Regular Second Appeal No. 2937 of 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2937 of 2001 Date of Order: 20.10.2009 Ram Singh and others ....Appellants Versus Shashi Parkash and others ..Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Dr. Surya Parkash,Advocate for the appellants. Mr. Rajinder Goyal, Advocate for the respondents. RAJIVE BHALLA, J (Oral). The appellants filed a suit for declaration that they are owners in possession, as occupancy tenants and, therefore, cannot be dispossessed by the respondents. The respondents contested this suit by denying that the appellants are occupancy tenants, and in addition, pleaded that the Civil Court has no jurisdiction to decide the question whether a person is an occupancy tenant or not. The trial court, vide judgment and decree dated 03.09.1998, rejected the appellants assertion that they are occupancy tenants. However, as the appellants were able to establish their possession, the trial court issued an injunction restraining the respondents from dispossessing the appellants except in due course of law. Aggrieved by the aforementioned judgment and decree, the appellants and the respondents filed separate appeals. The first appelalte court dismissed both the appeals. The appeal filed by the appellants was dismissed by holding that the question whether a person is an occupancy Regular Second Appeal No. 2937 of 2001 -2- tenant or not cannot be decided by a civil court. The appeal filed by the respondents, against the grant of an injunction, was dismissed by holding that as the appellants have been able to establish their possession. It does not call for interference. It would be necessary to mention that the respondents have not filed any appeal against the dismissal of their appeal. Counsel for the parties are ad-idem that the judgment and decree passed by the first appellate court is a nullity as the jurisdiction to decide whether a person is an occupancy tenant or not rests with a civil court as held by a Division Bench of this Court in “Ami Lal v. Financial Commissioner, Revenue Haryana, 1971 PLJ, 619, and subsequently affirmed by a Full Bench of this Court reported as Shiv Charan v. Financial Commissioner, Haryana and others, 2004(3), P.L.R. 569. It is prayed that in view of this error of law committed by the first appellate court, the appeal be allowed and the matter be remitted to the Additional District Judge (iv), Faridabad, to decide the appeal afresh and in accordance with law. In view of what has been stated hereinabove, the appeal is allowed, the judgment and decree dated 11.04.2001, passed by the Additional District Judge (iv), Faridabad, is set aside, with respect to the appeal filed by the appellants and the matter is remitted to the Additional District Judge (iv), Faridabad, to decide this appeal afresh, within a period of three months, from the receipt of a certified copy of this order. Parties are directed to appear before the Additional District Judge (iv), Faridabad, on 01.12.2009. October 20, 2009 (RAJIVE BHALLA) nt JUDGE