RSA No.2333 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 2333 of 2008 Date of Decision:October 13 , 2009 Ved Parkash and others ...........Appellants Versus Union of India ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Arun Jain, SeniorAdvocate with Mr.Sushil Kumar, Advocate for the appellants None for the respondent ** Sabina, J. Plaintiffs filed a suit for declaration with consequential relief of permanent injunction. The said suit of the plaintiffs was dismissed by the Civil Judge (Junior Division), Faridabad vide judgment and decree dated 17.9.2007. Aggrieved by the same, plaintiffs filed an appeal and the same was partly accepted by the Additional District Judge(I) Faridabad vide judgment and decree dated 7.4.2008 and the suit was decreed to the effect that defendant is restrained from dispossessing the plaintiff from the suit land without following the due course of law. Hence, the present appeal has been filed by the plaintiffs. The case of the parties, as noticed by the learned Additional District Judge (I) in paras 2 to 4 of its judgment reads as under:- "2.Briefly stated the facts of the present plaintiffs' case as alleged are that the plaintiffs are in cultivating possession of the suit land situated in village Mujessar, Tehsil Ballabagarh, Distt. Fardiabad RSA No.2333 of 2008 2 as tenants at Will at the rate of Rs.25.19 per annum since last 40 years. They are cultivating the suit land as tenants at nominal rent and during this period the rent of the land in suit has never been increased. Earlier father of the plaintiffs Shri Hukam Singh was cultivating the suit land on the same terms and conditions and presently the land is being cultivated by the plaintiffs. At the time of inception of tenancy, it was agreed between the parties that the plaintiffs and predecessor in interest shall never be dispossessed from the suit land and nor the rent of the suit land shall be increased. The plaintiffs have acquired ownership rights in the land in suit by virtue of acquisition of occupancy rights, but the defendant wants to dispossesses the plaintiffs without any right to do so. Hence, the present suit was filed. 3.The respondent was ex-parte before the learned trial court as well as before this court. 4. The plaintiffs/ appellants led their evidence in support of their case and the learned trial court dismissed the suit with costs vide impugned judgment and decree dated 17.9.2007 Learned counsel for the appellants has argued that the rights of the plaintiffs had matured as occupancy tenants as the intention could be inferred from the circumstances that the plaintiffs were not liable to be ejected by the landlord. Learned counsel has placed reliance on Muni Ram and others vs. Phullia and Lalu 1974 PLJ 369. After hearing the learned counsel for the appellants, I am of the opinion that this appeal is devoid of any merit. Plaintiffs had filed a suit for declaration that they had RSA No.2333 of 2008 3 become owner of the suit land by acquisition of occupancy rights under Sections 5 and 8 of the Punjab Tenancy Act, 1887 (for short `the Act'). Defendant-Union of India was proceeded ex-parte before the trial Court. Plaintiffs led their ex-parte evidence in support of their case. Learned Additional District Judge in the judgment has observed that as per entry Exhibit P1, Khasra Girdwari, possession of the plaintiffs was reflected in the suit land from Kharif 2003 onwards. Father of the plaintiffs was in possession of the suit land as a tenant. Only a sum of Rs. 25.19 ps has been recorded as `chakota' and the same could not be treated as nominal rent. Plaintiffs had failed to establish that the said amount was equal of the land revenue or cess which was payable with regard to the suit land. Plaintiffs had also failed to lead any documentary evidence with regard to the payment of alleged nominal rent of `chakota' or that they had deposited the amount as land revenue or cess. Section 5 of the Act reads as under:- “5. Tenants having right of occupancy.- (1) A tenant- (a) who at the commencement of this Act has, for more than two generations in the male line of descent through a grand- father or grand- uncle and for a period of not less than twenty years, been occupying land paying no rent therefore beyond the amount of the land revenue thereof and the rates and cesses for the time being chargeable thereon,or (b) who having owned land, and having ceased to be landowner thereof otherwise than by forfeiture to the Government or than by any voluntary act, has since he ceased to be landowner continuously occupied the RSA No.2333 of 2008 4 land,or (c) who, in village or estate in which he is settled along with or was settled by the founder thereof as a cultivator therein occupied land on the twenty first day of October, 1868, and has continuously occupied the land since that date, or (d)who being jagirdar of the estate or any part of the estate in which the land occupied by him is situate has continuously occupied the land for not les than twenty years, or having been such jagirdar occupied the land while he was jagirdar and has continuously occupied it for not less than twenty years; has a right of occupancy in the land so occupied, unless, in the case of a tenant belonging to the class specified in clause(c), the landlord proves that the tenant was settled on land previously cleared and brought under cultivation by, or at the expense of, the founder. (2) if a tenant proves that he has continuously occupied land for thirty years and paid no rent thereof beyond the amount of the land revenue thereof and the rates and cesses for time being chargeable thereon it may be presumed that he has fulfilled the conditions of clause(a) of sub-section (1) (3) The words in that clause denoting natural relationship denotes also relationship by adoption, including therein the customary appointment of an heir and relationship, by the usuage of a religious community.” RSA No.2333 of 2008 5 As per the same, a person can be treated as a occupancy tenant either if he is paying the lease money equal of the land revenue or cess and further that he is tenant over the suit property since last three generations. Plaintiffs had, however, failed to prove their case. The judgment relied upon by the learned counsel for the appellants fails to advance the case of the appellants in the facts and circumstances of the present case. Learned District Judge rightly held that the plaintiffs had failed to prove that they were in possession of the suit land since the time of their grand father and `chakota' amount was equal to rates and cesses for the time being charged on the land. Hence, the present appeal is liable to be dismissed. No substantial question of law arises in this case which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge October 13, 2009 arya