RSA No.3587 of 2008(O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3587 of 2008(O & M) Date of Decision:22.03.2010 Heta & Ors. .... appellants Versus The State of Haryana & anr. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgement should be reported in the Digest? Present: Mr.J.S.Hooda, Advocate for the appellants Mr.Kulvir Narwal,Additional Advocate General, Haryana for the respondents **** RAKESH KUMAR GARG J. This is plaintiffs' second appeal challenging the judgement and decrees of the courts below whereby their suit for declaration that they have become owners in possession of the suit land and further for a decree of permanent injunction restraining the respondents from interfering into their peaceful possession qua the suit land was dismissed. As per the averments made in the suit, previously the suit lands were owned by one Kundan son of Kesaria who had inducted Khazan Singh and Tej Pal, predecessor-in-interest of the appellants as tenant on the suit land which was not fit for cultivation at the time of tenancy. The suit land was given on the understanding that they would RSA No.3587 of 2008(O & M) 2 make the suit land fit for cultivation and as long as they would continue to pay the land revenue and cess, neither they nor their successors-in-interest would be ejected from the suit land. The aforesaid Kundan died without any legal heir and therefore the suit land was escheated and the State of Haryana was declared to be owner of the same. Thus, there was a relationship of landlord and tenant between the parties. The plaintiffs were in cultivating possession of the suit land in the capacity of the tenants under the defendants-State for more than 40 years as stated above and therefore had become occupancy tenants and had acquired absolute ownership rights by virtue of the provisions of Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953 and the defendants were having no right, title or interest whatsoever in the suit property. Since the defendants were threatening to dispossess the appellants illegally and forcibly and had refused to admit their claim, the necessity arose to file the present suit. The suit was contested by the respondents admitting that Khazan and Teja were recorded to be in possession as Gair Marusi on the suit land in the jamabandi for the year 1966-67 and previously Kundan son of Kesaria was recorded as owner of the suit land. The State of Haryana succeeded to the same as the said land was escheated vide mutation No.302 sanctioned on 08.03.1968. It was further stated that the suit land was leased out to Sh.Khazan and Teja for the years w.e.f.1970-71 up to 1983. Thereafter, due to stay/injunction orders passed by the Civil Court the suit land could not be leased out to anybody else. It was further submitted that there was no express contract of cultivation between Kundan, Khazan and Tej Pal. Suit land was leased out to Khazan and Tej Pal being highest bidders. Denying the claim of the plaintiffs that they had become occupancy tenants the defendants prayed for dismissal of the suit. After hearing learned counsel for the parties and RSA No.3587 of 2008(O & M) 3 considering the evidence on record, the trial Court came to the conclusion that the plaintiffs had suppressed material facts as they had never taken the suit land on lease. Consequently, the suit of the plaintiffs was dismissed. Appeal filed by the appellants also failed. Not satisfied with the judgement and decrees of the courts below the plaintiffs have filed the instant appeal vehemently submitting that both the courts below have misread and misconstrued the entire evidence on record which has occasioned failure of justice to the appellants. Elaborating further, learned counsel for the appellants argued that possession of the appellants over the suit land has been admitted and the revenue record was supporting the case of the appellants to which presumption of truth was attached and thus following substantial questions of law arise in this appeal: 1. Whether the judgement and decree of the trial Court and appellate Court are perverse, inadequate and based on wrong interpretation of law and not sustainable in eyes of law in light of facts and circumstances of the present case? 2. Whether the respondent/defendant has any entitlement to claim ownership on the basis of stray record in their favour? 3. Whether the peaceful possession of the appellants/plaintiffs coupled with the fact that they possess the same for more than 40 years as the land in dispute has been succeeded by him from his predecessor-in-interest who were tenants on the land of one Kundan who owned the said land, has been lost sight by the the courts below? RSA No.3587 of 2008(O & M) 4 4. Whether the entries in favour of respondent/defendant without any title or backdrop supporting the validity thereof is sustainable in the eyes of law? 5. Whether respondent/defendant could prove any concern with the suit land? 6. Whether courts below misread, misconstrued and gave oversight to the evidence on record? 7. Whether manifest injustice has been caused to the appellants? 8. Whether issues No.1 to 3 decided by the trial Court and up holding of the same by the appellate court are in consonance with the facts and evidences on record? 9. Whether the judgement and decree passed by the trial Court and appellate Court are perverse, inadequate, based on wrong interpretation of law and smacks non-application of mind? 10.Whether the Courts below even did not care to go through the oral and documentary evidences on record? On the other hand, learned counsel for the respondents has supported the impugned judgement and decrees and has argued that the courts below on appreciation of evidence have recorded a concurrent finding of fact which does not warrant any interference by this Court. I have heard learned counsel for the parties and perused the impugned judgement and decree. Both the courts below have recorded a finding of fact that the appellants have failed to prove that they have become owners in possession on having acquired occupancy rights and RSA No.3587 of 2008(O & M) 5 they were not entitled to the decree of permanent injunction. In any case, the instant suit had been filed by the appellants claiming to have acquired occupancy rights in the suit land. Section 5(1)(a) of the Punjab Tenancy Act, 1887 postulates that only that tenant will acquire right of occupancy who at the commencement of this Act has for more than two generations in the male line of descent through a grandfather or granduncle and for a period of not less than 20 years been occupying land paying no rent there for beyond the amount of the land revenue thereof and the rates and cesses for the time being chargeable thereon. Section 5(2) of the said Act further provides that if a tenant proves that he has continuously occupied land for 30 years and paid no rent therefor beyond the amount of the land revenue thereof and the rates and cesses for the time being chargeable thereon, it may be presumed that he has fulfilled the condition of clause(a) of sub Section(1). In the present case, as per the revenue record, the predecessor-in-interest of the appellants were paying Batai Nis Fee and Galla Chara to the landlords, meaning thereby that they were paying the agreed rent to the previous owner. However, on the escheating of the land to the Provincial Government there is nothing to prove that they continue to be in possession of the suit land as tenants on payment of rent in cash or kind although they were being recorded as Gair Morusi as from the record , it is proved that fathers of the plaintiffs under whom they are claiming their title were recorded as lessees on payment of Chakota to the State Government from year to year. Moreover, plaintiffs while appearing as PW3 and PW4 have admitted that they have not paid any rent to the Provincial Government after it had become owner of the suit land. In other words, they admitted that they had never paid rent to the Government. Thus, they are neither recorded as to be the tenants on payment of rent nor RSA No.3587 of 2008(O & M) 6 there is entry of payment of land revenue. So seeing from any angle, it is evident that the appellants do not fulfil the requirement of being occupancy tenant as per law. In view of the aforesaid discussion, no interference is called for in the findings of fact recorded by the Courts below. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 22.03.2010 neenu