RSA No.1275 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1275 of 1986 Date of decision 23 .08.2010. Jit Singh ...... Appellant. versus Puran Singh ...... Respondents. RSA No.2221 of 1986 Makhan Singh ...... Appellant. versus Puran Singh ...... Respondents. CORAM :- HON'BLE MR.JUSTICE K.C.PURI. Present : Mr. Gaurav Chopra, Advocate for the appellant in both cases. Mr. Sandeep Khungar, Advocate for respondent in both cases. K.C.PURI, J. RSA No.1275 of 1986 2 By this common judgment, I intend to dispose of RSA No.1275 of 1986 and RSA No.2221 of 1986 preferred by the defendant/appellant as both appeals involve the same question of law. The facts of the cases are discussed below :- RSA No.1275 of 1986. This is a regular second appeal directed by defendant- appellant against the judgment dated 19.03.1986 passed by Shri N.S.Bhatia, learned Additional District Judge, Ferozepur vide which the appeal preferred by the plaintiff against the judgment dated 2.4.1985 passed by Mr. Jaspal Singh, Sub Judge IInd Class, Ferozepur decreeing the suit of the plaintiff, stood dismissed. In brief the case of the plaintiff is that a parcel of land measuring 74 kanals 2 marlas as detailed in the head note of the plaint, was already mortgaged with Sohan Lal and the same was sold by the said mortgagors Kartar Singh, Pathana Singh, Manna Singh, Narain Singh and Labh Singh, who were cosharers/owners in possession along with other land in the said village to Sohan Lal mortgagee vide registered sale deed dated 8.12.1966 and the plaintiff purchased a parcel of land measuring 74 kanals 2 marlas comprising of khasra Nos. 24M/19(8-0), 21(6-13), 22(6-14), 25M/1 (8-0), 36M/3(6-16), 4(8-0), 5(8- 0), 6(8-0), 7(4-0) and 25M/10 (8-0), from said Sohan Lal vide registered sale deed dated 28.12.1970 since then he is in possession as owner of the suit land. The plaintiff has further alleged that out of 74 kanals and 2 marlas of land purchased by the plaintiff from Sohan Lal, the suit land was given to Jit Singh defendant for cultivation as a tenant on betai RSA No.1275 of 1986 3 and he remained in possession of the suit land as a tenant. The defendant thereafter got an entry in the khasra girdwari “Ba Tasawar Bai” and had stopped the payment of rent and the assertion of hostile title and denial of relationship of landlord and tenant has terminated the tenancy and the defendant has become a trespasser. The defendant has no right or title to the property in dispute and he has flately refused to deliver the physical possession of the suit land about a week ago to the plaintiff, which has necessitated the filing of the present suit. Notice of the suit was given to the defendant and the defendant filed written statement raising preliminary objections that Kartar Singh etc. were neither owners nor have any right to alienate the property. The land in dispute was in fact owned by Kishan Singh as he was the allottee of the land but his allotment stood cancelled by the orders of the authority and a report to this effect was incorporated in the Roznamcha by the halqa Patwari on 17.7.1973. Thereafter, no subsequent act done by him can be validated. Moreover, Kartar Singh has not executed the sale deed regarding the suit land at any time. The defendant also contended in the preliminary objections that the suit of the plaintiff is barred by limitation as Kartar Singh etc. were neither cultivated the suit land nor Sohan Lal ever cultivated the suit land. The defendant is in possession of the suit land for the last about 20 years without any payment of rent to anybody including plaintiff and his possession is hostile, open and uninterrupted and has become the owner of the suit land by adverse possession. The plaintiff has also got no locus-standi to file the present suit as he is not the owner of the suit RSA No.1275 of 1986 4 land. On merits, the defendant denied all other allegations and prayed for dismissal of the suit. Following issues were framed :- 1. Whether the plaintiff is entitled to the possession of the suit land as prayed for ?OPP 2. Whether the suit is barred by limitation ?OPD 3. Whether the plaintiff is not the owner of the suit land ? OPD. 4. Whether the plaintiff has no locus-standi to file the present suit ?OPD 5. Relief. The parties have led their respective evidence on the aforesaid issues. After appreciating the same and hearing the learned counsel for the parties, the trial Court decreed the suit of the plaintiff vide judgment and decree dated 2.4.1985. Feeling dissatisfied with the judgment dated 2.4.1985, the defendants preferred appeal before the First Appellate Court. The said appeal was dismissed by learned Additional District Judge, Ferozepur vide judgment and decree dated 19.3.1986. Still Feeling dissatisfied with the judgments and decrees passed by both the Courts below, the defendant-appellant has preferred the present regular second appeal. RSA No.2221 of 1985. This is a regular second appeal directed by defendant- RSA No.1275 of 1986 5 appellant against the judgment dated 7.5.1986 passed by Shri R.L.Anand, learned Additional District Judge, Ferozepur vide which the appeal preferred by the plaintiff against the judgment dated 6.3.1985 passed by Mr. Inderjit Kaushik, Sub Judge IInd Class, Ferozepur decreeing the suit of the plaintiff, stood dismissed. In brief the case of the plaintiff is that a parcel of land measuring 74 kanals 2 marlas as detailed in the head note of the plaint, was already mortgaged with Sohan Lal and the same was sold by the said mortgagors Kartar Singh etc. to Mushi Ram mortgagee vide registered sale deed dated 8.12.1966 and the plaintiff purchased a parcel of land measuring 72 kanals 2 marlas situated in village Jalla Lakhea Ke Hithar Tehsil Fazilka from said Sohan Lal vide registered sale deed dated 28.12.1970 since then he is in possession as owner of the suit land. Out of this land, a parcel of land measuring 21 kanals 9 marlas comprising of khewat No.23 Khatauni No.115 and khasra Nos. 24M/21(6-13), 26M/4(8-0) khautani No.114, Khasra No. 26M/3 (6-16) situated in village Jalla Lakha Ke Hithar was given to Makhan Singh defendant for cultivation as tenant on batai and that he remained in possession as a tenant. Defendant has now stopped payment of rent and got entry in the khasra girdwari “Ba Tasawar Bai” and by the assertion of hostile title and denial of relationship of landlord and tenant has terminated the tenancy and the defendant has become a trespasser. The defendant has no right or title to the property in dispute. Notice of the suit was given to the defendant and the RSA No.1275 of 1986 6 defendant filed written statement raising preliminary objections that Kartar Singh etc. were neither owners nor have any right to alienate the property. The land in dispute was in fact owned by Kishan Singh as he was the allottee of the land but his allotment stood cancelled by the orders of the authority and a report to this effect was incorporated in the Roznamcha by the halqa Patwari. Moreover, Kartar Singh has not executed the sale deed regarding the suit land at any time. The defendant also contended in the preliminary objections that the suit of the plaintiff is barred by limitation as Kartar Singh etc. were neither cultivated the suit land nor Sohan Lal ever cultivated the suit land. The defendant is in possession of the suit land for the last about 20 years without any payment of rent to anybody including plaintiff and his possession is hostile, open and uninterrupted and has become the owner of the suit land by adverse possession. The plaintiff has also got no locus-stand to file the present suit as he is not the owner of the suit land. On merits, the defendant denied all other allegations and prayed for dismissal of the suit. Following issues were framed :- 1.Whether the plaintiff is entitled to the possession of the disputed land ?OPP 2.Whether the plaintiff is not the owner of the suit land ? OPD. 3. Whether the suit is barred by limitation ?OPD 4. Whether the plaintiff has no locus-standi to file the present suit ?OPD RSA No.1275 of 1986 7 5. Whether the defendant is entitled to special compensatory costs u/s 35-A of CPC?OPD. 6. Relief. The parties have led their respective evidence on the aforesaid issues. After appreciating the same and hearing the learned counsel for the parties, the trial Court decreed the suit of the plaintiff vide judgment and decree dated 6.3.1985. Feeling dissatisfied with the judgment dated 6.3.1985, the defendants preferred appeal before the First Appellate Court. The said appeal was dismissed by learned Additional District Judge, Ferozepur vide judgment and decree dated 7.5.1986. Still Feeling dissatisfied with the judgments and decrees passed by both the Courts below, the defendant-appellant has preferred the present regular second appeal. I have heard learned counsel for the parties and have gone through the records of both the cases. Learned counsel for the appellant has submitted that plaintiffs in the plaint themselves have pleaded that defendant/appellant is in possession of the suit property as tenants. Mere denying of tenancy in the written statement does not determine the tenancy rights in favour of the defendant-appellant. The appellant can only be evicted by the Revenue Authorities and the Civil Court has no jurisdiction to pass the decree for possession against the tenant. RSA No.1275 of 1986 8 To fortify his arguments, learned counsel for the appellants has relied upon the following authorities :- 1. Devasahayam (D) By Lrs. vs. P. Savithramma & Ors. 2005(4) R.C.R.(Civil) 306, 2. Kirpal vs. Nathan and others 1985(1) PLR 661; and 3. Ishwar Singh and others vs. Sawaru Singh and ors 1987 PLJ 313. In reply to above noted submissions, learned counsel for the plaintiff/respondent has submitted that the finding of First Appellate Court that by denying the ownership of the plaintiff and by claiming the ownership by way of adverse possession, the rights of defendant/appellant in the suit property as that of tenants stands determined. The Civil suit for possession in respect of the agriculture land is maintainable. In support his submissions, learned counsel for the plaintiff-respondent has relied upon authority Sada Ram vs. Gajjan son of Shiama 1970 PLR 223 and Kurella Naga Druva Vudaya Bhaskara Rao vs. Galla Jani Kamma Alias Nacharamma 2008 (9) JT 295. From the submissions made by both the sides following substantial question of law for determine has arisen :- 1. Whether the denial of title of the landlord by the tenant in the written statement in the suit would entail forfeiture of the tenancy entitling the landlord to eject the tenant in the same suit ? The appellant has relied upon Kirpal's case (supra) in which it has been held that by denying the tenancy in another suit, does not determine the tenancy. The tenant can be evicted under Section 9 RSA No.1275 of 1986 9 of the Punjab Security of Land Tenures Act, 1953. However, from the perusal of the said authority, it is revealed that the authority handed down by the Hon'ble Division Bench of this Court in case Sada Ram's case (supra) was not brought to the notice of the Hon'ble Single Judge, while deciding the said case. The observations made by the Division Bench in paragraph 8 of the judgment are reproduced as under :- “The denial of the relationship of landlord and tenant by the tenant in his written statement to a suit for ejectment determines a tenancy forthwith, thus giving the right to the landlord to the possession of the leased property, when the lease is not for a fixed period but from year to year or at will as in the present cases. A year to year tenancy or a tenancy at will gets determined by such a denial or renunciation of title. It was asserted in the plaints that the defendants had denied the title of Smt. Malaro and had also refused to make any payment of rent to her or to the plaintiff. This assertion was not denied in the written statements. On the other hand, the defendants asserted that Smt. Malaro was not the owner and they were in possession in their own right and whatever they have been paying to her was merely by way of maintenance and not by way of rent etc. From this assertion in the written statements it is clear that they had denied the title of RSA No.1275 of 1986 10 Smt. Malaro and the, plaintiff as their landlord before, the institution of the suit and had set up an adverse title in themselves in clear and unequivocal terms. In view of these pleadings of the parties, the defendants had clearly forfeited their tenancy which entitled the plaintiff obtain possession of the lands from them by means of the suits which he filed. The judgment of the learned Single Judge is, therefore, correct and we have not been persuaded by learned counsel for the appellants to take a different view. It is not disputed by the learned counsel for the appellants that if section 111(g) of the Transfer of Property Act were applicable to the State of Punjab, the denial of the character as tenants by the defendants in their written statements would have entailed forfeiture entitling the plaintiff-respondent to the decrees of possession against the defendants all were prayed for by him.” So, while sitting singly, I am bound to accept the Division Bench authority in preference to Single Bench authority laid down in Kirpal's case (supra). In authority Ishwar Singh and others' case (supra) delivered by Hon'ble Division Bench of Himachal Pradesh High Court also cannot be given affect in the presence of Division Bench authority of our own High Court. RSA No.1275 of 1986 11 Authority Devasahayam (D) By Lrs' case (supra) is distinguishable as in that case landlord has executed the agreement to sell in favour of the tenant. There is no dispute to that effect in the present case. The defendants in the written statement have altogether denied tenancy and have taken a stand that they have become owner of suit property by way of adverse possession. The plea of adverse possession did not find favour by both the Courts below. That being a finding of fact cannot be interfered in the regular second appeal and keeping in view that difficulty, the counsel for the appellant has not raised argument to support the contention of the adverse possession. Even Hon'ble Apex Court in authority Kurella Naga Druva Vudaya Bhaskara Rao's case (supra) relied upon by the learned counsel for the respondent, has held that where the defendant has taken a stand that he is owner of the suit property, in that case Section 13 of Andhra Pradesh (Andhra Areas) Tenancy Act, 1956 will not protect the right of the defendants and the suit for possession in the said case was decreed. So, in view of the above discussion, I have no hesitation in holding that the denial of tenancy in unequivocal terms by the tenant would forfeit his rights to claim protection under the tenancy Act. So, the above said substantial issue stands determined in favour of the plaintiff-respondent and against the appellant. Consequently, both these appeals are without any merit and the same stand dismissed. RSA No.1275 of 1986 12 A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE August 23rd , 2010 sv