Punjab-Haryana High Court
Duli Chand vs Om Parkash on 31 January, 2000
Equivalent citations: (2000)125PLR775
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. Appeal in this case was filed by Duli Chand, plaintiff, in the trial Court, Duli Chand died during the pendency of the appeal, hence, this appeal is being prosecuted by his L.Rs.
2. Duli Chand, deceased, filed the present appeal and it has been directed against the judgment and decree dated 7.1.1980 passed the Court of the Addl. Distt, Judge, Gurgaon, who partly allowed the appeal of the defendant and modified the judgment and decree of the trial Court dated 31.3.1979 vide which the trial Court had declared that the plaintiff is in lawful possession of the suit land. Resultantly, a decree for permanent injunction was granted in favour of the plaintiff and against the defendant Om Parkash restraining the defendant from interfering in the possession of the plaintiff in the suit land. It was held by the trial Court that the status of Duli Chand remains that of a tenant throughout irrespective of the fact that at one point of time, the allotment of the land was cancelled but with the re-allotment of the land in favour of Om Parkash and Kanwar Bhan, who was the defendant in the trial Court, the status of the plaintiff stood restored since his possession remained lawful, therefore, he is entitled to the decree of permanent injunction. It may also be mentioned that the plaintiff during the pendency of the suit gave up Kanwar Bhan, who was defendant No.2, on 12.8.1977. Resultantly, the suit only proceeded against Om Parkash, who filed the appeal before the first appellate Court.
3. The brief facts of the case can be noticed in the following manner:-
4. The admitted facts of the case are that the suit land measures 31 Kanals and 6 marlas and it is an evacuee property. In the year 1950, this land was allotted to Om Parkash, defendant and his two brothers; namely, Kanwar Bhan and Popat Ram. Possession of the land was also delivered to them. Duli Chand, plaintiff was taken as a tenant under the land by the allottee Om Parkash and others vide order dated 27.5.1966, the allotment of the said land in favour of Om Parkash and his two brothers was cancelled and this order was given effect in the revenue record vide DDR of the Patwari entered on 6.6.1966, Ex.D-12. Plaintiff was, however, not dispossessed physically from the land even though it was resumed by the Custodian. The land was, however, reallotted to Om Parkash and his deceased brother Kanwar Bhan vide allotment letter dated 27.2.1970, Ex.D-2. Sandad, Ex.D-1, was issued in their favour. The result was that Popat Ram who was one of the co-allottees under the previous allotment of 1950 ceased to be an allottee under the new allotment dated 22.2.1970. Duli Chand, plaintiff, continued in possession of the land. Hence, Om Parkash continued making efforts to take the actual physical possession of the land. His prayer to this effect was initially refused vide order dated 10/6.1975, Ex.D-3, by Tehsildar, Sales-cum-Managing officer, Gurgaon. Om Parkash filed an appeal before the Settlement Officer, Ambala. His appeal was accepted vide order dated 21.1.1976, Ex.D-4, and the case was remanded to the Tehsildar, Sales, Gurgaon, for re-consideration. Thereafter, the Tehsildar, Sales, Gurgaon, passed the order dated 28.2.1977, Ex.D-5, whereby it was directed that the possession of the land be delivered to Om Parkash and Kanwar Bhan. In pursuance of the order, Tehsildar, Sales, Gurgaon, directed vide order dated 7.3.1977, Ex.D-10, that the Girdawar should deliver possession of the land to Om Parkash. Consequently, the proceedings for delivery of the possession were recorded at the spot on 16.6.1977 by Shri Yad Ram, then Girdawar, in the presence of Ashok Kumar, Revenue Patwari and others, regarding delivery of physical possession of the land to Om Parkash. These proceedings were recorded in the daily diary vide entry, Ex.D-7, in the absence of the plaintiff.
5. Plaintiff Duli Chand, then, filed the present suit and he stated that he is in possession of the suit land as a tenant on payment of Rs. 125.25 as yearly rent and he has never been ejected from the suit land nor he was ever dispossessed by any authority. He averred that the report regarding the delivery of the possession dated 16.6.1977 made by the revenue officials is a paper transactions as he continued to be in possession. It was pleaded that Om Parkash wanted to dispossess him from the land under the garb of the report dated 16.6.1977 but he has no right to do so. With the allegations, the plaintiff prayed for a decree for perpetual injunction and in the alternative he prayed that if the Civil Court comes to the conclusion that the plaintiff has already been dispossessed on the basis of the report dated 16.6.1977, then, a decree for possession be passed in his favour in respect of the suit land.
6. The suit was contested by Om Parkash, defendant, who pleaded that the plaintiff was never inducted as a tenant of Rehabilitation Department in respect of the land and he was in unauthorised occupation of this land. He was evicted from this land in the proceedings regarding the delivery of possession on 16.6.1977. With these broad allegations, the defendant prayed for the dismissal of the suit.
7. From the pleadings of the parties, the following issues were framed by the trial Court:-
"1. Whether the plaintiff is in possession of the land in dispute as tenant? If so, on what terms and conditions? OPP
2. Whether the warrant of possession from Tehsildar (Sales) Gurgaon was obtained by the deft. on 28.2.1977 by fraud as alleged? If so, to what effect? OPP (Onus objected to)
3. Whether the plaintiff has no locus standi to file the suit? OPD
4. Whether the Civil Court has no jurisdiction to try the suit? OPD
5. Whether the suit is bad on account of non-joinder of necessary parties? OPD
6. Whether the plaintiff is estopped by his act and conduct? OPD
7. Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction? OPD
8. Relief."
8. The parties led evidence in support of their case. The suit of the plaintiff was decreed by the trial Court holding that the plaintiff was in lawful possession of the land and, in these circumstances, he could not be ejected. Resultantly, a decree for permanent injunction was granted in his favour and against the defendant. Om Parkash, defendant, came in appeal before the first appellate Court, who vide the impugned judgment and decree dated 7.1.1980, partly allowed the appeal and the judgment and decree of the trial Court was modified. The plaintiff was granted a decree for injunction with a rider that he would not be ejected from the land in question except in due course of law. In this manner, the plaintiff was aggrieved by the findings of the first appellate Court and he has come in the present appeal.
9. I have heard the counsel for the parties and with their assistance gone through the record of the case.
10. In this case, the facts are not much disputed. At one point of time, the land was allotted to Om Parkash and his two brothers Popat Ram and Kanwar Bhan. It is also the common case of the parties that Duli Chand was inducted as a tenant by Om Parkash. It is also not disputed that at one point of time, i.e. on 27.5.1966, the allotment of the land in favour of Om Parkash and his two brothers, referred to above, was cancelled and this order was given effect in the revenue record by the Patwari on 6.6.1966. Thereafter, this very land was allotted to two persons instead of three persons, i.e. to Om Parkash and Kanwar Bhan, after a lapse of 4 years approximately, i.e. on 27.2.1970, vide Ex.D-2. Now, the point for determination is what is the effect of the cancellation of the allotment of the land in favour of Om Parkash and his two brothers on the status and rights of Duli Chand.
11. The learned counsel for the appellant drew my attention to the order, Ex.D-2, and submitted that the reallotment of the land in favour of Om Parkash and Kanwar Bhan revived the status of Duli Chand as a tenant with respect of the land in dispute. He submitted that the order, Ex.D-2, clearly indicates that the earlier allotment of 1950, which was cancelled on 27.5.1966, has been restored, as a result of which, the tenancy of Duli Chand has also been restored because in the first allotment and in the second allotment, the name of Om Parkash, allottee, is common and any allotment made by a joint owner is common and any allotment made by a joint owner is binding on the other allottees. In this view of the matter, irrespective of the fact that the earlier allotment has been cancelled but with the restoration of the said allotment, the status of the plaintiff remains as that of a tenant and he was never evicted from the suit land and the entire revenue record is a fabrication because the alleged entry of dispossession, admittedly, has not been made in the presence of the plaintiff and, in these circumstances, the plaintiff and after his death his heirs, could not be evicted from the land in question.
12. I have considered the submissions of the counsel for the appellant and in my opinion, the same are not acceptable. The moment the first allotment is cancelled by the department, all actions on the part of the allottees will fall to the ground. It is the admitted case that the earlier allotment was in favour of three person but with the cancellation of the first allotment on.27.5.1966, all rights, title and interest, if any, created by the original allottees will also go with that cancellation. It has to be shown independently by the plaintiff that after the passing of the second allotment order on 27.2.1970, he came into possession of the land in dispute under a fresh contract. The plaintiff can always survive if he can show that after the cancellation of the allotment, he was accepted as a tenant by the Rehabilitation Department till the land was re-allotted on 27.2.1970, in favour of Om Parkash and Kanwar Bhan. On both these aspects, there is no evidence to indicate that the plaintiff has been paying any rent to the Rehabilitation Department or after 1970 any relationship of landlord and tenant with respect of the suit land was created between Duli Chand on one hand and Om Parkash and Kanwar Bhan on the other hand. We all know that lease is a contract. In the absence of privity of contract between Duli Chand and Om Parkash and Kanwar Bhan after 1970, it cannot be held that the status of Duli Chand stood restored as that of a tenant as at one point of time it was, when he was inducted as a tenant by Om Parkash and his two brothers in the land under the allotment of 1950. At the cost of repetition, it may be mentioned that the allotment of 1950 was cancelled on 17.5.1966 and this order of cancellation was also given effect in the revenue record vide entry dated 6.6.1966. It is true that in the subsequent allotment, the name of Om Parkash figurers but the plaintiff cannot take the benefit of the same because any act on the part of Om Parkash loses its legal sanctity and validity the moment the previous allotment was cancelled. The plaintiff himself has admitted that he did not pay any rent to any body in respect of the land after the death of Kanwar Bhan in the year 1962, co-allottee of Om Parkash. He also admitted that he continued in possession of the land even without knowing that it had been re-alloted to Om Parkash and his brother Kanwar Bhan. There is no bilateral agreement in this case nor it is established that Duli Chand at any point of time was tenant of the Rehabilitation Department and, therefore, with the transfer of the land on 27.2.1970 in favour of the defendant Om Parkash and Kanwar Bhan, he cannot become a tenant.
13. With regard to the alleged delivery of possession at the spot on 16.6.1977 by the Rehabilitation Department in favour of the defendant, there is ample evidence to that effect. Notice, Ex.D-8, was issued to the plaintiff by the Tehsildar, Gurgaon, on 26.6.1976, asking the plaintiff to show cause why he should, not be evicted from the land. It was sent to the Patwari for the service on the plaintiff. Plaintiff was informed about this notice but the plaintiff did not accept the service intentionally as a result of which another notice was given to him on 30.8.1976. Meaning thereby, that the plaintiff was aware that the possession of the land is going to be delivered to the allottee the defendant examined Girdhar Singh, Patwari, and Yad Ram, Naib Tehsildar, who deposed that the possession of the land in question was delivered to the defendant on 16.6.1977 and to that effect an entry was made in the roznamcha the defendant ploughed the land by tractor in exercise of his right of possession. Even the defendant also stated that he took the possession. In such a situation, if the defendant had taken the possession of the land in question, even illegally, as alleged by the plaintiff, in such a situation, the plaintiff could file a suit Under Section 50 of the Punjab Tenancy Act, in the revenue Court within one year from the date of his alleged dispossession, i.e. 16.6.1977. The plaintiff has not availed his remedy. It appears that after the plaintiff was dispossessed from the land on 16.6.1977, he, again, entered into the possession forcibly and, in these circumstances, his possession was that of a trespasser. In this view of the matter, on the date of the institution of the suit, the plaintiff was not in possession as a tenant. His possession was unauthorised and, in these circumstances, the first appellate Court rightly held that the plaintiff could not claim permanent injunction against the defendant. Rather, he will be ejected from the land in question through the process of law.
14. I endorse the reasons given by the first appellate Court and do not see any merit in this appeal which is hereby dismissed with no order as to costs.