IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1153 of 1992 Date of decision:- 11.08.2009 Dhoop Singh ...Appellant Versus Ajit Singh and others ...Respondents CORAM: HON'BLE MR. JUSTICE A.N.JINDAL Present:- Mr. Vivek Bhandari, Advocate for the appellant. Mr. R.K. Gupta, Advocate for the respondents. A.N.JINDAL J. This is defendants' second appeal against the judgment and decree dated 16.5.1992 passed by Additional District Judge, Jind dismissing the appeal against the judgment and decree dated 02.05.1991 passed by Sub Judge Ist Class, Jind decreeing the suit of the plaintiffs/respondents (herein referred as the plaintiffs) for possession of the agricultural land measuring 169 kanals 4 marlas situated within the revenue estate of Village Nirjan. The Lower Court while deciding the suit had directed the defendants to hand over the possession of the suit land within 30 days from the date of the judgment. Brief facts of the case are that Ajit Singh etc. instituted a suit against Dhoop Singh defendant claiming possesion of the suit land on the basis of ownership. It was averred that Dhoop Singh defendant had earlier filed a civil suit No.503 of 05.06.1978 seeking decree for permanent RSA No. 1153 of 1992 -2- injunction alleging himself to be a tenant over the suit land. The said suit was dismissed on 15.03.1982 by Sub Judge 2nd Class, Jind. Dhoop Singh also preferred an appeal before the Additional District Judge, Jind, upon which Shri M.K. Bansal, Additional District Judge, Jind partly accepted the appeal holding that Dhoop Singh was in possesion of suit land but not as a tenant and the plaintiffs were entitled to possession of the suit land in due process of law. Ajit Singh etc. again filed the second appeal in the High Court, which was dismissed. It was also averred that during the pendency of the civil suit, the suit land was attached under Section 145 Cr.P.C. and possession was handed over to Niab Tehsildar, Jind, who was appointed as a receiver by the Executive Magistrate, Jind. After the decision of the 1st Appellate Court on 02.3.1984 Dhoop Singh took the possesion of the suit land from the receiver under the orders dated 06.4.1984 passed by the Executive Magistrate, Jind. Thus, pursuant to the judgment passed by Shri M.K. Bansal, Additional District Judge, Jind the plaintiffs filed a suit for possession of the said land. The suit was contested by Dhoop Singh-defendant inter alia on the ground that judgment of Additional District Judge, Jind dated 02.3.1984 having become not final was not binding upon him as the plaintiffs had instituted the second appeal in the Hon'ble High Court and the same was still under adjudication and the defendant had also filed cross-objection petition in second appeal. It was further submitted that he was a tenant under the plaintiffs and is protected under the provisions of Pepsu Tenancy and Agricultural Lands Act. He cannot be evicted without a valid ejectment order passed against him. The suit for possession is not competent. It was RSA No. 1153 of 1992 -3- further submitted that the defendant took the suit land on chakota at the rate Rs.300/- per acre per annum in the presence of Ram Kishan from plaintiff No.1, who is not only a co-sharer of the suit land but was managing the same on behalf of late Sujani, co-sharer during her life time and after her death on behalf of her heirs namely plaintiff Nos.2 to 4 since the beginning of kharif crop, 1977. It was further averred that since he is a chokotadar, therefore, he could not be evicted from the suit land without due process of law. Replication has also been filed. From the pleadings of the parties, learned trial court vide order dated 09.5.1985 framed the following issues:- 1. Whether the defendant took the suit land on a chakota of Rs.300/- per killa from plaintiff No.1?OPD 2. Whether the issue relating to tenancy can be re- agitated in the present suit?OPD 3. Relief. Both the parties led evidence. The defendant i.e. present appellant examined himself as DW1 and further examined Sardara (DW2), Ram Kishan (DW3), Sumer (DW4), Kanwal Gian Jain, clerk who has only produced the summoned file (DW5), Gaze Singh Patwari (DW6) and Tara Chand Constable (DW7). To the contrary, in rebuttal, plaintiff Ajit Singh appeared in the witness box as PW1 and after producing certain documents closed their evidence. The trial Court decided the suit and the appeal filed by Dhoop RSA No. 1153 of 1992 -4- Singh was also dismissed. Substantial questions of law, which arises in this case are: (i) “Whether the judgment pronounced by the 1st Appellate Court is passed on misappreciation or misreading of evidence? (ii) Whether the plea of tenancy which stood already settled could again be raised in this appeal?” Admittedly, in the earlier litigation between the parties, the first Appellate Court while holding that though Dhoop Singh was in possession of the suit land yet not as a tenant and gave liberty to plaintiffs/respondents (herein referred as plaintiffs) to file suit for possession. Admittedly, plaintiffs had also filed second appeal so also Dhoop Singh filed cross- objection petition. There is no denying fact that plaintiffs withdrew regular second appeal stating that they would seek the possession by filing the suit. It may be noticed that this Court has dismissed the cross- objection petition filed by Dhoop Singh-defendant and he has not been held to be tenant over the suit land. It is well settled by now that when once the cross-objection petition is dismissed by the High Court and the defendant has been held to be trespasser. Now, he cannot agitate during this suit for possession again that he is a tenant. Even otherwise the only short question to be decided in this appeal is whether Dhoop Singh defendant is in possession of the suit land as tenant? The onus to prove this issue was on defendant Dhoop Singh. In this regard, it may be submitted that the tenancy is bilateral contract. It necessary involves the existence of contract in the form of a written lease deed or muchless an oral one. Even a person, who RSA No. 1153 of 1992 -5- claims himself to be a tenant over the property on payment of rent, the non- payment of rent negatives his plea with regard to such relationship. There is nothing on record to reveal whether the tenancy rights were bestowed by the plaintiffs over the defendant. It is implied from the act and conduct of the parties that plaintiffs never inducted the defendant in the premises and to stay over the land as tenant. One of the most important circumstances from which this inference could be drawn is the absence of the contract between the parties. The other circumstance to negate the tenancy is non-payment of rent at any time. Actually, this is not a case of tenancy but the same is claimed by the appellant on the basis of stray entries in the revenue record. It appears that the said entry was made by the Revenue Authorities in the absence of the plaintiff and also without his consent. Such revenue entries got inserted in the revenue record without the consent of the landlord and that too by the official, who was not competent to do so, without consent and notice to the effected party do not bind the effected party as such the Appellate Court was right in holding a positive finding of fact in favour of the plaintiff that Dhoop Singh defendant is not proved to be in possesion as tenant. No perversity or illegality, misreading and mis-appreciation of evidence is involved in this case, which may inspire this court to interfere in the impugned judgment. More or less the question regarding relationship of landlord and tenant is a question of fact, which has already been settled by the courts below and now this court at this second appellate stage cannot interfere with their findings of fact regarding possession. The Hon'ble Supreme Court from time to time has consistently held while discussing the scope of Section 100 CPC that High Court before interfering with the RSA No. 1153 of 1992 -6- judgment must satisfy itself that there is some grave irregularity resulting into miscarriage of justice. Concurrent finding of fact, however, cannot be disturbed by the High Court while exercising its jurisdiction under Section 100 CPC. No meaningful argument has been advanced by learned counsel for the appellant as to how and in what manner the question of fact with regard to the relationship of landlord and tenant between the parties has not been correctly decided and how the court misdirected itself to ignore any documentary or oral evidence. The first Appellate Court appears to have examined and dealt with each and every aspect of the case. This appeal appears to have been preferred by defendant Dhoop Singh only to gain time particularly when it has already been decided that he was only trespasser over the land and not the tenant. In any case the question of relationship of landlord and tenant has already been answered against the appellant in the other appeal filed by Dhoop Singh-defendant, then no such question remains to be determined in the case. Resultantly, finding no merit in the appeal, the same is dismissed. No order as to costs. Decree sheet be prepared accordingly. August 11 .2009 (A.N.JINDAL) vj JUDGE