Regular Second Appeal No. 4316 of 2010 (O&M) 1 In the High Court of Punjab and Haryana, at Chandigarh. Regular Second Appeal No. 4316 of 2010 (O&M) Date of Decision: 2.8.2011 Mohan Lal …Appellant Versus Union of India and Another …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Kul Bhushan Sharma, Advocate for the appellant. Kanwaljit Singh Ahluwalia, J. (Oral) Civil Misc. No. 13018 of 2010 The present application has been filed for condonation of delay of 23 days in re-filing of the appeal. For the reasons stated in the application, the same is allowed. Delay of 23 days in re-filing of the appeal is condoned. Civil Misc. No. 13019 of 2010 The present application has been filed for making the deficiency in the Court fee good. For the reasons stated in the application, the same is allowed. The appellant is permitted to make good the deficiency in the Court fee. Regular Second Appeal NO. 4316 of 2010 Having failed in two rounds of litigation, the plaintiff has approached this Court by instituting the present regular second appeal. Regular Second Appeal No. 4316 of 2010 (O&M) 2 The plaintiff had preferred a suit for obtaining declaration that he is owner in possession of agricultural land measuring 3 kanals 2 marlas situated within the revenue estate of village Faridabad, Tehsil and District Faridabad, detail and description whereof has been given in the plaint. It was pleaded that the plaintiff was in possession of the property for a period of more than 50 years as gair marusi under the defendants. It is stated that possession of the plaintiff continued on the suit land as a tenant at will. There has been no attempt on the part of the defendants to evict the plaintiff. Even at the time when the plaintiff was inducted as a tenant, there was implied promise not to evict him. It was further averred that when the appellant/plaintiff was inducted as a tenant, the land was barren and uncultivable and it was due to hard work and labour deployed by the plaintiff that the nature of land had changed. A definite stand was taken by the appellant/plaintiff that by lapse of time, he had acquired occupancy rights over the suit land after the commencement of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953 (hereinafter referred to as “the Act”). Therefore, a declaration was sought that the plaintiff had become owner in possession over the suit property. Earlier, in the revenue record, name of Sohan Lal was written in the column of cultivator. The plaintiff had filed a suit to prove that he was in entire possession of the suit land. The said suit was decreed on 6.9.1988. The plaintiff had served a legal notice on 29.1.2004 calling upon the defendants to admit his claim qua the suit land as owner in possession thereof. Since the defendants denied title of the plaintiff, the present suit was filed. Upon notice, the defendants had caused appearance, filed Regular Second Appeal No. 4316 of 2010 (O&M) 3 written statement and raised various preliminary objections especially the maintainability of suit, locus standi of the plaintiff to file the suit and cause of action. It was further averred that the suit was barred by limitation. On merits, it was specifically pleaded that the plaintiff was in an unauthorized possession over the suit property. Therefore, acquiring of occupancy rights by the plaintiff was denied. It was further stated that the plaintiff/appellant had never obtained any permission from Custodian Department to remain in possession over the suit property. Therefore, he cannot be treated as a tenant over the property in question. After the completion of pleadings, the trial Court had drawn the following issues:- “1. Whether the plaintiff is entitled for a decree of declaration in his favour and against the defendant? OPP 2. Whether Civil Court has no jurisdiction to try and entertain the present suit? OPD 3. Whether present suit is bad for want of notice U/s 80 CPC? OPD 4. Whether present suit is barred on ground of limitation? OPD 5. Relief.” The plaintiff himself appeared as PW.1, whereas the defendants examined Charanjit Kumar, Naib Tehsildar (Sales), Faridabad, as DW.1. The plaintiff had also tendered into evidence various documents for consideration of the Court. The trial Court, after noticing contentions of the parties, held Regular Second Appeal No. 4316 of 2010 (O&M) 4 that the question for adjudication of the Court is “whether the plaintiff, as per the provisions of the Act, had acquired occupancy rights over the land in question? The trial Court had further noticed that under Clause 2 of Section 5 of the Act, a tenant, who proves that he is continuously in possession over the land for more than 30 years and has paid no rent beyond the amount of the land revenue thereof can be presumed that he has fulfilled the condition of Clause (a) to Sub Section (1) of Section 5 of the Act. The trial Court has further held that under the provisions of the Act, a tenant, for acquiring occupancy rights, has to prove not only as a tenant but also that he is liable to pay the rent for the said land. The Court has further held that the legal requirement that the possession of tenant should be under the rights to possess it. A person, who fails to come within the definition of tenant, as prescribed under Section 4(5) of the Act, is not entitled to the relief. Therefore, the trial Court has held as under:- “17...The condition of clause (a) of Section 5 can be taken as satisfied if the tenant is occupying land continuously for thirty years and paid no rent thereof. Now question arises whether plaintiff has acquired occupancy rights in the light of Section 5 of Punjab Tenancy Act. Admittedly, neither the plaintiff nor his grand father or grand uncle has been in possession over the land in question on the date when Punjab Tenancy Act came into force nor such pleading has ever been mentioned by plaintiff in his plaint. Resultantly, acquiring occupancy rights qua Regular Second Appeal No. 4316 of 2010 (O&M) 5 the land in question in the light of Section 5 of Punjab Tenancy Act do not arise at all in favour of the plaintiff. As far as the question of acquiring occupancy rights otherwise as discussed in Section 8 of Punjab Tenancy Act is concerned, plaintiff do not seem to me as having acquired occupancy rights at ever either at the time of coming into force the Punjab Tenancy Act or lateron including the day when present suit was filed...” The Court further held that in the column No.9 of jamabandies Ex.P1 to Ex.P6 and Ex.P8 to x.P12, the possession of the plaintiff has been noticed to be an unauthorized as in the jamabandies it has been specifically stated as “Najaayaj Kasht”. Therefore, neither the tenancy was created by the defendants in favour of the plaintiff nor any terms & conditions were fixed for making liable the plaintiff to pay the rent. Therefore, the Court held that the appellant/plaintiff has failed to prove his case that he is a tenant over the land in question and has acquired occupancy rights under the provisions of the Act and further became owner within the provisions of the Act. Thus, issue No.1 was decided against the plaintiff and in favour of the defendants. The Court decided issue No.2 in favour of the plaintiff holding that the Civil Court is competent to try and entertain the suit. Issues No.3 and 4 were decided in favour of the plaintiff as not pressed by the defendants. In view of the observations made above, the trial Court had dismissed the suit. The lower Appellate Court had affirmed the findings of the trial Court and observed that the possession of the plaintiff is recorded as illegal and Regular Second Appeal No. 4316 of 2010 (O&M) 6 the land is unallotted. The lower Appellate Court further held that the land which has not been allotted cannot be termed as evacuee property. The lower Appellate Court had also declined the contention raised by learned counsel for the appellant/plaintiff that after the Muslims migrated to Pakistan, the land had become evacuee property. The Court further held that the plaintiff had failed to prove any allotment letter and furthermore has also not examined any witness to say as to how he came into possession over the suit land. The Court further held that the land vested in Union of India and remained under the domain of the Rehabilitation Department being evacuee property. Mr. Kul Bhushan Sharma, Advocate, appearing for the appellant/plaintiff, has assailed the concurrent findings returned by both the Courts below that the appellant/plaintiff is in unauthorized possession over the suit land. It was contended by Mr. Sharma that the State of Haryana in the year 1971-72 had exempted the land revenue. Therefore, both the Courts below after considering the fact that from the jamabandi for the year 1969-70 in the column of land revenue, the lagan has been mentioned as 8 guna (8 times), which was at the rate of ` 7.32 paise per year. After 1970-71, the column of land revenue was abolished. The finding that the appellant/plaintiff had not paid the rent is erroneous. Both the Courts below, after considering the legal position, have held that the appellant/plaintiff failed to prove himself as a tenant under the Act being a gair marusi tenant and he is not entitled to the declaration that he is a tenant under the Act. A reliance has been placed upon Puran and Others v. Gram Panchayat, Faridabad 2006 (2) Supreme Court Cases 433 wherein Hon'ble the Apex Court has Regular Second Appeal No. 4316 of 2010 (O&M) 7 held that the right, title and interest shall be deemed to vest only in an occupancy tenant. Occupancy tenant is defined under Section 2(f) of the Act, as meaning a tenant who, immediately before the commencement of the Proprietary Rights Act, is recorded as an occupancy tenant in the revenue records and includes a tenant who, after such commencement, obtains a right of occupancy in respect of the land held by him whether by agreement with the landlord or through a Court of competent jurisdiction or otherwise. In the present case, neither there is an agreement with the landlord nor a mandate of Court of law of competent jurisdiction. Thus, no fault can be found with the findings returned by both the Courts below. It has been held in Jaleb Khan and Others v. Commissioner, Gurgaon Division, Gurgaon and Others 2009(4) Recent Civil Reports 385 and Joginder Singh and Others v. The Deputy Commissioner, Kurukshetra and Others 2010(4) Recent Civil Reports 425 that only a Marusi tenant can claim ownership under the Vesting Act and the Gair Marusi tenant is not entitled to the same. Thus, learned counsel for the appellant/plaintiff has failed to lay any basis for which this Court should differ with the findings returned by both the Courts below. Hence, no question of law, much less a substantial one, has been raised by learned counsel for the appellant/plaintiff during the course of arguments. Thus, there is no merit in the present appeal and the same is hereby dismissed. (Kanwaljit Singh Ahluwalia) Judge August 2, 2011 “DK”