RSA No.3584 of 2001 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 3584 of 2001 (O&M) Date of Decision: August 24, 2009 Girdhari Lal ...........Appellant Versus Lalman and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr. Amit Jain, Advocate for the appellants. Mr.Arun Palli, Senior Advocate with Mr.Parminder Singh, Advocate for the respondents. ** Sabina, J. Plaintiff-Girdhari filed a suit for declaration. The said suit of the plaintiff was dismissed by the Senior Sub Judge Narnaul vide judgment and decree dated 9.6.1993. Aggrieved by the same, the plaintiff filed an appeal and the same was dismissed by the Additional District Judge-I Narnaul vide judgment and decree dated 14.6.2001. Hence, the present appeal by the plaintiff. The case of the parties, as noticed by the learned Additional District Judge, in paras 2 to 6 of its judgment reads as under:- “ 2. The case of the plaintiff, in brief, in the plaint is that the land in dispute bearing khasra No.120/1 measuring 6 bigha 14 biswas, khasra No.121 measuring 3 bigha 15 biswas and khasra No.121 min measuring 2 bigha 6 biswas is situated in the revenue estate of Narnaul. Sh Fateh Lal adopted father of the plaintiff and RSA No.3584 of 2001 (O&M) 2 grand-father of defendant No.5 was owner of land measuring 555 bighas 13 biswas including the suit land. It has been claimed that Sh.Fateh Lal let out his land measuring 555 bighas 13 biswas including the suit land to him on lease from Samwat 2001 B.K. to Samwat 2006 B.K. subject to the payment of Rs.30/- as rent and a mutation about this lease was attested on 28.12.2000 B.K. He thereafter extended the lease period from Samwat 2006 B.K. to Samwat 2011 B.K. and mutation to this effect was attested on 19.10.2005 B.K. Sh Fateh Lal challenged this mutation by filing appeal before the Collector Narnaul. It was alleged that during the proceedings of the appeal, a compromise was reached between him and Fateh Lal under which he enhanced the rent to Rs.60/- per month. It has been claimed that after the execution of the lease deed between him and Sh. Fateh Lal, Mangal father of defendants No. 1 to 4 executed a rent note in his favour accepting himself as a tenant under the plaintiff and continued to pay rent to him as a tenant. After the death of Mangal the defendants also paid rent to him in respect of the suit land. It has been alleged that Fateh Lal under a family settlement allotted 1/6th share in land measuring 555 bighas 13 biswas to him and 1/6th share to his sons Nand Kishore, Suresh Chand, Narender Kumar and Satish Kumar by a registered rent deed dated 16.4.1958 A.D. The factum of this family settlement was also given effect to in the revenue record by attesting mutation on 23.5.58 A.D. Fateh Lal died on 25.4.60 A.D. and after his death, 1/6th share was inherited by the plaintiff and in this way, the plaintiff became owner of 1/3rd share in land RSA No.3584 of 2001 (O&M) 3 measuring 555 bighas 13 biswas and mutation of inheritance in this respect was also sanctioned in his favour on 24.3.1961 A.D. It has been further averred that the land in dispute was partitioned between him and his sons including defendant No.5 by order dated 20.6.1996 A.D. passed by Collector Ist Grade Narnaul. A mutation to give effect to this partition was also attested on 8.5.1967. His son Nand Kishore defendant No.5 filed an application before Asstt. Collector Ist Grade titled Nand Kishore vs. Girdharilal and Mangal seeking ejectment of the plaintiff and Mangal from the land in dispute. During the proceeding of that application, Mangal father of defendants No.1 to 4 took the plea that he was not a sub-tenant under him. He rather asserted that from the very inception of the tenancy he had been cultivating the suit land directly under its owners. A finding was given by Asstt. Collector Ist Grade that Mangal was a tenant under Nand Kishore and the application for ejectment was dismissed on 17.6.80. Then Nand Kishore filed an appeal before the Collector against that order. His appeal was also dismissed vide order dated 15.6.1981. Then Nand Kishore filed revision and his revision was also dismissed on 15.12.1988 by the commissioner and the findigs of the Asstt. Collector Ist grade were affirmed. Mangal also died and the defendants No.1 to 4 stepped into his shoes. 3.On the basis of these averments the plaintiff brought the suit for declaration that defendants No. 1 to 4 are cultivating the land in dispute as sub-tenants under him and not as tenant under Nand Kishore and that the order 17.6.1980 passed by Assistant RSA No.3584 of 2001 (O&M) 4 Collector Ist Grade, order dated 15.6.81 passed by Collector Narnaul and order dated 15.12.1988 passed by the commissioner Hisar division are null and void. 4.The suit has been contested by defendants No. 1 to 4. They filed the written statement alleging therein that their grand-father Nathu Ram cultivated the land in dispute as a tenant under Fateh Lal and after him the suit land was cultivated by their father Mangal as a tenant under Fateh Lal and after the death of Mangal they have been cultivating the land in dispute as tenants and if plaintiff and his father Fateh Lal had prepared some lease deed and entered into some family settlement under which the land owned by Fateh Lal was allegedly divided between Fateh Lal, the plaintiff and his sons Suresh Chand, Narender Kumar, Satish Kumar and Nand Kishore, they are not aware of it and they are also not bound by any such lease deed allegedly executed between Fateh Lal and the plaintiff. It has been stated by them that they are not aware of the partition of the land between the plaintiff and his sons including Nand Kishore defendant No.5. It has been submitted that the alleged lease deed and the family settlement must have been created by the plaintiff and his father Fateh Lal with a view to circumvent the provisions of Ceiling of Land Holdings Act and the documents prepared for this purpose are only paper transactions. It has been submitted that they are rightly held tenants under Nand Kishore over the land in dispute and no sub tenants under the plaintiff by order dated 17.6.80 passed by Assistant Collector Ist Grade, order dated 15.6.81 RSA No.3584 of 2001 (O&M) 5 passed by Collector Narnaul and order dated 15.12.1988 passed by Commissioner, Hisar division. It has been averred by them that since the plaintiff is the son of Fateh Lal and Nand Kishore, defendant No.5 son of the plaintiff whenever rent has been paid by them to the plaintiff it has been done under the belief that he was entitled to collect rent on account of his relationship with the real owners. Preliminary objections that the orders dated 17.6.80 passed by Asstt. Collector Narnaul and order dated 15.12.1988 passed by Collector Narnaul and order dated 15.12.88 passed by the Commissioner Hisar operate as resjudicata between the parties in the suit has also been taken. 5. Plaintiff filed replication reiterating the assertions made in the plaint and controverting those of the written statement.” On the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether the defendants No. 1 to 4 are tenants under the plaintiff in respect of the property in question?OPP 2. Whether the impugned judgment and decree titled as Nand Kishore vs. Girdhari Lal dated 17.6.80, 15.6.1981, 15.12.1988 are illegal, null and void and not binding on the rights of the plaintiff as alleged in the plaint?OPP 3. Whether the present suit is bared by the principle of res- judicata?OPD 4. Whether the present suit is not maintainable?OPD 5. Whether the Civil Court has no jurisdiction to try and entertain the suit?OPD RSA No.3584 of 2001 (O&M) 6 6. Whether the suit is time barred?OPD 7. Whether the plaintiff is estopped from filing the present suit by his act and conduct?OPD 8. Relief.” After hearing the learned counsel for the parties, I am of the opinion that the instant appeal deserves to be dismissed. The case of the plaintiff is that Fateh Lal, his father was owner of 555 bighas 13 biswas of land. The said land was ancestral property qua the plaintiff and Fateh Lal. Plaintiff is the adopted son of Fateh Lal. In an earlier litigation between the plaintiff and his father, it was ordered that Fateh Lal will not alienate or create any charge in the suit property without written consent of Girdhari Lal, plaintiff and Fateh Lal will manage the property during his life time and income of the same would be divided in equal shares between the plaintiff and his father. Nathu- grand father of respondents No.1 to 4 was inducted as a tenant over the suit land by Fateh Lal. Consequently, he became tenant of the suit land which was joint property of the co-sharers. After the death of Nathu, the suit land was cultivated by his son Mangal. In the revenue record, Mangal was incorporated as a sub tenant of Girdhari Lal, plaintiff. However, he was a tenant under the plaintiff as well as Fateh Lal. In his life time, Fateh Lal, treated plaintiff and his son including Nand Kishore as co- sharers of the suit property. A registered rent deed dated 16.4.1958 AD was executed in this regard and on the basis of the same, mutation Exhibit P11 was sanctioned on 25.5.1958 AD. After the death of Fateh Lal, Girdhari Lal inherited his share. Appellant and his son partitioned the suit land and mutation No. 693 dated 8.5.1967(Exhibit P13) was sanctioned in this RSA No.3584 of 2001 (O&M) 7 regard. As a result of partition, the suit land came to defendant No.5. Defendants No. 1 to 4 were recorded in possession of the suit land being legal heirs of Mangal. The suit filed by Nand Kishore for ejectment of the present plaintiff i.e. his father was dismissed vide order dated 12.6.1980. It was held that Mangal was a tenant under Nand Kishore. An appeal filed against the said order was dismissed on 15.6.1981 and revision petition was dismissed by the Commissioner Hisar on 15.12.1988. After appreciating the said factual position, learned District Judge rightly observed that Mangal was cultivating the suit land as a tenant of the owner as well as the plaintiff because Natha, grand father of respondent No.2 had been initially inducted as a tenant over the land by the father of the plaintiff Fateh Lal. Learned Additional District Judge, after appreciating the evidence on record, has further observed, that the plaintiff has failed to establish that he had the intention to retain the tenancy under Fateh Lal as well as he wanted to remain a co-sharer with Fateh Lal. Plaintiff could not be treated as a tenant in the disputed land and respondents No. 1 to 4, sons of Mangal could not be treated as sub tenants of Girdhari Lal. The finding of facts arrived at by both the Courts below cannot be interfered with by this Court in appeal. No substantial question of law arises in this regular second appeal which would warrant interference by this Court, Accordingly, this appeal is dismissed. (Sabina) Judge August 24, 2009 arya