RSA No.2767 of 2011 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2767 of 2011 (O&M) Date of decision: July 7, 2011. Smt. Om Piari ... Appellant(s) v. Gram Panchayat Rupana Bishnoian & Ors. ... Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri S.S. Godara, Advocate, for the appellant(s). Kanwaljit Singh Ahluwalia , J. Being unsuccessful before the two courts below, Smt. Om Piari plaintiff to the suit, has preferred the present regular second appeal. She had instituted a suit for permanent injunction praying that Gram Panchayat village Rupana Bishnoian – defendant No.1 be restrained from interfering in the cultivating possession of the plaintiff and proforma defendants. It was pleaded in that suit that Arvinder Kumar son of the plaintiff was in cultivating possession of the suit land, details and description of which was given in the head-note of the plaint as Gair Marusi. It was stated that in the revenue record, shamlat deh is recorded as owner of the land in dispute and therefore, Gram Panchayat has no concern with the suit property. In nutshell, claim made in the suit was that tenancy rights are inheritable, therefore, these rights have devolved upon the plaintiff and proforma RSA No.2767 of 2011 -: 2 :- defendants after the death of Arvinder Kumar who was cultivating the land as Gair Marusi. On notice of the suit, defendant No.1 – Gram Panchayat appeared and filed a written statement. They raised a preliminary objection that under Section 8 of the Punjab Land Tenures Act, mother cannot be termed as heir. Furthermore, there is no provision under the Haryana Gram Panchayat Act to induct tenants. On facts, it was pleaded that the suit land, along with other land of Gram Panchayat in an open auction for one year, i.e., 1998-99, was leased out to Faqir Chand, Sham Lal and Ram Kumar. Since after the lapse of one year, the above said persons who were inducted as tenants failed to hand over the possession of the land, Gram Panchayat – defendant No.1 had filed eviction applications against all the above three persons and one Dasrath. Under the orders of the Collector, Sirsa, these persons were evicted. They had not preferred any appeal. Thus, it was pleaded that neither Arvinder Kumar remained in possession of the suit land nor cultivated the same. It was asserted that Gram Panchayat is the owner of the land in dispute being Shamilat Deh. After completion of the pleadings, the trial court had drawn the following issues:- 1. Whether the plaintiff is entitled to seek injunction against the defendants, as prayed for? OPP 2. Whether suit of the plaintiff is not maintainable in its present form? OPD 3. Whether there is no provision in the Gram Panchayat Act according to which there can be any tenancy on the Gram Panchayat land? OPD RSA No.2767 of 2011 -: 3 :- 4. Whether the land is used to be given by the Gram Panchayat on lease on year to year basis? 5. Relief. The trial court, after considering the evidence led by the parties, concluded that as per the jamabandis for the year 1995-96 Ex.P1, it was evident that one Deep Chand son of Hans Raj was shown in cultivating possession of the suit land as Gair Marusi. It was further corroborated from Ex.P2 khasra girdawri for 1996-97 to 2000-01. Deep Chand died long ago. After the death of Deep Chand, Arvinder Kumar, son of the appellant, was recorded as owner in cultivating possession as Gair Marusi. The court stated that it is not discernible as to how the change was made in the jamabandi. Therefore, the court ignored the jamabandi to hold that they did not depict the actual state of affairs. The court held that the plaintiff failed to prove as to how and when Arvinder Kumar came to be in possession of the suit land. The court further held that the Assistant Collector had followed proper procedure at the time when the application for correction of the revenue record was entertained. The court further held that from the documents placed on record as Ex.D1 to D4, it is evident that Faqir Chand, Sham Lal, Ram Kumar and Dasrath were recorded in cultivating possession for the year 1998-99 and since after completion of one year, they failed to vacate the land, Gram Panchayat filed an application for ejectment of the above stated persons, namely, Faqir Chand, Sham Lal, Ram Kumar and Dasrath. After detailed discussion, the trial court returned the following finding:- “From the above said discussion, it is quite clear that the son of plaintiff i.e. Arvinder Kumar has been shown in possession of RSA No.2767 of 2011 -: 4 :- the property as Gair Maurusi without any right or title and the said entries in the revenue record showing him as owner in cultivating possession as Gair Maurusi by the order of the Assistant Collector are wrong. ...” The Court further held that the plaintiff failed to prove any of the circumstances as to how Arvinder Kumar came into possession of the land. The lower appellate court has concurred with the finding of fact returned by the trial court. Shri S.S. Godara, Counsel appearing for the appellant, has stated that the substantial question of law for consideration of this Court, is as to whether appellant and her family members were in possession of the suit land for the last 20 years or not and whether they can be evicted except in due course of law or not. The finding of fact has been given that in the year 1997-98 in an open auction, held by the respondent Gram Panchayat for the suit land, persons other than the son of the appellant, succeeded. Since they failed to hand over the possession, they were evicted by following due process of law. A stray entry in the revenue record cannot be taken into consideration to hold that the son of the appellant was in possession of the suit land, especially when documents Ex.D1 to D4 belie this assertion of the plaintiff. Thus, two courts below have rightly held that the son of the appellant was never inducted as a tenant and a solitary entry in the jumabandi is not sufficient to hold that the son of the appellant was in possession of the suit land. Therefore, the concurrent finding of fact is sufficient to hold that no substantial question of law arises in this appeal for consideration of this Court. RSA No.2767 of 2011 -: 5 :- Hence, the present appeal is dismissed in limine. C.M. No.7522-C of 2011 In view of the fact that the appeal itself has been dismissed, no orders are required to be passed in the application. The same is accordingly dismissed. [Kanwaljit Singh Ahluwalia] July 7, 2011. Judge kadyan