RSA No. 3657 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3657 of 2006 Decided on :12-01-2009 Nawal Singh and another ....Appellants VERSUS Amar Singh and others ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr.R.S.Tacoria, Advocate for the appellants. Mr. Daldeep Singh ,Advocate for the respondents. MAHESH GROVER, J This appeal is directed against the judgement of the Additional District Judge, Jhajjar, dated 8.9.2006 vide which the judgement of the learned Trial Court dated 4.5.2004 was reversed. Briefly stated that facts of the case are that the appellants Nawal Singh and Mahabir Singh as also the respondents are gair Maursi tenants of the land which belongs to the Gram Panchayat. Chet Ram during his life time is said to have given three acres of land which was in his possession on which he was enjoying status of gair Maursi to Mahabir Singh, appellant no.2 herein during his life time itself. A suit for declaration and permanent injunction was preferred by the appellants pleading for a declaration to the effect that they are in cultivating possession of the land as gair Maursi tenants and that the respondents be restrained from interfering in that possession. RSA No. 3657 of 2006 2 It is pleaded that appellant no.1 Nawal Singh is in cultivating possession of 1/12th share while appellant no.2 Mahabir Singh is in cultivating possession of 7/12th share whereas remaining 4/12th share is cultivated by the respondents. The respondents admitted that the land belongs to Gram Panchayat. It was admitted that Ram Singh and Chet Ram were in cultivating possession of the suit property earlier but after their death they were in cultivating possession. The plaintiffs/appellants claim regarding possession was denied. The Trial Court framed the following issues :- 1. Whether the plaintiff no.1 to the extent of 1/12 share and plaintiff no.2 to the extent of 7/12th share are tenants at will in respect of the disputed land? OPP. 2. Whether the suit of the plaintiff is not maintainable in the present form? OPD 3. Whether the plaintiffs have no locus-standi for filing the present suit? OPD 4. Whether the suit is bad for non-joinder of necessary parties? OPD 5. Whether the defendants are entitled to special costs u/s 35-A of CPC? OPD. 6. Relief. Thereafter, Trial Court decreed the suit and held that appellant no.1 is entitled to the cultivating possession to the extent of 1/12th share while appellant no.2 to the extent of 7/12th share while remaining share was determined in favour of the respondents. The respondents were also restrained from interfering in the cultivating possession of the suit land. In appeal the First Appellate Court vide its judgment dated 8th September, 2006 upset the findings recorded by the learned Trial Court on RSA No. 3657 of 2006 3 the ground that since the Gram Panchayat was owner of the suit property and that for the reason that it had not been impleaded as party to the proceedings, no finding regarding the status of the appellants being Gair Maursi tenants could have been returned. The appeal was accordingly allowed. In the present appeal, learned counsel for the appellants contended that even if the finding of the First Appellate Court was to be accepted yet the relief of permanent injunction could not have been declined specially in view of the admission made by the respondents themselves which was recorded during the course of testimony before the learned Trial Court wherein the possession of the appellants on the suit property was admitted and it was also admitted that Chet Ram had transferred three acres of land which came to his share to Mahabir Singh and after the transfer Mahabir Singh was in cultivating possession of the same. Learned counsel for the respondents on the other hand contended that such a transfer is subject to the provisions of Section 53 of the Punjab Tenancy Act and since the provisions of law have not been complied with, the findings returned by the First Appellate Court are absolutely correct because in the absence of the Gram Panchayat, no finding could have been returned and even the transfer in favour of the appellant Mahabir Singh by Chet Ram was debateable. After hearing learned counsel for the parties, I am of the considered opinion that the prayer of the appellant in the suit was two fold; one in which he sought a declaration regarding the shares of the suit property being in their possession as Gair Maursi tenants and the second regarding the relief of injunction qua the respondents. Concededly, the RSA No. 3657 of 2006 4 Gram Panchayat who is the owner of the property was not impleaded as a party. Therefore, the declaration which the appellants sought could not have been granted in their favour in the absence of the Gram Panchayat. The finding of the First Appellate Court to this effect is ,therefore, affirmed. However, in so far as the second aspect of the matter is concerned it has come in the testimony of DW 1 Umed Singh and DW 2 Lal Singh that Chet Ram had alienated his share in favour of Mahabir Singh who was in cultivating possession of the same after such an alienation. In view of this categoric admission by the respondents themselves, the possession of the appellants deserved to be protected. Therefore, the First Appellate Court was not correct in declining this aspect of the matter. Accordingly, the appeal of the appellants is partially accepted to the extent that the respondents shall not interfere in the possession of the appellants, however, the parties shall be at liberty to establish their right over the suit property independently. January 12 , 2009 (Mahesh Grover) rekha Judge