IN THE HIGH COURT FOR THE STATES OF PUNJUAB AND HARYANA AT CHANDIGARH R.S.A. No.5521 of 2003 (O&M) DATE OF ORDER:1.5.2009 Kartar Singh ....Appellant Versus Babu Lal ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. Sukhbir Singh, Advocate for the appellant. Mr. Pritam Saini, Advocate for the respondent. Vinod K. Sharma,J. (Oral) This Regular Second Appeal is directed against the judgment and decree dated 13.10.2003 passed by the learned Courts below vide which the suit filed by the plaintiff-respondent for declaration and permanent injunction, stands decreed. The plaintiff brought a suit on the pleadings that Duli Chand father of the parties was non occupancy tenant under the owner in respect of the land in dispute which stands acquired. The parties are the sons of deceased Duli Chand and as per the Punjab Tenancy Act, they were entitled to inherit the tenancy rights of Duly Chand in equal share. The plaintiff is illiterate person and the defendant being an advocate by taking advantage of his education and knowledge of law got a Kabuliatnama entered in his name showing him to be the tenant on yearly basis under the Punjab Wakf Board. On the basis of revenue entry made thereof, the plaintiff claimed share in compensation as tenant under the Punjab Wakf Board. The plaintiff challenged the entries to be null and void and having been procured in violation of the instructions of the Financial Commissioner, Revenue in order to defeat the rights of the plaintiff. The suit was contested by the defendant-appellant and a plea R.S.A. No.5521 of 2003 (O&M) -2- was taken that their father was not the tenant over the premises in dispute, rather he also used to take land on lease on yearly basis from Punjab Wakf Board. Further he pleaded that the plaintiff-respondent had no right to inherit the yearly tenancy the same being not inheritable. On appreciation of evidence, learned trial court decreed the suit filed by the plaintiff-respondent in view of the fact that the stand taken by the defendant that his father was tenant on yearly basis stood belied by the revenue record produced on record showing that the deceased Duli Chand, father of the parties, was recorded as occupancy tenant right from 1965-66 till his death and it was after the death of Duli Chand that entry in the name of the defendant-appellant was recorded. The defendant-appellant preferred an appeal where by way of additional evidence, he sought to produce on record certain documents in order to show that his father was tenant on yearly basis from time to time, thus re-asserted his plea that the tenancy being not inheritable did not give any right to the plaintiff to claim share in the compensation, this plea was also rejected. Learned lower appellate court also, on appreciation of evidence and in view of the finding recorded by the learned trial court, dismissed the appeal. Learned counsel for the appellant contends that this appeal raises following substantial questions of law: 1. Whether yearly tenancy is inheritable? 2. Whether the judgment and decree passed by the learned courts below is outcome of misreading of evidence on record, thus, perverse? R.S.A. No.5521 of 2003 (O&M) -3- 3.Whether the suit filed by the plaintiff/respondent was within limitation? In support of substantial questions of law referred to above, learned counsel for the appellant contends that the learned courts below have wrongly held the tenancy to be inheritable though it was merely an yearly tenancy which was renewable from year to year on payment of rent so fixed every year and, therefore, the tenancy could not be said to be inheritable. This plea of learned counsel for the appellant is totally misconceived. It is not in dispute that in the revenue record the tenancy of Duli Chand deceased was shown to be that of occupancy tenant and not a lessee on year to year basis as is sought to be contended. The learned courts below also rightly held that the revenue entries cannot not be changed in violation of the instructions of the Financial Commissioner. Thus, it cannot be held that the tenancy was not inheritable, as contended. Learned courts below, therefore, rightly decreed the suit by holding that the plaintiff- respondent was entitled to inherit half share in the tenancy. Learned counsel for the appellant also contended that in the present case, learned courts below completely misread the evidence on record which proved that right from year 1981-82, it was the defendant- appellant who was being given the land on lease by the Punjab Wakf Board. He further referred to the additional evidence produced before the learned Appellate court to show that even Duli Chand deceased used to pay yearly rent. This plea also cannot be accepted. The learned courts below have taken into consideration the previous entry in the revenue record R.S.A. No.5521 of 2003 (O&M) -4- showing deceased Duli Chand to be occupancy tenant. The subsequent entry on which reliance was placed was admittedly made without notice and in violation of the instructions issued by the Financial Commissioner and therefore, it had rightly been rejected. Therefore, it cannot be said that the judgment and decree passed by the learned courts below is based on misreading of the evidence brought on record. The final contention raised by the learned counsel for the appellant is that the suit of the plaintiff was time barred as the entries were changed in the year 1982 whereas the suit was filed in the year 1993 and therefore, prima facie the suit was time barred by limitation. This plea is also misconceived. The entries which were changed were void being in violation of instructions of Financial Commissioner and therefore, did not affect the rights of the plaintiff- respondent especially when the defendant-appellant, who inherited the property along with the plaintiff-respondent was to hold the same on behalf of both the parties, therefore, it cannot be said that the suit filed by the plaintiff-respondent to claim share in the property was time barred, as sought to be contended. For the reasons stated above, the substantial questions of law are answered against the appellant. No merit. Dismissed. 1.5.2009 ( Vinod K. Sharma) rajeev Judge