R. S. A. No. 323 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 323 of 2007 Date of Decision : May 21, 2010 Ranjit Singh and others .... Appellants Vs. Municipal Corporation of Faridabad and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Arun Jain, Senior Advocate with Mr. Amit Jain, Advocate for the appellants. Mr. Mohnish Sharma, Advocate for Mr. Narender Hooda, Advocate for respondent no.1. * * * L. N. MITTAL, J. (Oral) : This is second appeal by plaintiffs, who have been unsuccessful in both the courts below. Plaintiffs filed suit alleging that they along with proforma defendants no.2 and 3 have become owners in possession of the suit land measuring 29 kanals 07 marlas, having acquired occupancy tenancy rights therein. It was alleged that their predecessor Doonger (father of plaintiffs no.1 to 7 and defendants no.2 and 3 and husband of plaintiff no.8) had been R. S. A. No. 323 of 2007 2 inducted as tenant over the suit land by Gram Panchayat – predecessor-in- interest of defendant no.1 (Municipal Corporation of Faridabad) about 50 years before the filing of the suit, on payment of nominal rent. After the death of Doonger, plaintiffs and proforma defendants no.2 and 3 continued to cultivate the suit land. When Doonger was inducted as tenant, it was promised that he would never be ejected from the suit land nor rate of rent would be increased. The land was not cultivable at that time. Doonger made it cultivable. Diesel engine was also installed. Only defendant no.1 contested the suit. Various preliminary objections were raised. Averments made by the plaintiffs were denied. It was pleaded that the suit land vested in Gram Panchayat under the Punjab Village Common Lands (Regulation) Act, 1961 and the same became property of Gram Panchayat's successor Faridabad Complex Administration and now, the present successor Municipal Corporation, Faridabad (defendant no.1) is owner of the suit land. Plaintiffs and proforma defendants no.2 and 3 have no right or interest in the suit land. Plaintiffs were in illegal possession of the suit land and have been ordered to be ejected therefrom under the Haryana Public Premises and Land (Eviction and Rent Recovery) Act, 1972 (in short – the Eviction Act). Defendant no.1 is, therefore, taking possession of the suit land in due course of law. Learned Civil Judge (Junior Division), Faridabad, vide judgment and decree dated 22.05.2004, dismissed the plaintiffs' suit. First R. S. A. No. 323 of 2007 3 appeal preferred by the plaintiffs has been dismissed by learned Additional District Judge, Faridabad, vide judgment and decree dated 31.10.2006. Feeling aggrieved, the instant second appeal has been preferred by the plaintiffs. I have heard learned counsel for the parties and perused the case file. It is undisputed that earlier Gram Panchayat – predecessor-in- interest of defendant no.1 was owner of the suit land. Perusal of the revenue record produced in evidence reveals that Doonger has been recorded to be in possession of the suit land since jamabandi for the year 1954-55 till filing of the suit. His possession is recorded as gair marusi (non-occupancy tenant), on payment of Rs.72/- as lease money for one year. Learned counsel for the appellants contended that under Section 5 (2) of the Punjab Tenancy Act, 1887, plaintiffs and proforma defendants no.2 and 3 have acquired occupancy tenancy rights in the suit land and have, therefore, become owners thereof in view of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952. Reliance has also been placed on a judgment of this Court in the case of Muni Ram and others vs. Phullia reported as 1974 P. L. J. 369 to contend that promise not to eject the tenant can be presumed as the tenancy has continued for 44 years before the filing of the suit without there being any R. S. A. No. 323 of 2007 4 increase in rate of rent. In view of the aforesaid judgment, certainly presumption can be raised that there was implied promise not to eject the tenant i.e. Doonger – predecessor-in-interest of the plaintiffs and proforma defendants no.2 and 3. However, the question arises whether other conditions for acquiring occupancy tenancy rights have been satisfied by plaintiffs and proforma defendants no.2 and 3 or not. To determine the same, Section 5 of the Punjab Tenancy Act, 1887 is reproduced hereunder :- “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 therefor 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 R. S. A. No. 323 of 2007 5 voluntary act, has, since he ceased to be landowner continuously occupied the land, or (c) who, in a 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 less 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 R. S. A. No. 323 of 2007 6 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 usage of a religious community.” Learned counsel for the appellants wants to derive benefit of Section 5 (2) of the Punjab Tenancy Act, 1887 to contend that conditions for acquiring occupancy tenancy rights specified in Section 5 (1) ibid can be presumed to have been fulfilled by the plaintiffs. The condition that plaintiffs and proforma defendants no.2 and 3 including their predecessor have been in possession of the suit land for more than 30 years is fulfilled in the instant case. However, there is another important condition laid down in Section 5 (2) of the Punjab Tenancy Act, namely, that the tenant paid no rent of the land beyond the amount of the land revenue thereof and the rates and cesses for the time being chargeable thereon. Plaintiffs and proforma defendants no.2 and 3 have failed to fulfill this essential condition laid R. S. A. No. 323 of 2007 7 down in Section 5 (2) of the Punjab Tenancy Act, 1887 for acquiring occupancy tenancy rights. It is correct that amount of Rs.72/- as lease money for one year is very nominal, if considered in the perspective of today's money value. However, Doonger – predecessor-in-interest of the plaintiffs was inducted as tenant in the year 1954-55 on payment of Rs.72/- as lease money for one year. The amount of Rs.72/- in the year 1954-55 could not be said to be nominal amount. On the contrary, it was a big amount in those days. Moreover, Section 5 (2) of the Punjab Tenancy Act, 1887 does not speak of nominal rent, but it speaks of rent being not beyond the amount of land revenue and rates and cesses. The amount of Rs.72/- per annum in the year 1954-55 was definitely in excess of the land revenue of suit land. There is no material on record to depict that amount of Rs.72/- as lease money for one year was not in excess of the land revenue and rates and cesses of the suit land. Consequently, said important condition of Section 5 (2) of the Punjab Tenancy Act, 1887 is not satisfied by plaintiffs and proforma defendants no.2 and 3 and therefore, they have not acquired occupancy tenancy rights over the suit land nor consequently they have become owners of the suit land. It may be added that Section 9 of the Punjab Tenancy Act, 1887 specifically stipulates that no tenant shall acquire a right of occupancy by mere lapse of time. In the instant case, the whole claim of the plaintiffs is based on the fact that they (including their predecessor) have been in possession of the suit land since 1954-55. R. S. A. No. 323 of 2007 8 However, for acquiring occupancy tenancy rights, the plaintiffs have to satisfy the conditions laid down in Section 5 of the of the Punjab Tenancy Act, 1887, but they have failed to do so. For the reasons recorded herein above, I find that the plaintiffs have failed to establish that they have acquired occupancy tenancy rights in the suit land and have consequently become owners thereof. Consequently, there is no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is without any merit and is accordingly dismissed. May 21, 2010 ( L. N. MITTAL ) monika JUDGE