IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
RSA No.741 of 1990
Date of Decision : 19.12.2013
Gram Panchayat Dadam
.......... Appellant
Versus
Des Raj (deceased) through his legal representatives & Ors.
...... Respondents
CORAM: HON'BLE MR. JUSTICE SURINDER GUPTA
Present: Mr. Anil Rathee, Advocate and
Mr. Sumit Sangwan, Advocate
for the appellant.
Mr. Sanjay Vashisth, Advocate
for the LRs of the respondent.
SURINDER GUPTA, J.
The land comprised in Khewat No. 144 Min Khatoni No. 195 Muraba No. 108 Killa No. 4(6-8), 7(8-0), 14(8-0), 17(8-0), 5(6-8), 6(8-0), 15/1(3-16), 16/2(3-16), 8(8-0) total measuring 61 Kanal-8 Marlas is owned by Gram Panchayat Dadam, Teshsil and District Bhiwani. Des Raj respondent/plaintiff filed a suit for permanent injunction to restrain the appellant- Gram Panchayat from interfering in his possession with the averment that his possession over the suit land is as a tenant and he cannot be dispossessed by the Gram Panchayat.
Defendant-Gram Panchayat disputed the possession of plaintiff over the suit land as tenant. It has been averred that the land was being leased out from time to time to different persons. In 1985-86 it was leased to Rajmal son of Chandgi and Kurda son of Nand Ram for lease money of `325/- and ` 425/- respectively. In the year 1986-87 the suit land could not be leased out due to the wrong entries in the name of plaintiff.
Pleadings of the parties led to the framing of following issues :-
"1. Whether the plaintiff is in possession of the suit land as tenant gair marusi ?OPP2. Whether suit is not maintainable in its present form?OPD3. Whether plaintiff is estopped by his act and conduct to file the present suit ?OPD4. Whether the plaintiff has suppressed the material facts and has not come to the Court with clean hands?OPD5. Whether the defendants are entitled to special costs under Section 35-A CPC, if so how much?OPD6. Relief."
On issue No. 1 the trial Court held the possession of plaintiff over the suit land but his plea of relationship of landlord and tenant in between the parties was declined. The findings on issues No. 2 to 5 were recorded against the defendant and suit of the plaintiff was decreed restraining the defendant- Gram Panchayat from dispossessing the plaintiff from the suit land except in due course of law.
Both the parties preferred appeal against the judgment and decree of the trial Court before the Additional District Judge, Bhiwani. The first Appellate Court reversed the findings of the trial Court that the possession of plaintiff Des Raj over the suit land was unauthorised, rather it was held to be as tenant under the Gram Panchayat. The appeal filed by the Gram Panchayat was dismissed while the appeal filed by plaintiff Des Raj was accepted.
Not satisfied, the Gram Panchayat has come with the present regular second appeal.
Learned counsel for the appellant has argued that the substantial questions of law as involved in this appeal are:-
(i) As to whether mere entry in the revenue record can be looked into without any corroboration to hold the possession of plaintiff as tenant over the suit land?(ii) Whether the observations recorded by the first Appellate Court that plaintiff is in possession of the suit property as tenant since long is based on misinterpretation of evidence and perverse?
The first Appellate Court has misinterpreted the documents on file and recorded the findings against facts. Though the scope of interference in regular second appeal on the finding of fact recorded by the first Appellate Court is very limited but in order to meet the ends of justice the documents on file can be looked into if the findings of the appellate Court are perverse and against the facts proved on file.
Learned counsel for the respondent has argued that in the revenue record the respondent/plaintiff is recorded to be in possession of the suit land as Gair Marusi (tenant at will). Earlier the forefathers of the respondent were in possession. The Gram Panchayat has failed to prove that at any point of time, the land was leased by it to any villager. The entries in the jamabandies carries the presumption of truth which no doubt are rebuttable. Appellants have not produced any evidence to rebut the presumption of truth attached to the entries in the jamabandies. The First Appellate Court has rightly observed the possession of the plaintiff as tenant.
In this case the trial Court after the perusal of the evidence and pleading held the possession of the plaintiff over the suit land as unauthorised with the observation that the plaintiff failed to prove the payment of rent or Batai to the Gram Panchayat rather he admitted that he never paid Batai (share of produce) to the Gram Panchayat. The first Appellate Court while reversing the findings of the trial Court made certain observations enumerated as follows :-
"(ii) In addition to this, the revenue records, which has been placed on the file by plaintiff Des Raj is copy of jamabandi 1939-40 Ex. P-2, Copy of jamabandi 1943-44 Ex. P3, copy of jamabandi 1951-52 Ex. P4, copy of jamabandi 1955-56 Ex. P5, copy of jamabandi 1959-60 Ex. P7, copy of jamabandi 1962-63 Ex. P8, copy of jamabandi entry 1965-66 Ex. P9, copy of jamabandi 1970-71 Ex. P10, copy of jamabandi 1975-76 Ex. P11 and then copies of khasra girdawari entries from 1976 to 1985 Ex. P12, Ex. P13 all show that plaintiff Des Raj has been coming in cultivating possession of the suit land as a tenant "gair Mourussi".(iii) As per jamabandi entry Ex. P7 1962-63, his possession has been recorded as gair mourussi on payment of Rs. 26/- per annum; as per jamabandi entries 1962-63 Ex. P8, his possession has again been repeated as gair mourussi on payment of Rs. 42.50 paise per year. As per jamabandi entry 1965-66 Ex. P9, his possession has again been recorded as a gair mourussi on payment of chakota of Rs. 87/- per year and thereafter jamabandi 1970-71 is silent about making payment of rent, however, he has been continuously recorded as a gair mourussi upto date.(iv) Gram Panchayat has failed to produce on file t he record of auction in support of its plea that the suit land was leased out to Des Raj."
In regular second appeal this Court is not supposed to interfere with the finding of fact recorded by the Courts below and has only to decide the substantial question of law arising in the appeal but where the findings of the Courts below are based on misinterpretation of the evidence or are perverse, there is scope for interference in regular second appeal. Reference in this regard can be made to the observations of the Hon'ble Supreme Court in case Kashmir Singh v. Harnam Singh & Anr. AIR 2008 SC 1749 as follows :-
"16. The principles relating to Section 100, relevant for this case, may be summarized thus :-(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document,it gives rise to a question of law.(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.17. The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not a absolute rule. Some of the well recognized exceptions are where (I) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence,but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
The first Appellate Court reversed the findings of the trial Court that the possession of plaintiff over the suit land is unauthorised with its finding that the plaintiff is in possession over the suit land as tenant. Reliance was placed on the entries in the revenue record i.e. jamabandies for the years 1939-40 (Ex. P-2), 1943-44 (Ex. P-3), 1951-52 (Ex. P-4), 1955-56 (Ex. P-5), 1959-60 (Ex. P-6), 1962-63 (Ex. P-7/P8), 1965-66 (Ex. P-9) to record its observations that all the above entries in the revenue record prove that Des Raj is recorded in possession of the suit land as a tenant "Gair Marusi".
On perusal of the jamabandi for the years 1939-40 to 1965-66 (Exhibit P2 to P9), I find that observations of the First Appellate Court are not only erroneous, but also contrary to the contents/entries in these jamabandies.
Entries in the Jamabandies Ex. P-2 to P-9 are as follows:-
(i) Jamabandi for the year 1939-40 (Ex. P-2) relate to the land bearing Khasra No. 143 (20-0) and 144(4-0). As per entry in column No. 4 the land vest in 'sham lat deh hasad rasad khewat'. In column No.5 Sunder has been recorded as the mortgagor and Sheo Ram and others as mortgagees and Data Ram son of Shiv Lal is recorded as in possession under mortgagor. In column No.9 the land has been shown as on annual Chakota of ` 3/- 'Bar Khadi Padi'.
(ii) In jamabandi for the year 1943-44 (Ex. P-3) ownership of the land of Khasra No. 143 Min and 144 Min has been recorded in the name of Shamlat Deh Hasad Rasad Jar Khewat in possession of Sheo Ram and others through Data Ram as cultivator.
(iii) In the jamabandi for the year 1951-52 (Ex. P-4) similar entries have been recorded in column No. 5 and 9 except that sons of Data Ram namely Des Raj, Dhan Raj and Bir Singh have been recorded in cultivating possession of the suit land in equal shares as Gair Marusi.
(iv) In the jamabandi for the year 1955-56 (Ex. P-5) in column No.5 Gram Panchayat has been recorded as owner of the land bearing Khasra Nos. 143(20-0) and 144(9-0). In column No. 5 the entries recorded in the earlier jamabandies continued.
(v) In the jamabandi for the year 1959-60 in column No. 4 Panchayat Deh is recorded as owner and Des Raj son of Data Ram in possession of land bearing Khasra No. 143 (33-15) and the status of possession of Des Raj has been recorded as Gair Marusi.
The plaintiff is Des Raj son of Data Ram. No benefit of the entries in the above referred jamabandies can be taken by the plaintiff for the reasons :-
(i) He is nowhere recorded in exclusive possession of the land of Khasra Nos. 143 & 144.(ii) The area of land of these two khasra numbers in jamabandies up to 1959-60 do not tally with the area of suit land.(iii) It was for the first time in the jamabandi for the year 1959-60 that the entry of possession has been recorded in the name of Des Raj s/o Data Ram as Gair Marusi and in column No. 9 there is no mention regarding the terms of tenancy and the rent payable.
(iv) None of the above khasra numbers falls in the suit land or has been connected with it.
(It has been fairly conceded by learned counsel for the respondents that the land bearing khasra no. 70/17, 24, 93/4 measuring (32-0) as shown in jamabandi for the year 1962-63 (Ex.P7) is not connected with the suit land, as such, need no reference).(v) The jamabandi for the year 1962-63 (Ex.P8) pertain to khasra No. 108/5(6-18), 16/2 (3-16), 6(8-0). In the column of possession name of Dhan Raj son of Data Ram has been recorded as in possession. The above khasra numbers form part of the suit land and the name of plaintiff is no where recorded in this jamabandi.(vi) Jamabandi for the year 1965-66 (Ex.P9) pertain to the land bearing khasra No. 70/24(8-0), 108/5(6-18), 6(8-0), 15/1(3-16) and 16/2(3-16). Again khasra No.70/24 is not the part of the suit land. Out of the remaining land only 22 Kanals is the part of the suit land as the land of Khasra No. 108/5 recorded in jamabandi for the year 1962-63 and 1965-66 is 6Kanal-18 Marlas while the suit land is 6 Kanal-8 Marlas.In this jamabandi in column No. 5 Des Raj son of Data Ram "Gair Marusi" has been recorded in possession and in column No.9 annual Chakota has been recorded as 87/-.
The entries in the jamabandi as discussed above, nowhere proves the case of plaintiff that he and earlier to him his ancestors were in possession of the suit land as tenant. It was for the first time in the jamabandi for the year 1965-66 that possession of plaintiff over 22 Kanals of suit land has been recorded as Gair Marusi. The mere mention of the possessionof plaintiff as Gair Marusi does not imply that he was in possession of 22 Kanals of land out of the suit land as tenant under the Gram Panchayat. He has not produced any document to prove that Gram Panchayat Dadam inducted him as tenant.
The first jamabandi which has been produced by the plaintiff pertaining to the whole suit land is for the year 1970-71. In column No. 4 of this jamabandi Panchayat Deh is recorded as owner and the plaintiff as in possession 'being the resident of the village Dadam'. Nowhere in this jamabandi the possession of plaintiff was recorded as tenant or the terms tenancy have been mentioned. To similar effect are the entries in the jamabandi for the year 1975-76 (Ex. P-11). The possession of plaintiff over the suit land has been recorded as Gair Marusi Gramwasi. This entry was repeated in the jamabandi for the year 1980-81.
The question which arises for consideration is as to how and on what basis the plaintiff can claim to be a tenant over the suit land, particularly when there is no evidence of payment of rent by him. There is no documentary evidence to show that he was ever inducted as tenant by the Gram Panchayat. In the jamabandi for the year 1970-71 produced by the plaintiff, his possession over the suit land was recorded as 'resident of the village'. In the jamabandi for the year 1975 his possession was recorded as Gair Marusi Gramwasi and there is no evidence as to how this entry of Gair Marusi has been incorporated in the jamabandi. The evidence produced by the Gram Panchayat that it has been leasing the land on annual basis to different persons has not been relied upon by the trial Court and also the first Appellate Court, still plaintiff on the strength of the evidence produced on file has failed to prove his possession as tenant under the Gram Panchayat.
The plaintiff while appearing as PW-4 has stated that he is in possession over the disputed land as tenant. He has been paying ` 70/- per annum as rent. No receipt regarding payment of the rent or share of produce has been produced on file. There is neither any pleadings nor document or evidence that the plaintiff was ever inducted as tenant over the suit land by the Gram Panchayat Dadam under Rule 6 of the Punjab Village Common Land (Regulation) Rules, 1964 (as applicable to Haryana).
The plaintiff had filed the suit for injunction and it was for him to stand on his own legs and prove the plea taken by him. Even if the entire evidence produced by defendant-Gram Panchayat be ignored still there was no basis for the first Appellate Court to record the finding that the possession of plaintiff over the suit land is proved to be as a tenant and there was no cause and convincing reason for the first Appellate Court to reverse the finding of the trial Court that the possession of the plaintiff is unauthorised. Reliance has been placed by the first Appellate Court on the entries in the jamabandies Ex. P-2 to P-7 without connecting the same with the suit land. The finding that entries in jamabandi Ex.P2 to P7 (From the year 1939-40 to 1962-63) show that 'plaintiff Des Raj has been coming in possession of suit land as tenant 'Gair Marusi'' is against the record and result of misinterpretation of evidence on file. The mere mention of payment of Chakota @ ` 87/- per annum in the jamabandi for the year 1965-66 (Ex. P-9) which pertain only to 20 Kanals of land out of the suit land, do not prove that the possession of the plaintiff as a tenant. In neither of the subsequent jamabandies such term is incorporated qua the suit land. The observations of the first Appellate Court that Des Rajhad been paying Chajkota @ ` 87/- per annum upto the year 1965-66 as mentioned in the jamabandi Ex. P-9 is also not supported by any documentary evidence. It has further been observed that the entries of payment of Lagan were also repeated in Ex. DW/3 income register of Gram Panchayat Dadam. Here also the First Appellate Court has gone wrong and misinterpreted the evidence. DW-1 Hoshiar Singh, Sarpanch has produced on file two documents which are Ex. DW1/A, receipt of lease money from Des Raj-plaintiff dated 30.6.1968 and the second is DW1/B photocopy of the entries in the register for the year 1967-68 of auction proceedings for the crop of Kharif and Rabi. The head note of the register describes the entries made therein as "relating to auction of land for cultivation for one year (1967-68)for crop of Kharif and Rabi". Names of 15 persons have been recorded who gave bid for the land of Khasra No.108. The name of plaintiff Des Raj son of Data Ram is recorded as bidder at No. 9. He gave bid of ` 145/- but the lease was finalized for highest bid of `158/-. There was no document as mentioned in para 12 of the judgment of the Appellate Court exhibited as DW1/3. No such document has come in the statement of DW1 Hoshiar Singh-Sarpanch. It appears that first Appellate Court has made reference to document Ex. DW1/B considering it to be income register of the Gram Panchayat without going through the contents of the same.
It transpires from the discussion above that the First Appellate Court has not only drawn wrong inference from the documents placed on file but also wrongly recorded findings that the plaintiff is a tenant on the suit land under the Gram Panchayat. The mere fact that the possession of the plaintiff over the suit land has been recorded as "gair marusi gramwasi' (tenant at Will being resident of village) do not prove that the plaintiff was ever inducted as tenant over the suit land by the Gram Panchayat.
In the case Sita Ram etc. vs. Gram Panchayat Ismaila etc. reported as 2008 (1) L.A.R 358 Division Bench of this Court observed as follows :-
"..... The other contention is that the petitioners are recorded as 'Gair Marusi Billa Lagan Bawajah Sabika Hissedari' is also of no significance as it is well known and accepted practice amongst the revenue officials that whenever a person other than the real owner is to be shown in possession, he is invariably recorded as 'Gair Marusi' (tenant at will of the owner). Such entry, however, does not confer any right on the petitioners."
In case Rulhu Ram vs. Than Singh and others reported as 1966 P.L.J. 260 it was observed by this Court as under :-
"..... It is well known that the revenue authorities when they find a person in possession of the land without any right normally record him as a tenant irrespective of the fact whether he is a tenant or not. Non payment of rent negatives existence of relationship of landlord and tenant. This was so held in Kanwar A. Ahmed Khan v. The Union of India (1954 P.L.R. 468)."
Payment of rent is a necessary ingredient to determine the relationship of landlord and tenant. In this case, the column of payment of rent has been left blank, in jamabandies for the years 1970-71 (Ex.P10), 1975-76 (Ex.P11), 1980-81 (Ex.P13), pertaining to suit land. This reflects that the plaintiff was not paying any rent. Payment of rent is necessary to create relationship between the landlord and tenant and this fact has been authoritatively held by Hon'ble Supreme Court in case of Natha Singh and others vs. The Financial Commissioner, Taxation, Punjab and others, 1976 PLJ 293.
There is a catena of decisions of this Court in which the same view has been taken. Some of those are Rulhu Ram vs. Than Singh and others (1966 PLJ 260), Ram Karan vs. The Financial Commissioner and others (1980 P.L.J. 295), Jagjit Singh vs. Financial Commissioner, Haryana and others (1981 PLJ 367) and Jasmer Singh Bhatti vs. State of Punjab (1989 PLJ 288).
In the absence of any evidence that the respondent/plaintiff had been paying rent to the Gram Panchayat Dadam or his tenancy was renewed from time to time, the First Appellate Court has committed grave error of law and fact while recording finding that the plaintiff is in possession of the suit land as tenant. There was no evidence to corroborate the plea taken by the plaintiff and the entries in the jamabandi recording his possession as 'gair marusi'.
The Hon'ble Supreme Court in the case of Jagpal Singh and others vs. State of Punjab and others AIR 2011 (SC) 1123 has issued directions to the State Governments in the country to remove all unauthorized occupants over the land of Gram Panchayat. The directions given in para No.22 of the judgment are as follows :-
"22. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land."
In the instant case, the observations of the First Appellate Court reversing the findings of Trial Court on issue No.1 are not tenable and the same are set aside. Both the substantial questions of law are decided in favour of the appellant.
Consequently, the appeal is accepted; judgment and decree passed by the First Appellate Court is set aside and that of Trial Court is restored.
The respondent/plaintiff has enjoyed the possession and usufruct of the suit land for the last more than 26 years without payment of any rent or share of produce despite the fact that he is in unauthorized possession of the same.
Keeping in view all these facts and the nature of the land, which is recorded as 'Tibba', but the crop of 'Bajra', 'Chana' and others were being cultivated over it, a lump sum amount of `10 lacs (Rupees ten lacs only) is fixed as mesne profits from the date of filing of this appeal till the date of decision, payable by the respondent-plaintiff within a period of three months from today failing which he will be liable to pay interest @ 9% per annum.
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