Punjab-Haryana High Court
Sukh Ram vs Mansa Ram And Others on 5 September, 2008
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
RSA No. 3002 of 2007 1
In the High Court for the States of Punjab and Haryana at Chandigarh
...
RSA No. 3002 of 2007
Date of decision: September 5, 2008
Sukh Ram ..Appellant.
Versus
Mansa Ram and others ..Respondents
Coram: Hon'ble Mr.Justice Rakesh Kumar Garg
Present: Mr. Adarsh Jain, Advocate
for the appellant.
..
Rakesh Kumar Garg,J.
The appellant had filed a suit for declaration and permanent injunction and consequential relief regarding the suit property claiming himself to be owner in possession of the same having lawfully obtained occupancy rights by declaration of law and now having become its owner.
The case set up by the appellant is that he is owner in possession of the suit property, i.e., agricultural land measuring 15 kanals 15 marlas as detailed in the plaint and earlier to him his father was cultivating the suit land as a tenant at a very convenient rate of rent for the last more than 40 to 50 years. The rent was neither altered nor enhanced at any time during this long period of cultivation as verbally, it was settled between the parties, at the time of inception of tenancy that tenant would pay 30 Kg per acre and fodder to defendant/respondents and the tenant would never be ejected from the suit property and now the plaintiff has succeeded in obtaining occupancy rights in the suit property by operation of law. Wrong revenue entries still exist in the name of defendants in the column of ownership. Taking an undue advantage of wrong revenue entries, defendants are threatening to dispossess him from the suit property and they are bent upon to alienate the same to other persons, forcibly and illegally. Since the demand of the plaintiff to admit his rights of occupancy over the suit property has not been admitted by the defendants, the necessity to RSA No. 3002 of 2007 2 file the suit arose.
Upon notice, the respondents contested the claim of the appellant admitting therein that father of the plaintiff was a tenant in the suit land. However, it was denied vehemently that any settlement was ever made between the parties at the time of inception of tenancy as implied by the plaintiff. Since, the plaintiff had failed to pay rent, defendants filed ejectment proceedings before the competent authority. It was prayed that since the plaintiff had not succeeded in obtaining any occupancy rights in the suit property, the suit be dismissed.
The trial Court found that the plaintiff was holding the occupancy rights in the land in question and was entitled to the decree of declaration as prayed. However, it was found by the trial Court that the Civil Court had no jurisdiction to try the present suit and the suit of the plaintiff/appellant was dismissed.
Aggrieved against the judgment and decree of the trial Court, plaintiff filed an appeal challenging the findings of the trial Court on the question of jurisdiction of the Civil Court, whereas the defendants filed cross objections against the findings of the trial Court on issue Nos.1 and 2 contending that once the plaintiffs are proved to be tenants at Will on one third batai, the appellants could not acquire occupancy rights. It was also submitted by the defendants before the lower Appellate Court that there was no question of grant of occupancy rights as the tenants have already been ordered to be ejected by the competent revenue courts and as such the suit is liable to be dismissed. The lower Appellate Court vide impugned judgment and decree held that the Civil Court has the jurisdiction to try the civil suit. The lower Appellate Court while dismissing the appeal, also reversed the findings of the trial Court on issue Nos.1 and 2 holding that the plaintiff-appellant has merely been proved to be tenant at Will and not an occupancy tenant and as such he cannot be declared as owner being an occupancy tenant.
Feeling dissatisfied with the judgment and decrees of the courts RSA No. 3002 of 2007 3 below, the plaintiff has filed this appeal.
Learned counsel for the appellant has vehemently argued that the judgment and decree of the lower Appellate Court is the result of misreading of evidence on record and therefore a substantial question of law has arisen in the instant appeal. It has been proved on record that the plaintiff-appellants are tenants for the last around 30 years on payment of nominal rent of 30 Kg. per acre plus fodder, which has not been altered and therefore, he has become entitled to the occupancy rights by operation of law and the lower Appellate Court has erred in law while not granting the decree in his favour.
I have heard learned counsel for the appellant and perused the record. The main question which needs to be determined in this case is whether the appellants had acquired the occupancy rights in respect of the suit land. As per Section 5 of the Punjab Tenancy Act 1887 (for short "Tenancy Act") in order to acquire occupancy rights, three things are required to be proved, namely, (1) At the commencement of the Act (1st November 1887), the tenants occupied that land paying no rent beyond the amount of the land revenue thereof and the rates and cesses for the time being changeable thereon;
(2) Two preceding generations in the male line of descent through grandfather or granduncle must have occupied the same on the terms specified in (1) above and (3).
(3) The period of such occupation must not be less than twenty years before 1st November, 1887."
Section 6 of the Tenancy Act provides that -
"A tenant recorded in a record-of-rights sanctioned by the State Government before the Twenty-first day of October, 1868, as a tenant having a right of occupancy in land which he has continuously occupied from the time of the preparation of that record, shall be deemed to have a right of occupancy in that land unless the contrary has been established by a decree of a RSA No. 3002 of 2007 4 competent Court in a suit instituted before the passing of this Act."
Occupancy tenant is also defined under Section 2(f) of Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953 as meaning a tenant, who immediately before the commencement of the Proprietary Rights Act, is recorded as an occupancy tenant in the revenue records and includes a tenant who, after such commencement, obtains a right of occupancy in respect of the land held by him whether by agreement with the landlord or through a court of competent jurisdiction or otherwise, and includes also the predecessors and successors-in-interest of an occupancy tenant. Admittedly, neither the appellants nor their predecessors were recorded as occupancy tenants in the revenue records immediately before the commencement of the Proprietary Rights Act, nor did they obtain a right of occupancy in respect of the said land either by agreement with the land lord or through a court of competent jurisdiction or otherwise after the commencement of the Proprietary Act. The appellants, therefore, do not fall under the definition of 'occupancy tenant' under the Proprietary Rights Act. Further, it is not the case of respondent that at the time of commencement of Tenancy Act i.e., on 1.11.1987, he was tenant for more than two generations in the male line of descent for not less than twenty years. As such the case of plaintiff-appellants does not fall in any of the categories. Thus the case of the appellant is neither covered under Sections 5 and 6 of the Tenancy Act nor under the provisions of Punjab Occupancy Tenants (Vesting of Proprietary Rights)Act, 1953.
In fact, appellant is placing reliance on Section 8 of the Tenancy Act for acquiring occupancy rights. According to the counsel for the appellant, there are circumstances in this case which lead to natural presumption that there was an implied promise between landlord and the tenant that the latter would not be ejected so long as he paid the rent. In fact whenever land is let out to a tenant on a stipulated rent and it is not specifically stated at the time as to how long the tenancy would last or how it would be determined, there is a considerable room RSA No. 3002 of 2007 5 for the natural presumption to arise that at the time of granting the tenancy; there was an implied agreement between the landlord and the tenant that the tenancy would last so long as he paid the rent.
It is useful to refer to Section 8 of the Tenancy Act,1887 which is as under:-
" Nothing in the foregoing sections of this Chapter shall preclude any person from establishing a right of occupancy on any ground other than the grounds specified in those sections."
From a bare reading of Section 8 of the Tenancy Act, it is clear that a person is not precluded from establishing a right of occupancy on any ground other than the grounds specified in those sections. This section obviously does not specify the ground on which an occupancy tenant can claim occupancy rights in the way sections 5 and 6 do. Its scope and meaning are to the effect that in the first place, occupancy rights can be claimed on the specific grounds mentioned in sections 5 and 6, secondly they can claim by the establishment of any grounds other than those mentioned in these sections. It is only an enabling section for the tenant to establish his right of occupancy on the basis of any ground other than those mentioned in sections 5 and 8.
In view of the above discussion, it is now to be seen whether the appellant has been able to prove his case for grant of rights of Occupancy Tenants under Section 8 or on any other ground except as mentioned in Sections 5 and 6 .
Undisputedly, the plaintiff-appellants are tenants on payment of the rent i.e., 30 Kg. Per Acre and fooder to the defendant-respondents(owner). The whole argument of the learned counsel for the appellant is that it has been proved on record that plaintiff-appellants are tenants for the last around 30 years on payment of this nominal rent which has not been increased and therefore, presumption has to be drawn in favour of the appellant that there was a promise not to evict them. The argument of the learned counsel for the appellant does not carry force. Though, the plaintiff-appellant entered into tenancy in the year RSA No. 3002 of 2007 6 1965 and 30 years have elapsed since the inception of tenancy as on date of filing of suit but it cannot be said that it is a nominal rent equal to cess charged by Government and in fact it is the maximum rent which a landlord is expected to get. Still further, it is a matter of common knowledge that rate of produce keeps on increasing from year to year. In that case also, it cannot be said that the rent was not being increased. Therefore, the status of occupancy tenants cannot be granted to the plaintiff-appellant.
For the reasons recorded above, I find no substantial question of law arises in the present appeal.
No merit. Dismissed.
September 5, 2008 (RAKESH KUMAR GARG)
nk JUDGE