R.S.A No. 4142 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A No. 4142 of 2011 (O&M) Date of decision:- 18.11.2011 Jai Parkash and others ...Appellants Versus Shamlat Patti Surdas of village Thua Tehsil and District Jind through its Proprietors ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. Vikas Chaudhary, Advocate for the appellants. RITU BAHRI J.(Oral) This regular second appeal is against the judgment dated 03.06.2011 passed by learned Additional District Judge, Jind whereby the appeal filed against the judgment and decree dated 08.05.2009 passed by Civil Judge (Sr. Divn.), Jind, has been dismissed. Plaintiffs-appellants filed a suit for declaration and permanent injunction against the defendants-respondents that they are owners in possession in equal shares of the suit land as fully detailed and described in the year 1955, the proprietors of Shmlat Patti Surdas of Village Thua, Tehsil and District Jind, gave the suit land to the father of plaintiff, namely Ramdia, in lieu of the services rendered by him to the proprietor of the said patti. The father of the plaintiffs remained in possession remained in possession of the suit land from 1955 till his death in the year 1992, without paying any rent or batai to the proprietors of the said patti. After the death of Ramdia in the year 1992, the plaintiffs are in continuous and cultivating possession R.S.A No. 4142 of 2011 (O&M) -2- of the suit land. In the year 1985, the father of the plaintiffs had acquired the status of occupancy tenant under the provisions of the Punjab Occupancy Tenancy (Vesting of Proprietary Rights) Act, 1952 read with the provisions of the Punjab Tenancy Act, 1887. In view of the proprietors of the said patti in the suit land extinguished and all such rights vested in the father of the plaintiffs w.e.f the 'Appointed Day'. The plaintiffs being the successors of Ramida, have a right to be declared as owners in equal share of the suit land and the revenue record showing the defendants-respondents as owners of the suit land, is liable to be corrected. The defendants-respondents on the basis of wrong revenue entries and with ulterior motive, started threatening to dispossess the plaintiffs-appellants from the suit land and they are also adamant to alienate the suit land forcibly and illegally. The plaintiffs- appellants requested the defendants-respondents several times to desist from their illegal designs but they did not pay any heed to the said request. Notice of the suit was served upon defendants-respondents, who appeared and filed their joint written statement controverting the case of plaintiffs- appellants, wherein few preliminary objections have been taken regarding maintainability, cause of action and locus standi, limitation and jurisdiction. On merits, respondent Nos. 1 to 4 have admitted almost the entire case of plaintiffs-appellants and only legal consequences of such possession and tenancy have been disputed. Out of the list of remaining proprietors of the said patti, respondent Nos. 2, 18, 19, 26, 133 and 144 have appeared after issuance of process by way of munadi under order 1 rul 8 of CPC and have R.S.A No. 4142 of 2011 (O&M) -3- contested the suit by filing a joint written statement. The suit land was originally given by the proprietors of the said patti to the grandfather of the plaintiffs-appellants and after the death of their grandfather, namely Sahju son of Jas Ram, the suit land has come into possession of his four sons. It is further submitted that father of the plaintiffs-appellants, namely Ramdia never calculated the suit land to the exclusions of the other sons of Sahju or other male successors of the tenancy. The revenue record showing the possession of Ramdia alone over the suit land in the capacity of tenant at will, is wrong whereas all the male successors of Sahju should have been shown to be in possession of the suit land. The defendants No. 290, 172, 947, 113, 715 and 680 have also contested the suit by filing their separate joint written statement almost on the similar pleas as taken by defendants No. 2, 18, 19, 26, 133 and 144. Rest of the averments are denied and at last, a request has been made to dismiss the suit. In counter claim, the contesting respondent Nos. 290, 172, 947, 113, 715 and 680 sought a decree for declaration ejecting the plaintiffs- appellants from their share i.e 1/4th share out of the total suit land measuring 28 kanals 19 marlas as per jamabandi for the year 1999-2000 as the father of the plaintiffs-appellants left the duty of carpentry service to Shamlat Patti Thua in the year 1960 and thereafter up to his death, he did not perform the duty of carpentry service to said patti and likewise the appellant never did the carpentry service and as such, their right has been forfeited and they have no right to cultivate the land of their share because R.S.A No. 4142 of 2011 (O&M) -4- the land in dispute was given in the year 1920 to Sahju in lieu of service to be rendered by Sahju to Shamlat Patti Surdas. The possession of the land i.e 1/4th share out of the total land is also sought. On 15.07.2004, following issues were framed by the trial Court:- 1. Whether the plaintiffs are entitled to the decree of permanent injunction as prayed for? OPD 2. Whether the plaintiffs are entitled tot he decree of permanent injunction as prayed for? OPD 2-A Whether the plaintiffs are liable to be rejected from the suit property to the extent of 1/4th share as alleged in the counter- claim? OPD 3. Whether the suit of the plaintiffs is not maintainable in the present form? OPD 4. Whether the Court has no jurisdiction to try and decide the present suit? OPD 5. Whether the suit of the plaintiffs is barred by time? OPD 6. Whether the plaintiffs have no locus standi to file the present suit? OPD 7. Whether the defendant has not been represented legally?OPD 8. Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD The trial Court after going through the evidence led by both the parties returned the findings on issue Nos. 1, 2 and 2-A. Issues No. 1 and 2 were decided in favour of defendants-respondents and against the plaintiffs- appellants whereas Issue No. 2-A was decided against the defendants- resopndents. A perusal of jamabandi Ex.PDW7/B for the year 1927-28 clearly shows that the suit land was in possession of Sahju and he was shown as a Khati (carpenter) and besides him, some lohar blacksmit Nathu, Birbal a Teli have been recorded different parcels of land. Without the payment of any rent or batai, they are recorded as gairmarusi. The jamabandi was prepared after 4 years which goes to prove that deceased Sahju was in possession of R.S.A No. 4142 of 2011 (O&M) -5- the suit land in the year 1920. This document has not been categoricaly deneid by the plaintiffs-appellants. They have admitted this crucial factum of Sahju having assumed the possession of the suit land in the year 1920. It is clear that Sahju-decased can be held to be entitled in cultivating possession of the suit land since the year 1923. The plaintiffs-appelants came to be in cultivating possession in the year 1955. The stipulated period of 30 years of the suit land had already been completed Sahju-deceased. As per jamabandi of the year 1955-56, Deep Chand son of Matu, was in possession as gair marusi under Ram Dia son of Sahju. The land was recorded in possession of one Deep Chand as a tenant at will under Ramdia son of Sahju. Attaching a presumption of truth to the jamabandi entries under Section 44 of the Punjab Land Revenue Act, the trial Court held that Sahju had completed 30 years possession on the suit land w.e.f 1923 till 1955. He became an occupancy tenant within the meaning of sub section 2 of Section 5 of Punjab Tenancy Act. The tenancy rights, which were crystalised as an occupancy tenant in favour of Sahju, desolved upon his all the four son. The said rights was also liable to be succeeded by the male sons of Sahju. Even if Ramdia was recorded in records of right as a gair marusi to the exclusion of other sons of deceased-Sahju, then it does not mean that the rights of occupancy tenant in their favour were extinguished. The rights of other sons of deceased Sahju will be defeated merely because of the ommission of the revenue authorities to record their names in the jamabandi. The findings on issue Nos. 3 and 6 were decided in favour of R.S.A No. 4142 of 2011 (O&M) -6- the defendants-respondents and against the plaintiffs-appellants. It was held that the suit of the plaintiffs was not maintainabile and they have no locus standi to file the present suit. As far as jurisdiction to try and entertain the present suit, findings on issue No. 4 was decided in favour of the plaintiffs- appellants and against the defendants-respondents, in view of the full Bench judgment of this Court. As per section 77(3) (d) of the Punjab Tenancy Act, a civil suit for a title to property based upon determination of occupancy rights can be filed in the Civil Court. The onus to prove issue Nos. 5, 7 and 8 was on the defendants-appellants. These isuses were not pressed by the defendants . The suit of the plaintiffs-appellants was dismissed by the trial Court, vide its order dated 08.05.2009 passed by Civil Judge (Sr. Divn.), Jind. Aggrieved against the above said order dated 08.05.2009, the plaintiffs-appellants filed appeal. The lower Appellate Court has affirmed the findings given by the trial Court and dismissed the appeal filed by the plaintiffs-appellants. As per jamabandi for the year 1955-56 Ram Dia son of Sahju was shown as tenant (gair marusi) through Deep Chand son of Matu Ram Dia son of Sahju was father of plaintiffs-appellants. After the death of Sahju in the year 1947, Ram Dia came into column of tenancy. This tenancy was created for the first time in faovur of Ram Dia, being heir of the said Sahju. The names of other sons of Sahju who had inherited the tenancy do not found mention in revenue record. This fact will not prove that they had abandoned their right. An application under 41 rule 27 of the Code of Civil Procedure was filed to place on record the order passed by revenue R.S.A No. 4142 of 2011 (O&M) -7- authorities (Ex.DX). However, the Appellate Court has allowed this application and the document was admitted in evidence. After hearing learned counsel for the parties and going through the file of the case, it is duly proved by way of leading documentary evidence that Sahju father of the plaintiff was in possession of the suit land as gair marusi tenant even before 1927. As per Jamabandi (Ex.PDW7/B), suit land was shown to be in possession of Sahju and he was shown as a Khati (carpenter). The recording of Jamabandi was done after 4 years. The defendants have categorically stated that Sahju assumed the possession of the suit land in the year 1920. This fact has not been denied by the plaintiffs in their replication. As per jamabandi entry Ex.PW7/B, Sahju had completed stipulated period of 30 years on the suit land. Sahju had fulfilled all the conditions to be declared as occupancy tenat. No doubt, that as per jamabandi for the year 1955-56 Ex.P3, the names of other sons of deceased Sahju have not been recorded but that does not mean that the rights of other sons of deceased Sahju wil be defeated merely because of the ommission of revenue authorities to record their names in the Jamabandi. The judgments passed by both the Courts below, calls for no interference. No substantial question of law arises for adudication by this Court. Accordingly, R.S.A is dismissed November 18, 2011 ( RITU BAHRI ) G.Arora JUDGE