IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.1317 of 2011 (O&M) Date of decision: 19th September, 2011 Ram Phool and others … Appellants Versus Pavitra and others … Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Bikram Chaudhary, Advocate for the appellants. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present regular second appeal has been filed by plaintiffs to the suit. The trial Court had dismissed the suit filed for declaration to the effect that the plaintiffs have acquired occupancy rights in the suit land, detail and description of which was mentioned in para No.1 of the plaint by invoking the provisions of Sections 5, 6 and 8 of the Punjab Tenancy Act, 1887 (hereinafter referred to as, ‘the Tenancy Act’) as well as by way of adverse possession. They further sought permanent injunction against the defendants not to dispossess them forcibly. Dismissal of the suit led them to file an appeal. The same was also dismissed by the Court of District Judge, Faridabad. Hence, the present regular second appeal. Briefly stated, it was pleaded in the suit that in the revenue record, plaintiffs have been recorded as Gair Marusi Tenants Bashrah Malkan Bawajah Kast Darina (non occupancy tenants at the will) on the same terms and conditions as owners in respect of the agricultural land, detail and description whereof was given in the plaint. It was stated that they were in possession of the suit property for the last more than 30 years as their ancestors have been paying Chakota/Lagaan. It was Regular Second Appeal No.1317 of 2011 (O&M) further stated that by putting hard-work and labour, they had made the land cultivable. They had invoked provisions of The Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 (hereinafter referred to as, ‘the Vesting Act’). Upon notice, the defendants caused appearance and raised a preliminary objection regarding maintainability of the suit. They further stated that they are the absolute owners and in possession of the suit property to the extent of 1/6th share and the plaintiffs have no concern with the same. The trial Court had formulated various issues, the primary issue being as to whether the plaintiffs have acquired occupancy rights in respect of the suit land, detailed in para No.1 of the plaint? Parties to the suit led their evidence. The trial Court after doing appraisal of the evidence, took into consideration Section 5 of the Tenancy Act. The Court held that since the plaintiffs are tenants under the Gair Marusi Awal, therefore, they do not fall within the definition of Section 5 of the Tenancy Act. It was held that Gair Marusi Doyam derive their rights from Gair Marusi Awal and Gair Marusi Awal has not been impleaded as a party to the suit. Issue No.2 was also decided in favour of the defendants and against the plaintiffs. In view of the decision of issues No.1 and 2, no finding was returned qua issues No.3 to 5 and the suit was dismissed. The lower appellate Court also affirmed the findings returned by the trial Court. It further relied upon the testimony of Jagdish DW-1, who in his affidavit stated that the tenants paying 1/3rd Batai to their masters are not entitled to the rights of occupancy tenants. The Court also relied upon the testimony of Prem Singh Patwari DW-2 who 2 Regular Second Appeal No.1317 of 2011 (O&M) stated that the possession of the plaintiffs was Gair Marusi Doyam under Munshi, who is a Gair Marusi Awal. Counsel for the appellants has failed to assail the findings returned by the courts below. It has been further held in ‘Jaleb Khan and Others v. Commissioner, Gurgaon Division, Gurgaon and Others’ 2009(4) Recent Civil Reports 385 and ‘Joginder Singh and Others v. The Deputy Commissioner, Kurukshetra and Others’ 2010(4) Recent Civil Reports 425 that only a Marusi tenant can claim ownership under the Vesting Act and the Gair Marusi tenant is not entitled to the same. Thus, the findings returned by both the courts below call for no interference, especially when counsel has failed to formulate any question of law much less a substantial one, during the course of arguments. Hence, there is no merit in the present appeal and the same is hereby dismissed. Civil Misc. No.3693-C of 2011 This application has been filed seeking condonation of delay of 16 days in filing the appeal. Due to dismissal of the appeal, no orders are called for in this application and the same is dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE September 19, 2011 rps 3