R.S.A. No. 1359 of 2005(O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 1359 of 2005 (O&M) Date of Decision: October 26, 2009 Rama Devi and others …..Appellants Vs. Asha Vaid and others …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr.Sandeep Sharma, Advocate for the appellants. Mr.R.K. Gupta, Advocate Mr.Rameshwar Malik, Advocate. -.- M.M.S. BEDI, J. Plaintiffs have filed this second appeal against the judgment and decree of the lower Appellate Court whereby their suit for permanent injunction has been decreed by the lower Appellate Court restraining the defendant- respondents from dispossessing the plaintiff- appellants from the property in dispute except in due process of law. The trial Court had R.S.A. No. 1359 of 2005(O&M) [2] declined the relief of permanent injunction to the plaintiffs on the ground that the plaintiff- appellants had failed to establish that their predecessor-in- interest Balbir Singh was not a tenant of the respondents as such they have got no right to remain in possession. The claim of the plaintiff- appellants that they are in possession of the property in dispute as tenants has not been accepted by the lower Appellate Court and they have been held to be in permissive possession thereof. Since the defendant- respondents have not opted to file any appeal against the order passed by the lower Appellate Court, the short question which is required to be determined in the present appeal is whether the possession of the plaintiff- appellants in the property in dispute is in the capacity of a tenant or they are only in permissive possession. Since the relief of injunction has already been granted to the appellants restraining the defendant- respondents from forcibly dispossessing them except by due process of law but the status of the plaintiff- appellants whether tenant or otherwise may determine the mode of dispossession which is to be adopted by the defendant- respondents in case they are inclined to dispossess the petitioners. Brief facts as per the pleadings of the plaintiff- appellants are that the suit property shown with the letters ABCD in site plan attached with the plaint and described in the title of the plaint is a nursery in front of the Court premises of Rohtak. The defendant- respondents No.1 and 2 i.e. Asha Vaid, Priest All Saint Church, Rohtak and Prem Masih, Secretary, All Saint Church, Rohtak, are the owners of the plot in dispute. Balbir Singh husband of plaintiff-appellant No.1 and father of plaintiffs No.2 to 4, was a tenant R.S.A. No. 1359 of 2005(O&M) [3] under defendant- respondents No.1 and 2 which is part of Khasra No.8145 for more than last 50 years. Defendants No.1 and 2 had filed an eviction petition against Balbir Singh titled Edvin Porter Vs. Balbir Singh in the Court of Rent Controller which was later on compromised on March 31, 1973 and as per the compromise, the land shown with letters EFGH was left by Balbir Singh and the remaining land was to remain in possession of tenant over which he had planted his nursery. After the death of Balbir Singh, plaintiffs succeeded the tenancy rights being legal representatives of deceased tenant. Defendant – respondents No.3 to 6 i.e. the State of Haryana, Deputy Commissioner, Executive Officer and Chairman of Municipal Committee, Rohtak have no concern with the suit property. As they started interfering in the possession of the plaintiffs and sought to forcibly evict the plaintiffs, they were constrained to file suit for injunction. The defendant- respondents No.1 and 2 contested the suit stating that the suit property is a cremation ground for Christian community. It was denied that Balbir Singh was a tenant but it was claimed that he was actually in possession of the property in dispute as a Chowkidar entrusted with duty to look-after the cemetery. So far as earlier eviction petition against Balbir Singh is concerned, it was pleaded that Edvin Porter did not have any authority to file the same or to enter into a compromise. It was collusive between Edvin Porter and Balbir Singh. The owner of the property i.e. All Saint Church is not bound by the decision in the earlier eviction petition. Even defendants No.3 to 6 stated that the property in dispute is a graveyard meant for community of Christians and that it cannot be given to the tenants R.S.A. No. 1359 of 2005(O&M) [4] for the purpose of business or any other use. The tenancy rights in favour of Balbir Singh were denied. The trial Court had framed the following issues:- “i) Whether the plaintiff is in possession of the suit property as tenants and therefore, entitled to the relief of permanent injunction? OPP. ii) Whether the suit land vests in Municipal Committee, Rohtak and whether the suit is not maintainable in the present form and whether the plaintiff have no locus standi and no cause of action? OPD iii) Whether the suit of the plaintiff is bad for non- joinder or misjoinder of parties? OPD iv) Whether the plaintiffs are in possession as tenants of defendant No.1? OPD v) Relief.” The trial Court decided the material issues No.1 and 4 against the plaintiffs. Appreciating the oral and documentary evidence produced on record, the trial Court held that the possession of the plaintiff- appellants was not that of tenant for the following reasons:- i) No document executed by Delhi Diocesan Trust Association pertaining to the disputed property which is graveyard meant for Christians community was executed in favour of Balbir Singh; R.S.A. No. 1359 of 2005(O&M) [5] ii) In ejectment petition Edvin Porter vs. Balbir Singh, Edvin Porter was not authorized by the defendants or the Trust and the decision pertaining to relation of Edvin Porter and Balbir Singh being that of landlord and tenant is not binding on the defendants; iii) The order Ex.D-3 in case Edvin Porter Vs. Balbir Singh was obtained by playing fraud and was the result of collusion as such it will not be binding on the defendants; iv) The property pleaded to be part of Khasra No.8145 marked as ABCD shown in site plan Ex.P-2 has not been properly identified as large property of ABCD in Ex.P-2 is a graveyard; v) A graveyard belonging to a community in no circumstances can be given on rent; vi) A graveyard whether on private land or on Government land is under the direct supervision and management of the Government; vii) The plaintiffs have not been able to specify the correct area of the site plan Ex.P-2 with specification as to on which part of the graveyard they claimed their tenancy rights; R.S.A. No. 1359 of 2005(O&M) [6] viii) So far as rent receipts Ex.P-7 to Ex.P-15 produced by the plaintiffs indicating Balbir Singh to be tenant of the suit property of the year 1975, 1977 , 1978 including receipt Ex.P-8 dated December 6, 1986 are not sufficient enough to establish the relationship, as there was no document after 1986 indicating the payment of any rent by the plaintiffs in the capacity as tenants, as such the plaintiffs have failed to prove the existence of their relationship as tenants of defendants No.1 and 2; ix) PW2 Rama Devi has failed to give dimension of the suit property and had admitted the existence of graveyard of Christians; x) Balbir Singh was proved to have been appointed as Chowkidar kept for maintenance of the graveyard. With his death, legal heirs of Chowkidar do not have any legal capacity to occupy the portion which was given to him as Chowkidar after the death of Balbir Singh. Their status will be that of trespasser and not a tenant. The abovesaid reasoning has been adopted by the lower Appellate Court while granting the relief of interim injunction. I have considered the contentions of counsel for the appellants that receipt Ex.P-7 to Ex.P-16 issued by All Saints Church in the year 1975, R.S.A. No. 1359 of 2005(O&M) [7] establish the relation of plaintiffs with defendants No.1 and 2 as tenants. It is admitted by the plaintiff- appellants that the Delhi Diocesan Trust Association, New Delhi is the owner of the property in dispute. The respondents have placed on records receipts Ex.D2 to Ex.D-30, indicating that they had been receiving licence fee from various occupants of the shops belonging to Delhi Diocesan Trust Association. Constitution of the Diocesan of Delhi of Church of North India has been placed on record Ex.D-32, Memorandum of Article of Association of the Delhi Diocesan Trust Association has been produced as Ex.D-33. The Courts below on the basis of appreciation of oral and documentary evidence have given a finding of fact that the property in dispute vesting with defendants No.1 and 2 is in permissive possession of the plaintiff- appellants and their status is not that of a tenant under the respondents as Balbir Singh, predecessor-in-interest of the plaintiffs was a Chowkidar and caretaker of the graveyard. The plaintiffs have also not been able to establish their relationship with the defendant- respondents as tenants as neither rent has been paid by them to the defendant- respondents nor any rent receipt has been issued to them. In view of the above circumstances, there is no substantial question involved in the case. The appeal is dismissed. The judgment of the lower Appellate Court is hereby confirmed regarding the grant of injunction to the plaintiff- respondents i.e. restraining the defendant- respondents from dispossessing the appellants from the property in dispute except by due process of law. R.S.A. No. 1359 of 2005(O&M) [8] October 26, 2009 (M.M.S.BEDI) sanjay JUDGE