RSA No.3014 of 1984 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. R.S.A. No. 3014 of 1984 (O&M) Date of Decision: .02.2010 Chhelu Ram …Appellant. Vs. Dan Singh & Others. ….Respondents. Coram:- Hon’ble Mr. Justice Vinod K. Sharma, Present: Mr.C.B.Goel & Mr.Sanjiv Gupta, Advocates, for the appellant. Mr. V.K. Jindal, Advocate for the respondents. VINOD K. SHARMA, J. This appeal by the plaintiff/appellant is directed against the judgment and decree dated 5.11.1984 passed by the learned courts below vide which suit filed by the plaintiff/appellant for possession of agricultural land measuring 16 Bighas 18 Biswas situated at Karnal by way of decree of preemption stands dismissed. 1 1 RSA No.3014 of 1984 Dharam Singh, defendant No.4 sold 16 Bighas 18 Biswas of agricultural land to the defendant/vendee Dan Singh and two others for Rs.40,000/- (Rupees forty thousand only) vide registered sale deed dated 12.4.1977. The appellant/plaintiff asserting himself as tenant on the suit land, filed a suit for possession by way of pre-emption by alleging that sale in fact, took place for Rs.25,000/-(Rupees twenty five thousand only). The suit was contested, wherein it was asserted that the suit land was purchased for a sum of Rs.40,000/- (Rupees forty thousand only), which was the market value. It was denied that the plaintiff/appellant was tenant. It was denied that he ever paid batai to the owner. The case set up by the plaintiff was that entries in khasra girdawari were got illegally made without notice to the defendant/respondents. The land was said to be under self cultivation of the vender. The plaintiff/appellant was said to be servant of the vendor and not a tenant. He was said to have taken active part in the sale and the suit was also claimed to be bad for partial pre-emption as also being time barred. Plea of waiver was also raised. Plea was also raised that improvement has been made on the land by spending a sum of Rs.5,000/- (Rupees five thousand only) and that they also incurred expenses towards registration and stamp charges etc. In the replication filed the pleas raised in the written statement were controverted and those made in the plaint were reiterated. On the pleadings of the parties, learned trial court framed the following issues. 1. Whether the plaintiff has got preferential right of pre-emption? OPP. 2. Whether the sale price was paid or fixed in goof faith? OPP 2 2 RSA No.3014 of 1984 3. If issue No.2 is not proved that what was the market value of the suit land at the time of sale? OPP 4. Whether the suit is not maintainable in the present form? OPP 5. Whether the suit is bad for partial pre-emption? OPP 6. Whether the suit is barred by limitation? OPP 7. Whether the plaintiff has no locus standi to file the present suit. OPP 8. Whether the plaintiff has waived his right of pre-emption? OPP 9. Whether the defendant effected improvement upon the suit land after the sale, if so to what value? OPP 10. Whether the defendant-vendees paid expenses of stamp and registration charges, if so to what amount they are entitled? OPP 11. Relief. On appreciation of evidence, finding recorded by the learned trial court on Issue No.1 on appreciation of evidence reads as under:- “6. This is the only a d hotly contested issue between the parties. Plaintiff Chhelu has asserted that he was tenant on the suit land under the vendor Dharam Singh at the time of sale and he still continued as tenant. Defendant Vendees have asserted that the plaintiff was never a tenant on the suit land and that he used to cultivate the land in dispute as servant of the vendor Dharam Singh. The learned counsel for the plaintiff took me through the oral as well as documentary evidence on record and submitted that the plaintiff has proved and convinced that his possession on the land in dispute was and is 3 3 RSA No.3014 of 1984 in the capacity of a tenant. In support of his submissions he referred to 1967P.L.R.-608 Baru Ram Vs. Kanji Ram; 1970 Currant Lal Journal- 181 Kashmiri Lal Vs. Chuhar Ram and AIR 1971 Supreme 369- Bhagwan Dass Vs. Chet Ram. Learned counsel for the defendants-vendees submitted that the sale of the land in dispute took place on 12.4.1977 and till that day there was no entry of khasra girdawari in the name of plaintiff Chhelue Ram. Chhelu was no doubt in possession of the suit land but his possession was that of a servant under the vendor. The vendees paid Rs.40.000/- in cash to the vendor and purchased the land in dispute. They paid such exorbitant and attractive price keeping in view that they would immediately start cultivating the land in dispute. Chhelu took advantage of his being in possession and agitating and proclaiming that he was tenant. He dragged the defendant vendees in litigation. He was never held as a tenant on the suit land by any Civil Court nor by the Executive Magistrate. Chhelu got the Khasra Cirdawari corrected in his name stealthily and without impleading the defendant-vendees as parties to those proceedings. Those orders have to be ignored by this Civil Court and an independent findings has to be given as to whether or not the possession of the plaintiff Chhelu is in the capacity of a tenant. In support of his contentions he referred to 1972 PLJ 211 Gurnam Singh & Ors. Vs. Jagjit Singh PLR 402 Madho Dass Vs. Midha Singh and 1981 PLJ 367 Jagjit Singh Vs. The divisional Commissioner, Haryana and others. 4 4 RSA No.3014 of 1984 The law laid down in the aforesaid reported authorities is certainly agreeable to all. It has to be determined after appreciation of evidence on tecore as to whether or not the plaintiff has proved his possession in the capacity of tenant. Section 4(5) of the Punjab Tenancy Act, 1887 defines tenant as under:- “tenant” means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that other person; 7. The following is the sum and substance of evidence led by both the parties on the point in issue:- PW1 Om Parkash Lambardar of Karnal stated that he used to collect water charges. The suit land is under the cultivation of the plaintiff who used to pay him the water charges and he issued receipts Ex.PW1/A to PW1/D. In his cross-examination he admitted that there is no mention of Khasra numbers in the receipts. Panna Lal Patwari stated that copies Ex. PW2/A to PW2/D of Khasra Girdawaries were true and correct according to the revenue record. Khasra girdawari pertaining to Kharif 1976 in respect of the suit land was corrected in accordance with the report Roznamcha NO. 137 of 9.11.1980. In his cross-examination he admitted that prior to Kharif 1976 the Khasra Girdawari was in the name of the vendor Dharam Singh and the entries were Khud Kast. Pale Ram PW3 stated that plaintiff Chhelu is cultivating the land in dispute for the last 15/16 years. He did not state that Chhelu 5 5 RSA No.3014 of 1984 cultivated the suit land as tenant. Chhelu plaintiff supported his contentions in his statement. In his cross-examination he stated that Girdawari for the last 15/16 years was in his name. He had made an application for correction of Khasra Girdawari after coming into existence of the sale deed and in those proceedings he had made the defendant-vendees as his opposite party. He was not in possession of any receipt of payment of Batai as the owner had never issued. Further that he used to give Batai to the owner in the Mandi and the receipts must be there in the Bahi of that shop situate Sabzi Mandi, Karnal (No such record was produced). Reliance has also been placed upon the documents Ex.P1 to P19. Ex.P1 is the copy of the registered sale deed dated 12.4.1977. Ex. P2 is the Jamabandi of the year 1969-70. Dharam Singh has been shown as the owner in the column of cultivator, the entry is Khud Kast. In Ex. P3 which is copy of Khasra Girdawari the name of Chhelu plaintiff appears in the column of cultivator as tenant on payment of Batai Tehsil pertaining to Kharif 1976 and Rabi 1977. It may be recalled that this entry came in to existence in consequence of order of correction of Khasra Girdawari passed by Asstt. Collector, 2nd Grade on 2.3.1979. The copy of order is Ex. P15 on record. The present defendant vendees were not parties to this application. It was an Ex-parte order in which Dharam Singh was the opposite party. Ex.P4 is the copy of order dated 20.12.1977 passed by the learned Executive Magistrate, Karnal in proceedings U/s 145 Cr.P.C. between Dharam Singh and Chhelu. It is evident from the contents of 6 6 RSA No.3014 of 1984 this order that Chhelu was never held as tenant but it was held that he was in possession. Ex. P7 is the copy of statement of Dhan Singh vendee recorded on 16.3.1978 in a Civil Suit for permanent injunction. Dhan Singh admitted that the vendor Dharam Singh had not delivered physical possession to the vendee after the sale in question and that Chhelu was cultivating the land in dispute as a servant of Dharam Singh vendor. Es. P8 is the treasury receipt showing deposit of 1/5th pre-emption money by the plaintiff on 5.4.1978. Ex. P.9 is the copy of order dated 17.8.1078 passed by Assistant Collector 2nd Grade vide which Chhelu was allowed ex-parte to deposit share of the agriculture produce for the owner Shri Dharam Singh with respect to Rabi 1977. This application was filed on 7.2.1978. The sale in question took place on 12.4.1977. Ex. P10 is the copy of an ex-parte order darted 17.8.1978 vide which Chhelu Ram was directed to deposit share of agriculture produce for the owner Dharam Singh with respect to Kharif 1977. Ex. P11 and P12 are the treasury receipts showing deposit of the amount mentioned in Ex. P9 and P10. Ex. P13 is the copy of Khasra Girdawari pertaining to Kharif 1976 and Rabi 1977 in respect of the suit land. Chhelu Ram has been shown as tenant on payment of annual lagan of Rs.150/- and the column of changes the entries in the red ink is that correction of Khasra Girdawari has been made in compliance of the order dated 2.3.1979 passed by Tehsildar and in pursuance of report No. 137 dated 9.11.1980. The entry further 7 7 RSA No.3014 of 1984 reads Chhelu Ram son of Shiv Ram Gair Marusi Batai Tihara.” Ex. P19 is the copy of order dated 2.3.1979 vide which application filed by Dharma Singh for correction of Khasra Girdawari for the crop Rabi 1977 was dismissed by Assistant Collector second grade. Ex. P15 is the copy of order dated 2.3.1979 vide which application filed by Chhelu Ram against Dharam Singh (vendor) for correction of Khasra Girdawari pertaining to Kharif 1976 onwards was allowed. Ex. P16 is the copy of order dated 19.8.1977 passed by Hon’ble High Court vide which order dated 30.3.1977 passed by the Executive Magistrate, Karnal in the proceedings U/s 145 Cr.PC was quashed. No where in this order it has been observed that Chhelu Ram was in possession of the suit land as tenant. Ex.P19 is another copy of Khasra Girdawari pertaining to Kharif 1976 and Rabi 1977 Ex.P17 is the copy of order dated 22.3.1978 passed in injunction suit vide with ad-interim injunction dated 28.2.1978 was vacated and it was observed that Chhelu was in possession of the suit land. No where it has been mentioned in this order that Chhelu was termed as tenant on the suit land Ex. P18 is the copy of judgment dated 29.8.1978 vide which the suit filed by Chhelu Ram for permanent injunction was decreed restraining the defendants from dispossessing the plaintiff from the suit land otherwise in due course of law. The question as to in what capacity the plaintiff Chhelu was in possession was left to be decided in subsequent proceedings. 8 8 RSA No.3014 of 1984 8. Dan Singh defendant vendee stated that he and his brothers (vendees) purchased the land in dispute for Rs.40.000/-. The entire sale price was paid in cash before the Sub Registrar to the vendor. He referred to the original sale deed Ex. D1 and has further stated that they had incurred registration and stamp expenses. He denied that Chhelu was ever tenant on the suit land. Sukha Singh DW.2 stated that Chhelu was cultivating the suit land as servant of the vendor Dharam Singh. Reliance has also been placed upon the document Ex. D2 to D.4 Ex.D.2 is the copy of Khasra Girdawari showing the land in dispute under slef cultivation of the owner Dharma Singh till Rabi 1976. Ex.D.3 is the copy of Nehri Khasra Girdawari in which possession has been shown of Chhelu Ram but not as a tenant. Similarly the entry in Ex.D.4. 8. It is now more than manifest from the oral as well as documentary evidence on record that the plaintiff has failed to prove himself as tenant of the suit land. He has not been able to prove that he was inducted by the vendor Dharam Singh as tenant on the suit land. He has further failed to prove that there was any contract between him and the owner Dharam Singh about rent to be paid by him to Dharam Singh. He has not produced any receipt of payment of rent to Dharam Singh. He stated that the receipts must be there in the Bahi of that shop where he used to sell agriculture produce and pay the amount of batai to the owner Dharam Singh. No such record has been produced. About the rent the documentary evidence is 9 9 RSA No.3014 of 1984 contradictory. In Ex.P.13 i.e. copy of Khasra Girdawari pertaining to Kharif 1976 and Rabi 1977. The entry in the column of cultivator reads as under:- “Chhelu Ram Wald Shiv Ram, Sakan Deh, Gair Marusi Lagan Rs.150/- Sal- Tamam, Deegar Arazi Khata No. 4436.” In the column of changes, the entry in red ink is as under:- “ Kharif 1976 Barua Rapat No. 137 Tithi 9.11.1980 Darusti Girdawari, Be-Hukam Tehsildar, Sahib Tethi 2.3.1979 Darusti Girdawari Benam Chhelu Ram Gair Marusi Batai Tehara.” It is clear that the plaintiff Chhelu Ram got the entries of Khasra Girdawari corrected in his name after the sale in question and the order vide which the correction was made was after the date of institution of this suit. The defendant vendees were not parties to those applications. The plaintiff knew that the land in dispute had been sold to the defendant-vendees and even then he did not care to implead them as an opposite party in the proceedings for correction of Khasra Girdawari. All this shows that the plaintiff got the orders of Khasra Girdawari stealthily and at the back of real and necessary party that defendant-vendees. To me it is clear from the scrutiny of evidence on record that the possession of the plaintiff on the suit land was merely in the capacity of a servant of the vendor Dharam Singh. Had the plaintiff been tenant of the suit land then there must have been entries of Khasra Girdawaries in his name. The plaintiff stands falsified by his own statement when he deposed that entries of Khasra Girdawari in respect of 10 10 RSA No.3014 of 1984 the suit land were in his name for the last 15/16 years. Whereas this act does not find a support from the documents on record. As a consequence of discussion made above, issue No. 1 is decided against the plaintiff.” Learned trial court also held that sale price fixed was Rs.40,000/- (Rupees forty thousand only), which was duly paid at the time of registration of the sale deed. Issues No.2 was decided in favour of the vendees, whereas issue No.3 was held to be have become redundant. Issue No.4 was also decided against the plaintiff in view of the findings on issue No.1. However, issue No.5 was decided against the defendants as also issue No.6 was decided against the plaintiff in view of finding on issue No.1 referred to above. Issues No.8 and 9 were decided against the defendant for want of evidence. On issue No.10, it was held that a sum of Rs.4412.50P (Rupees four thousand four hundred twelve and Paise 50 only) was spent towards registration charges. Learned lower appellate court affirmed the findings recorded by the learned trial court. Plaintiff/appellant moved an application No.487-C of 2008 under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure for placing on record judgment dated 7.5.1988 passed by the learned Sub Judge, Karnal in Civil Suit No.305 of 1985 decided on 7.5.1988 titled as Dhan Singh Vs. Chhelu Ram. It was averred in the application that defendant/respondents had filed a suit for possession/mandatory injunction by claiming the plaintiff/appellant to be servant under Dharam Singh. The 11 11 RSA No.3014 of 1984 said suit was dismissed wherein, the appellant/plaintiff was held to be the tenant over property in dispute. It was averred that this judgment came into existence only after filing of the appeal in this Court on 7.5.1988. Therefore, this was required to be taken on record by way of additional evidence and it was necessary for adjudication of the controversy between the parties on merit. However, on consideration of matter, I find no force in this application as it is well settled law that in order to succeed in suit for pre- emption the pre-emptor has to prove his right at the time of filing of the suit and then during the period of suit and thereafter, till passing of the decree by the trial court. It is not possible for the pre-emptor to seek pre-emption by perfecting his right of pre-emption after decree is passed by the Civil Court. If on the date of decree, right of pre-emption is not available, the same cannot be perfected subsequently. Consequently, judgment and decree now sought to be relied upon cannot be said to be one, which would be necessary for the adjudication of the controversy between the parties. Application for additional evidence, therefore, is rejected. Mr. C.B. Goel, learned counsel for the appellant contends that this appeal raises the following substantial question of law for consideration by this Court. 1. Whether once the appellant is established to be in possession by Revenue Court, coupled with the report of revenue officials and deposited the Batari, the courts below erred in ignoring the documentary evidence of tenancy particularly on the date of sale? 12 12 RSA No.3014 of 1984 2. Whether in view of judgment inter-se between the parties dated 7.05.1988 which has attained finality wherein the appellant has been proved to be tenant in possession, the findings of the courts below are liable to be set aside and the suit deserves to be succeeded? 3. Whether the judgment and decrees of the courts below can legally be sustained being based on misreading and misconstruing the oral and documentary evidence on record and ignoring the documentary evidence on record on flimsy grounds? 4. Whether on the facts and circumstances of present case, the judgment and decrees of the courts below are sustainable in law as also on facts? 5. Whether once the respondents-vendees have already sold the property, they can still contest the suit without any authority of law? In support of the substantial questions of law referred to above, learned counsel for the appellant has contended that learned courts below wrongly ignored Ex.P-15, vide which correction of khasra girdawari was ordered to be corrected from khariff, 1976 in favour of the appellant. Said petition was filed much prior to the sale i.e. on 23.11.1976, whereas the sale in question was dated 12.4.1997. The contention of the learned counsel was that it was proved that appellant was tenant much prior to the date of sale in favour of the defendant/respondents. Learned counsel for the appellant also referred to the statements of PW1 and PW2, which was in support of Ex.P- 15 referred to above. Learned counsel for the appellant also contended that 13 13 RSA No.3014 of 1984 payment of rent in this case was proved vide receipt Ex.P-1/A dated 11.1.1978 for khariff 1977, Receipt Ex.P-1/B dated 4.8.1979 for Rabi 1979, Receipt Ex.PW-1/C dated 7.2.1979 for Khariff, 1978 and Receipt Ex.PW- 1/D dated 17.6.1980 for Rabi, 1978. Thus, it was claimed that the finding of the learned courts below on issue No.1 is the outcome of misreading of evidence, oral as well as documentary. Learned counsel for the appellant also referred to Exs.P.9 and P.10 to contend that appellant was allowed to deposit the rent for Rabi 1977 and Khariff 1977 and treasury challan showed the due payment. Learned counsel for the appellant also referred to the subsequent decree passed in a suit for possession filed by the defendant/respondents. However, this plea deserves to be noticed to be rejected for the reason that the application moved by the appellant for additional evidence stands rejected by this court. Plea is also raised of sale by the vendees which again deserves to be noticed and rejected as it would not be relevant to determine the substantial questions of law in this appeal. Learned counsel for the appellant, thereafter placed reliance on the judgment of this court in case of Kashmiri Lal Vs. Chuhar Ram 1970 PLJ 83 and the judgment of this court in case Randhir Singh & Anr. Vs. Balbir Singh & Anr. 1070 PLJ 295, to contend that in order to prove the tenancy continuity of possession is required to be established. However, on consideration of matter, I find that judgments relied upon by the appellant only lay down that it is essential for the plaintiff in a suit of pre-emption to prove his tenancy on the date of sale and does not lay down that even if in the absence of proof of tenancy decree is required to be passed merely on the basis of possession. Learned counsel for 14 14 RSA No.3014 of 1984 the appellant thereafter referred to the judgment of this court in case of Mool Chand & Anr. Vs. Mani Ram 1983 PLJ 482, to contend that all though the right of pre-emption is a piratical right but it is not true in the case of tenant and in case of pre-emption by tenant considerations are different. This authority is again not relevant as the question involved in the present case is whether the appellant was able to prove his tenancy on the date of sale or not? The contention of the learned counsel for the appellant on the basis of above mentioned submissions was that substantial questions of law framed be answered in favour of the appellant and judgment and decree be reversed and the suit filed by the plaintiff/appellant be decreed. Mr.V.K.Jindal, learned counsel for the respondent, on the other hand, supported the judgment and decree passed by the learned courts below and contended that the substantial questions of law raised by the appellant deserve to be answered against him. The contention of the learned counsel for the respondent was that both the courts below on appreciation of evidence have recorded the concurrent finding of fact that the plaintiff was working as a servant and there was no relationship of landlord and tenant between the plaintiff/appellant Dharam Singh vendor. The contention of the learned counsel for the respondent was that concurrent finding of fact cannot be reversed in exercising of power under Section 100 C.P.C. unless it is a case of complete misreading of evidence. The contention raised was that even if on appreciation of evidence two views are possible, then one taken by the learned courts below