RSA No.3785 of 2009 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ***** RSA No.3785 of 2009 (O&M) Date of decision : 28.6.2010 ***** Shyam Lal . . . . Appellant Versus Deepa Dass Chela Ram Chela Garib Dass . . . . Respondent ***** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN ***** Present: Mr.I.K. Mehta, Sr. Advocate with Mr.M.S. Kohli and Mr.S.C. Mahna, Advocates for the appellant. Mr.Alok Jain, Advocate for the respondent. ***** RAKESH KUMAR JAIN, J. The plaintiff filed a suit for permanent injunction claiming himself to be in possession as Gair Mourusi over the agricultural land comprising in Khewat No.1522, Khatoni No.2344, Rect. No.225 measuring 122 kanals 2 marlas situated in village Chhainsa, Tehsil Ballabhgarh, District Faridabad having tube-well, electricity connection bearing No.KHAP 207 in his name in Killa No.26(1-2) and his house in Killa No.26, in which he is allegedly residing from the last 27-28 years continuously and also having another Engine Tubewell Bore in killa No.26(1-2). It is alleged that earlier Ram Dass Chela Garib Dass was the owner of the aforesaid land (hereinafter referred to as a suit land), which RSA No.3785 of 2009 (O&M) - 2 - is now recorded in the ownership of the defendant vide Rapat No.508 dated 8.8.2003. The defendant tried to dispossess the plaintiff forcibly which led to the filing of the present suit. The defendant’s case is that the suit property was leased out by Ram Dass Chela Garib Dass to the plaintiff with effect from 12.7.1986 to June 1994 for a period of 9 years for a consideration of Rs.30,000/-, and with effect from 29.5.1996 to 28.5.2005 for a consideration of Rs.1,60,000/-. After the expiry of the lease period on 28.5.2005, the suit land was to revert back to the defendant but the plaintiff illegally and unlawfully wanted to grab the suit land and filed the present suit. The defendant also filed a counter- claim separately seeking a decree for mandatory injunction directing the plaintiff to handover vacant peaceful possession to the defendant and to pay Rs.17800/- per year as damages for unauthorized occupation of the suit land. The counter claim was also contested by the plaintiff by filing reply in which it was alleged that after the expiry of lease, plaintiff has become statutory tenant and his tenancy is protected by the provisions of the Punjab Security of Land Tenure Act, 1953. It was also alleged that plaintiff is liable to pay fix rent of Rs.3000/- per annum and not the amount which has been claimed by the defendant as damages. From the pleadings of the parties, issues were framed on 29.9.2008, which are reproduced as under: - “1. Whether the plaintiff is Gair Maurusi in possession of the agricultural land mentioned in para No.1 of the plaint? OPP 2. If issue No.1 is proved, whether the plaintiff is entitled for decree for mandatory injunction, as prayed for? OPP 3. Whether the defendant/counter claimant is owner of agricultural land mentioned in para No.1 of the counter claim? OP counter claimant RSA No.3785 of 2009 (O&M) - 3 - 4. If issue No.3 is proved, whether the defendant/counter claimant is entitled to decree for mandatory injunction, as prayed for? OP counter claimant. 5. Whether the suit of the plaintiff is not maintainable in the present form? OPD 6. Whether the plaintiff has no locus standi and cause of action to file the present suit? OPD 7. Whether the plaintiff has concealed the material facts from the Court? OPD 8. Relief.” Both the parties led their oral as well as documentary evidence. The learned trial Court vide its judgment and decree dated 31.3.2009 dismissed the suit but allowed counter-claim directing the plaintiff to vacate suit property and handover peaceful possession to the defendant. Aggrieved against the judgment and decree of the trial Court, the plaintiff had preferred First Appeal in which the defendant also filed cross-objections seeking more mesne profit for use and occupation of the suit land by the plaintiff. The learned First Appellate Court vide its judgment and decree dated 06.10.2009 dismissed both the appeal, filed by the plaintiff as well as the cross-objections filed by the defendant. Aggrieved against the judgment and decree of both the Courts below, the plaintiff is in Regular Second Appeal, however, no appeal has been filed by the defendant pursuant to dismissal of his cross-objections by the First Appellate Court. In this case, notice of motion was issued. On the request of the counsel for the parties, record of the Courts below was also RSA No.3785 of 2009 (O&M) - 4 - summoned and Executing Court was directed to adjourn the execution proceedings beyond the date given by this Court. Since, the facts are not much in dispute as, admittedly, the defendant is the owner of the suit land and plaintiff is in possession. The plaintiff entered into possession pursuant to a lease of 9 years w.e.f. 12.7.1986 to June 1994 against a consideration of Rs.30,000/- and then w.e.f. 29.5.1996 to 28.5.2005 by virtue of lease against a consideration of Rs.1,60,000/-. The lease has admittedly expired on 28.5.2005 as it has not been renewed thereafter. The plaintiff had tried to protect his possession from forcible dispossession at the hands of the defendant who sought possession of his land by way of a mandatory injunction set up by way of counter-claim, which has been decreed by both the Courts below. Apparently, it is a case of pure finding of fact, however, learned counsel for the appellant has raised two substantial questions of law “(i) As to whether a tenant/lessee of agricultural land can be ordered to be evicted by way of suit for mandatory injunction or the only remedy with the landlord is to seek eviction under the provisions of the Punjab Security of Land Tenures Act, 1953 (ii) Whether the lease deed of an agricultural land is admissible in evidence in the absence of registered instrument as required under Section 107 of the Transfer of Property Act, 1882 and Section 17 of the Registration Act, 1908”. Opening his arguments, learned counsel for the plaintiff/appellant has submitted that plaintiff falls within the definition of a tenant as provided under Section 4(5) of the Punjab Tenancy Act, 1887 and Section 2(6) of the Punjab Security of Land Tenures Act, 1953 being a self cultivating lessee and is governed by the provisions of Section 9 of the Punjab Security of Land Tenures Act, 1953 for the RSA No.3785 of 2009 (O&M) - 5 - purpose of his ejectment, therefore, the Civil Court had no jurisdiction to grant a decree for mandatory injunction to the defendant while allowing his counter-claim. It is further submitted that his tenancy cannot be considered for a fixed term on the basis of lease deed (Ex.D3) because the said lease deed for a period of 9 years is pertaining to property more than Rs.100/- is required to be registered in terms of Section 17(b) of the Registration Act, 1908 and Section 107 of the Transfer of Property Act, 1882 and since the lease deed is not registered, it is, therefore, inadmissible in evidence in view of Section 49(c) of the Registration Act, 1908. In support of his submissions, with regard to the lack of jurisdiction of the Civil Court, learned counsel for the appellant has relied upon decision of this Court in the case of “Rameshwar Versus Sheo Chand and Others” 1981 PLJ 362, decision of the Supreme Court in the case of “Bhajan Lal Versus State of Punjab and others” 1970 PLJ 812, decision of this Court in the cases of “Ram Lal Versus Darshan Lal and others” 200()3) RCR (Civil) 427, “Dharambir Versus Risal Singh” 1997(1) PLR 207, and a decision of the Supreme Court in the case of “Sanwat Singh Versus Zail Singh” 1997(3) RCR (Civil) 100. In respect of second question of law that lease deed of an agricultural land created for a period more than a year requires registration under Section 107 of the Transfer of Property Act, 1882 and is inadmissible in evidence if it is unregistered in view of Section 17(b) read with Section 49 of the Registration Act, 1908, learned counsel for the appellant has relied upon a Division Bench judgment of the Allahabad High Court in the case of “Hari Shanker Mishra Versus Vice- Chairman, Kanpur Development Authority and another” 2001(3) RSA No.3785 of 2009 (O&M) - 6 - Civil Court Cases 299, a Division Bench judgment of the Jharkhand High Court in the case of “State of Jharkhand and others Versus Bharat Petroleum Corporation Limited and others” 2007(3) Civil Court Cases 479 and the Supreme Court judgments in the case of “Rajendra Pratap Singh Versus Rameshwar Prasad” 1999(2) Civil Court Cases 216, “State of Orissa and others Versus Harapriya Bisoi” 2009(12) Supreme Court Cases 378 and “M/s K.B. Saha & Sons Pvt. Ltd. Versus M/s Development Consultant Ltd.” 2008(3) Civil Court Cases 468. In reply, learned counsel for the respondent has submitted that the provisions of Section 4(5) of the Punjab Tenancy Act, 1887 and Section 2(6) read with Section 9 of the Punjab Security of Land Tenures Act, 1953 are wholly inapplicable in the present case as the plaintiff ceases to be a tenant after the expiry of the fixed period of tenancy/lease as he becomes a trespasser or at the most tenant by sufferance. In this regard he has relied upon decision of this Court in the cases of “Mandir Jhoke Hari Har and others Versus Shrimati Ajit Kaur and others” 1977 PLJ 315, “Smt. Kesar Devi and others Versus Suraj Bhan” 1992(1) PLR 257, “Youdhister Versus Siri Ram and others” 1996 PLJ 411, decision of a unreported case in RSA No.2304 of 1987 titled as “Bhundu Ram Versus Amar Singh” decided on 07.07.2008, Division Bench judgment in the case of “N.H. Thadani Versus Chief Settlement Commissioner” AIR 1958 Punjab 314, Single Bench judgment of this Court in the case of “Ishwar Singh Versus Tara Chand” 2004(3) PLR 793, another Division Bench judgment of this Court in “Jaimal and others Versus The Commissioner, Ambala Division and others” 1969 PLJ 378 and the decision of the Supreme Court in the case of “Kewal RSA No.3785 of 2009 (O&M) - 7 - Chand Mimani (Dead) by Lrs Versus S.K. Sen” 2001(3) RCR (Civil) 746, “R.V. Bhupal Prasad Versus State of Andhra Pradesh” 1995(2) RCR (Rent) 448 and “Bharat Petroleum Corporation Ltd. Versus Khaj Midhat Noor” 1988(1) RCR (Rent) 613. In respect of the second question raised by learned counsel for the appellant about inadmissibility of lease deed for want of registration, it is submitted by learned counsel for the respondent that Section 107 of the Transfer of Property Act, 1882 is not applicable in view of Section 117 of the Transfer of Property Act, 1882. He relied upon a decision of this Court in the case of “Kulwant Singh Versus Phula Singh” 2004(2) RCR (Civil) 28, a Single Bench judgment of the Madhya Pradesh High Court in the case of “Atar Singh and others Versus Jiledar Singh and others” AIR 2005 MP 157 and a decision of the Supreme Court in the case of “Thakur Kishan Singh (dead) Versus Arvind Kumar” AIR 1995 Supreme Court 73. Before adverting to the rival contentions raised by both the learned counsel for the parties, it would be relevant to refer to the provisions of law, which have been invoked by both of them in the present appeal: - “Section 4 (5) of the Punjab Tenancy Act, 1887 : (5) “tenant” means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that other person; but it does not include- (a) an inferior landowner; or (b) a mortgagee of the rights of a landowner, or RSA No.3785 of 2009 (O&M) - 8 - (c) a person to whom a holding has been transferred, or an estate or holding has been let in farm, under the Punjab Land-revenue Act, 1887(XVII of 1887), for the recovery of an arrears of land- revenue or of a sum recoverable as such an arrears ; or (d) a person who takes from the [Government] Subs. [For the word “Crown” by the adaptation of Laws Order, 1950] a lease of unoccupied land for the purpose of subletting it; Section 2(6) of the Punjab Security of Land Tenures Act, 1953: - 6) “Tenant” has the meaning assigned to it in the Punjab Tenancy Act, 1887 (Act XVI of 1887) and includes a sub-tenant, and self cultivating lessee, but shall not include a present holder as defined in section 2 of the Resettlement Act. Section 9 of the Punjab Security of Land Tenures Act, 1953: - 9. Liability of tenant to be rejected- (1) Notwithstanding anything contained in any other law for the time being in force no land owner shall be competent to eject a tenant except when such tenant- (i) is a tenant on the area reserved under this Act or is a tenant of a small landowner; or (ii) fail to pay rent regularly without sufficient cause; or (iii) is in arrears of rent at the commencement of this Act; or RSA No.3785 of 2009 (O&M) - 9 - (iv) has failed , or fails , without sufficient cause, to cultivate the land comprised in his tenancy in the manner or to the extent customary in the locality in which the land is situate ; or (v) has used, uses the land comprised in his tenancy in a manner which has rendered, or renders it unfit for the purpose for which he holds it; or (vi) has sublet the tenancy or a part thereof; provided that where only a part of the tenancy has been sublet ,the tenant shall be liable to be ejected only from such part; or (vii) refuses to execute a Qabuliyat or a Patta, in the form prescribed, in respect of his tenancy on being called upon to do so by an Assistant Collector on an application made to him for this purpose by the land-owner. Explanation -- For the purposes of clause (iii) a tenant shall be deemed to be in arrears of rent at the commencement of this Act, only if the payment of arrears is not made by the tenant within a period of two months from the date of notice of the execution or decree or order, directing him to pay such arrears of rent.] (2) Notwithstanding anything contained herein before a tenant shall also be liable to be ejected from any area which he holds in any capacity whatever in excess of the permissible area :. Provided that the portion of the tenancy from which such tenant can be ejected shall be determined at his option only if RSA No.3785 of 2009 (O&M) - 10 - the area of his tenancy under the landowner concerned is in excess of the area from which he can be ejected by the said land owner: Provided further that if the tenant holds land of several land owners and more than one land owner seeks his ejectment, the right of ejectment shall be exercised in the order in which the applications have been made or suits have been filed by the landowners concerned and incase of simultaneous applications or suits the priority for ejectment shall commence serially from the smallest land owner. Explanation -- Where a tenant holds land jointly with other tenants only his share in the joint tenancy shall be taken into account in computing the area held by him. Section 17(1)(b) of the Registration Act, 1908 : (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees, and upwards, to or in immovable property; Section 49 of the Registration Act, 1908 49. Effect of non-registration of documents required to be registered:- No document required by section 17 [or by any provision of the Transfer of Property Act, 1882] to be registered shall- RSA No.3785 of 2009 (O&M) - 11 - (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: [PROVIDED that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, (3 to 1877) to be effected by registered instruments or as evidence of any collateral transaction not required. Section 107 of the Transfer of Property Act, 1882 107. Leases how made : - A lease of immovable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument. All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee: RSA No.3785 of 2009 (O&M) - 12 - PROVIDED that the State Government may from time to time, by notification in the Official Gazette, direct that leases of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession. Section 117 of the Transfer of Property Act, 1882 117. Exemption of leases for agricultural purposes: None of the provisions of this Chapter apply to leases for agricultural purposes, except insofar as the State Government may, by notification published in the Official Gazette, declare all or any of such provisions to be so applicable [in the case of all or any of such leases], together with, or subject to, those of the local law, if any, for the time being in force. Such notification shall not take effect until the expiry of six months from the date of its publication. As already stated, the facts are not much in dispute. Admittedly, lease deed (Ex.D-3) dated 29.5.1996 was executed between the parties in which it was agreed by the plaintiff that after the expiry of lease period he would be liable to vacate the land under lease and the defendant had agreed not to eject the plaintiff lease holder before the expiry of the lease period. A Rapat Roznamcha (Ex.D2) was also executed signifying the delivery of possession on the basis of lease deed (Ex.D-3). RSA No.3785 of 2009 (O&M) - 13 - It is also not in dispute that after the expiry of lease, no new lease has been executed in favour of the plaintiff and when the plaintiff had filed suit for permanent injunction for restraining the defendant from interfering in his possession as a lessee, counter-claim was filed by the defendant after the expiry of lease period to seek a decree for mandatory injunction directing the plaintiff to handover vacant possession of the land in dispute. Learned counsel for the appellant has urged that a substantial question of law is involved in the appeal about the jurisdiction of the Civil Court to order delivery of vacant possession by way of mandatory injunction to the defendant. It is alleged that the plaintiff has been in possession of the suit land as a self cultivating lessee, therefore, he falls within the definition of tenant as prescribed under Section 2(6) of the Punjab Security of Land Tenures Act, 1953 and is protected under Section 9 of the said Act which provides that notwithstanding anything contained in any other law for the time being in force no land owner shall be competent to eject a tenant except for the grounds mentioned therein and since there was no ground available as prescribed in Section 9 of the Punjab Security of Land Tenures Act, 1953, the learned Civil Court had no jurisdiction to order delivery of vacant possession by way of mandatory injunction passed in favour of the defendant in his counter-claim. Learned counsel for the appellant has sought support to his submissions from various precedents cited, which have been mentioned hereinabove and are being discussed separately one by one to find out as to whether the judgments, which have been relied upon by the learned counsel for the appellant are applicable or the judgment, which have been relied upon by the learned counsel for the respondent are applicable in the facts and circumstances of the present case. RSA No.3785 of 2009 (O&M) - 14 - Starting with the judgment relied upon by the learned counsel for the appellant in the case of Rameshwar (supra), Rameshwar had field a suit for possession by way of pre-emption on the ground that he being the tenant had a preferential right of purchase. He was lessee on the land in question. This Court had noticed in para No.8 of its judgment that the learned First Appellate Court had declined right of pre-emption to Rameshwar on the ground that he had lost his superior right being a tenant as his tenancy came to an end during the pendency of the suit on the expiry of the lease deed. While discussing the decision in the case of “Mandir Jhoke Hari Har and others (Supra) held that the tenancy of the tenant holding for a fixed term of contract did not ipso facto come to an end on the expiry of the period unless decree for ejectment is passed against him under the provisions of the Punjab Tenancy Act, 1887, consequently, though the contractual tenancy in favour of the plaintiff came to an end during the pendency of the suit yet he continued to be a tenant by operation of the provisions of Section 9 of the said Act and was tenant till the date of decree of the trial Court as no ejectment order has been passed against him till then. Thus, it was held that decision in the case reported as 1977 PLJ 315 was not a good law in view of the decision of the Supreme Court in the case reported as 1970 PLJ 812. In the case of Bhajan Lal (Supra) , Bhajan Lal was the owner of the land on which one Shadi was the tenant. Bhajan Lal applied under Section 14-A of the Punjab Security of Land Tenures Act, 1953 for an order of ejectment against Shadi. The said application was dismissed and was confirmed in appeal by the Collector. The Financial Commissioner set aside the order of the Collector and remanded the case for a fresh order. In respect of the same land, there was another proceeding going on in which Shadi had applied to the Assistant RSA No.3785 of 2009 (O&M) - 15 - Collector to purchase the land Under Section 18 of the Punjab Security of Land Tenures Act, 1953. His application was rejected by the Assistant Collector and the order was confirmed by the Collector. However, the Financial Commissioner remanded the case for determination whether Shadi was in occupation of land for six years before the date of the petition. In these circumstances, Supreme Court held that Shadi was tenant prior to the date of institution of the ejectment application by Bhajan Lal when he had exercised his right to purchase the land as a tenant, which could not be defeated merely because of a date subsequent thereto an order of ejectment was passed against him. In the case of Ram Lal (Supra), Ram Lal was the plaintiff, whose predecessor-in-interest Parvati executed the registered lease deed in favour of defendant No.1