R.S.A. No. 4690 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. R.S.A. No. 4690 of 2010(O & M) Date of decision:-14.10.2011 Smt. Kamla Devi and others ...Appellants Versus Smt. Rajo and others ...Respondents 2. R.S.A. No. 4505 of 2010 (O & M) Shami and others ...Appellants Versus Smt. Rajo and others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. I.K. Mehta, Sr. Advocate with Mr. M.S. Kohli, Advocate for the appellants. RITU BAHRI J. C.M. No.13902-C of 2010 in R.S.A. No.4690 of 2010 and C.M. No.13433-C of 2010 in R.S.A. No.4505 of 2010 In view of the facts mentioned in the applications, same are allowed and the delay of 71 days in re-filing the appeals is hereby condoned. Main case Both the aforesaid appeals are arising from the same facts, R.S.A. No. 4690 of 2010 -2- hence for the sake of convenience, same are being taken up together and the facts are being taken up from RSA No.4690 of 2010. This regular second appeal is against the judgment of the trial Court dated 30.8.2007, which has been affirmed by the lower Appellate Court vide judgment and decree dated 25.1.2010. The plaintiffs filed a suit for declaration that they are owners in possession of agricultural land bearing Khewat No.27 min, Khatoni No.43, Khasra No.24/20/1(3-10) total area 3 Kanals 10 Marlas situated within the revenue estate of Village Jassana, Tehsil and District Faridabad. The predecessors-in-interest of the plaintiffs were tenants at Will under the defendants and their predecessor-in-interest since the time immemorial by paying no rent there for beyond the amount of land revenue and the cesses for the time being chargeable thereon for more than two generations in the male line descent. The defendants or their predecessor-in-interest made no attempt to eject them. The plaintiffs and their predecessor-in-interest have reclaimed the land, which was uncultivable. They have acquired occupancy right in the suit land under Section 5 of the Punjab Tenancy Act. Similarly placed tenants have become owners by acquiring occupancy rights. Defendant No.1 appeared and took the stand that the plaintiffs were owners in possession of the suit land. On the other hand it was submitted that defendants and other co-owners are the owners of the suit land as reflected in the jamabandi. There is no contract expressed or implied between the plaintiffs and the defendants with regard to alleged promise not to eject them. Defendant No.9 was served but did not appear. He was proceeded ex- parte vide order dated 20.7.2006. Defendant Nos.2 to 8 and 2 to 17 R.S.A. No. 4690 of 2010 -3- failed to appear in Court through publication and they were ordered to be proceeded ex-parte vide order dated 15.11.2006. On 20.11.2006 the trial Court framed the following issues :- “1. Whether the plaintiffs are owners-in-possession of the suit land? OPP 2. Whether the plaintiffs and their predecessor-in- interest have acquired Occupancy Rights and have become owners of the suit land, as alleged? OPP 3. Whether the suit is bad on account of non-joinder of necessary parties? OPD 4. Whether the civil court has no jurisdiction to try and entertain the present suit? OPD 5. Relief.” The plaintiffs in order to prove their case examined Hira Singh son of Bhajan Lal as PW1, plaintiff No.2-Khem Singh as PW2 and plaintiff No.3-Bhim Singh as PW3 and tendered documents Ex.P12 to P18 in evidence. The defendants examined Ravinder son of Nathu as DW1. The plaintiffs placed on record the copy of jamabandi for the year 1983-84 (Ex.P-12) in which the grand father of the plaintiffs with his two brothers namely Chiman and Khecheru were in possession over the suit land and Kallu, grand father of the plaintiffs was in exclusive possession over the suit property through his brothers. Kallu, grand-father was in possession over the suit land from the years of 1954-55 (Ex.P23). Copy of jamabandies for the years 1959-60 and 1963-64 Ex.P2 to Ex.P12 on the file. The cultivation over the suit land was proved by the witnesses PW1 to PW3. In the jamabandi for the year 1988-89 (Ex.P13) in column No.5 plaintiffs are recorded as tenants as gair marusi. In the column of rent, Bashrah, Malkan Bawajeh Kasht Dorina is written which means that tenant pays only R.S.A. No. 4690 of 2010 -4- Lagan alongwith Sawai. The defendants did not lead any documents regarding their possession over the suit property. It was admitted by DW1 that no ejectment proceedings have been initiated by the defendants against the plaintiffs. The trial Court has given a finding on issue Nos.1 and 2 on the basis of evidence led that the possession of the plaintiffs since 1954 till the date of filing the suit i.e. 13.9.1994 is more than 30 years and they are in occupation of the suit land as tenants. In view of the Full Bench judgment in Shiv Charan versus Financial Commissioner, Haryana and others 2004(4) RCR (Civil) 543 the Civil Court has the jurisdiction to try the case. The suit of the plaintiffs was decreed and they were held owners under Section 3 of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952. On appeal, the Court of learned Additional District Judge (Fast Track Court), Faridabad examined again the provisions of Punjab Tenancy Act, 1887. Under Section 5(2) of the Punjab Tenancy Act, 1887 provides that if a tenant proves that he has continuously occupied land for 30 years and paid no rent, it will be presumed that he has fulfilled the conditions of Clause 'A' of Sub Section I of Section 5 which provides that a tenant acquires occupancy rights. Section 5 (1) of the Act is reproduced below :- “5. Tenants having right of occupancy (1) A tenant a) who at the commencement of this Act has, for more than two generations in the male line of descent through a grand-father or grand-uncle and for a period of not less than twenty years, been occupying land paying no rent therefore beyond the amount of land revenue thereof and the rates and cesses for the time being R.S.A. No. 4690 of 2010 -5- chargeable thereon; or b) who having owned land, and having ceased to be landowner thereof otherwise than by forfeiture to the Government or than by any voluntary act, has, since he ceased to be landowner, continuously occupied the land; or c) Who, in a village or estate in which he settled alongwith, or was settled by, the founder thereof as cultivator therein, occupied land on the twenty first day of October, 1868, and has continuously occupied the land since that date; or d) who being jagirdar of the estate or any part of the estate in which the land occupied by him is situate, has continuously occupied the land for not less than twenty years, or having been such jagirdar, occupied the land while he was jagirdar and has continuously, occupied it for not less than twenty years. Has a right of occupancy in the land so occupied unless, in the case of a tenant belonging to the class specified in clause(c), the landlord proves that the tenant was settled on land previously cleared and brought under cultivation by, or at the expense of, the founder. To prove that the plaintiffs are in occupation for the last 30 years as per jamabandi for the year 1954-55 Sh. Chiman, Khacheru and Kalu sons of Jhandula, predecessors-in-interest of the plaintiffs have been recorded as tenants in possession of the suit land through one Ram Saran. In the column of rent it is recorded as Bashre Malkan Kabja Darena and the land revenue is mentioned as Rs.67/-. In the subsequent jamabandies Ex.P3 for the year 1959-60 to Ex.P12 for the year 1988-89 the predecessors-in-interest of the plaintiffs are R.S.A. No. 4690 of 2010 -6- recorded in possession of the suit land as Gair Morusi Tenant. As per Section 5(2) of Punjab Tenancy Act, the plaintiffs were to prove that they are in possession over the suit land for more than 30 years, which they have able to prove successfully. Mr. I.K. Mehta, Senior counsel vehemently argued that even though in the column of rent plaintiffs are recorded as tenants but their possession has been recorded through one Ram Saran in Ex.P2 jamabandi for the year 1954-55. This argument of Mr. Mehta is liable to be rejected as in the jamabandi Ex.P2 Shri Chiman, Khacheru and Kalu sons of Jhandula are recorded as tenants in possession. The possession is through one Ram Saran who could at best be the sub tenant. For all intents and purposes they have been in possession over the suit land for the last 30 years. The plaintiffs are entitled to the benefit applicable to them under the Punjab Tenancy Act and since they have been held to be in possession for the last 30 years. The judgment of the trial Court and the Appellate Court do not require interference as no substantial question of law arises to be considered for adjudication by this Court. Both regular second appeals are dismissed. October 14, 2011 ( RITU BAHRI ) Vijay Asija JUDGE