Punjab-Haryana High Court
Swaran Dass vs Financial Commissioner (Appeals-Ii) on 30 August, 2013
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
CWP No.13217 of 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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CWP No.13217 of 2011
Date of Decision: 30.08.2013
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Swaran Dass
. . . . . Petitioner
Versus
Financial Commissioner (Appeals-II), Punjab, Chandigarh and
others
. . . . . .Respondents
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CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
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Present: - Mr.Paramjit Rajput, Advocate,
for the petitioner.
Mr.Suresh Singla, Addl. A.G. Punjab
Mr.B.R. Mahajan, Advocate,
for respondent Nos.5 to 16.
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RAKESH KUMAR JAIN, J.
Petitioner is the tenant over land measuring 46 Kanals 6 Marlas situated in Village Kalichpur H.B. No.671, Tehsil and District Gurdaspur. The respondents/landlord filed application under Section 14-A(1) of the Punjab Security of Land Tenures Act, 1953 [for short 'the Act'] for ejectment of the petitioner on the ground of non-payment of arrears of rent. In reply to the ejection application, petitioner averred that he has been regularly paying the rent in the form of share of produce. The relationship between the parties were cordial, therefore, he has not taken any receipt of payment of CWP No.13217 of 2011 -2- the rent paid by way of share of produce. Petitioner has stated that his son had delivered share of produce many times to the respondent, who never issued receipt as there was no custom in their village of issuing any receipt nor he had ever demanded it.
The Assistant Collector Ist Grade vide his order dated 20.6.2007 passed the order of eviction which was upheld in appeal by the Collector vide his order dated 26.9.2008. The Additional Commissioner, however, recommended revision to the Financial Commissioner vide his order dated 5.11.2009 which did not find favour with his as the recommendations were rejected by him on 1.12.2010.
Learned counsel for the petitioner has submitted that since there was no custom in the village of issuance of receipt of the share of produce given by the tenant and there were good relations between the parties, the petitioner has no documentary evidence of payment of share of produce as rent, otherwise, it has been regularly delivered/paid to the landlord. It is also submitted that the application of the petitioner for purchase of land has been pending as the land of the respondents has been declared surplus and if the petitioner is dispossessed before the application is decided then he would loose his right as the said right is vested with the sitting tenant.
CWP No.13217 of 2011 -3-
In reply, learned counsel for the respondents has submitted that the petitioner is a habitual defaulter as he had failed to pay the share of produce from Sauni 1999 to Sauni 2003 without any sufficient cause and as per law even a single default is sufficient for ejectment. It is further submitted that during the pendency of the ejectment application, the respondents filed Suit No.52/rent dated 13.10.2004 for recovery of rent for crops from Khariff 2001 to Khariff 2003 as rent for earlier period from Khariff 1999 to Rabi 2001 became barred by time. The said statement was accepted by the Assistant Collector Ist Grade, Gurdaspur vide his judgment and decree dated 20.6.2007 and the appeal No.8/RJA against the said judgment and decree has been dismissed by the Collector, Gurdaspur vide his order dated 26.9.2008. Since, no further appeal or revision has been filed by the petitioner, the order of Assistant Collector Ist Grade and Collector became final to the effect that the petitioner has failed to pay rent for the crop of Sauni 1999 to Sauni 2003.
It is further submitted that the respondent/landlord also filed Suit No.3/RJA dated
28.3.2007 for recovery of `60720/- as rent of the crops from Sauni 2004 to Sauni 2006. In this suit also the petitioner had alleged that he has been paying rent in the form of share of produce but no receipt has been issued to him. This suit was for the period when ejectment proceedings against the CWP No.13217 of 2011 -4- petitioner for non-payment of rent were already pending. This suit was decreed by the Assistant Collector Ist Grade on 11.12.2007 and became final because no further appeal was filed by the petitioner and the amount of `60,720/- was paid on 6.7.2011 in execution filed by the landlord.
It is further argued that the petitioner had earlier made a default in payment of rent leading to a suit filed by the respondents bearing No.46/rent dated 2.3.1978 for recovery of `2000/- as arrears of rent from Rabi 1975 to Rabi 1977. The suit was partly decreed for recovery of `325.66 ps. vide order dated 17.8.1978. It is thus, submitted that the petitioner has been a regular defaulter and a plea that he has been paying rent in the form of share of produce against which no receipt is issued by the landlord has been found to be false in the aforesaid suit.
As regards, the application for allotment of area of the respondents is concerned being surplus area, the said application of the petitioner dated 14.6.2005 bears no averment that the land in dispute is surplus area or the respondent is a big landlord. It is alleged that the surplus area case of the respondent has been decided by the Collector, Agrarian on 9.7.1999 holding that there is no surplus area with the respondents and the said order has become final.
CWP No.13217 of 2011 -5-
It is clarified that initially some area was declared as surplus with Shri Mulkh Raj, predecessor-in-interest of the respondents. In appeal, the case was remanded by the Financial Commissioner (Appeals) vide order dated 20.9.1985 with direction to re-decide the surplus area case after providing opportunity to sons of the landowner and taking into consideration decision of this Court in the case of Ranjit Ram Vs. Financial Commissioner and others" 1981 PLJ
259. The Collector Agrarian vide his order dated 25.8.1986 adjourned the case sine die because the State Government had filed appeal in the Apex Court against the decision of Ranjit Ram (Supra).
Subsequently, Mulkh Raj, predecessor-in-interest died on 14.2.1991 and his Legal Representatives, being small landowners filed application to the Collector Agrarian, Gurdaspur to decide the surplus area case which was decided on 9.7.1999 holding that there is no surplus area in the hands of the respondents.
It is further submitted that application for allotment earlier filed in respect of surplus area by the predecessor-in-interest/respondent was dismissed by the Collector Agrarian, Gurdaspur on 21.12.1998 as the surplus area case after remanded by the Financial Commissioner was still pending as the same has been adjourned sine die by the Collector Agrarian vide his order dated 25.8.1986. CWP No.13217 of 2011 -6-
I have heard learned counsel for the parties and perused the record from which I have found that there is no error in the orders passed by the Revenue Courts except the order of the Divisional Commissioner which has rightly not been recommended by the Financial Commissioner because the burden was upon the petitioner to prove payment of rent in the form of Batai Tehai which could have only been proved by leading cogent evidence much less the documentary evidence.
Learned counsel for the petitioner has relied upon a decision of the Supreme Court in the case of Shri Neki Vs. Shri Sat Narain" 1997(1) PLJ 102, to contend that the tenant is not expected to demand receipt from the landlord unless there is a special contract in that behalf. The said judgment is not applicable to the facts of this case because in that case it has been found by the Court that the tenant for past 50 years never committed default in payment of rent and it has been found that it would be unlikely that he would commit default in payment of rent for one crop.
However, in the present case, the petitioner has been found to be a regular defaulter of payment of rent as respondents/landowners had to file regular suits for recovery of rent against the petitioner which have been decreed despite the fact that the petitioner had raised the plea that the rent has already been paid in the form of share of crop but since CWP No.13217 of 2011 -7- there was no custom in the village of obtaining / issuing receipt against such payment, therefore, the petitioner was unable to produce the same. The suits filed by the respondents bearing No.52/rent dated 13.10.2004 with regard to rent for crops from Khariff 2001 to 2003 has been decreed by the Assistant Collector Ist Grade and Collector, Gurdaspur and has become final between the parties. Similarly, Suit bearing No.3/RJA dated 28.3.2007 for recovery of `60720/- as rent of the crop from Sauni 2004 to 2006 has been decreed on 11.12.2007 by the Assistant Collector Ist Grade, Gurdaspur and the amount has been recovered in execution on 6.7.2011. Not only that, suit bearing No.46/rent dated 2.3.1978 for recovery of `2000/- as arrears of rent from Rabi 1975 to 1977 has been partly decreed for recovery of `325.66 ps. Vide order dated 17.8.1978 which cumulatively indicate the conduct of the petitioner. Thus, the petitioner cannot argue that he is a good tenant who is regularly paying Batai/share of crop by way of rent to the respondents and has rightly been ordered to be evicted by the Revenue Courts.
As far as the application for allotment of land to the petitioner being surplus area of the respondents is concerned, the respondents have brought on record documentary evidence to show that the question of surplus area has also been decided by the Collector Agrarian on CWP No.13217 of 2011 -8- 9.7.1999 holding that there is no surplus area with the respondents and the said order has become final. Moreover, there is no averment in the application that the land in dispute is a surplus area or the respondents are the big landowners and simply because the said application is pending, the eviction of the petitioner cannot be protected, who is a regular defaulter. No other argument has been raised.
In view of the aforesaid discussion, I do not find any merit in the present writ petition and the same is hereby dismissed.
(RAKESH KUMAR JAIN) 30.08.2013 JUDGE Vivek Pahwa Vivek 2013.08.31 16:10 I attest to the accuracy and integrity of this document