Regular Second Appeal No.557 of 2011 (O & M ) IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: February 11 , 2011. Regular Second Appeal No.557 of 2011 (O & M ) Devender and another ….Appellants Versus Dharambir and others ..Respondents CORAM: HON’BLE MR. JUSTICE MOHINDER PAL. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not. 3. Whether the judgment should be reported in the Digest? Present: Mr.S.N. Gaur, Advocate, for the appellants. -.- MOHINDER PAL, J. Defendants-appellants are in second appeal aggrieved against the judgments and decrees passed by both the Courts below whereby the suit filed by the plaintiffs-respondents seeking declaration to the effect that they had acquired occupancy rights in the suit land in view of the provisions of the Punjab Tenancy Act, 1887 (Act No. 6 of 1887) (for short `the Act of 1887), and had become owners of the property by operation of law under the Regular Second Appeal No.557 of 2011 (O & M ) provisions of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 with consequential relief of permanent injunction restraining the defendants from dispossessing the plaintiffs from the suit and also from alienating the same was decreed. I have heard the learned counsel for the appellants and have gone through the impugned judgments. The trial Court, after framing issues arising out of the pleadings of the parties and recording their evidence, held that the plaintiffs-respondents are occupancy tenants in view of the provisions of the Act of 1887 and as per the provisions of the Act of 1952, they have become owners of the suit land. The lower appellate Court, on appeal filed by the defendants, formed the view that the findings recorded by the trial Court are correct, as per evidence brought on record and do not call for any interference. In the grounds of appeal of this Regular Second Appeal, it is case of the defendants-appellants themselves that both the Courts below have drawn inferences with regard to the tenancy of the plaintiffs from the entries in the revenue record. Ground No.3 of the “Grounds of Appeal” deserves to be noticed which, for facility of reference, is reproduced below:- “ That the plaintiffs/respondents have neither specifically pleaded nor proved as to who first inducted them as tenants and on what terms and conditions they were inducted. Both the learned lower Courts have just drawn inferences in this regard Regular Second Appeal No.557 of 2011 (O & M ) from the entries in the revenue record, which is absolutely illegal.” This assertion of the defendants-appellants is absolutely wrong. In the plaint, the plaintiffs pleaded that they and before them their predecessors were in possession of the suit land as occupancy tenants for the last 70 years on payment of land revenue and cesses to the Lambardar of the village in the name of the defendants. The rent is recorded as `Basharath Malkan’ i.e 57 paise which is equal to land revenue. Before the plaintiffs, their predecessors were in possession of the suit land as `Gair Marusi tenants Bashrath Malkan’ and the tenancy rights had been succeeded by the plaintiffs. The plaintiffs and their predecessors had never been ejected from the suit land and they never relinquished their right in the suit land. There was an implied agreement between the predecessors of the plaintiffs and the predecessors of the defendants not to eject from the suit land till the plaintiffs cultivate the suit land as `Gair Marusi Bashrath Malkan’ i.e equal to land revenue. At the time of inception of the tenancy, the suit land was unfit for cultivation and the predecessors of the plaintiffs made the same fit for cultivation after spending a huge amount on the improvement. The provisions of Sections 5 (1) (a) and 5 (2) of the Act of 1887, which are relevant in the present controversy, for facility of reference, are reproduced as under:- 5. Tenants having right of occupancy - (1) A tenant- Regular Second Appeal No.557 of 2011 (O & M ) (a) who at the commencement of this Act has for more than two generations in the male line of descent through a grandfather 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) xx xx xx or (c) xx xx xx or (2) If a tenant proves that he has continuously occupied land for thirty years and paid no rent therefore beyond the amount of the land- revenue thereof and the rates and cesses for the time being chargeable thereon, it may be presumed that he had fulfilled the conditions of clause (a) of sub-section (1). Further, Section 4 (1) of the Act of 1887 defines the land which has been let out for the purposes of agriculture or for purposes subservient to agriculture. The land within the meaning of Section 5 of the Act of 1887 is defined under Section 4 (1) of the said Act. To prove that the plaintiffs are in continuous possession of the land for the last thirty years produced on record copy of Jamabandi from the year 1939-40 to the year 2004-2005 in which the Regular Second Appeal No.557 of 2011 (O & M ) predecessor of the plaintiffs has been been shown in possession of the land as `gair marusi’ and paying rent of 57 paise and land is shown as cultivable. The defendants could not produce any documentary evidence to the contrary except the self serving oral statements of the witnesses produced by the defendants. The documentary evidence always prevails upon the oral evidence. Both the Courts below have held that the plaintiffs have been able to prove on record that the predecessor of the plaintiffs was in cultivating possession of the suit land on payment of nominal rent equal to land revenue and now the plaintiffs are in possession thereof. The land revenue has now been abolished by the Government. Learned counsel for the appellants, during the course of arguments, could not persuade me, by referring to any case law or by pointing out any material on record to show that the findings of fact recorded by both the Courts below are not based on proper appreciation of evidence, to take a different view than the one taken by both the Courts below. In the result, there is no substance in this appeal. The same is, accordingly, hereby dismissed Dated: February 11,2011. (MOHINDER PAL) JUDGE