IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.17511 of 2009 Date of decision : 16.11.2009 Chanan Singh ….. Petitioner Versus Assistant Collector Grade-I-cum-Sub Divisonal Officer (Civil), Fatehabad and Others ….. Respondents Present: Mr. S.S. Godara, Advocate for the petitioner. **** S.S. SARON, J. Dilbag Singh, Satpal Singh (respondents No.5 and 6), Niyamat Singh son of Harbhajan Singh through his legal representatives Smt. Harjinder Kaur, Rubi, Ravinder (respondents No.7, 8 and 9), Smt. Harsharan Kaur, Smt. Prabhjot Kaur, Smt. Kulwant Kaur, Smt. Santokh Kaur and Smt. Balraj Kaur (respondents No.10 to 14) filed an application (Annexure P1) under Section 14-A of the Punjab Security of Land Tenures Act, 1953 (“Act” – for short) and Rule 22 of the Punjab Security of Land Tenures Rules, 1956 before the Assistant Collector, Grade-I, Fatehabad in Form L seeking ejectment of the petitioner who was tenant in the land measuring 25 kanals 16 marlas on the ground that he had failed to pay 1/3rd batai (lease money) for the crops Rabi 1994 to Kharif 1996. The petitioner filed his reply (Annexure P2) to the said application. It was submitted that the application (Annexure P1) seeking ejectment of the petitioner had not been filed by all the co- CWP No.17511 of 2009 [2] sharers and as per record, Smt. Amarjit Kaur and Smt. Gurmeet Kaur daughters of Smt. Kesho; and Rajwinder Kaur wife of Satpal as also Sukhwinder Singh son of Smt. Kulwant Kaur were also co-sharers and had not been joined as parties in the ejectment application. Accordingly, the application (Annexure P1) was liable to be dismissed. The Assistant Collector Grade I, Fatehabad (respondent No.1) vide order dated 24.12.1999 (Annexure P8) allowed the application (Annexure P1) and held that the petitioner had not been able to prove the payment of rent for the Crops of Rabi 1994 to Kharif 1996. Accordingly, his ejectment was ordered. The petitioner aggrieved against the said order filed an appeal before the District Collector, Fatehabad (respondent No.2) who vide order dated 8.7.2003 (Annexure P13) dismissed the same. Aggrieved against the said order, the petitioner filed a revision petition before the Commissioner, Hisar Division, Hisar which has been dismissed vide order dated 27.2.2008 (Annexure P14). The revision petition of the petitioner has been dismissed by the learned Financial Commissioner, Haryana vide order dated 30.9.2009 (Annexure P15). Aggrieved against the same, the petitioner has filed the present petition under Articles 226/227 of the Constitution of India seeking quashing of the orders dated 24.12.1999 (Annexure P8), 8.7.2003 (Annexure P13), 27.2.2008 (Annexure P14) and 30.9.2009 (Annexure P15) passed by respondents No.1 to 4 respectively. Learned counsel appearing for the petitioner has contended that all the co-sharers were not joined as a party to the ejectment application and the petitioner was not aware as to whom the rent was to be paid. In any case, it is submitted that rent in question was paid to Kandhara Singh husband of Smt. Amarjit Kaur who is the daughter of Smt. Kesho and the petitioner was earlier recorded as tenant under her. It is submitted that the affidavit CWP No.17511 of 2009 [3] (Annexure P7) furnished by Kandhara Singh has not been given due consideration and weightage. It is also submitted that the petitioner has filed an application dated 15.6.2000 (Annexure P9) for producing additional evidence i.e. the order dated 16.5.1987 (Annexure P10) on record. However, the authorities under the Act have erred in not allowing the said application to be taken on record. Besides, it is submitted that the petitioner was never made aware of the decree dated 16.11.1993 (Annexure P6) in pursuance of which Smt. Viro daughter of Smt. Kesho also became co-owner of the land and after her death, her legal representatives (respondents No.6 to 14) became the co-owners. In any case against the decree (Annexure P6) RSA is pending in this Court and the decree (Annexure P6) has not been incorporated in the Jamabandi. Therefore, it was not known that Smt. Viro daughter of Smt. Kesho was also a co-sharer of the land in question. I have given my thoughtful consideration to the contentions of the learned counsel for the petitioner. The factual position is that Santa Singh son of Dal Singh was the owner of land measuring 753 kanals 18 marlas. On 14.6.1947, he executed a Will in favour of his wife Smt. Kesho. Smt. Kesho suffered a decree on 22.8.1972 in favour of her daughter Smt. Amarjit Kaur in respect of 1/5th share of her land. The other daughter of Smt. Kesho namely Smt. Viro challenged the decree dated 22.8.1972 by filing a suit against Smt. Amarjit Kaur, which was dismissed by the Additional Senior Sub-Judge, Fatehabad vide judgment and decree dated 30.8.1990. In appeal the suit of Smt. Viro was decreed vide judgment and decree dated 16.11.1993 (Annexure P6) passed by the learned Additional District Judge, Hisar and the decree dated 22.8.1972 was held to be void and not binding upon her. RSA against the said judgment and decree dated 16.11.1993 (Annexure P6) is pending in this Court. Therefore, as of now admittedly Smt. Viro became a CWP No.17511 of 2009 [4] co-owner of the land of Smt. Kesho which includes land measuring 25 kanals 16 marlas which was on lease with the petitioner. Smt. Viro is the wife of Harbhajan Singh. Dilbag Singh and Satpal Singh (respondents No.5 and 6) are the sons of Harbhajan Singh and Smt. Viro. Niyamat Singh was the deceased son of Harbhajan Singh and Smt. Viro. Smt. Harjinder Kaur (respondent No.7) is the widow of Niyamat Singh, Rubi and Ravinder (respondents No.8 and 9) are the minor daughter and minor son respectively of Niyamat Singh son of Harbhajan Singh and Smt. Viro. Smt. Harsharan Kaur, Smt. Prabhjot Kaur, Smt. Kulwant Kaur, Smt. Santokh Kaur and Smt. Balraj Kaur (respondents No.10 to 14) are the daughters of Harbhajan Singh and Smt. Viro. The said legal representatives of Smt. Viro are co-sharers of the land from which eviction of the petitioner is sought. It is well-known that a co-sharer can maintain a suit for possession against a tenant in respect of the entire property without impleading other co-sharers and secure a decree for the same irrespective of his own share therein. A Full Bench of this Court in Ajmer Singh v. Shamsher Singh @ Sher Singh , AIR 1984 P&H 58 held that suit by co-owner for possession against a trespasser in respect of entire property without impleading other co-sharers is maintainable irrespective of his own share in the property. The ratio of the same applies in the case of tenant as well. Therefore, the tenants in order to protect their rights are liable to pay the rent so as to avoid their eviction. The only evidence that had been produced on record regarding payment of rent by the petitioner is the affidavit (Annexure P7) of Kandhara Singh the husband of Amarjit Kaur. The effect of the said affidavit has been duly considered by the District Collector, Fatehabad in his order dated 8.7.2003 (Annexure P13). It was held that merely by giving affidavit (Annexure P7) it is not proved that the CWP No.17511 of 2009 [5] tenant had made payment of batai. The contention of the petitioner that he had paid batai to Smt. Amarjit Kaur was not held to be reliable because it was for the tenant to bring Amarjit Kaur as a witness before the trial Court and to subject her to cross-examination. This admittedly has not been done and therefore, no fault can be found with the orders declining to take into account the affidavit (Annexure P7) of Kandhara Singh the husband of Amarjit Kaur. Therefore, there is no material on record to show or establish that rent had been paid by the petitioner. The reliance placed on the affidavit without subjecting the deponent of the same to cross-examination is of no value in quasi-judicial proceedings. The affidavit (Annexure P7) is in the nature of an admission and the person against whom it is to be used is to be given an opportunity to cross-examine the deponent of the same so as to clear the point of dispute. The contention of learned counsel that the application dated 15.6.2000 (Annexure P9) for producing on record the judgment and decree dated 16.5.1987 (Annexure P10) was liable to be allowed is devoid of any merit. Even if the said order dated 16.5.1987 (Annexure P10) passed by the Assistant Collector Grade-II, Fatehabad was taken into account, the same was quite inconsequential as the status of respondents No.5 to 14 as co- sharers of the land measuring 25 kanals 16 marlas is not, in any manner, affected. In the present case the petitioner was ordered to pay batai of Rs.2000/- within 30 days to Smt. Amarjit Kaur; had the batai indeed been paid to Smt. Amarjit Kaur as is the stand of the petitioner in pursuance of the affidavit (Annexure P7) of Kandhara Singh, the same was liable to be proved. Therefore, even if the order dated 16.5.1987 (Annexure P10) has not been admitted in evidence as additional evidence, no prejudice has been caused to the petitioner. The fact that the petitioner was not made aware of the decree CWP No.17511 of 2009 [6] dated 16.11.1993 (Annexure P6) is also of no consequence. The petitioner in order to protect his rights was liable to pay the rent of the land under his tenancy or produce valid proof of having paid the same. The fact that rent was not paid is a question of fact, which is not to be interfered with in exercise of writ jurisdiction of this Court. In the circumstances, there is no merit in the present petition and the same is accordingly dismissed. (S.S. SARON) JUDGE November 16, 2009 amit