4 1 11 461 RSAe No 889 of 2005 111 r t IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGAR RSA No 889 of2005 DateofDecisionl January25 2010 1 Harlal andothers Appellants 0 C Vs 1 0 Nathi and another 1 espondents Z CORAM HONBLE MR JUSTICE MM BEDI r Present MrPankajJain Advocate a5 for the MrML Sarin Senior Advocate with m Mr Kabir Sarin Advocate 60rthe 1 tl 1 MMS BEDI J his is plaintiHssecond round of litigation111 High Court sequel to the Ondingsof fact that the are not tenants in possession undcr previousowners arrived at by the Courts beiow alter thc rnatter was rctnandedin RSA No 279 of 1982 directinc thc trial Courl for fresh decision on merits to givea findingwhether thc plaintiffl 44 f . uma 2012.07.20 13: 06 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document J 462 RSAe Noe889 of2005 I21 L are entitled to injunction the defendant from the plaintiff aer permitting theplaintiffs to make amendmentin their suit in order to establishtheir tenancypriorto creationof mortgage and to decide issueNolA Brief facts which are necessary for of the present m appeal are as followsl 0 Plaintiffs No l and 5 Harlal and Tara son and daughter of C I Badleyand plaintiffsNol 3 and 4 1e Roomal Kawa and Hansa sons of C5 Kare filed a suit for declarationagainstdefendantNol Nathi son ofBhup I SinghSOIl of Rati Ram and defendantNo Rikkhan son of Bhuleyson of Z Rati Ram for declarationto the effect that the plaintiffshad become owners r 111 of the suit land as the had lost their rightof by afflux of time and in altemative the plaintiffshad become C45 1 owners havingacquiredoccupancy rightsbeingtenants in possessionprlor mmo to the dateofmortgageThe suit was dismissedby ShRC Guptathethen 480 SubJudgeIst Class datedAugust3003 0 The plaintiffspreferred appealagainstthe saidjudgment which was accepted by lower Appellate Court and suit ofthe plaintiffs was decreed and decreedatedDecember 11 1981 The defendan preferredregularsecond appeal againstthejudgmentand decreepassedbythe lower AppellateCourt dated December 11 1981 as RSA No 279 of 1982 The said appeal was allowed by this Court It was held by High Court lIl judgmentdated . uma 2012.07.20 13: 06 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 463 RSA No 889 of2005 l 131 L December 11 2001 that the appealOled by the defendantscould have been allowed on thatverygroundbut for the fact that taken a pleato the effect that theyare tenantspriorto creation of mortgageand even if mortgagewas their tenancycould not be terminatedexceptlIl accordancewith law and theplaintiffs were thereforeentitledto injunction 1 r the defendantsfrom them exceptin accordance 0 withlaw Since the suit of the plaintiffwas merelyfor declarationand no C prayer for injunctionhad beenmade theHighCourt had givenlibertyto the 0 plaintiffs to make amendmentin the suit to establishtheir tenancypriorto I creatlOrl of mortgage After settingasidethe decreeof the lower Appellate Z r1 Court datedDecember 11 1981 the remandedto trial Court for freshdecision on meritsin thelightof observationsofthe HighCourt The I part of the judgmentof High Court in RSA No 279 of 1982 08 decidedon December 11 2001is as followsl 7 to suReforpossession on the basis of Z 1 title which is governed byArticle 65 of the Schedule to t the Limitation Act 1963cannot be said to have come to endand therefore theplainti could not be declared to have becomeowners on the groundthat the defendants had lost limitation Ior recovery of possession I 8nd forcein this submission I therefore hold thatplaintiffs 1 1 1 could not be declared to have acquiredtitle on expiryof 30 years from thedateofmortgage . uma 2012.07.20 13: 06 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 464 ReSeA Noe 889 of2005 V 141 1 I wouldhave allowed this appealand dismissed thesuit oftheplaintiffs on thisgroundalone but counsel for the plaintif had also tak1 a pleathat theplaintiHs were tenantsprior to creation of mortgage and even if redemption was permitted tenancycould not 1m r be terminatedexceptin accordance with law and the 0 plaintiffs wer therefore entitled to lnJunctlon C the from them C except ll7 accordance with law Counsel for the I appellantspointedout that the suit was merelyfor Z declarationand no prayerforinjunction11asbeenmade Afterconsidering the submissions raised at the I barI am oftheview that case oftheplainti regarding c5 tenancy is required to be consideredand ifnecessary the m plaintif will be at libertyto make amendmentin the Z frameof the suit and if theyare able to establishtheir tenancyprior to creation of mortgagetheir plea lS required to be decidedin accordancewith law 1 I thereforeset aside the decree of the lower appellate Court and remandthe matter to the trial Court 1 forfresh1ecisi0n on merits in the lightof observations madehereinabove . uma 2012.07.20 13: 06 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document L 465 RSeAeNoe889 of2005 6J 151 1 C7J The givenbyHighCourt that the plaintiffscannotbe declaredto have title on expiry of 30 years from the date of has become flnal interse the partieshowever after the remand the moved an application for amendmentof plaintwhich was allowed on 28 2002 and the plaintiffswerellowed to amendthe 1 1 clause to enablethem to theplea inJunction 0 to theeffect that even if theywere notentitledto relief for declarationqua C by theywere still entitled to retain possesslon as C5 The amended written statement and amended replication were tenan Cr permitted to be filed which had resulted in the framingof following 5r additionalissue Issue NoAl If issue Nol is decided againstthe I plaintiffswhether they are entitied to retain 08 as tenant7OPP 4r ea The issueNo 1 and 2 which stood alreadyframed by the trial Z 1 Court however read as follows Om rv 1 Whether the have become owners of the suitland byway as OPP 2 lf issue No l is not provedwhether the plaintiffs areentitledto remain in ofthe suit land 1 as tenan ln paraNo6 of the plaint2 OPP . uma 2012.07.20 13: 06 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 466 ReSeAeNo 889 of2005 r 161 J 9 Since the High Court had alreadydecided issue No l on December11 2001againsttheplaintiffsholdingthat the mortgagersright to sue for on the basis of title had not come to an end as it is tScd 0 l 5I A governed by Article thatthe defendantshad not lost limitation for recovery of it has been 6nal1ydecided interse the paniesthat plaintiffl could not be declaredto have acquired title on expiryof 0 30 years from the dateofmortgage C I So far as issue No lA which is similar as issue No2 was rev C5 determinedon the basis of evidence alreadyproducedby Harlal plaintiff priorto the remandand on the basisofthe additional statements recordedie Z of Hansa son of Kareas PW1 Mohan Lal Kanungoas PW2 and Ashok tr Kumar Patwari as PW3 The trial Court arrived at a findingof fact on I of evidence that it was nowhere recorded that Badleyand a5 plaintiffs No2 to 4 were in ofthe land as tenants The trial Court W had taken into considerationthat even if it is admitted that Badleyand Z W1 Qm plaintiffs No to 4 were tenantsin of the land at the time of Aa creation of mortgagetheir lr rightsof tenancymergedin greater ownershiprightswith the execution of sale deed dated July 4 1957 ExDWlIA9 The said sale deed was executed by Sukhan in favour of plaintiffs No to 4 defendantsNathanand BhupSinghandBadleyfatherof No l and 5 Vide the said sale deed Sukhansold the entiFd 4 4 70 kanals 18 marlas for Rs60001 A sum of Rs16001ewas . uma 2012.07.20 13: 06 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 1 467 RSAe No 889 of2005 171 towards mortgagemoney Rs17001 was paidas advancewhile amount ofRs27001 was paidbeforetheRegistrar A Mutation No782 6ExDB9 was sanctionedon the basisofthe sale deed datedJuly4 1957 and the factum of transfer of lll termsofsale deed was reflectedin the order recited on the back ofmutation 1 At the timeofsanctioning ofmutation plaintiffKawa was presentbeforethe 0 concemedauthorityHe admittedthe changeof possessionin accordance C X withcontents of saledeed datedJuly 4 1957 The findingof fact arrivedat 0 I by the trial Court Oll of evidence holdingthat the plaintiff appellants are not tenants ln possession in suit land under the previous Z 2 owners namelyKatti and Bahoru was affirmed by the lower Appellate Court The findingofthe lower Appellate Court on issue NoA and issue No2 which was originallyframedin theyear 1978are as follows C45 7 The above two lSsues pertaining to thequestion as r 7 to whether or not the plaintiffsare entitled to Z 1 m retain thepossessionof the suit land ln vlew of V their beingtenancyon the suit land is the only lSSUe which was required to be decided aleshby the trial Court and has beenso done Both these issues are in fact common and as observedby the 1 trial Court the necessityof framlng 1 i issue NoA arose because the issue No2 as earlier framed on 9 1978 was not fully . uma 2012.07.20 13: 06 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 468 427 RSAe Noo 889 of2005 181 1 1 in the earlier judgmentof the trial Courtdated30980 Quathis aspect it may be noticedthat as per para No2 oftheplaintBadley fatherofplaintiljNo Har Lal and SmtTara and plaintiffNos 2 to 4 who are sons ofoneKare were Q alreadyin possessionof the suit land as tenants 0 under the previousowners namelyKatti and C I Bahoru sons of Shiv Karan when the suit land C5 came to be mortgaged in the yeav 1944 in their favourfor an amount of R1600 and in which Z context mutation NoA05 was sanctioned on 18950 To prove the said plea theplaintiff I No Har Lal examined himselfas PW1 on 08 241978 besides tenderingthe Jamabandi e ExP4fortheyear 193940 and ExP2fortheyear Z 4 194546 Afterremand theplainti No 4 Hansa S1 was also examined on 5A0022 as PWwho lS herebyremunbered as PW2 in order to avoid confusionand at which time thejamabandi ExPF for the year 1931 was also tendered in evidence 1 First comingto the evidence led bytheplaintiHsit may be recalled here that . uma 2012.07.20 13: 06 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 469 RSA No 889 of2005 191 5 C D the suit land was comprised in Khasra N0362B 3B 763 6B9 762 lB4Bout the ExPF fov the year 1931 nowheredesribes thepossessionof theplaintiHs or their in interestor any part of the 1 r suit land whatsoeverand thesaid documentwhich 0 the counselfor the contends C I to havebeen over looked bythe trial Court is thus C5 of no helpto theplaintiffs Even thejamabandi I ExP4 6Hinditranslation whereofisEx41H9for Z the year 193940 describes one Ram Dayaland r Surjan to have been ln possession as earlier I ofKhasraN0362 The name ofeither 08 of the plaintiBsnowherefindsmentionedin the Wa said jamabandiregardingtheir havingbeen in 20 tl of said khasra No762 in any capacity V whatsoever The remainingkhasra numbers e namely763 and 764 are described in the said jamabandi ExP4 to be in possessionofBhika son ofGangaSahai as Gair Marusi The names of eitheroftheflveplaintiHsdoesnotflndmention In the to be in possessionwhatsoever capacllYover any part of Khasra No63 and 764 . uma 2012.07.20 13: 06 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 470 RSANoe8890f2005 1101 V l 4 also nor it is their case that theywere in cultivating possessionof the same throughBhika sonofGangaSahai who himseUl his own part is not shown to have beenpayingany rentIBataiqua the said khasra numbers 763 and 764 to the C plaintiffs Katti and Bahoru 0 8 In the jamabandi ExP2 for the year 0 I 194546 indi translation whereofis ExP21H9 C5 I khasra No762 is shown to be under cultivating possessionofKatti a coarer through Kova son Z ofKareand the names ofeitheroftheplaintifJs do tr not f7ndmentionedto be associated with the suit I land in any capacitywhatsoever in the said year 08 Khasra Nol63 is again described in the said wa jamabandi to be underpossessionofoneBhika son Z of GangaSahai with the names of either of the plaintiHs not findiIgany mention therein through 1 Badley tn znterest ofplaintifJNos 1 to 59to the extent oflz share and Rumal Kova and Hansa sons of Kare ln mterest of plaintiffNos to 49are described to havebeen ln of Khasra No64 on account of mortgageIt may be specificallyhighlighted at . uma 2012.07.20 13: 06 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 471 ReSeAeNo 889 of2005 Illl 1 4 this stagethat mutation NoA05 copy whereas ZS ExP5 and Hindi translation whereofis ExPW51H was enteredon 161948 and sanctionedby C IInd Grade on 181950 and thusit is evidentthat the possessionof the of the present plaintiffson Khasra NO764 ln thejamabandi 0 EP2f0rtheyear194546WaS onlyas mortgages C I ln pursuance oforalmortgagewhich was entered 9 I ln the revenue record as ExP5 and in no other capacitysuch as tenants etc The contention ofthe Z learned counselfor theplaintif that Bhika above 0 named died without issue whereas his brothers I 5 Badleyand Kareyare thepredecessor in lnterest ofthepresentplainti and thusten tenancyofthe wn plaintis on the suit land IS to be deemedto have Z Il vV commencedprior to the year 1931 cannot be becauseit is nowhere the case of e theplaintiHs in ze plaintthat the lnterest of the plaintif alongwithBhika above named were jointlyin possessionof the suit land and secondlybecause ExPFfor the year 193132 does not pertainto any part of the suit land whatsoeverand thereforetenancyofthe . uma 2012.07.20 13: 06 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document olJ1 472 RSeAe Noe889 of2005 r 1121 t7 plaintiHs over thesuit land cannot be considered to have commencedprior to the year 193132 as so claimed 9 The resultof theforegoingdiscussion is that the plaintiffs havemiserablyfailedto prove their plea 1 of havingbeen in possessionof the suit land as 0 tenantsprior to the creation of the oral mortgage C3 which came to be entered vide mutation No405 0 copy whereofis ExpP51H9on 161948 and I formallysanctioned on 18350 by C Ilnd Z Grade and rather the said mutation itselfproves C that possessionof thepredecessorof theplaintiHs I 08 over the suit land had commencedonly upon oral with possessionof the suit land in their 7 favour As the relevantperiodfor lookinginto the 2 1 Qm ofstagedtenancyoftheplaintis over the rl suit land is prior to creation of the oral mortgage 1 through mutation No405 as entered in the year 1944 and sanctioned in the year 1950 it ls not considered necessary to advert to the sale deed ExDWIIA dated 43 957 and mutation No82 ExDB which was sanctioned on the basis of the same becausethefactumof stated tenancyof the . uma 2012.07.20 13: 06 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 473 RSAe No 889 of2005 1131 plain4ffs on the suit land can be evidently decided without referringto the said sale deeds with retrospective presumption Il Learned counselfor theplaintiffa Mrankaj Jain has reliedupon jamabandi of the year 193940 ExP4 for the year m r 195455 ExP3 jamabandi for the year 194546 Ex2 and for 0 the year 19332 ExPF to contendthat afterM Harlal plaintif appellant C of No2 to 4 were tenants over the suit C5 I lancl He contendedthat Bheekha had died issueless and his rightswere inheritedby Badleyand Kar6fathersof He argued Z e that ExP4 has beenmisread as predecessors of were recordedas owners He claimed thatExP4 showscommon tenancy I I have gone thugh the documentsreferred to by counsel for 08 the So far as Khasra No62 is concemed as per the Jamabandi 7 ExP4 6HinditranslationExP41H9for the year 193940 indicate that one Z 4 Il Ram Dayal and Surjanwere in as earlier mortgageeof said r rJ khasra number The plaintiffsdo not seem to haVe any concern with the said khasraNo62 The other khasranumbersie 763 and 764 are shown to be in possessionof Bheekha son of GangaSahai as gairmarusi The names of all the flve plaintiffsare mentionedin the said to be in possession in whatsoevercapacity in KhasraNos 763 and 764 A perusalof the plaintindicates that the plaintiffshad not claimed that theywere in cultivating ofthe said khasranumbers . uma 2012.07.20 13: 06 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 474 e1 1141 ReSeAeNoe889 of2005 r 21 Bheeka son of GangaSahai who himself of his own part 1Snot shown to have beenpayingany rent regarding khasranumbers763 and 764 to the plaintiffs Katti and Bahoru I have traced the pedigree of sons of GangaSahai GangaSahai had three sons Bheeka Badleyand Kara PlaintiffsNol and 5 are decedentsofBadleywhereasplaintiffs No2 3 and 1 11S 4 are the successors in interestofKara A flndingoffact ahsbeen anived at 0 by both the Courts below by thoroughlyscrutinizing the evidence to the C I effect that are not tenants in of the suit land under C5 owners namelyKatti and Bhoru sons of Shiv Karanl The said I findingcannot be said to be perverseas the oral and documentary evidence Z in context to thepleadings hasbeen r Counselfor the has madean attemptto persuade this I Court to fonn an opinionthat there has been misreadingand mis a5 of evidencebut on goingthrough the record andthe 7 passedby the Courts below I am of the opinionthat there is no scope for Z interferencein the concurrent flndingof fact anived at by the Couns below regarding the beingnot tenantsin of suit land under Crl previous owners Katti and Bahoru 1 oJ The appealis thus dismissed 1 1 January25 2010 OIVLMSBEDO sanlay JUDGE 1 f7r1 lo 4 lfJ V foAo O1 Q02 OO IYl . uma 2012.07.20 13: 06 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document