V e 4 58 rroA No79 of 2009 1 6 INTHE HlGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No79 of 2009 Dateof decisionl 05122011 ParasRam and others ppellants Vs 1 tr 0 1 Hari Babuoehdo espondents 0 I 0 CORAM HONBLE MR JUSTICE IN JINDAL I Present Mr HawaSinghHooda Senior Advocate Z with Mr AjitSihagAdvocate for the appellants r Mr Arun Jain Senior Advocate with Mr Amit Jain Advocate Z 71lkWItk CO AN JINDAL J IORALI 7 Z This a ppealis directed against the judgment dated e 25 10008 passedby the Additional District Judge Faridabad acceptingthe appeal preferredby the hereinafter referredas the plaintiffland decreenghis suit Bref facts for disposalof the presentappealare that 1 wldow of Ram Chand is recorded as gair maruSI tenant bashraha malikan Ba wajahkasht derina oecause of old under the lereinafter referred as he defendantslover the suit Iand as fullydetailed in the Uma 2012.12.01 16: 17 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 4 59 MoA No 679 of 2009 2 e 1 of the plaint It has been further averred that Smt Kala beingin continuous possessionoverthe suit Property for the Iast morethan 30years has become owner of the same Prior to her the suit propertywas under the possessio n of her it was further averred that the defendantshad the plaltiffthat theywould not ejecther from the suit propertybut theyresiled from their promiseThus i now the has claimed ownership havingacquiredthe r occupancy rights as per the provons of Sections 5 6 and 80f 0 0 the PunjabTenancyAct 1887 and by virtue of Section 3 ofthe I PunjabOccupancyTenants Vestingof RightslAct 0 1952 Upon notice the defendants Nos 25 l to vl Z contestedthe suit by filingwritten statement wherein theytook 0 some preliminary objectionsinter alia that the suit is not I maintainableand proper Court fee has not been paid It was t3 Z further pleadedthat the revenue entriesin favour of the plaintiff 00 are illegaland void The plaintiffis not in physicalpossessionof 7 the property in dispute Defendant Nos 32 and 33 further denied Z that the plaintiffand his ancestors were payingrent to them tl Defendant Nosl 2 3 4 67 also denied the possessionof the plaintiff over the suit Iand Theyhave also denied if the plaintiff had acqured occupancy rights wlch have matured into 1 ownershlp Defendant Nos 5 to 16 29 30 36 37 39 to 42 47 to 74 and 78 had faiIed to appear in the trial Co u rt therefore they were proceededagainstexparte The trial Court vide order dated 2 022005 framed Uma 2012.12.01 16: 17 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 4 60 0A No79 of 2009 3 1 1 the following Issues 1 Whether the plaintiff is cwner in possessio n of the n dispute7 OPP Whether theplaintiffhas acquiredoccupancy rights of the suit Iand7OPP 3 Whether the plaintiffIS entitled for decree of perma nent inju n ction restra n ing the defendants from the plantiffand alienatingthe Suit OPP 1m 4 Whether the Civil Court has no to tryand entertainthe presentsuit7 OPD 0 5 Whether the suit is not maintainablein the present 0 form7OPD I 45 6 Whether the defendants are owners In possession of the propertyin dspute7OPD 7 Vllhetherno proper Court fee has been affixed on Z the plaint2OPD 2 8 Whether the suit is barredbyiimitation7OPD r 9 Whether the name of the plaintffhas been wrongly I entered in the revenue record in collusIon with Patwari7 OPD Z 10Vhether the suit is bad for and mlsm 00 joinderof necessary party7OPD 17 11 Vhether the plaintffhas no concern whatsoever Z with the Iand in dispute7 OPD m 12Nhether the plaintiffhas no Iocus standI to file lhe presentsuit7 OPD 1 Whether the plaintiff is estoppedbyhis own act and conduct from filingthe presentsuit7 OPD 1lWhether the plaintiffhas concealed the true and r materialfacts from the Court2OPD 1 Relief Bolh the partiesIed evdence The plaintiffexamined Narain PW4 1 Ram Rattan OV21 Prem Lata e31and Hari PWe4I On the other hand defendants examined Trlok Chand Uma 2012.12.01 16: 17 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 4 61 RSANo 679 of 2009 4 V 1 DWee1l Jai Parkash OW21Hans RajDWe31and JagjitSingh DVV41 The trial Courtwhile the evidence decidedissue Nosl and 2 againstthe and jssue No 3 was decjded in his favour Issue NoA WaS deCidedin hS favourand issue No the defendants However since issue Nos to 8 and10 to 14 were not pressedbythe counselfor m the defendants those issues were decided agalst r them the trial Court partlydecreedthe suit However 0 0 the by the was acceptedby the Additional strict Judge Faridabad on 25 102008 by holding C5 I thatthe had acquiredthe occupancy rightsin the suit Iand ll 1 under Sections 5 6and 8 ofthe PunjabTenancyAct 1887 by Z 1 virtue of Section 30f the OccupancyTenants Iestingof tr Proprietary Act 1952 as such he has become owner in I C0 physica l of the su it Iand and the reven ue Z to be rectified the recordwas CO was also the defendants 7 from Itl his peacefulpossession over the sut Iand Z Feeling the defendantshave come up in the appeal 11 It would be slgn ificant to mention here that originally Smt Kala widow of Ram Chand plainliff lce deceasedl wasin C over the suit property However duringthe before the triai Court the said KaIa had died Therefore on her death Hari Babu who claimed himself to be the adopted SOll of Smt Kala was impleaded as plaintiff hearcl Record perused 1 for the has Uma 2012.12.01 16: 17 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 462 g 1SA No 679 of 2009 5 Y y l contendedthat thoughSmt Kala is recordedas gair marusitenant malikan be wajahkasht derina in the revenue recordyetshe does not hold the status of occupancy tenant Priorto her neither her husband was holdingthe status of tenant nor she after his death therefore the plaintiff cannotget benefit of of PunjabOccupancyTenants of RightslAct 1952 as defined under Section a 1 2 fl of the Act for the plaintiffhas further 0 that earlier Ram Chand and on his death Smt Kala 0 0 Deviand thereafter Hari Babu are in continuous possessionover I 0 the suit Iand I Having heard the contentions it tran spires lhat Z Jamabandi for the year 193940 Ex P2I shows that Khewat No 1361142 Khatauni No 540 owned by ShamIat Patti Nathwa Khasra No18 1227 1231 1233 1234 showingold I r Khasra Nos 404 1081 1085 172911087 173711087 1088 Z and Ill the colu m n of cu itivation Ra m Chand is 10 recorded as gairmarusi and in column No he is recorded as mmo Z Mal Sawai Malkana Bashreh Deriana Kasht Slmilarlyin the copy ll of Jamabandi for the year 194546 Ex31A1 bearngKhewat No1081136 oldl Khasra No166 467 same entryhas been However in the column of ownershipShamIat Patti Nathwa Hasab Rasad Kabza Arazi Bamujeed Jamabandi 193839 V IS recorded and Tula Fateh RamjiLal etc are recorded as cow sharers in the column of cultivationand name of MusInmat Kala widow of Ra m Chand is recorded as gair ma rus a nd the Iand with new Khasra numbers is recorded as Khasra Nos 518 171 446 0421467 01412 Keta 1 61 464 141489 171 495 Uma 2012.12.01 16: 17 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 4 63 MoANo 679 ol 2009 6 1 101Keeta 3 21 11 Khasra No 486 141487 121488 171total 2 Keeta 1969 131772 151 Keeta 2 81 1227 1a411231 1511233 81 1234 131total 3 Keeta 3 Biga0 Biswansi 1315 18281 Similarlyin the column of rent same entrycontinued n the Jamabandi for the year 195556 Exll Khewat number is recorded as 1941108 Khatauni No 330 Shamlat Patti Nathwa is recorded in 193839 beside the m name of the c0esharersand in column of cultvation name of Kala widowof Ram Chand is recorded as gar marusi and new number 0 0 givento the old n u mbers a re recorded in colu m n Nos 7 and 6 I new numbersare the same which are mentioned C5 I Ill the suit property ie para Nol of the plaint1e Rect Nol Killa No 8Ol Rect No5 Killa No Ol 1141 Kila N02212 Z 151Rect No 41 Killa No 8Ol Rect NoIl Killa No 10 Ol 11 Q 0 1411 151 20 6801 2111 161 Keeta No 5 30411 Jainabancs for the year 1961 ExP51 for the year CO Z 196667 EP61 for the year 197172 Ex071and for the year CQ 197677 ExP81 are havingsame entries Simila r entries appearedn the Jamabandi for the year 1981 P91 Even Ill Z the column of rent it is recorded a s Ga ir Marus Basharah Qe Malikan Ba WajehKasht Deriana Mal Sawai Sim ilar entries appeared in the Jamabandi for the year 1996e97 Ex1 11 In the column of ownershiphowever names of Sm Somoti widow and 4 several coesharersdrecorded In the column of cultivaton name of Smt Kaia widow of Ram Chand gair marusi appearedwith same nu m bers a nd sa me entryin co Iu m n No 9 The latest Jamabandi producedbythe plaintiff for the year 2001 Ex0121 also shows same entries as in the previous The Uma 2012.12.01 16: 17 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 4 64 troA No79 of 2009 7 1 1 has also produceda copy of mutation of inheritance 1 N02116of Smt Kala widow of Ram Chand showing4116share of Hari adoptedson of Smt Kala widow of Ram Chand as per Wasika N0286 dated 126 1964 who is recordedas Iega l heir of Sm Kala Th us the revenue recordfrom the year 193940up till date ie for more than 30 years clearlyshows that by the suit property with ts previousold numbers and 1 even KhewatNumber before consolidation and thereafter that Ram Chand husband of Smt Kala was gairmarusiin the suit 0 0 Iandand after hs death Smt Kala has succeeded her tenancy rightsand was recorded as gairmarustln the reven u e record tiIl 0 I date under the ownersedefendants or their on of Bash rah MaIikan Ba WajehKasht Deriana MaaI Z Sawai Ma lkhana Similarly Ill the colu m n of rent same entry continuedin the Jamabandi for the year 195556 EO4 All this I indicates that plaintiffis recorded as ga ir m a rusi a nd the rate of C Z rent is 25010more than the Iandrevenue payable m NOW issue which requiresto be determined is m whether a gairmarusi tenant over the 1a nd in question acqu ires Z the occupancy tghts as per provision s of Section 2 fl of the QW PunjabOccu pancy Te na nts Jesting of Proprieta ry Rightsl Act 1952 In order to protectthe old lenancy first of all Punjab 1 Occupancy Tenants Iestingof PropttarylAct 1952 cameinto force Section 2 I of the said Act defines the occupancy tenant as underl Occupancytenant means a tenant who before the commencement of lhis Act IS recorded as a occupancy tenant in lhe revenue records and includes a tenant who Uma 2012.12.01 16: 17 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 4 65 rToANo79of2009 8 T aftersuch commencement obtls a rightof occupancyIn of the Iandheld byhim whether byagreement v the Iandlordor a court of competent or otherwise and includes also Ihe and interestof an occupancy tenanl Il SUCCeSSOrS Ill Thus this section envisages two premconcons to hold a person as occupancy tenant First of all he should be in of such propertyby way of agreementwth the IandIord or secondIy under the orders of a Cou rt of com petent jQ However it is not in disputethat f the of 0 such occupanthad acquiredoccupancy rightsand fell within the 0 provisions of Sections 5 6 8 8 of the PunjabTenancyAct 1887 0 then the possession of the person occupantwould be laggedwith their possessionthrough or successor Even mere Z mentlonof the name of the occupancy tenant does not confer a 0 right to be treated as o occu pancy tena nt Mere entry a nd I mentoning of name of occu pancy tenant s not sufficient for the Z purposeof Section 30f the Act to confer the rightsof tenant to m those of an owner Similar observatons were made in case Tek 1 3 Sinqh Vs Bur Sinqh and others 1961 PLJ 64 It was also held Z tn case Chuhar Sinqh Vs Jaqat Sinqh 1986 Recent Revenue 0m Reports626 that a tenant havlg faiIed to file any su it u nder Section 77 31 dl of the PunjabTenancyAct or obtain a ny declaration did not become occupancy tenant a nd thus did not become owner under the Act and contnued to be a tenant at will ontheland Here in this case also Ram Chand and after his death Smt Kala Devi were recorded as te na nt at wiIl and not as occupancytenants withoutpaymentof rent and theywere also not Uma 2012.12.01 16: 17 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 4 66 rroA No 679 of 2009 9 t41 declared by a ny Court a s such l ey a Iso cl not file a ny suit under Section 77 dl ofthe PunjabTenancyAct 1887 or obtainany declaration As such she or her Iegalheir i adopted son Hari Babu cannot be held to be occupancy tenant to seekprotecon of the Punja b Occupancy Tena nts Iestin g of RightslAct 1952 which was applicable lo him at that timeor the Iater acts Secton 77 31and sub section ll of the 1 PunjabTenancyAct 1887would also be relevantto referin thls r regardwhich reads as unde 0 0 131The following suits shall be instituledin and heard and determinedby Revenue Courts and no other Court shall 9 take cognizance of any dispuleor matterwith respectto I whichany such suit mighlbe instituted dl Suits by a tenant to establish a claim to a rightof Z occupancy or bya Iandlordto prove that a tenant has not such a right Il t In the presentcase no such suit was filed by the I plaintiffAs such in the absence of any such suit t would be Z difficultto hold that the plantiffcould clam occupancy rigllts m Furthermore the Honble ApexCourt in case Puran meo Z and others Vs Gram PanchayatFaridabad 2006 21RCR tl Civill 164 while discusslg the provisionsof the Punjab Occupancy Tenants Jestingof RightslAct 1953 and PunjabOccupancyTenants 1Vestingof PropretaryLands 4 Regulationl Act 1961 set out the constituents which are required to be fulfilled for bringing a person in the definition of occupancy tenants The Honble ApexCourt has further observed in para No0 of the aforesaid citation as under 1 0 The appellantsconlend thal their rightof tenancyIS based on a groLindothei than those in Section Uma 2012.12.01 16: 17 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 467 rT0r1No79 of 2009 10 5 and is based on Section 3al of the Rights Cl Act which is extractedbelow 3 Vestingof rightsin occupancy tenants and of rightsof Iandlords Not anything to the contrarycontainedin any Iaw custom or usage for the time beingin force on and from the appointed day al All rightstitle and nlerest ncludingthe contingent interestif any recognized byany Iaw custom or usagefor the time being1rl force and ncludingthe share in the Shamlatwith respectto the Iandconcernedof the Iandlord 1 r Ill theIandheldunderhim byan occupancytenant shall be and such iightstitle and interest shall be 0 0 deeIned to vest in the occupancy tenant free from all I incuinbrances if any created bythe Iandlord 0 Provided that the occupancy tenant shall have the I oIotion not to acquirethe share in lhe Shamlat by givinga noticein writingto the ColIectorwithin six months of the Z publicationof this Act or from the date of his obtain ing 5 2 occupancyrightswhichever is Iater Section 30f the Act relates to vestingof I rIghts n occupancy tenanls and of rightsof Iandlords It is evident therefrom Z lhat therighttitleand interesl shall be deemed to vest only in an occupancytenan Occupancytenant is defined CQ under Section 2 as meaninga tenant who m before the commencementof Ihe ProprietaryRightsAct IS Z recorded as an occupancy lenant in the revenue records Q and includes a Ienant who after such conlmencement obtainsa rightof occupancy in respeclof the Iand held by hiin whether by agreementwilh the Iandlord or througha court of competent or olherwise and includes r also the predecessorsand successorseinnlerest of an occupancytenant neither the appellantsnor lheir predecessors were recorcled as occupancy tenantsin the revenue records before the commencement of the Proprielary RghtsAct nor did lhey obtain a rightof occupancyn respectof the said Iandeither by agreementwith the Iandlord or Ihrougha courl of competent jurisdiction or otherwise after the Uma 2012.12.01 16: 17 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 4 68 rl No 679 of 2009 11 4 of the Act The appellantsthereforedo not answer the definition of occu pancy tenant under the RightsAct theycannot derive anybenefitunderSection 30f the said Act 11 This Court also from time to time sat over the matter Ill order to decide as to what are to be fulfilled bya personclaitnin g benefit of the Pu njab Occu pancy Tenants Vestingof RightslAct 1952 In a judgment delered 1 by this Court in case Joqinder Singh and others Vs The r DeputvCommlssioner Kurukshetra and others 2010 41RCR 0 0 Civi Il 425 it was held that when a person is recorded in the I revenue record as gairmarusi he cannot claim hilnself to be 0 occupancy Ienant to getbenefit of the PunjabOccupancyTenants Z Vestingof PropretaryRhtsl Acl 1952 or Rules 1956 made therein He is to be recorded as an occupancy tenant In para Ir No of the aforesaidjudgmentit was held as under I 1 earned senior cou nsel for the has Z cited Narasamma and others V State of Karnataka and others 200915 SCC 591 to contend that if Qo possessionin respectof lhe Iandin dispute on the reievant A datewas in favour of the occupantshowingtheIn to be ltl Z cultivationand possessionof the same theywere entilled Ll lo of occupancy rightsin respectthereof The said contention however is devoid of any merit as in the presentcase it has never been Ihe case of the petitioners that theywere occupancy tenants and were entitledto be C recordedas suct l Theyhave at no pointof Iime ever claimed or even otherwiseare entitledto claim the rightsof 4 occupancytenants The PunjabOccupancyTenants Vestingof RightslAcl 1952 was enacted on the recommendations of the Land Refornls Comnlittee appointedby the Government lo examine the Ienancy One of the recommendations of the said committee was that the occupancy tenants should be Uma 2012.12.01 16: 17 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 4 69 RSAN 679of 2009 12 l V given rightsin their tenancyOll 01 suitable of the Iand 1n order to be given rights the occupantwas to be recordedas an tenant in the revenue records Section2sl of the PunjabOccupancyTenants 1Vesting of RightslAct 1952 providedthat occupancy tenantmeans a tenant who before the of the said Act s recorded as an tenant in the revenue records and includes a tenantwho aftersuch conlinencement obtains a rightof m occupancYIn of the Iand heid by hitn whether by with the Iandlord or througha Court of or otherwise and includes also the 0 C40 n nterest and successoreinnterest of an I tenant Therefore to claim occupancy tenancy 0 theoccupantis to be reco rded as an occupancy tenant I which is recorded in revenue records as a narusi There s no such entryin favour of anY of the Z and neitherhas il even been their case that they are occupancy tenants under any provision in fact at no 0 pointof time did theyapplyfor claiming rights I under the PunjabOccupancyTenants Iesting of RightslRules 1956 Therefore the judgment Z In Narasammascase supralreferredto by the Iearned counselis clearlyout of context 11 senior 00 this Court in case RanjitSinqh and others S17 Z Vs Municipal Corporation of Faridabad and others 2011 0m RCR Civill 105 discussed the rjghtsof occupancy tenant who has been payingrent n excess of the Iand revenue In this case 1 also the plaintiff has been payingthe rent at the rate of 25010 more 9 than that of the Iand revenue4s such his rightsare not covered under Section 5 21of the PunjabTenancyAct 1887 It has been furtherobserved in the aforesaidjudgment as under 8 Learned counsel for the appellantswants to derive benefit of Section 5 21of the PunjabTenancyAct 1887 to contend that conditions for acquiringoccupancy tenancy Uma 2012.12.01 16: 17 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 470 rroA No 679 of 2009 13 rightspecifiedin Section 5 11ibid can be presumed to have been fulfilledby the plaintiffsThe condition that plaintiffs and proforma defendants No 2 and 3 including their predecessors have beenin possessionof thesuit Iand for more than 30 years is fulfilledin the instant case However there is another condition Iaiddown in Sectlon5 21of the PunjabTenancyAct namelythatthe tenant paidno rent of the Iand beyondthe amount of the Iand revenue thereofand the rates and cesses for the time being chargeablethereon Plaintiffs and proforma defendantsNo2 and 3 have failed to fulfill this essential conditionIaiddown in Seclion5 of the PunjabTenancy 0 Act 1887 for acquirlng occupancyIenancyrights Il 0 I Thus from the crux of the aforesaid aw Iaid down by t5 the Honble Apex Cou rt as well as this CoUrt It cou Id be held that first of all the Kala being Z fernale descendent cannot be termed as tenant under Section 5 2 0 of the PunjabTenancy Act 1887 Sheorherhusband were never declaredas occupancytenants and theywere not recorded as Z such in the revenue records priorto comjnginto force the Punjab m Tenants Iestingof RightslAct 195 She also does not get benefit underthe PunjabTenancy Act1857 V7 Z Forthe aforesaid reasons the of 0 Iaw is determined agalst the the appealis acceptecthe impugned and decrees are set aside and the suit fiied bythe plaintiff iis dismissed ANJINDALI December052011 JUDGE JP 1 Uma 2012.12.01 16: 17 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document