RSA No.2847 of 1984 [ 1 ] ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2847 of 1984 Date of decision:20.04.2011. Khacheru (dead) through his L.Rs. and others ...Appellants Vs. Mam Chand and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Alok Jain, Advocate, for the appellants. Mr. R.S.Mittal, Senior Advocate, with Mr. S.K. Tripathi, Advocate, for the respondents. ***** Rakesh Kumar Jain, J. The plaintiffs are in second appeal in a suit filed for declaration alleging therein that they are the tenants under the defendants over agricultural land falling in Khewat/Khatauni No.40/45, Killa No.30/11, 12/1, measuring 10 Kanals, situated in village Majheri, Tehsil Ballabgarh, District Faridabad, for the last more than 40 years at the rate of Bashran Malkan (equal to land revenue) as per jamabandi for the year 1975-76, from which they have never been evicted and there is an implied agreement between the predecessor-in- interest of the defendants that they will not dispossess them and despite the fact that value of the food-grains and goods of daily use have gone 40 times higher than the time when the tenancy was created, therefore, they have acquired occupancy rights in terms of the Punjab Occupancy Tenant (Vesting of Proprietary Rights) Act, 1953 [for short “the Act”]. It was alleged that Ram Karan (defendant No.14) was a licensee of the plaintiffs, which (license) was cancelled in the year 1965-66 and thereafter, the plaintiffs are in possession RSA No.2847 of 1984 [ 2 ] ****** under the defendants since the year 1968, but Ram Karan is bent upon to dispossess them from the land in dispute. It was also alleged that the plaintiffs had never mortgaged the tenancy rights to Ram Karan (defendant No.14) as such the entries in column No.9 of the jamabandis for the year 1954-55 and 1960-61, wherein it is mentioned as Bawajah Rahan Jabani, is wrong. Initially, the suit was filed by the plaintiffs for declaration and permanent injunction claiming themselves to be in possession, but later on it was amended on the ground that the possession has been taken by Ram Karan during the pendency and as such decree of possession was also claimed. In the written statement filed by defendant No.14, it was alleged that the Civil Court has no jurisdiction to grant occupancy rights which can only be granted by the Revenue Court. The plaintiffs are not the tenants under the defendants nor they are in possession of the land in dispute. It was denied that there was an implied agreement between the predecessor-in-interest of the defendants not to eject the plaintiffs. The learned Trial Court, however, has recorded that defendant Nos.1 and 7, namely Ram Chand and Mehar Chand had filed their written statement admitting the claim of the plaintiffs. On the pleadings of the parties, following issues were framed by the learned Trial Court: - “1. Whether the plaintiffs are tenants under the defendants and are in possession of the land as alleged?OPP. 2. Whether the plaintiffs have acquired occupancy tenancy right in respect of lands in their possession and whether there is a custom to that effect?OPP. 3. Whether the plaintiffs have become full-fledged owners under the provisions of Punjab Tenancy Act as alleged?OPP. 4. Whether the plaintiffs never mortgaged their tenancy rights to defendant No.14? If so to RSA No.2847 of 1984 [ 3 ] ****** what effect?OPP. 5. Whether this Court has got no jurisdiction to try this suit?OPD 14. 6. Whether the plaintiffs have no locus standi to file this suit?OPD 14. 7. Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction?OPD 14. 8. Whether the suit is not maintainable in its present form?OPD 14. 9. Whether defendant No.14 is entitled for special costs?OPD 14. 10. Relief.” Both the parties led their respective oral as well as documentary evidence in support of their case and after its due appreciation, the learned Trial Court dismissed the suit of the plaintiffs vide its judgment and decree dated 13.09.1983. The plaintiffs then filed appeal in which the learned First Appellate Court particularly dismissed the suit of the plaintiffs on the ground that the Civil Court does not have the jurisdiction and also, while deciding issues No.1, 2, 3 and 5, it was held that the plaintiffs have not acquired any occupancy rights in the land in dispute. In the present appeal, at the very outset, learned counsel for the appellants has challenged the finding of the learned First Appellate Court in respect of the jurisdiction of the Civil Court by referring to a Full Bench judgment of this Court rendered in the case of Shiv Charan V. Financial Commissioner, Haryana and others, 2004(3) P.L.R. 569 in which it has been held that in order to declare occupancy tenancy rights, the only way-out is to approach the Civil Court and not the Revenue Court. In view thereof, the first submission made by learned counsel for the appellants, regarding which no contrary judgment has been cited by learned counsel for the respondents, is accepted and the finding of the Courts below that the Civil Court does not have the jurisdiction is hereby reversed. RSA No.2847 of 1984 [ 4 ] ****** On merits, learned counsel for the appellants has submitted that the appellants have been in possession of the disputed land for the last more than 40 years on nominal rent and have never been evicted, therefore, they had acquired occupancy rights and have become the owners. He also submits that two of the defendants No.1 and 7 had filed their reply admitting the right of the plaintiffs, therefore, the suit qua their rights should have been easily decreed by the learned Courts below. On the other hand, learned counsel for the respondents has submitted that the case set up by the plaintiffs is itself contrary to an order passed by this Court in CWP No.2065 of 1968 (Ex.D2) because in that case, it was held that Ram Karan (defendant No.14) was neither a tenant nor a mortgagee, whereas he was sought to be evicted by the present plaintiffs on the ground that he was a tenant on the land in dispute and were successful before the Revenue Courts against which defendant No.14 had filed the writ petition which was allowed by this Court. In this regard, learned Trial Court has observed that even if it is assumed that Killa Nos.30/11 and 30/12/1 were allotted in lieu of old No.505, it is not proved that the plaintiffs have acquired occupancy rights because in the jamabandis for the years 1954-55 and 1960-61 (Ex.P3 and Ex.P2 respectively), Ram Karan (defendant No.14) is shown to be cultivating the suit land under the predecessor-in-interest of the plaintiffs on account of oral mortgage. Both the sides agree that entry of oral mortgage is wrong and now the plaintiffs have taken the stand that defendant No.14 was cultivating the land in dispute as a licensee which has not been proved to be correct because of the order Ex.D2 as they had taken the stand before the High Court that defendant No.14 was their tenant. The learned Appellate Authority, while discussing the issue of occupancy rights, has observed as under: - “10. As regards issues No.1, 2 and 3, it is enough to mention that neither party admit the mortgage entry as correct. Further the appellants got ejected respondent No.14 from the suit land claiming him as their tenant, but he filed Civil Writ Petition 2065 of RSA No.2847 of 1984 [ 5 ] ****** 1968 Ex.D2 titled Ram Karan V/s Financial Commissioner etc. Khacheru and Gangoli predecessors of appellants No.3 to 8 were arrayed as respondents therein and they took the stand that Ram Karan (respondent No.14) was their tenant. Their plea was negatived by the Hon'ble High Court and the possession of suit land was restored to Ram Karan on 03.06.1981. So Ram Karan is not a tenant. In the present suit they took the stand that Ram Karan is their licensee. But this stand was not taken in any earlier proceedings and is just an afterthought. There is no mention or evidence as to how the license was created and on what terms. Even that license was cancelled in the year 1965-66 as pleaded in para No.7 of the plaint. Thus, Ram Karan respondent who is in possession of the land since beginning has neither proved to be tenant under the appellants, nor he is in possession as mortgagee or their licensee. He is, thus, in possession of the land as owner/co-sharer in his own right. In the jamabandi pertaining to the year 1950-54 Gangoli and Khiali ½ share and Nain Sukh ½ share were shown as tenant Avval while Ram Karan was shown as tenant Doyam. The same position was mentioned in jamabandi Ex.P2 pertaining to the year 1960-61. In between the year 1968 to 1981, he remained out of possession due to wrong order of ejectment which was set aside by Hon'ble High Court and possession was restored to him. Thus, there is no question of the appellants claiming occupancy rights. So, finding of the learned lower Court on the aforesaid issues is affirmed.” Learned counsel for the appellants has though referred to various RSA No.2847 of 1984 [ 6 ] ****** jamabandi entries, but in all the entries they have been recorded to be as Gair Maurausi Avval and the land is shown to be in possession of Gair Maurausi Doyam, meaning thereby that they have never been shown to be in cultivating possession of the land in dispute on the basis of which they have asked for occupancy rights. As a matter of fact, no question of law much-less substantial has been raised in this appeal by learned counsel for the appellants except for reiterating the stand taken before the Courts below which has already been negatived by a concurrent finding of fact recorded by the Courts below. Insofar as the reply of defendant Nos.1 and 7 is concerned, even that cannot be believed as no-one has come forward thereafter to make a statement and nothing has been proved that it has been filed by the said persons. In view of the above discussion, I do not find any merit in the present appeal except for holding that the Civil Court has the jurisdiction to declare the right of occupancy but on merits the appeal is hereby dismissed, however, without any order as to costs. April 20, 2011. (Rakesh Kumar Jain) vinod* Judge