RSA No.918 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.918 of 2009 Date of Decision: 04.02.2010 Shyami and another .……Appellants Versus Rajinder and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr.K. B. Sharma, Advocate for the appellants. Mr. Jagdish Manchanda, Advocate for respondent Nos.1 to 3. L. N. MITTAL, J (ORAL) This is second appeal by defendant Nos.1 and 2, who have been unsuccessful in both the Courts below. Respondent Nos.1 to 3 filed suit against appellants and proforma respondent Nos.4 and 5 alleging that the plaintiffs have become owners in possession of the suit land measuring 3 kanals 4 marlas as the plaintiffs and their predecessors-in-interest have been cultivating the suit land since time immemorial, without paying any rent beyond the amount of land revenue and cesses payable for the time being. The plaintiffs accordingly became occupancy tenants under Section 5 of the Punjab Tenancy Act, 1887 (in short, the Act) and the plaintiffs became owners of the suit land in view of Section 3 of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 (in short, the Proprietary Rights Act). Suit against the defendants was filed in representative capacity under Order 1 Rule 8 of the Code of Civil Procedure (in short, C.P.C) because large RSA No.918 of 2009 -2- number of persons were interested in the suit. Only defendant Nos.1 and 2 i.e appellants herein contested the suit and denied the averments of the plaintiffs. It was pleaded that provisions of Order 1 Rule 8 C.P.C have not been complied with. It was also alleged that the plaintiffs are not even in possession of the suit land. It was denied that the plaintiffs acquired occupancy rights and have become owners of the suit land. Learned Civil Judge (Junior Division), Faridabad vide judgment and decree dated 21.05.2005 decreed the suit of the plaintiffs. First appeal preferred by defendant Nos.1 and 2 has been dismissed by learned Additional District Judge, Faridabad vide judgment and decree dated 30.07.2008. Feeling aggrieved, the instant second appeal has been preferred by defendant Nos.1 and 2. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants vehemently contended that the plaintiffs are not proved to be tenants over the suit land and, therefore, they could not acquire occupancy rights under the Act and could not become owners of the suit land under the Proprietary Rights Act. It was contended that according to entries in revenue record, no rent was payable by the plaintiffs to the owners and possession of the plaintiffs was recorded as 'Kabza Derina' i.e on account of long occupation. In support of this contention, learned counsel for the appellants relied on following judgments:- Mukat Singh versus Jawala Devi and another, 1983 PLJ 182, Natha Singh and others versus Bikkar Singh and another, 1984 RSA No.918 of 2009 -3- PLJ 404, Jarnail Singh (deceased) versus The Dialpur Bhaika Cooperative Agricultural Service Society Ltd., 1983 Revenue Law Reporter, 167 and Neti and another versus Ram Kishan and others, 1991 PLJ 134. I have carefully considered the aforesaid contentions, but find no merit therein. None of the judgments noticed hereinabove cited by learned counsel for the appellants relates to the question of acquiring occupancy rights under the Act or question of acquiring ownership under the Proprietary Rights Act. On the other hand, revenue entries in the instant case show that the plaintiffs and their predecessors have been in possession of the suit land since 1939-40 as observed by the lower Appellate Court or at least since 1959-60 as observed by the trial Court i.e for much longer period than 30 years before the filing of the suit which was filed in the year 1997. There is also oral evidence of the plaintiffs that they have been paying only land revenue and cesses for the suit land and no other rent is being paid by them. Defendant No.1 only appeared in the witness-box and he admitted that their forefathers had given the suit land to the forefathers of Rajinder (plaintiff No.1) for cultivation. Thus, the case of the plaintiffs that the suit land was given to their forefathers by the forefathers of the defendants has been admitted by the sole witness of the defendants i.e defendant No.1 himself. However, defendant No.1 expressed ignorance if the plaintiffs and their forefathers were depositing the cesses/land revenue. The plaintiffs' evidence that they were paying only land revenue/cesses stands unrebutted. Defendant No.1 also stated that he had filed RSA No.918 of 2009 -4- ejectment suit against the plaintiffs, but did not pursue the same. Filing of the ejectment suit would also depict that the plaintiffs were admitted to be tenants over the suit land. Learned counsel for the appellants emphatically contended that in the absence of payment of rent, relationship of the landlord and tenant cannot be assumed. The contention cannot be accepted. Section 5 (2) of the Act provides that if a tenant proves that he has continuously occupied land for 30 years and paid no rent thereof beyond the amount of the land revenue thereof and the rates and cesses payable for the time being, it may be presumed that such a tenant has fulfilled the conditions of Section 5 (1) (a) of the Act for acquiring occupancy rights. Thus the statutory provision itself makes it emphatically clear that no other rent is required to be paid except land revenue and cesses, to acquire right of occupancy tenant. Consequently, the aforesaid contention of learned counsel for the appellants that rent was not being paid by the plaintiffs would hold no water when the plaintiffs have pleaded and proved that they were paying no rent except land revenue and cesses. Conditions mentioned in Section 5(2) of the Act for acquiring occupancy rights have been duly fulfilled in the instant case. Learned counsel for the appellants next contended that under Section 2(f) of the Proprietary Rights Act, 'occupancy tenant' means a tenant who, immediately before the commencement of that Act, is recorded as occupancy tenant in the revenue records and includes a tenant who, after such commencement of the Act, obtains a right of occupancy in respect of the land held by him whether by agreement with the landlord or through a Court of competent RSA No.918 of 2009 -5- jurisdiction, but in the instant case, the plaintiffs were not recorded as occupancy tenants in the revenue record nor they have obtained the right of occupancy by agreement with the landlord nor through a Court of competent jurisdiction and, therefore, the plaintiffs could not be deemed to be occupancy tenants. The contention is deviod of merit. Learned counsel for the appellants, while advancing this contention, omitted significant expression 'or otherwise' in definition of 'occupancy tenant' given in Section 2(f) of the Proprietary Rights Act. It stipulates that occupancy tenant also includes a tenant who obtains a right of occupancy either by agreement with the landlord or through a Court of competent jurisdiction or otherwise. In the instant case, the plaintiffs have acquired right of occupancy under Section 5 (2) of the Act and would, therefore, be fully covered by definition of 'occupancy tenant' as defined in Section 2(f) of the Proprietary Rights Act. Learned counsel for the appellants relied on a judgment of Hon'ble Supreme Court in the case Puran and others versus Gram Panchayat, Faridabad, 2006 II AD (SC), 50. However, in that case, the appellants themselves admitted that they were not tenants falling under any category of Sub-Section (1) of Section 5 of the Act. They were also not recorded as tenants in the revenue record. There was also no oral or documentary evidence to depict possession or cultivation of the suit land by appellants or their predecessors prior to 1966. Thus in that case, the evidence was against the appellants, who claimed to be 'occupancy tenants'. In the instant case, however, the entire evidence including admissions made by defendant No.1 himself in the witness-box is in favour of the plaintiffs, who claim to RSA No.918 of 2009 -6- be occupancy tenants. Consequently, judgment in the case of Puran (supra) has no applicability to the facts of the instant case. Learned counsel for the appellants also contended that the plaintiffs are licensees over the suit land. The contention has been noticed simply to be rejected because the same is not substantiated by any evidence nor any such plea was raised by the defendants in the written statement. Even otherwise, as already discussed hereinabove, the plaintiffs are proved to be occupancy tenants and, therefore, have become owners of the suit land. Learned counsel for the appellants next contended that provisions of Order 1 Rule 8 C.P.C were not complied with and, therefore, the suit could not be decreed. Reliance has been placed on three judgments namely:- Smt. Munni Devi and others versus Satgur Dayal Tandon and others, AIR 1973 Allahabad 281, Radhamohan Malia and another versus Basudeb Khuntia and others, AIR 1981 Orissa 16 and Kundan Singh and others versus Gurnam Singh and others, AIR 1986 Punjab and Haryana 51. However, in those cases, notice under Order 1 Rule 8 CPC was not issued by the trial Court to the interested persons who were not impleaded as party by name. In the instant case, however, plaintiffs furnished list of interested persons alongwith plaint and notice to said persons was issued by the trial Court through Munadi i.e proclaimation by beat of drum and the same was duly effected. Consequently, in the instant case, provisions of Order 1 Rule 8 C.P.C were duly complied with. Moreover, the appellants were impleaded by name and even RSA No.918 of 2009 -7- contested the suit and, therefore, they cannot raise the aforesaid plea. Learned counsel for the appellants also referred to Section 9 of the Act which lays down that no tenant shall acquire a right of occupancy by mere lapse of time. In the instant case, however, the plaintiffs have acquired right of occupancy on account of fulfillment of conditions stipulated in Section 5(2) of the Act. Consequently, this contention carries no weight. Learned counsel for the appellants lastly contended that in view of Section 77 of the Act, jurisdiction of Civil Court is barred. The contention has no merit because a Full Bench of this Court in the case of Shiv Charan versus Financial Commisioner, Haryana and others, 2004 (3) PLR 569 has held that Civil Court and Civil Court alone has jurisdiction to determine and adjudicate upon such issue. In view of this direct judgment of Full Bench of this Court, the aforesaid contention is rejected. For the reasons recorded hereinabove, I find that there is no infirmity, much less illegality or perversity, in the judgments of the Courts below. There is no merit in the instant second appeal which is accordingly dismissed. ( L. N. MITTAL ) JUDGE 04.02.2010 A.Kaundal