Punjab-Haryana High Court
Partap Singh And Anr vs Balwan And Ors on 5 April, 2017
Author: Amit Rawal
Bench: Amit Rawal
RSA No.6460 of 2014 {1}
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
RSA No.6460 of 2014
Date of decision:05.04.2017
Partap Singh and another ... Appellants
Vs.
Balwan and others ... Respondents
CWP No.3463 of 2015 Partap Singh and another ... Petitioners Vs. State of Haryana and others ... Respondents CORAM: HON'BLE MR. JUSTICE AMIT RAWAL Present:- Mr.Amit Jain, Advocate for the appellants (in RSA No.6460 of 2014) and for the petitioners (in CWP No.3463 of 2015).
Mr. Rajbir Singh, AAG, Haryana.
Mr. Sudhanshu Makkar, Advocate for respondents in RSA No.6460 of 2014 for respondents No.5, 6, 7(i), (ii), (iii), v(b), v(c), (vii), (ix) in CWP No.3463 of 2015.
AMIT RAWAL J.
This order of mine shall dispose of two cases, one RSA bearing No.6460 of 2014 and one writ petition bearing No.3463 of 2015 arising therefrom.
Mr. Amit Jain, learned counsel appearing on behalf of the appellants submitted that fate of the writ petition is dependent upon the adjudication of the Regular Second Appeal.
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RSA No.6460 of 2014 {2}
For the sake of convenience, the facts are being taken from RSA No.6460 of 2014.
The appellant-plaintiffs in Regular Second Appeal had instituted a civil suit seeking declaration that agricultural land comprising in khewat no.845 min/786 khatoni no.1163 and killa nos.300//9(5-13), 10(7-
4), 11(8-0), 12(8-0), 19(8-0) 20(8-0), 21(8-0), 22/1(2-18), 301//6(5-15), 15 (6-14) - 16(8-0), 25(9-12) -303//1(8-0) kitta 13 total measuring 93 kanals 18 marlas situated within the revenue estate of village Tosham, Tehsil Tosham District Bhiwani, inter alia on the ground that they have become owners under Section 3 of Punjab Occupancy Tenants (Vesting of Proprietary) Act 1952 (hereinafter referred to as "1952 Act") with a further prayer that they are entitled to record their names as owners in the revenue record and entries qua showing rate of rent as batai tehai are illegal, null and void.
Whereas, the writ petition is in pursuance to the petition filed by the defendant-landlords under Form 'L' of Punjab Securities of Land Tenures Act, 1955 (hereinafter referred to as "1955 Act"), whereby, eviction of the petitioners as tenants has been sought and the Assistant Collector Ist Grade, vide order dated 30.06.2009 (Annexure P-3) passed the interim order for assessment of produce/harvest by rejecting the objections raised by the petitioners which were assailed before the Collector, who vide order dated 08.09.2009 dismissed the appeal. The revision petition bearing No.7116 of 2009 was preferred before the Financial Commissioner against the orders dated 30.06.2009 and 08.09.2009, who, vide order dated 05.09.2014 (Annexure P-9) dismissed the same.
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RSA No.6460 of 2014 {3}
Mr.Amit Jain, learned counsel appearing on behalf of the appellants submitted that the suit property was rented out to their forefathers about 100 years ago at nominal rate as at that relevant point of time, it was not fit for cultivation. The land was made arable/cultivable with the dint of hard work and labour and since then, possession has been with the plaintiffs. The land revenue had been paid to Lambardars to the tune of `15/- per year which later was increased to `200/- per year. Now the respondents have no concern with the suit property in any manner on the premise that they have become owners under 1952 Act. He further submitted that the revenue entries showed the payment of batai tehai were illegal, null and void. The several requests were made to the defendants to admit the claim and therefore, the suit aforementioned.
In support of his contention, he had examined as many as five witnesses and brought on record various documents as indicated in paragraph 6 of the trial Court judgment.
He submitted that the plaintiffs have never paid any batai tehai either to forefathers of the defendants or to them, rather the defendants have sold the land to defendants No.5 to 7, vide two sale deeds in question being illegal, null and void and they have become owners of the land in possession as per the provisions of Sections 5 and 8 of Punjab Tenancy Act 1887 (hereinafter referred to as "1887 Act" ).
He further submitted that the Courts below have failed to consider the statement of PW-3 Niranjan, who categorically deposed that the plaintiffs and their ancestors have been paying annual lagan to the Lambardars and several receipts Ex.P-1 to Ex.P38 have been proved on 3 of 11 ::: Downloaded on - 09-04-2017 18:05:03 ::: RSA No.6460 of 2014 {4} record. The provisions of Sections 5 and 8 of 1887 Act entitle the plaintiffs to be declared as owners of the suit land. The aforementioned receipts being more than 30 years old carry a presumption of truth under Section 90 of Indian Evidence Act. The finding of the Courts below in dismissing the suit being barred by law of limitation, having not challenged the entries within 30 years is wholly erroneous and fallacious, whereas, it is settled law that mere entry in the revenue record does not provide any cause of action.
It is also settled law that entry in later jamabandi inconsistent with previous one with no explanation cannot be relied upon.
The Courts below have gravely erred in not considering the provisions of Section 8 of 1887 Act as it deals with the expression "any person" in establishing right of occupancy on any other ground other than the specified in sections.
The statement of defendant's witness DW1- Shamsher Singh actually proved the case of appellants as he had admitted that the appellants were cultivating the land since 45 years. The factum of rent being nominal had been proved through jamabandi for the year 1942-43 (Ex.P-48) and receipt Ex.P1, recorded for the land measuring 93 kanals 18 marlas. He thus, urged this Court for formulation of the substantial questions of law as drawn in the 'memorandum of appeal'.
In support of his contention, he has relied upon the following judgments:-
i) Bahadur Singh and others vs.Shangara Singh and others 1995 (1) SCC 232 to contend that when tenants coming into possession of land prior to commencement of 1952 Act 4 of 11 ::: Downloaded on - 09-04-2017 18:05:03 ::: RSA No.6460 of 2014 {5} and continued to pay rent to the former landlord even after the appointed day, the right of ownership of the land acquired by them by operation of the provisions of the Act cannot remain undisturbed, in essence, they do not have right in claiming declaration.
ii) Tara Chand and others vs. Gram Panchayat, Jhupa Khurd and others 2012(13) SCC 269 to contend that the expression "any person" should normally be construed widely except where the provisions suggest giving it a restricted opinion.
iii) Shyam Lal vs. Deepa Dass Chela Ram Chela Graib Dass 2016 (7) SCC 572 to contend that protection under Section 9 of 1953 Act, would not be available after expiry of lease, unless tenant is found to be holding over, in essence, non-registration of compulsory lease would not debar the tenant for taking protection of benefit of Section 9 of 1953 Act. In fact, the tenant would be entitled to contest the petition filed under Section 9 of 1953 Act, which gives a cause of action to seek eviction on any of the grounds mentioned therein. Regarding limitation cited the ratio decidendi culled out by Hon'ble Supreme Court in Daya Singh and another vs. Gurdev Singh (dead) by LRs and others 2010 (2) SCC 194 and by this Court in Mohinder Singh and others vs. Shangara Singh and another 2007(5) RCR (Civil) 388 to contend that starting point of limitation is not from sanctioning the mutation but when there is threat to the title or possession.
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RSA No.6460 of 2014 {6}
Per contra, Mr. Sudhanshu Makkar, learned counsel appearing on behalf of respondent-defendants submitted that the intention behind 1887 Act, as per the ratio decidendi culled out by this Court in Muni Ram and others vs. Phullia and Lalu 1974 PLJ 369, would not enable the tenant to claim the right of declaration on a mere length of possession. On similar lines also cited the judgments rendered in Gurdial Singh vs. Sardara Singh 1986 RRR 571 and Zile Singh vs. Balbir Singh 1991(1) RRR 7 to contend that tenant does not acquire right of occupancy tenancy by mere lapse of time and he has to establish basic ingredients as envisaged under 1887 Act.
He further submitted that the plaintiffs and their forefathers never cultivated the land on payment of rent revenue. They have been cultivating the land in dispute on payment of batai-tehai and thus, the entries in the revenue record to this effect were correctly recorded. There are number of co-sharers in the suit property but the suit under Order 1 Rule 8 CPC was not maintainable. In fact, the appellant/plaintiffs were in possession of the suit property on payment of batai tehai and therefore, in view of the provisions of Sections 5 and 8 of 1887 Act, they cannot claim the right of occupancy as they have failed to prove that at the commencement of the Act, more than two generations in the male descendency through grandfather/grand-uncle have been occupying the land by paying no rent beyond the amount of land revenue. In fact, they had not been able to discharge the presumption under Section 5(2) of 1887 Act. The revenue record do not establish them to be an occupancy tenants. The plaintiffs have not challenged the revenue entries regarding their status as gair marusi and in this regard, relied upon the ratio decidendi culled out by 6 of 11 ::: Downloaded on - 09-04-2017 18:05:03 ::: RSA No.6460 of 2014 {7} this Court in Jaleb Khan and others vs. Commissioner, Gurgaon Division, Gurgaon and others 2009(4) RCR (Civil) 385 to contend that gair marusi cannot acquire the status of occupancy tenants. He, thus, urged this Court for dismissal of the present Regular Second Appeal.
He also did not deny the statement made by Mr. Amit Jain regarding the fate of writ petition being dependent upon the decision of Regular Second Appeal.
I have heard learned counsel for the parties, appraised the judgments and decrees of the Courts below and of the view that there is no force and merit in the submissions of Mr.Amit Jain. The appellant-plaintiffs have not been able to establish the tenancy on payment of `15/- to `200/- per year. The lambardar had no locus standi to accept the rent, once the ownership is of the proprietors/respondents. The continuous possession as per the provisions of Section 8 of 1887 Act, has also not been established, whereas, entries in the jamabandi reflect them to be gair marusi. In view of the findings rendered by this Court in Jaleb Khan's case (supra) squarely apply to the facts and circumstances of the present case, wherein, it has been held that gair marusi cannot possibly acquire status and title of gair marusi, i.e. occupancy tenant. All the revenue record reflect the status of batai tehai and therefore, they cannot fall under the category of a tenant or marusi to claim the occupancy rights, in view of the provisions of Sections 5 and 8 of 1887 Act.
There is no dispute to the ratio decidendi culled out in the judgments relied upon by Mr.Amit Jain but the fact remains that finding rendered in Bahadur Singh's case (supra) gives a protection to the tenant 7 of 11 ::: Downloaded on - 09-04-2017 18:05:03 ::: RSA No.6460 of 2014 {8} even after commencement of 1952 Act as earlier the remedy was under
1887 Act. Any person would not be construed widely until and unless the provisions suggested to be restricted meaning. The expression should be understood in the context keeping in view the purpose of the statute. The judgment rendered in Shyam Lal's case (supra) would not apply to the facts and circumstance of the case as concededly, status of the appellants is not on the basis of registered document or un-registered lease deed. It is only in those circumstances, a situation had arisen in the aforementioned case regarding the status of tenant, in essence, whether it would be holding over or entitle to benefit of Section 9, i.e., whenever a petition under Section 9 of 1952 Act seeking eviction of the tenant is filed and tenant is able to defend the same qua non-availability of any ground for eviction.
I am in agreement with the arguments of Mr.Jain, regarding maintainability and limitation of the suit as cause of action to seek declaration would always arise to the person when his possession is being threatened or otherwise if a title and not mere entry in the revenue record but that would not help the plaintiffs in succeeding suit as dismissal of the suit is also on the ground of limitation. Thus, in my view, the finding of limitation should not come in the way of the plaintiffs and therefore, they are expunged.
Be that as it may, fact remains that the appellant-plaintiffs had to stand on their own legs by discharging the onus and had not been able to point out the status of occupancy tenants from any of the documentary evidence brought on record. It is only of being gair marusi, therefore, they cannot claim declaration under Sections 5 and 8 of 1887 Act.
8 of 11 ::: Downloaded on - 09-04-2017 18:05:03 ::: RSA No.6460 of 2014 {9} No doubt, this Court, on earlier occasions had been framing the substantial questions of law while deciding the appeals but in view of the ratio decidendi culled out by five learned Judges of the Hon'ble Supreme Court in Pankajakshi (dead) through LRs and others Vs. Chandrika and others AIR 2016 SC 1213, wherein the proposition arose as to whether in view of the provisions of Section 97(1) CPC, provisions of Section 41 of the Punjab Courts Act, 1918 would apply or the appeal i.e. RSA would be filed under Section 100 of Code of Civil Procedure so there is need to frame the substantial questions of law or not. The Constitutional Bench of Hon'ble Supreme Court held that the decision in Kulwant Kaur and others Vs. Gurdial Singh Mann (dead) by LRs and others 2001(4) SCC 262 on applicability of Section 97(1) of CPC is not a correct law, in essence, the provisions of Section 41 of the Punjab Courts Act, 1918 had been restored back.
For the sake of brevity, the relevant portion of the judgment of five learned Judges of the Hon'ble Supreme Court in Pankajakshi 's case (supra) reads thus:-
"Since Section 41 of the Punjab Act is expressly in conflict with the amending law, viz., Section 100 as amended, it would be deemed to have been repealed. Thus we have no hesitation to hold that the law declared by the Full Bench of the High Court in the case of Ganpat [AIR 1978 P&H 137 :
80 Punj LR 1 (FB)] cannot be sustained and is thus overruled." [at paras 27 - 29]"
"27. Even the reference to Article 254 of the Constitution was
9 of 11 ::: Downloaded on - 09-04-2017 18:05:03 ::: RSA No.6460 of 2014 {10} not correctly made by this Court in the said decision. Section 41 of the Punjab Courts Act is of 1918 vintage. Obviously, therefore, it is not a law made by the Legislature of a State after the Constitution of India has come into force. It is a law made by a Provincial Legislature under Section 80A of the Government of India Act, 1915, which law was continued, being a law in force in British India, immediately before the commencement of the Government of India Act, 1935, by Section 292 thereof. In turn, after the Constitution of India came into force and, by Article 395, repealed the Government of India Act, 1935, the Punjab Courts Act was continued being a law in force in the territory of India immediately before the commencement of the Constitution of India by virtue of Article 372(1) of the Constitution of India. This being the case, Article 254 of the Constitution of India would have no application to such a law for the simple reason that it is not a law made by the Legislature of a State but is an existing law continued by virtue of Article 372 of the Constitution of India. If at all, it is Article 372(1) alone that would apply to such law which is to continue in force until altered or repealed or amended by a competent Legislature or other competent authority. We have already found that since Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976 has no application to Section 41 of the Punjab Courts Act, it would necessarily continue as a law in force."
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RSA No.6460 of 2014 {11}
Therefore, I do not intend to frame the substantial questions of law while deciding the appeal aforementioned.
In view of the aforementioned observations, I do not intend to differ with the findings rendered by both the Courts below which are based upon the appreciation of oral and documentary evidence, much less, no substantial question of law arises for determination of this Court.
Accordingly, the appeal is dismissed.
In view of the aforementioned findings, writ petition is also dismissed as it has arisen out of the interim order passed by the Assistant Collector Grade I, assessing the provisional rent in a petition filed by the landlords claiming the rent.
(AMIT RAWAL)
JUDGE
April 05, 2017
savita
Whether Speaking/Reasoned Yes/No
Whether Reportable Yes/No
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