RSA No.3507 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.3507 of 2006 Date of Decision: 30.10.2009 Harpal and others .....Appellants Vs. The Delhi Pinjra Pole Society, Delhi ....Respondent .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. Kulbhushan Sharma, Advocate for the appellants. Mr. Harsh Aggarwal, Advocate for the respondent. .... RAJIVE BHALLA, J This order shall dispose of RSA Nos.3507,and 3508 of 2006, 544,1086, 1554, 1843 and 3861 of 2009, as they involve common questions for adjudication. The appellants challenge the judgement and decree dated 8.8.2006, passed by the Additional District Judge-cum- Presiding Officer, Fast Track Court, Faridabad, accepting the appeal filed by the respondent, setting aside the judgement and decree dated 13.5.2002, passed by the Civil Judge (Junior Division), Faridabad and as a consequence decreeing the suit for possession filed by the respondent. The plaintiff-respondent, a registered society, filed a suit for possession by alleging that about 8 years ago a licence was granted to the appellants to reclaim the suit land and make it cultivable. As the licence has been revoked, a decree be passed for possession of the suit land. The defendants/appellants filed a written statement asserting RSA No.3507 of 2006 2 that they are in cultivating possession as tenants and not as licencees. The appellants asserted that they were inducted as tenants on the condition that payment of land revenue would be equal to the payment of rent. It was pleaded that as the appellants are tenants, the civil suit should be dismissed as not maintainable. The plaintiff/respondent filed a replication controverting the allegations in the written statement and affirming those in the plaint. On the basis of the pleadings, the trial court framed the following issues :- “1. Whether the plaintiff is entitled for the possession of the suit land as alleged ? OPP. 2. Whether the suit of the plaintiff is not maintainable in the present form ? OPD. 3. Whether the suit of the plaintiff is bad for mis- joinder and non-joinder of necessary parties ? OPD. 4. Whether the suit of the plaintiff is bad for non- compliance with the provision of Order 7 Rule 1 (J) of CPC ? OPD 5. Relief.” After considering the pleadings, the evidence adduced and the arguments addressed, the trial court dismissed the suit by holding that appellants are tenants and not licencees as the land revenue and other cesses being paid by the appellants are equal to rent. Aggrieved by the aforementioned judgement and decree, the respondent filed an appeal. Vide judgement and decree dated 8.8.2006, the RSA No.3507 of 2006 3 first appellate court accepted the appeal, reversed the judgement and decree passed by the trial court and decreed and suit. The first appellate court held that in the absence of any evidence to establish the attributes of a tenancy the appellants could not claim to be tenants, over the suit land. It was held that the entry in the jamabandi describing the appellants as `Gair Marusian Bashra Malkan Bawaja Nautor' establishes that the appellants are licencees and not tenants. It was also held that in the absence of any evidence as to the nature and rate of rent, or its payment, the argument that land revenue was agreed to be paid in lieu of rent, cannot be accepted. Counsel for the appellants submits that as it was agreed that land revenue paid would be equal to rent, the appellants are tenants and not licencees. The expressions `Gair Marusian' and `Bashra Malkan Bawaja Nautor' used in the revenue record, when read alongwith the entry reflecting payment of land revenue, raises an irrefutable inference that land revenue is to be paid in lieu of rent. The first appellate court has placed reliance upon the alleged admissions made by Harparshad and Hari Chand, admitting that no written agreement was executed and it was agreed that no rent would be paid. The first appellate court ignored the fact that these witnesses are rustic villagers, who are not conversant with the legal implications of their words and, therefore, their deposition could not be construed as admissions of their status as licensees. It is further submitted that where the entry in the column of cultivation is `Gair Marusi' but the column of rent is silent, such a person is a tenant at will, as set out in the definition of the word `tenant' under Section 4 (v) of the Punjab Tenancy Act, 1887. It is further argued that rent may be in cash, in kind or in the form of services rendered. Where land is entrusted to a person to make it RSA No.3507 of 2006 4 cultivable, such an entrustment is a service equal to rent. It is further argued that the respondent had failed to produce any evidence, apart from the oral statements of PW-1 and PW-2 to establish the terms and conditions of the license or its cancellation. It is submitted that the following substantial questions of law arise for consideration : “1. Whether in the absence of any relevant pleadings and evidence as to the terms and conditions of the licence, the first appellate court could conclude that the appellants are licencees ? 2. Whether the word `Gair Marusi' with the entry in the column of rent as Basharah Malkan Bawahaj Nautor means that the appellant is a tenant within the provisions of law of the Punjab Tenancy Act ? 3. Whether the long possession for making the land cultivable with the liability to pay land revenue would lead to an inference that the appellants are tenants ? 4. Whether a stray answer in the cross-examination of Harparshad regarding payment of Rs.60/- as fee for using the land, can be an admission of his status as a licencee ? Counsel for the respondent, on the other hand, submits that the first appellate court did not commit any error by holding that the appellants are licencees and not tenants. Admittedly, no rent was settled, whether in cash or in kind. The land was given to the appellants as licencees to make it cultivable. In the absence of any lease deed/rent note or any evidence as to the rate of rent or its payment, the first appellate court rightly held that RSA No.3507 of 2006 5 the appellants are licencees and not tenants. It is argued that in a given situation, payment of land revenue may be a measure of rent, but such a plea depends upon the agreed terms and conditions of the lease. In the absence of the proof of any such agreement or any entry in the revenue record that could even remotely suggest that payment of land revenue is equal to rent, the appellants cannot unilaterally claim that land revenue is equal to rent. It is, therefore, prayed that as the impugned judgement does not suffer from any error of law, the appeals should be dismissed. I have heard counsel for the parties, perused the judgements passed by the courts below and considered the substantial questions of law pressed into service by counsel for the appellants. Admittedly, suit land was handed over to the appellants to make it cultivable. The appellants allege that they were inducted as tenants with a condition that land revenue to be paid would be equal to the rent. The respondents on the other hand allege that the appellants were inducted as licencees to make the land cultivable. The sole dispute is whether the appellants are “licencees” or “tenants”. Neither party has produced any document recording the terms and conditions of a lease or a licence. The controversy, therefore, has to be adjudicated on the basis of revenue entries and the oral evidence on record. The trial court has held that the appellants are tenants whereas the first appellate court has held that they are licencees. A tenancy is a bilateral agreement, whereby the land owner delivers possession of the land to a tenant, who then promises to pay rent, whether in cash or by delivering a percentage of the produce or by rendering services. A fundamental incident of tenancy, apart from delivery RSA No.3507 of 2006 6 of possession, is the settlement by way of a bilateral agreement of the rate and nature of rent. As most agricultural tenancies are oral, the nature and the rate of rent are generally recorded in the jamabandi. A jamabandi is part of the record of rights prepared by revenue officials under the provisions of the Punjab Land Revenue Act in the discharge of official functions. A presumption of truth attaches to the contents of a Jamabandi. A jamabandi is divided into various columns that reflects amongst others, the person in possession, the nature of his possession and in case of a tenant, the nature and the rate of rent. Column No.5 of a jamabandi records the person in possession and the nature of his possession. Column No.9 records the nature and the rate of rent. If Column No.9 is silent as to the nature or the rate of rent, a person recorded in possession in Column No.5 cannot assert his right as a tenant merely on the basis that he is recorded in possession as Gair Marusian. The jamabandi in the present case records the appellants in possession as Gair Marusian. Column No.9 is silent as to rate or nature of rent. It records an expression “Bashra Malkan Bawaja Nautor”. The expression `Gair Marusian', or 'Gair Marusi' simply put, means a person in possession. The expression `Bashra Malkan' means through the owner or with his consent. The expression `Bawaja Nautor' denotes possession for the purpose of making the land cultivable. The expression `Gair Marusian Bashra Malkan Bawaja Nautor” therefore, denotes a person in possession, with the consent of the owner for the purpose of making the land cultivable. As rent is a necessary incident of tenancy, the absence of any reference to the rate of rent or to its nature, in the jamabandi, raises an inference against the plea of tenancy. The argument that payment of land revenue is equal to rent RSA No.3507 of 2006 7 and, therefore, the appellants are tenants must fail, as no such condition finds mention in the jamabandi. In addition, there is no evidence, whether oral or written that would raise an inference that parties agreed that land revenue paid would be equal to rent. The trial court placed reliance upon the judgement in Kanshi Ram and others V. Rawat Singh and others 1972 PLJ, 580 to hold that the appellants are tenants as payment of land revenue is equal to rent. The trial court ignored the fact that in the above case, the jamabandi uses an expression `Bawaja Tarne Mamla Sarkari Bashra Lagan' which means “payment of land revenue shall be equal to rent”. In the present case, no such expression appears in the Jamabandi. The trial court also placed reliance upon a judgement reported as Hukman V. Pishori Lal, 1970 PLJ 739 to hold that the appellants are tenants. The trial court ignored the fact that in this case, the appellant was referred to as a `Muzara' i.e. a tenant. In the present case, no such word appears in the revenue record. The trial court, therefore, erred in holding that land revenue was equal to rent. The revenue record does not refer to the appellants as tenants, does not contain a reference to the nature or the rate of rent, does not record that the land revenue is equal to the rent and as the appellants have failed to produce any evidence to prove their tenancy, the expression `Gair Marusian-Bashra Malkan Bawaja Nautor' would necessarily raise an inference that the appellants are licencees and not tenants. The first appellate court, therefore, rightly held that in the absence of any evidence to establish the attributes of a tenancy, the appellants cannot be held to be tenants and are, therefore, mere licencees. The second and the third questions of law are answered accordingly. The fourth question of law relates to the admission made by RSA No.3507 of 2006 8 Harparshad and Hari Chand, as to their status as licencees. The argument that they are rustic villagers and were, therefore, unaware of the consequences of their statements, cannot be accepted. An admission is the best form of evidence and binds a party who suffers such an admission. The question that the respondent has failed to establish its case, does not arise for consideration in view of the findings recorded herein before. It is, therefore, apparent that in the absence of any evidence to establish their tenancy over the suit land, the first appellate court rightly reversed the judgement and decree passed by the trial court and held that the appellants are licencees. Before parting with the judgement, it would be appropriate to state that though counsel for the appellants has raised an argument that the services rendered would be equal to the rate of rent, but as no such plea has been pleaded in the written statement or urged before the courts below, this argument cannot be considered, in second appeal. In view of what has been stated herein above, as no substantial question of law arises for consideration, the appeals are dismissed with no order as to costs. 30.10.2009 (RAJIVE BHALLA) GS JUDGE