R.S.A.No.1773 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.1773 of 2009 Date of Decision : 10.07.2009 Raghbir and others ...Appellants Versus Jumla Mushtarka Malkan and others ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. C.B.Goel, Advocate, for the appellants. HEMANT GUPTA, J. (ORAL) The legal heirs of Ami Chand-plaintiff are in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby the suit for declaration to the effect that he is owner in posession of the suit land by acquiring proprietary rights as occupancy tenant in the suit land under Sections 5 and 8 of the Punjab Tenancy Act, 1887 was dismissed. Both the Courts below, have recorded a concurrent finding of fact that earlier the plaintiff filed a suit asserting him to be the owner of the suit property. That suit was dismissed. The appellants have brought the jamabandi for the year 1962-63 in respect of their contention that the plaintiff has acquired occupancy tenancy rights. It was found that the plaintiff is not able to establish the relationship of landlord and tenant. It has been found that for establishing the relationship of landlord and tenant, bialateral agreement is necessary and in order to establish tenancy, the payment of rent is essential. However, the plaintiffs have not proved either of them. R.S.A.No.1773 of 2009 2 The plaintiff claims to be in possession for more than 30 years in the suit land as tenant on the date and filing of suit filed on 7.11.1990. However, in terms of Section 5 of the Act, the plaintiffs or their predecessor in interest should have been recorded as occupancy tenant at the time of the commencement of the Act i.e. 1887. Section 5 of the Act reads as under : "5. Tenants having right of occupancy :- (1) A tenant - (a) who at the commencement of this Act has, for more than two generations in the male line of descent through a grand-father or grand-uncle and for a period of not less than twenty years, been occupying land paying no rent therefor beyond the amount of the land revenue thereof and the rates and cesses for the time being chargeable thereon, or (b) who having owned land, and having ceased to be landowner thereof otherwise than by forfeiture to the Government or than by any voluntary act, has, since he ceased to be landowner continuously occupied the land, or x x x x In view of the above provisions and the revenue record produced by the plaintiff from the year 1962-63, the plaintiffs have miserably failed to prove their plea of occupancy tenant at the commencement of Punjab Tenancy Act. Consequently, the present appeal is dismissed as no substantial question of law arises for consideration by R.S.A.No.1773 of 2009 3 this Court. 10.07.2009 (HEMANT GUPTA) Vimal JUDGE