Ved Parkash And Others vs Union Of India on 13 October, 2009

RSA No.2333 of 2008                                                            1

IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH

                                R.S.A. No. 2333 of 2008
                                Date of Decision:October 13 , 2009



Ved Parkash and others                               ...........Appellants

                                Versus


Union of India                                       ..........Respondent



Coram:       Hon'ble Mrs. Justice Sabina

Present: Mr.Arun Jain, SeniorAdvocate with
         Mr.Sushil Kumar, Advocate for the appellants
         None for the respondent
                            **

Sabina, J.

Plaintiffs filed a suit for declaration with consequential relief

of permanent injunction. The said suit of the plaintiffs was dismissed by

the Civil Judge (Junior Division), Faridabad vide judgment and decree dated

17.9.2007. Aggrieved by the same, plaintiffs filed an appeal and the same

was partly accepted by the Additional District Judge(I) Faridabad vide

judgment and decree dated 7.4.2008 and the suit was decreed to the effect

that defendant is restrained from dispossessing the plaintiff from the suit

land without following the due course of law. Hence, the present appeal has

been filed by the plaintiffs.

The case of the parties, as noticed by the learned Additional

District Judge (I) in paras 2 to 4 of its judgment reads as under:-

“2.Briefly stated the facts of the present plaintiffs’ case as alleged

are that the plaintiffs are in cultivating possession of the suit land

situated in village Mujessar, Tehsil Ballabagarh, Distt. Fardiabad
RSA No.2333 of 2008 2

as tenants at Will at the rate of Rs.25.19 per annum since last 40

years. They are cultivating the suit land as tenants at nominal rent

and during this period the rent of the land in suit has never been

increased. Earlier father of the plaintiffs Shri Hukam Singh was

cultivating the suit land on the same terms and conditions and

presently the land is being cultivated by the plaintiffs. At the time

of inception of tenancy, it was agreed between the parties that the

plaintiffs and predecessor in interest shall never be dispossessed

from the suit land and nor the rent of the suit land shall be

increased. The plaintiffs have acquired ownership rights in the

land in suit by virtue of acquisition of occupancy rights, but the

defendant wants to dispossesses the plaintiffs without any right to

do so. Hence, the present suit was filed.

3.The respondent was ex-parte before the learned trial court as

well as before this court.

4. The plaintiffs/ appellants led their evidence in support of their

case and the learned trial court dismissed the suit with costs vide

impugned judgment and decree dated 17.9.2007

Learned counsel for the appellants has argued that the rights

of the plaintiffs had matured as occupancy tenants as the intention could be

inferred from the circumstances that the plaintiffs were not liable to be

ejected by the landlord. Learned counsel has placed reliance on Muni Ram

and others vs. Phullia and Lalu 1974 PLJ 369.

After hearing the learned counsel for the appellants, I am of

the opinion that this appeal is devoid of any merit.

Plaintiffs had filed a suit for declaration that they had
RSA No.2333 of 2008 3

become owner of the suit land by acquisition of occupancy rights under

Sections 5 and 8 of the Punjab Tenancy Act, 1887 (for short `the Act’).

Defendant-Union of India was proceeded ex-parte before the trial Court.

Plaintiffs led their ex-parte evidence in support of their case. Learned

Additional District Judge in the judgment has observed that as per entry

Exhibit P1, Khasra Girdwari, possession of the plaintiffs was reflected in

the suit land from Kharif 2003 onwards. Father of the plaintiffs was in

possession of the suit land as a tenant. Only a sum of Rs. 25.19 ps has been

recorded as `chakota’ and the same could not be treated as nominal rent.

Plaintiffs had failed to establish that the said amount was equal of the land

revenue or cess which was payable with regard to the suit land. Plaintiffs

had also failed to lead any documentary evidence with regard to the

payment of alleged nominal rent of `chakota’ or that they had deposited the

amount as land revenue or cess. Section 5 of the Act reads as under:-

“5. Tenants having right of occupancy.- (1) A tenant-

(a) who at the commencement of this Act has, for more

than two generations in the male line of descent through

a grand- father or grand- uncle and for a period of not

less than twenty years, been occupying land paying no

rent therefore beyond the amount of the land revenue

thereof and the rates and cesses for the time being

chargeable thereon,or

(b) who having owned land, and having ceased to be

landowner thereof otherwise than by forfeiture to the

Government or than by any voluntary act, has since he

ceased to be landowner continuously occupied the
RSA No.2333 of 2008 4

land,or

(c) who, in village or estate in which he is settled along

with or was settled by the founder thereof as a cultivator

therein occupied land on the twenty first day of

October, 1868, and has continuously occupied the land

since that date, or

(d)who being jagirdar of the estate or any part of the

estate in which the land occupied by him is situate has

continuously occupied the land for not les than twenty

years, or having been such jagirdar occupied the land

while he was jagirdar and has continuously occupied it

for not less than twenty years;

has a right of occupancy in the land so occupied, unless, in the

case of a tenant belonging to the class specified in clause(c), the

landlord proves that the tenant was settled on land previously

cleared and brought under cultivation by, or at the expense of, the

founder.

(2) if a 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 clause(a) of sub-section (1)

(3) The words in that clause denoting natural relationship denotes

also relationship by adoption, including therein the customary

appointment of an heir and relationship, by the usuage of a

religious community.”

RSA No.2333 of 2008 5

As per the same, a person can be treated as a occupancy tenant either if he is

paying the lease money equal of the land revenue or cess and further that he

is tenant over the suit property since last three generations. Plaintiffs had,

however, failed to prove their case.

The judgment relied upon by the learned counsel for the

appellants fails to advance the case of the appellants in the facts and

circumstances of the present case.

Learned District Judge rightly held that the plaintiffs had

failed to prove that they were in possession of the suit land since the time of

their grand father and `chakota’ amount was equal to rates and cesses for the

time being charged on the land. Hence, the present appeal is liable to be

dismissed.

No substantial question of law arises in this case which

would warrant interference by this Court. Accordingly, this appeal is

dismissed.

( Sabina )
Judge

October 13, 2009
arya