RSA No.4071 of 2008 - 1 - ***** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4071 of 2008 Date of decision:14.09.2010 Smt. Shakuntala and another ...Appellants Versus Satbir and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. C.B.Goel, Advocate, for the appellants. ***** RAKESH KUMAR JAIN, J. The plaintiffs are in second appeal against the judgment and decree of the learned First Appellate Court by which judgment and decree of the learned Trial Court has been reversed. The plaintiffs filed the present suit for declaration to the effect that they have acquired occupancy rights over the land bearing Khewat No.218/214, Khatauni No.539, Khasra No.911(2-19) and 930 (5-2) [hereinafter referred to as the “property in dispute”] in view of Section 5(2) and 8 of the Punjab Tenancy Act, 1887 [for short “the Act”] as they have acquired right of ownership in terms of Section 3 of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 [for short “Act of 1952”] because the plaintiffs have been recorded in the column of cultivation as “Gair Maurisi Bashare Parata Malkana Billa Malkana”. The case set up by the plaintiffs is that they are in possession of the property in dispute, which is owned by Shamilat Pana Bichla of village Nangal Kalan for the last more than 60 years/three generations without interruption and without paying any rent, therefore, they have acquired occupancy rights in view of the provisions of the Act and also of the Act of 1952. It was also alleged that they were earlier recorded as co-sharers and when the other co-sharers had filed a case for partition RSA No.4071 of 2008 - 2 - ***** before the Revenue Court, the plaintiffs had taken an objection that they have been wrongly recorded as co-sharers as they have been cultivating the land as “Gair Maurisi Bashare Parata Malkana Billa Malkana”. It is also alleged that the said entry was corrected by the Commissioner, Rohtak Division vide order dated 10.06.1999. The suit was filed by the plaintiffs by impleading four defendants and Shamilat Pana Bichla which was sued through its representatives in terms of Order 1 Rule 8 of the Code of Civil Procedure, 1908 [for short “CPC”]. Defendant Nos.1 to 4 filed admitted written statement and no-one had appeared on behalf of the other proprietors of the Shamilat Pana Bichla, therefore, the learned Trial Court decreed the suit of the plaintiffs on the ground that the predecessors-in- interest of the plaintiffs have been cultivating the property in dispute having old khasra numbers which were changed as per Misal Hakiat for the year 1957-58 (Ex.P6/B). They have not been paying any lagan or rent to the proprietors of Shamilat Pana Bichla, therefore, in terms of Section 8 of the Act if a person is continuing as Gair Marusi without payment of rent or lagan for the last more than 30 years, presumption can be drawn that he has acquired occupancy rights in the suit property. On the other hand, the learned First Appellate Court has allowed the appeal of the defendants, namely 17 residents of village Nangal Kalan (proprietors of Shamilat Pana Bichla) on the ground that a bare look at list of proprietors of Shamilat Pana Bichla shows that at serial No.263 and at serial No.273 the names of the plaintiffs, namely Shakuntala and Ramo respectively, are recorded as co-sharers. It was, thus, observed that the plaintiffs cannot be co-sharers and tenants simultaneously and as such, it was not believed that they have been cultivating the suit property as tenants and had perfected their right to obtain a declaration of ownership under Section 3 of the Act of 1952. The First Appellate Court had, thus, allowed the appeal of the defendants. In the present appeal, learned counsel for the appellants has basically referred to the findings recorded by the learned Trial Court in their favour and has alleged that the plaintiffs have fulfilled the conditions RSA No.4071 of 2008 - 3 - ***** enumerated under Sections 5 and 8 of the Act and are thus entitled to a decree of ownership. I have heard learned counsel for the appellants and perused the record carefully. The term “occupancy tenant” is not defined in the Act. It is defined in Section 2(f) of the Act of 1952, which reads as under: - “2. Definitions. -- (a) to (e) xxx xxx xxx (f) “occupancy tenant” means a tenant who, immediately before the commencement of this 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, and includes also the predecessors and successors in interest of an occupancy tenant.” According to the aforesaid definition, if a person is recorded as an occupancy tenant in the revenue records before the commencement of the Act of 1952, which came into being on 15.04.1953, then, as per Section 3 of the Act of 1952, from the appointed day, which is also defined under Section 2(a) of the Act of 1952 to mean that a person who is recorded as an occupancy tenant of any land in the revenue records on the 15th day of June, 1952 or the date on which a tenant obtains a right of occupancy in any land after the commencement of the Act of 1952, all rights, title and interests including the share in the shamilat deh of the landlord in the land held by him by an occupancy tenant, shall be extinguished, and such rights, title and interest shall be deemed to vest in the occupancy tenant free from all encumbrances, if any, created by the landlord. RSA No.4071 of 2008 - 4 - ***** Thus, in the present case, admittedly, the appellants are not recorded as occupancy tenants on the appointed day i.e. 15th day of June, 1953, therefore, they cannot claim automatic vesting of occupancy rights in their favour in terms of Section 3 of the Act of 1952. In the other circumstance, where a tenant 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, then, in terms of Section 3 of the Act of 1952, he would have the right of ownership in the said land. In order to prove right of occupancy under the Act, the plaintiffs have to prove the provisions of of Section 5 and 8 of the Act. Section 5(a) talks of cultivation of the land by two generations in the male line of descent through a grandfather or granduncle 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 and as per Section 5(2) of the Act, if the 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 Section 5(a) of the Act. In the present case, however, it has been found by the learned First Appellate Court that in the list of proprietors of the shamilat pana bichla (Ex.P3), both the plaintiffs have been recorded as co-sharers at serial No.263 and serial No.273 respectively, therefore, it has been rightly held that a co-sharer cannot be a tenant simultaneously and further claim his ownership on the basis of being an occupancy tenant. The upshot of the entire discussion is, thus, leads to the conclusion that the appellants have no case on merit and as such, the same is hereby dismissed. No costs. September 14, 2010. (RAKESH KUMAR JAIN) vinod* JUDGE