
If evidence had not to be given, it will be the defendant to lose out his case for ejectment by the landowner.
3. In a manner of assessing the burden of proof, the defendant had to therefore establish that he was a tenant in order to ward off the suit for the eviction. The document relied on did not prove tenancy. There is no favourable point to be answered in appeal for the appellant.
4. The substantial question of law is answered against the appellant and the appeal is dismissed.
(K.KANNAN) JUDGE 08.08.2013 sanjeev Kumar Sanjeev 2013.08.14 10:32 I attest to the accuracy and integrity of this document chandigarh