R.S.A.No.1916 of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : 07.09.2009 R.S.A.No.1916 of 2003 Richhpal Singh etc. ...Appellants Versus Jagroop Singh and Others ...Respondents R.S.A.No.1115 of 2003 Balwant Kaur and others ...Appellants Versus Jagroop Singh and others ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. A.K.Chopra, Sr. Advocate, with Mr. Rajneesh Chohan, Advocate, for the appellants. Mr. Ashok Aggarwal, Sr. Advocate, with M/s Jagjit Singh and Alok Jain, Advocates, for the respondents. HEMANT GUPTA, J. (ORAL) This order shall dispose of RSA No.1916 of 2003 and RSA No.1115 of 2003 filed by the defendants arising out of Civil Suit Nos.RBT 72-C of 1994 and RBT 71-C of 1994 respectively. Since, the facts are identical, both the appeals are being disposed of together by the common judgment. However, for facility of reference, the facts are taken from RSA No.1916 of 2003. R.S.A.No.1916 of 2003 2 The defendants are in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby the suit for possession of land measuring 292 Kanals 1 Marla situated at village Nathwan, Tehsil Ratia, District Hisar (now Fatehabad), was decreed. The plaintiffs alleged that the defendants are in possession of the suit land as Siri i.e. for the purposes of helping the plaintiffs in cultivation of the suit land, but the defendants have succeeded in getting the revenue entries changed in their favour showing that they were tenants over the suit land. Thus, the plaintiffs claim possession on the basis of the title. In the written statement, it was pleaded that prior to September, 1981, defendant Nos.1 to 5 alongwith Satnam Singh, Bhupinder Singh, Mohinder Singh, Jagmal Singh used to cultivate the whole land measuring 415 Kanals 19 Marlas, as tenant at will on 1/3rd batai under plaintiff Nos.3 to 7 and the predecessor-in-interest of plaintiff Nos.1 and 2. The defendants alleged that there was a settlement with plaintiff Nos.1 and 2 and the suit land was sold to the defendants for Rs.90,000/- before the Panchayat and the propriety possession was delivered to the defendants. It was also pleaded that the defendants by mutual settlement with the tenant Satnam Singh etc. got exclusive possession of the suit land and Satnam Singh etc. surrendered their tenancy rights. The defendants also similarly given up their tenancy rights in the rest of the land. The defendants alleged themselves to be in adverse possession of the suit land as owners. Defendants also filed a counter claim claiming ownership over the suit property by adverse possession. The learned trial Court decreed the suit holding that there R.S.A.No.1916 of 2003 3 cannot be any oral sale of the suit land. It also found that any adverse entries in the revenue record against an owner without notice is illegal. It was found that entries of tenancy exists in the revenue record since 1982, but PW-1 Patwari has not proved any notice to the owner. Learned trial Court also found that the defendants have failed to prove that they have acquired title by way of adverse possession. In appeal, the defendant-appellants raised an argument that out of suit land measuring 292 Kanals, land measuring 194 Kanals 2 Marlas has been declared surplus under the provisions of Punjab Security of land Tenures Act, 1953 and has vested in State under Section 12(3) of the Haryana Ceiling on Land Holding Act, 1976, therefore, the plaintiffs have no right to claim possession of the suit land. The defendants also raised an argument that the suit land was purchased for a sum of Rs.90,000/- and the said amount was paid in the presence of the Panchayat. Therefore, the possession of the appellants is that of a owner from the date of purchase. However, the learned first Appellate Court found that the question whether the land vest with the State is between the State Government and the plaintiffs. The defendants having entered in the suit land as tenants of the plaintiffs cannot deny the title of the plaintiffs. Therefore, the said argument was negated. In respect of plea of ownership by virtue of oral sale, it was found that it is not supported by any corroborative evidence. The entries in the revenue record showing the remarks in the column of rent as Bashra Parta Malkan Bawajah Taswar Lene bai, were found to be not legally made, as earlier entries Ex.P-6 and P-5 reflect the possession of the defendants as tenants. From R.S.A.No.1916 of 2003 4 Rabi 1982, the entries have been changed in favour of the appellants, showing their possession as gair marusi Bashra Parta Malkan Bawajah Lene Bai. The Court further found that rapat roznamcha Exs.P-31, P-32 and P-33 reflecting change in respect of possession as owner is not tenable for the reason that it does not bear the signatures of any of the owners. Even signatures of the Sarpanch are missing from these rapats roznamcha. It was found that the oral sale was purportedly made in September 1981, but the rapat roznamcha Ex.P-31 is dated 8.4.1982. Thus, the Court concluded that the entries in favour of the defendants from Rabi 1982 are in violation of standing instructions of the Financial Commissioner and are null and void. It was also found that the oral sale of an immoveable property of value of more than Rs.100/- without registered document, is not permissible. In view of the said finding, the appeal was dismissed. Before this Court, learned counsel for the appellants has vehemently argued that the plaintiffs have lost title over the suit property after the same was declared surplus in terms of Section 12(3) of the Haryana Ceiling on Land Holding Act, 1976. The learned first Appellate Court has relied upon judgments, which arise out of the statutory provisions applicable in the State of Punjab, which are materially different with the provisions of Haryana Act. Therefore, the plaintiffs, who have ceased to be owner after the land was declared surplus cannot seek possession from the defendants. I do not find any merit in the said argument. The plaintiffs have claimed possession from the defendants on the ground that they are unauthorized occupants. The rights of the defendants has to be examined R.S.A.No.1916 of 2003 5 viz-a-viz the claim of the plaintiffs. Inter se disputes or the vesting of land with the State Government is not the subject matter of the suit nor any finding recorded in the present case is material or binding on the State. Therefore, between the parties, the plaintiffs as owners are entitled to seek possession of the suit land from the defendants. Mr. Chopra has further argued that even if the plea of oral sale is not accepted, the appellants will continue to be in possession as tenants as there cannot be any forfeiture of tenancy by merely asserting title by way of an oral purchase. The said argument is not tenable. The defendants have taken a categorical stand that they have surrendered tenancy rights and are in possession of the suit land as owner. In fact, the defendants have filed a counter claim and sought declaration as owners on the basis of their adverse possession. Therefore, the defendants are estopped to assert themselves to be tenants having pleaded surrendered of tenancy rights. It is for this reason, no issue was framed regarding tenancy rights of the appellants over the suit land by the learned Courts below. No other argument is urged. Findings of fact recorded by the Courts below are sought to be disputed by reappreciation of evidence. However, it could not be pointed that any evidence has been misread or not taken into consideration. Consequently, I do not find that any substantial question of law arises for consideration by this Court. Dismissed. 07.09.2009 (HEMANT GUPTA) Vimal JUDGE