R.S.A. No. 1169 of 1989 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 1169 of 1989 (O&M) Date of Decision : 16.2.2009 Daud .......... Appellant Versus Rahim Khan & another ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Satish Chaudhary, Advocate for the appellant. Mr.G.K.Chawla, Advocate for the respondents. **** VINOD K. SHARMA, J. C.M. No. 1325-C of 2009 For the reasons stated in the application the order dated 8.1.2009 is recalled and the case is restored to its original number. C.M. stands allowed. R.S.A. No. 1169 of 1989 This regular second appeal is directed against the judgments and decree dated 30.5.1988 and 20.3.1989 passed by the learned Courts below vide which suit filed by the plaintiff-respondents for possession stands decreed. The plaintiff-respondent brought a suit on plea that they are Bhondedars of the agricultural land mentioned in para one of the plaint and R.S.A. No. 1169 of 1989 2 the defendant appellants were tenant under them on payment of 1/3rd batai. It was claimed that there was relationship of landlord and tenant between the parties. The suit was initially filed in Court of Assistant Collector Ist Grade, F.P. Zirka. The appellant-defendants denied the relationship of landlord and tenant between the parties and objected to the jurisdiction of the A.C. Ist Grade to try the suit. The plea was accepted and the case was sent to the Civil Court for adjudication. The defendant appellant filed amended written statement where they denied that the plaintiffs are Bhondedars and landlord of the suit land and it was claimed that defendant with Rahim Khan etc. were co-owners and in cultivating possession. It was claimed that they were tenant under the original members without payment of any rent except the Govt. land revenue for the last more than 30 years and thus had become owner being occupancy tenant. On the pleadings of the parties, the learned trial Court framed the following issues :- “1. Whether the plaintiffs are Bhondedars/ Landlords of the suit land and are entitled to the possession of the same in the same manner as alleged in the plaint ? OPP 2. Whether the suit is not maintainable in the present form ?OPD 3. Whether the plaintiffs are estopped from filing the suit by their own act and conduct ? OPD 4. Whether the plaintiffs have no locus standi to file R.S.A. No. 1169 of 1989 3 the suit ? OPD 5. Whether the civil court has no jurisdiction to try the suit ? OPD 6. Whether the suit is not within limitation ? OPD 7. Whether the suit is bad for non-joinder and mis- joinder of necessary parties ?OPD 8. Whether the suit is not properly valued for the purpose of court fees and jurisdiction ?OPD 9. Whether the defendant is in possession of the suit land as tenant for the last more than 30 years and has acquired the occupancy rights qua the same and subsequently has become the owner of the same as alleged ?OPD The following additional issues were framed by the learned trial Court : 9-A. Whether the defendant is in possession of the suit land as co-sharer as alleged ? OPD 9-B. Whether the revenue entries in favour of the plaintiffs as Bhondedars are incorrect, wrong, illegal, null and void as alleged ?OPD 9-C. Whether Sadamadashah was the Bhondedars and after his death the land has reverted to the original owners as alleged ?OPD 10. Relief.” The learned Courts below on appreciation of evidence brought on record have recorded a concurrent finding of fact that the plaintiffs are Bhondedars/ landlords of the suit land and, thus, entitled to possession in view of the pleadings in the suit. It was held that the suit as framed was maintainable and that the plaintiffs were not estopped from filing the suit. The other issues raised on the basis of preliminary objections were decided R.S.A. No. 1169 of 1989 4 against the appellant-defendants as not pressed. The learned Courts below held that the defendant appellant failed to prove that they acquired occupancy rights to claim ownership as their possession for more than 30 years was not proved. The learned counsel for the appellants has challenged the concurrent finding of fact recorded by the learned Courts below primarily on the ground that the learned Courts below have not taken into consideration the evidence on record. The learned counsel for the appellant contends that this appeal raises the following substantial questions of law for consideration by this Court :- 1. Whether the co-owner/ owner in possession can be dispossessed by a stranger to the land ? 2. Whether the stay entries in the revenue record not supported by the purpose of change are of any consequence ? 3. Whether the suit for possession is maintainable against tenant under any civil law once the Court held that the defendant-appellant to be the tenant ? In support of the substantial questions of law the learned counsel appearing on behalf of the appellant contended that the learned Courts below erred in law in placing reliance on the revenue record as the change in the entries were unauthorised as there was no material to justify the change in the entries. The contention of the learned counsel for the appellant was that the presumption of correctness attached to revenue record stood rebutted. In R.S.A. No. 1169 of 1989 5 support of this contention the reliance was placed on the judgment of the Hon'ble Supreme Court in the case of Durga (deceased) and Others Vs. Milkhi Ram and Others 1969 P.L.J. 105. The learned counsel for the appellant also contended that in view of the finding of the learned Courts below holding the appellant/ defendants to be the tenant over the agricultural land jurisdiction of the civil Court was barred. On the contention, referred to above, it was prayed that the substantial question of law be answered in favour of the appellant defendants and appeal be allowed. Mr.G.K. Chawla, learned counsel appearing on behalf of the respondents, however, contends that once the defendant appellant had denied being tenant the jurisdiction of the revenue Court was barred and the case was rightly sent to the learned Civil Court for adjudication. The contention of the learned counsel for the respondent was that it is not open to the defendants appellant now to raise a plea that the Civil Court did not have jurisdiction to entertain the suit filed by the plaintiff as the same was sent to the Civil Court by the revenue Court. In support of this contention the learned counsel for the respondent placed reliance on the judgment of this Court in the case of Ajit Singh Vs. The Financial Commissioner and Others 1983 PLJ 150. The learned counsel for the respondent also placed reliance on the judgment of this Court in the case of Ganesh Dutt and Others Vs. Molu Ram and Others 1987 P.L.J. 435 to contend that on account of denial of R.S.A. No. 1169 of 1989 6 relationship of landlord and tenant in the written statement and also the claim to ownership results in forfeiture of tenancy. The learned counsel for the respondent contends that in facts and circumstances the plaintiff could not be asked to go to revenue Court for ejectment. On consideration of the matter, I find no force in the contention raised by the learned counsel for the appellant in view of the judgment of this Court in the case of Ganesh Dutt and Others Vs. Molu Ram and Others (supra) the decree for possession passed by the learned Courts below cannot be faulted with. The questions of law claimed are answered against the appellants defendant and in favour of the plaintiff-respondent. Consequently, the appeal is ordered to be dismissed but with no order as to costs. 16.2.2009 ( VINOD K. SHARMA ) 'sp' JUDGE