Punjab-Haryana High Court
Faridabad Complex Administration vs Gopi Chand And Another on 9 February, 2010
Author: L.N. Mittal
Bench: L.N. Mittal
Regular Second Appeal No. 2111 of 1986 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Regular Second Appeal No. 2111 of 1986
Date of decision : February 09, 2010
Faridabad Complex Administration,Faridabad and another
....Appellants
versus
Gopi Chand and another
....Respondents
Coram: Hon'ble Mr. Justice L.N. Mittal
Present : Mr. O.P.Goyal, Senior Advocate with
Mr. Varun Sharma, Advocate, for the appellants
Mr. Arun Jain, Senior Advocate with
Mr. Amit Jain, Advocate, for respondent no. 1
L.N. Mittal, J.
This is regular second appeal by defendant nos. 1 and 2 i.e. Faridabad Complex Administration, Faridabad and its Administrator.
Gopi Chand respondent no. 1 filed suit against appellants and respondent no. 2 Subhash Chand Amar for permanent injunction alleging that the plaintiff is in cultivating possession of the suit land measuring 17 kanals 8 marlas comprised of rectangle no. 19 killa Nos. 19(4-8), 22(6-13), rectangle no. 22 killa no. 14(6-7) as tenant at will under defendant nos. 1 and 2. For land measuring 10 kanals 15 marlas of killa nos. 19 and 14 mentioned above, rate of rent is Rs 2 per kanal per year whereas for the remaining land of killa no. 22 measuring 6 kanals 13 marlas, rate of rent is Regular Second Appeal No. 2111 of 1986 -2- Rs 1.82 per annum, payable to defendant no. 1. Plaintiff's possession over the suit land is for more than 15 years continuously and peacefully. The plaintiff has never been ejected from the suit land nor he surrendered possession thereof. However, defendants threatened to dispossess the plaintiff from the suit land forcibly. The plaintiff accordingly claimed permanent injunction restraining defendants from dispossessing the plaintiff from the suit land illegally and forcibly and from interfering in his possession thereon except in due course of law.
Defendant nos. 1 and 2 contested the suit and controverted the plaint allegations and pleaded that the plaintiff is neither owner nor in possession of the suit property. Defendant no. 1 is owner in possession thereof. The plaintiff in connivance with revenue Patwari has got false entries recorded in revenue record. Defendant no. 1 is leasing out the suit land in open auction to highest bidder. Last auction of the suit land was held on 19.7.1983 and it was leased out to defendant no. 3, being highest bidder, for Rs 12100/- for one year. Possession of the suit land was accordingly delivered to lessee defendant no. 3.
Defendant no. 3 did not contest the suit and did not put in appearance in the trial court inspite of service and was accordingly proceeded exparte.
Learned Sub Judge Ist Class, Faridabad vide judgment and decree dated 13.8.1985 held that the plaintiff was proved to be in possession of the suit land but his possession was not proved to be as tenant at will. Accordingly, decree for permanent injunction was granted restraining defendants from forcibly dispossessing the plaintiff from suit land except in due course of law.
Regular Second Appeal No. 2111 of 1986 -3-
Plaintiff preferred first appeal against judgment and decree of the trial court. Learned Additional District Judge, Faridabad vide judgment and decree dated 29.1.1986 held the plaintiff to be in possession of the suit land as tenant and appeal of the plaintiff was allowed to this extent. Feeling aggrieved, defendant nos. 1 and 2 have preferred the instant second appeal.
I have heard learned counsel for the parties and perused the case file.
At the outset, it has to be noticed that defendant nos. 1 and 2 had not assailed the judgment and decree of the trial court by preferring first appeal. Consequently, in the instant second appeal, defendant nos. 1 and 2 cannot assail the judgment and decree passed by the trial court and accordingly the instant appeal has to be confined to the finding recorded by lower appellate court regarding plaintiff's possession over the suit land being as tenant. Consequently, the question whether plaintiff as trespasser is or not entitled to injunction against defendant nos. 1 and 2-true owners (as granted by the trial court) does not arise for determination in the instant second appeal.
However, following substantial question of law arises for determination in the instant second appeal :-
"Whether finding of lower appellate court that plaintiff's possession over the suit land is as tenant is perverse and not legally sustainable ?"
The plaintiff appeared as PW1 and stated that he had been cultivating the suit land for the last 20 years when the suit land vested in Gram Panchayat. Here it may be noticed that the suit land is situated in village Wazirpur which was subsequently included in Faridabad Complex Regular Second Appeal No. 2111 of 1986 -4- Administration (defendant no. 1). Consequently, the suit land vested in defendant no. 1 and this fact is not disputed even by the plaintiff. The plaintiff stated that he used to pay Rs 46.65 per annum as rent for the suit land to Sarpanch of Gram Panchayat. The suit land had been leased out to him by Sarpanch and Members of Panchayat. He was never ejected from the suit land. Now the suit land vested in defendant no. 1. The plaintiff added that he has been paying rent of the suit land now to Patwari of defendant no. 1 without receipt. He also deposited rent of the suit land in Tehsil office for 1982-83 and 1983-84. The plaintiff claimed to be in continuous possession of the suit land as tenant. Gordhan Lal PW2 has also broadly supported the plaintiff's case.
The plaintiff produced in evidence copy of order dated 15.10.1984 Ex. P1 passed by Naib Tehsildar as Assistant Collector IInd Grade, Ballabgarh on application filed by the plaintiff against defendant no. 1 under section 14A (iii) of the Punjab Security of Land Tenures Act, 1953 (in short, the Act) for deposit of rent. Vide this order, the plaintiff was directed to deposit rent of the suit land for 1982-83 and 1983-84 amounting to Rs 46.64. The plaintiff also tendered in evidence copy of jamabandi for the year 1977-78 Ex. P2 and copy of khasra girdawari from kharif 1979 till rabi 1983 Ex. P3.
On the other hand, Ranbir Singh Kanungo of defendant no. 1 appeared as DW1 and stated that suit land is owned by defendant no. 1 and was previously owned by Gram Panchayat, Wazirpur. Defendant no. 1 or Gram Panchayat never gave the suit land to plaintiff for cultivation on payment of rent. The plaintiff never remained in possession of the suit land. No notice was given to defendant no. 1 before change of khasra Regular Second Appeal No. 2111 of 1986 -5- girdawari in favour of plaintiff. Entries in revenue record in favour of plaintiff are incorrect. The plaintiff took possession of the suit land during pendency of the suit and his possession thereon is illegal and unauthorised. The defendants also tendered in evidence documents Ex. D1 to D5.
According to the jamabandi for 1977-78 Ex. P2 as well as Ex. D3, plaintiff is recorded to be in possession of 10 kanals 15 marlas land of killa nos. 19 and 14 out of the suit land whereas one Dal Chand is recorded in possession of the remaining 6 kanals 13 marlas land in suit comprised in killa no. 22. According to khasra girdawari Ex. P3 since kharif 1979 till rabi 1983, the same entries continued till rabi 1980 but since kharif 1980 crop, the plaintiff was also recorded to be in possession of 6 kanals 13 marlas of land of killa no. 22 which was earlier recorded in possession of Dal Chand. Thus, since kharif 1980 only, the plaintiff came in possession of the entire suit land. Prior to it his possession was over part of the suit land. In jamabandi for 1982-83 Ex. D2 the plaintiff was recorded to be in possession of 6 kanals 13 marlas land of killa no. 22. As per report roznamacha Patwari dated 18.10.1980 Ex. D1 khasra girdawari entry of 6 kanals 13 marlas land of killa no. 22 was changed from the name of Dal Chand in the name of plaintiff Gopi Chand after hearing both of them. Khasra girdawari Ex. D5 reveals that land of killa no. 19//19(4-8) was in possession of one Chatter since kharif 1973 till rabi 1978 and land of killa no. 22//14 was in possession of Dal Chand but was changed in the name of plaintiff Gopi Chand in rabi 1974 crop and thereafter continued in the name of the plaintiff. Copy of khasra girdawari Ex. D4 reveals that Dal Chand was recorded in possession of land of killa no. 19//22 since kharif 1978 till rabi 1980 and was changed in the name of the plaintiff in girdawari in Regular Second Appeal No. 2111 of 1986 -6- kharif 1980 crop.
From the perusal of the revenue record it becomes clear that plaintiff was not recorded to be in possession of the entire suit land since 1973-74 onwards for which revenue record has been produced in evidence. The plaintiff was not in possession of any part of the suit land till kharif 1973 crop. He came in possession of killa no. 22//14 in rabi 1974 crop for the first time. He came in possession of land of killa no. 19//19 after rabi 1978 crop for the first time. Similarly, the plaintiff came in possession of land of killa no. 19//22 since kharif 1980 only. Suit was instituted on 8.8.1983. The plaintiff was, thus, not in possession of the suit land for more than 15 years as claimed by him in the plaint. He got possession of the suit land from Dal Chand and Chatter who were earlier recorded in possession thereof. Consequently, there could be no tenancy between Gram Panchayat (predecessor of defendant no. 1 - FCA) and the plaintiff or between defendant no. 1 and the plaintiff. The plaintiff has not led any cogent evidence to depict that Gram Panchayat or defendant no. 1 ever gave the suit land to plaintiff for cultivation on payment of rent. Before change of khasra girdawari from the names of Dal Chand and Chatter in favour of the plaintiff, no notice is proved to have been given to Gram Panchayat or defendant no. 1 (admittedly owner of the suit land) although Gram Panchayat/defendant no. 1 being owner of the suit land was highly interested and effected person by the change in khasra girdawari in favour of the plaintiff. Consequently, change of entries in favour of plaintiff was illegal being against the instructions of Financial Commissioner. By change of revenue entries in favour of the plaintiff, no automatic tenancy was created in favour of the plaintiff. Thus, from the documentary evidence Regular Second Appeal No. 2111 of 1986 -7- on the record it becomes apparent that the plaintiff was never inducted as tenant over the suit land by erstwhile owner Gram Panchayat or by present owner defendant no. 1. Tenancy is bilateral contract between owner and tenant. In the instant case no such bilateral contract ever came into existence between owner of the suit land (Gram Panchayat or defendant no.
1) and the plaintiff who claims himself to be the tenant. In the absence of bilateral contract, no tenancy could be said to have been created in favour of the plaintiff. It is correct that contract of tenancy can be inferred from circumstances but in the instant case the change of entries in revenue record regarding possession of the suit land in favour of the plaintiff makes it abundantly clear that no tenancy between owner of the suit land (Gram Panchayat or defendant no. 1) and the plaintiff ever came into existence.
In the aforesaid context, it has to be noticed with significance that the plaintiff stated that Sarpanch and Members of Panchayat had given the suit land to him as tenant. However, no record of Gram Panchayat has been produced in support of this assertion. Gram Panchayat could lease out the suit land to the plaintiff by only passing resolution but no such resolution has been produced in evidence. The plaintiff also stated that he had been paying rent of the suit land to Gram Panchayat. However, no receipt of payment of rent by plaintiff to Gram Panchayat has been produced in evidence. Obviously, the plaintiff could not have paid the rent to the Gram Panchayat without receipt. The plaintiff also stated that he used to pay rent @ 46.65 per annum to Gram Panchayat. However, the rate of rent as per entries in revenue record comes to Rs 23.32 per annum only because rent for 10 kanals 15 marlas @ Rs 2/- per kanal comes to Rs 21.50 per annum whereas rent for the remaining suit land measuring 6 kanals 13 Regular Second Appeal No. 2111 of 1986 -8- marlas is mentioned to be Rs 1.82 in all for the entire year. Thus, the plaintiff's statement is completely unreliable. The plaintiff also added that he had been paying rent of the suit land to Patwari of defendant no. 1 without receipt after the suit land vested in defendant no. 1. However, it is unbelievable that the plaintiff would pay rent to defendant no. 1 (statutory local body) without any receipt. It is, thus, apparent that the plaintiff never paid rent of the suit land either to Gram Panchayat or to defendant no. 1 because there is no document or receipt to depict any payment of rent. Payment of rent is an essential ingredient of tenancy. It is correct that some times tenant may actually not pay rent although he may be liable to pay rent. In the instant case, however, neither there is document of creation of tenancy nor there is any evidence of payment of any rent by the plaintiff at any time. Consequently, tenancy in favour of the plaintiff is completely ruled out.
The trial court in paragraph no. 5 of its judgment assigned very good reasons for holding that the plaintiff is not proved to be tenant over the suit land. However, learned lower appellate court without adverting to the said reasons reversed the finding of the trial court and held the plaintiff to be tenant over the suit land. The learned lower appellate court without holding reasons recorded by the trial court to be erroneous could not have set aside the finding of the trial court.
Learned counsel for respondent no. 1 plaintiff vehemently contended that the plaintiff is recorded tenant over the suit land in the revenue record and the said entries have not been challenged by the appellants and therefore, the plaintiff is proved to be tenant over the suit land. The contention cannot be accepted because entries in revenue record Regular Second Appeal No. 2111 of 1986 -9- are not conclusive proof. On the other hand, entries in revenue record are only pieces of evidence, probative value whereof has to be evaluated by the court. In the instant case, for the reasons recorded hereinbefore, revenue records are not sufficient to prove tenancy in favour of the plaintiff over the suit land. A Division Bench of this Court in the case of Bachittar Singh versus Gurnam Kaur etc. , 1980 CJL (Civil) 296 observed that merely on the basis of entry in revenue record as tenant without payment of rent, no presumption of tenancy can arise, when there is no agreement to pay rent. It was also observed that it is general practice of revenue authorities to show the person in possession as a tenant without caring to find out the actual right or interest of that person to the land. In the instant case also, no agreement to pay rent between plaintiff and owner (Gram Panchayat or defendant no. 1) has been proved nor any rent was ever paid by the plaintiff to Gram Panchayat or to defendant no. 1. The plaintiff was never inducted as tenant even in the initial stage because he derived his possession not from the owner of the land (Gram Panchayat or defendant no. 1) but derived possession from the previous occupants Chatter and Dal Chand as depicted by revenue entries. Consequently, the question of creation of tenancy between plaintiff and the owner of the suit land i.e. Gram Panchayat or defendant no. 1 did not arise at all in the instant case.
Learned counsel for the plaintiff-respondent no. 1 also contended that Assistant Collector vide order dated 15.10.1984 Ex. P1 allowed plaintiff to deposit rent of the suit land for 1982-83 and 1983-84 on application moved by the plaintiff under section 14A(iii) of the Act. However, the said order is not of any help to the plaintiff because the said order was passed during pendency of the civil suit and even the application Regular Second Appeal No. 2111 of 1986 -10- was moved during the pendency of the civil suit when the civil court was already seized of the matter and the question of tenancy of plaintiff over the suit land was already under adjudication in the civil court, order Ex. P1 passed by Assistant Collector on application moved during the pendency of the suit would not come to the help of the plaintiff to establish his tenancy over the suit land because this order simply allowed plaintiff to deposit the rent pleaded by him but it would not establish the relationship of landlord and tenant between plaintiff and defendant no. 1.
For the reasons recorded hereinbefore, I conclude that the finding of the lower appellate court that the plaintiff is proved to be tenant over the suit land is patently perverse and illegal and completely unsustainable in law. The said finding is accordingly set aside and finding of the trial court that the plaintiff is not proved to be tenant over the suit land although proved to be in possession thereof is restored. Answer to the substantial question of law arising in the second appeal as framed hereinbefore is accordingly rendered in affirmative i.e. in favour of the appellants.
As a necessary consequence of the aforesaid finding, the instant regular second appeal is allowed and impugned judgment and decree dated 29.1.1986 passed by learned Additional District Judge, Faridabad are set aside and judgment and decree dated 13.8.1985 passed by learned Sub Judge Ist Class, Faridabad are restored.
( L.N. Mittal )
February 09, 2010 Judge
'tiwana'