77 1 7 RSA NoA59 of 1983 e IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSANoA59 of 1983 Dateofdecision 31032011 Ram Singhandothers Appellants Versus 0 0 LachhmanSinghand others I 0 I HONBLEMRJUSTICE JITENDRA CHAUHAN CORAM2 Z Present Mr GSJaswal Advocate for the m MlHSDhandi Advocate for the 0 Z Jitendra Chauhan Je aO The present has been filed by the 3 Z againstthe and decreepassedby the courts below holdingthat the are neitherowner nor in of thesuit land Brief facts of the case are that the filed a suit againstthe defendants for permanentinjunction the from interferingin the physicaland of the plaintiffs on the land measuring lOKlM bearingKhewat KhatoniN032173 Khasra No 21 situated in the abadhi deh of Village KurewalaTehsil JagadhriThe claimed that since time immemorial they are owners in of said land which was earmarkedas Abadi deh for them duringthe settlement It was further . uma 2012.05.20 02: 42 True Scanned Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 78 RSA NoA59 0f1983 2 A claimedthat defendantNol Lachman Singh someland in the from Dharam Singhand constructedhis residential house in the fleldswhere he has beenresidingalongwith his sons ie defendantsNo 2 to 4 The aerconnivingwith each othertried to W prevent the from raisingfurtherconstructionon the suit land The plaintiffsalso reported thematter to thepolice 0 0 The suit was contested by the defendants by filingvvrltten I statements and took stand that the entire villagewhich was Becharag C5 I to them and their The plaintiffNo l and Z the of plaintiffs No2 and 3 had occupancyrightsof certain landsowned by the different proprietorsWith the cominginto force of thePunjabOccupancy Tenants6vesting of PrprietaryRights9 Act 1953 I t these occupancy tenants becalne owners of their respectivelands by Z operation of law but theywere not made owners of the Abadiedeh or r shalnlatdeh and consequently in the Schemeof consolidation of holdings amo the plaintiffs recorded to have become Malkarkabza instead of Z were CL occupancy tenants The defendantsfurther took the stand that onlya year back the plaintiffs Nol and 2 settledon an area of 12Marlas as Rayyatts by the proprietorswhose individual fields were held by the plaintiffs as 7 occupancy tenant The defendantsalso took the pleathat no khasra 4 girdawariis recorded in respectof Abadideh but a change was brought in the khasra girdawarifor the khariff 1977 without any notice to the defendants From the of the partiesthe foilowing lSsues were framedby the leamedtrial Courtl 1 Whether the plaintiffsare owners in possessionof the . uma 2012.05.20 02: 42 True Scanned Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 79 9e RSANoA59 of 1983 3 A landin suit as allegedin para 1 oftheplaint2 OPP 2 If issue No is whether the suit is not in presentform2OPD 3 Relief 1 C The trial Court while declding1SSue No held that the 0 C0 plaintiffs are neither the owner nor in possession of the suit land and decidedthis theplaintiffsAs regards lSSue No issue C5 I the trial Court observedthat this issue did not arise in view of the Z findingsof above issues the leamed trial Court dismissedthe suit of the 2 plainti r Feeling by thejudgment of the leamed trial Court I an appeal Thoughthe appellate COUrt the Z differedthe findingsonsome of the matter recordedby the leamed CO trialCourt but in nutshell the learnedappellate court observedthat thereis Vm to suggestthat the have been in Z no cogent occupationofthewhole ofthe area ofthe villageabadtdeh and disinissedtheappealofthe Hence thepresentappeal Learnedcounsel for the has submittedthat they were Gair marusi tenants of the absentee landlords of Village Kurewala By Vlrtue of Section 30f the OccupancyTenants 6Vesting of RightslAct 19536Punjab Act No89all rightstitle and interest including the share in shamlatwith respectof the land concernedvested in them He has further submittedthat from Exhibit Pl Khasra Girdwari for Kharif 1979and Exhibit P2 for the year 1976977 it is clear . uma 2012.05.20 02: 42 True Scanned Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 80 1 A RSA NoA59 of 1983 4 1 A thatthe suit land is Gair marusi abadi It is also proved on recordthatonly the plaintiffswere residingIll abadi of the villageand Jagirdars were absenteelandlordswhich is apparentfrom Exhibit D5 which shows that at thetimeofconsolidation onlytwo housesexistedin the abadi The assenion of the is basedon the consolidation canied out ln the year 1952e53in which 18103M was shown as Ghair Mumkin 0 0 AbadieDeh As per the Fard Badar No Exhibit D16 land measuring lOK I 1M shown at serial no1 found in ofRam SinghSinghRam and O I Smt Parsanni Z The further submission is that the open site in Abadi used for 2 tethering cattle etc lS attachedto and this land was under the r TenancyAct or at leastunder Section30fthe PunjabVillageCommon Land I t Regulation9 Act 1961 Z Learned counselhas furtherargued that the oral evidenceof the OO plaintiffsis by the evidence It is proved on record m7 Z that onlytwo families were tenants in the villageSlnce inceptionof their tenancywhich is sufficientto prove that the were in possession ofthe entireabadideh On the other hand leamed counsel for the has subinittedthat the were in possession of Iand on which theyhaveraised their houses There 1S 11Oproofof the fact that entire land was undertheir possessionThe mere assertionthat the were tethering the cattle on which theyhad put up temporary sheds lSnota proofofthefact thattheywere in possession ofthe Iand It has furtherbeen submitted that it lS provedon record that no land for the 3ara was earmarked Therefore there was no questionof givingany Bara to the . uma 2012.05.20 02: 42 True Scanned Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 81 9 5 4 RSA NoA59of1983 As per thejamabadi for the year 194748 Exhibit D18 priorto the consolidation there was entryof the Abadi deh onlywhich was given a new KhasraNol IOKIM Learned counseIhasalso submitted thateven as for the year 196263 Exhibit D 16 Khasra No l m was shownas Gair mumkin Abadi belonging to abadi deh The same was t the positionin for the year 1971 which is clear from Exhibit 0 0 D19 Therefore Ieamedcounsel hasargued thatthere lS no proofon record I that the are in ofthe entireabadi deh C0 I I have heardthe leamed counsel for thepartiesand perused the recordwith their ableassistance Z m The facts of the presentcase are that the C of the villagenever resided in the village After the defendant No1 I t3 Lachhman Singh the land from one of the he Z constructedhis house lll the fields and not lIl the Abadiedeh It is also QO admittedfact that since very beginning occupancytenants were settledin the 7 villageby the Jagirdars who resided outsideand continued to do so These Z CL occupancytenants have been thorough out residingin the village The inhabitants were not givenany right to sell or mortgagethe Sites as 1S evidentfrom certified copy ofthe extract prepared in the year 188788 at the timeofsettlementwhich is Exhibit D6 As per Exhibit D5 therewere only two familiesresidingin the villageWho were previously occupancy tenants and were declared proprietorsof their own holdings There remains sufficient area tn the Abadiedehand as such no necessity havingbarasarose The original also did not want the baras No nolnproprietor is settled in the villageand in view of the same there 1Sno questionof givingany bara to them In the earlier for the year . uma 2012.05.20 02: 42 True Scanned Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 82 RSA No59 of 1983 6 194748Exhibit Dl 8 priorto the consolidation there was only entryof Abaddeh was given a new khasranumberas 21 and this earmarkedarea lS of lOK1M Even in Jamabandifor the year 196263 Exhibit Dl6 Khasra No21 was shownas gairmumkin abadi belonging to Abadiadeh and the same was thepositionin the Jamabandifor the year 1971 It is only ln the 0 for the year 197677 the names of Ram SinghSinghRam and 0 C0 Parshanniwere inserted and earlier to that there was no mention of their I naines in the khasragirdawaris for theperiodkharif 1972to Rabi 1977as ls 0 I evident from copy ofkhasra girdawariExD22 Z The question for determinationin the presentappealis whether the are in of the entire Khasra No 1 comprisingof lOKlM I 2 In Beant SinghVSa Mallo Singh1965 PunjabLaw Journalm Z 34 it was held as under Ol Under Section3 ofthe Punjaboccupancy Tenants 7 Z 6Vestingof Rights9Act 1952 the occupancy tenantshave becomethe owners ln the same measure and with the same rightsas the landlordswith the net result that whatever rightstitle and interest including the interest if any recognizedby any law custom or usage for the time beingin fOrCeand including the sharein the Shamilatwith respectto the land concernedwhich vested in the landlordsnow vests in the occupancytenants Theyhave ceasedto be tenants and have become clothed with alI the rightsof the proprietorunder whom they were occupancy tenants tenants have becomecolares with theproprietors . uma 2012.05.20 02: 42 True Scanned Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 83 el RSANo590f1983 7 A to the extent to wihich the had interest in the Shamilator the Abadi and can claim partition of the abadialongwith the otherlandlords 39 Shamilator the As per the claim of the they are ln m C of the entire Khasra No1 lOIlM whereas 0 0 havesubmittedthatthe were in possessiOn I ofonly OK12M From thereadingofExhibit D5 the entryprepared in the 0 I year196263 at the time of consolidationofholdingsthe occupancytenants Z were not foundto be in of the whole of the area of the Villae m abadiEven no Baras were carved out since sufflcient area was available ln order to establishtheir theyrelied on Khasra Girdawari I ExhibitP pertaining to Kharif 1977 JamabandiExhibit P2 pertaining to t Z year 197677 Badar Exhibit D9 vide which entriesin Jamabandi were CO correctedAs per Badar Exhibit D1 6 Khasra No l was found in 7 of Ram SinghSinghRam Parsani and on the basis of which Z On therevenue record was corrected However thereis no evidence on record that the were served any notice beforeeffectingthis changeThe Financial Commissioner has mode for effecting change in theexistingkhasraGirdawaries Accordingto instructions it was thedutyofthe patwaribeforemakingany changein theexistingentryat the tlme of harvestinspection he shall noti in writingin favour of the person likelyto be effectedby such a change ofthe entriesand retain on the record a proofof the notification and the changeeffected with attestation by the Lambardar or Panch of the village As per Exhibit D8 copy of the statement of Ram Singhmade before SDM Jagadhrithey were ln . uma 2012.05.20 02: 42 True Scanned Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 84 RSANo590f1983 8 A of the suit Iand since last threeyears It was also adnlittedby hlin thatearlier the sons of Mohinder Singhand DarbaraSinghhad madea chhanOshedlln the suit land which was removedby them and the suit Iand was got demarcatedabout threeyearsback when theycame to know thatthe W SUit land belongedto thein Another Ram Singhin his tr statement made before SDM Jagadhri Exhibit D 8 has stated that 0 0 Lachhtnan Singhaloong with othershad land in villageKurewala from Hazura Singhand Dharam Singh under whom the plalntiffswere C5 I Marusies These stateinents of the are in contradiction Z of theirpleadings thattheywere in of the land questionsince the 2 time iinlnemorial tr In view of the above thereis no evidence on record to show I r that the were the owners in possessionof the entIre Z abadl deh ie l OK M duringthe periodwhen theywere tenants of the Ql Originallandlords This fact 1S llOt provedHowever it 1S well provedthat 7 Z the are in ofonlyOl12M ofland on which Qe theyhave constructed their houses The defendantshave admitted the possession of the plaintiffsover OK 12M of Iandunderneaththeir houses Ill the written stateinent lt is held that the are in settled possesston over OK 2M of Iand only Where a person is m settled possessionof property even on the that he has no rightto remain in property he cannot be bythe owner except through the recourse to law The onlycorollarywould be that their possession could not be betterthan what was under the landlords under whom theywere nlarusles Therefore there lS 110 suftlcient record to prove the fact that the were in possession ofthe entireland of abadi dehexcept . uma 2012.05.20 02: 42 True Scanned Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 85 A RSA NoA59 of 1983 9 OK12M No substantialquestion of law arisesfor detennination in the secondappeal For the reasons mentioned above the instant appealis partly I allowed The judgnlents and decreepassedbythe couns below are modified to the extent that the will not be from the 00 land OY12M out ofKhasra Nol exceptin due course oflaw C5 I 312011 JITENDRA CHAUHANI mk l JUDGE Cr Z r Notel Whetherto be referredto the IN0 Ct CO Z Cr OO c 7 Z 9 40 7to . uma 2012.05.20 02: 42 True Scanned Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document