C.W.P No.1155 of 2008 1
In the High Court of Punjab and Haryana, Chandigarh.
C.W.P No.1155 of 2008
Date of Decision: 18.12.2008
Janak Raj and others
....Petitioners.
Versus
State of Haryana and others
....Respondents.
Coram:- Hon'ble Mr.Justice J.S. Khehar
Hon'ble Ms. Justice Nirmaljit Kaur
Present: Mr. Ramesh Sharma, Advocate
for the petitioners.
Ms. Ritu Bahri, DAG, Haryana
for the State.
Mr. Mahavir Sandhu, Advocate
for respondents No.5 to 9.
...
J.S. Khehar, J. (Oral).
The case set up by the petitioners before us is, that the
petitioners’ predecessors in interest entered into an agreement to sell dated
7.12.1979, wherein the property in question (over which the petitioners’
predecessors were tenants) was sought to be purchased by the petitioners’
predecessors from Ram Piari and Bhagwan Dass. Ram Piari and Bhagwan
Dass, however, admittedly did not transfer the ownership of the land in
question by executing any registered sale deed in favour of the petitioners’
predecessors. The petitioners’ predecessors, therefore, filed a civil suit at
Karnal. In the aforesaid civil suit filed by the petitioners’ predecessors, they
claimed specific performance of the agreement to sell dated 7.12.1979.
C.W.P No.1155 of 2008 2
The claim raised by the petitioners’ predecessors on the basis of
the agreement to sell dated 7.12.1979, was dismissed by the trial Court at
Karnal, by a judgement/decree dated 24.1.1983. The trial Court arrived at
the conclusion, that the petitioners’ predecessors had failed to prove, that the
agreement to sell had been executed (by the petitioners’ predecessors) in
respect of the land, which is subject matter of the present controversy. It is
not a matter of dispute, that an appeal was preferred by the petitioners’
predecessors against the judgement/decree dated 24.1.1983 before the lower
Appellate Court, and yet again (after the dismissal of the same by the lower
Appellate Court), before this Court. This Court eventually dismissed RSA
No.716 of 1986 on 16.5.1986. It is, therefore, clear that the claim of the
petitioners’ predecessors on the basis of the agreement to sell dated
7.12.1979 failed, and as such, the claim of the petitioners’ predecessors on
the basis of the agreement to sell dated 7.12.1979, became final. The
petitioners, therefore, can no longer rely on the agreement to sell dated
7.12.1979, so as to claim any relief.
Whilst Ram Piari and Bhagwan Dass were owners of the land
under reference, they filed an application for ejectment against the
petitioners herein on account of non-payment of rent. The instant
application was filed on 30.10.1986. The Assistant Collector, Ist Grade,
Karnal, allowed the aforesaid application by passing an ex parte order
against the petitioners on 23.2.1987. The petitioners preferred an appeal
against the order dated 23.2.1987 before the Collector, Karnal. The
Collector, Karnal, accepted the appeal preferred by the petitioners on
14.7.1987, and remanded the matter for re-adjudication to the Assistant
Collector, Ist Grade, Karnal.
C.W.P No.1155 of 2008 3
During the pendency of the ejectment proceedings initiated
against the petitioners by the original landlords, part of the aforesaid land
was purchased by respondents No.5 to 9 (herein) on 14.10.1987. Having
done so, respondents No.5 to 9 moved an application before the Assistant
Collector, Ist Grade, Karnal, seeking to be impleaded as parties in the
ensuing litigation as they had allegedly stepped into the shoes of the
previous landlords. The aforesaid application came to be dismissed by the
Assistant Collector, Ist Grade, Karnal, on 2.3.1989, and the appeal filed
against the order dated 2.3.1989 was dismissed by the Collector, Karnal on
5.8.1989.
The entire remaining land, which is subject matter of the
present controversy, was purchased by respondents No.5 to 9 (herein)
through two subsequent sale deeds dated 12.11.1990 and 13.2.1991.
Thereafter, respondents No.5 to 9 completely stepped into the shoes of the
earlier landlords i.e. Ram Piari and Bhagwan Dass.
Having acquired ownership rights in respect of the suit land,
respondents No.5 to 9 then preferred a civil suit, seeking possession of the
land in question from the petitioners (herein) by alleging, that the petitioners
were in unauthorised possession of the suit land. The aforesaid suit filed by
respondents No.5 to 9 at Karnal, was dismissed on 23.12.2002. It is not a
matter of dispute, that the aforesaid order dated 23.12.2002 eventually
attained finality as no appeal was preferred against the same.
For the first time, respondents No.5 to 9 filed an application for
ejectment under the provisions of the Punjab Security of Land Tenures Act,
1953, on the ground of non-payment of rent. It is important to notice, that
the conceded position before this Court at the hands of the petitioners is,
C.W.P No.1155 of 2008 4
that the petitioners had not paid any rent since the year 1979 onwards. It is
also conceded, that consequent upon the filing of the aforesaid application
by respondents No.5 to 9 (herein) the petitioners actually did not pay any
rent to respondents No.5 to 9.
The ejectment application was contested, firstly, by asserting
that the petitioners had acquired ownership rights over the land in question.
The claim of ownership raised in response to the ejectment application, was
based on adverse possession. It was asserted that the petitioners were in
occupation of the land in question, and had not paid any rent since the year
1979, and as such, they could no longer be treated as tenants. Secondly, it
was claimed by the petitioners, that the petitioners, having entered into an
agreement to sell with the earlier landlords, namely, Ram Piari and
Bhagwan Dass, their relationship of landlord and tenant with Ram Piari and
Bhagwan Dass had come to an end. On the instant issue, the petitioners
placed reliance on a decision rendered by the Supreme Court in R.
Kanthimathi Vs. Mrs. Beatrice Xavier, 2003(2) PLJ 211. The third
contention, advanced by the learned counsel for the petitioners, was that the
action of the petitioners in not paying rent to respondents No.5 to 9 was
bonafide, it was alternatively pleaded, that in case the petitioners (herein)
are declared to be tenants, they would be ready and willing to discharge
their responsibility and pay arrears of rent, interest, as well as, costs. It is
only these three submissions, which have been pressed at the hands of the
learned counsel for the petitioners before this Court.
In so far as, the issue pertaining to adverse possession is
concerned, the petitioners are estopped in law from raising the same after
having acknowledged, that they entered the possession over the land in
C.W.P No.1155 of 2008 5
question as tenants of Ram Piari and Bhagwan Dass. In so far as the present
proposition is concerned, reliance may be placed on Section 116 of the
Indian Evidence Act, 1872 (hereinafter referred to as the 1872 Act). Section
116 of the aforesaid Act is being reproduced hereunder: —
“116. Estoppel of tenant and of licensee of person in
possession: – No tenant of immovable property, or person
claiming through such tenant, shall, during the continuance of
the tenancy, be permitted to deny that the landlord of such
tenant had, at the beginning of the tenancy, a title to such
immovable property; and no person who came upon any
immovable property by the license of the person in possession
thereof, shall be permitted to deny that such person had title to
such possession at the time when such license was given.”
On account of the clear mandate of Section 116 of the 1872 Act, since it is
not disputed by the petitioners, that Ram Piari and Bhagwan Dass were
originally owners of the land in question, and that, the predecessors in
interest of the petitioners were tenants under them, and that, the petitioners
had acquired the rights from their predecessors, who were tenants under
Ram Piari and Bhagwan Dass, we are satisfied that the claim of adverse
possession, raised by the petitioners, is wholly frivolous, specially because
respondents No.5 to 9 stepped into the shoes of Ram Piari and Bhagwan
Dass after purchasing the land under reference. In our view, the fact that the
petitioners had not paid any rent from 1979 onwards is inconsequential.
Additionally, the petitioners have not invited our attention to any evidence
to establish any action at the hands of the petitioners proclaiming ownership
rights over the land in question during the period they were in possession of
C.W.P No.1155 of 2008 6
the land in question. In view of the above, the first contention advanced by
the learned counsel for the petitioners, does not merit acceptance and is,
accordingly, declined.
The second contention advanced by the learned counsel for the
petitioners, is based on the decision rendered by the Apex Court in R.
Kanthimathi ‘s case (supra). We are afraid, that the submission advanced
by the learned counsel for the petitioners, is clearly inapplicable to the facts
and circumstances of the present case. In order to even prima-facie raise the
instant contention, namely, that once there is an agreement to sell between
the landlord and tenant, then the relationship of landlord and tenant ceases
to exist, vests the onerous responsibility in the petitioners to establish, that
there was factually an agreement to sell between the predecessors of the
petitioners and Ram Piari and Bhagwan Dass. We are of the view, that in so
far as the finding on the aforesaid proposition is concerned, the same was
rendered in furtherance of a civil suit filed by the petitioners themselves at
Karnal, wherein it came to be concluded, that the petitioners had failed to
prove that the agreement to sell dated 7.12.1979 had been executed by them
in respect of the land, which is subject matter of the present controversy.
That being so, it is not possible for us to draw any inference on the basis of
the aforesaid agreement to sell dated 7.12.1979. It is, therefore, not possible
for us to accept, that the relationship between the petitioners’ predecessors
and Ram Piari and Bhagwan Dass, of landlord and tenant, ever came to an
end.
The third contention advanced by the learned counsel for the
petitioners, was to the effect, that the petitioners would be ready and willing
to tender rent, interest thereon and costs, if the authorities recorded a finding
C.W.P No.1155 of 2008 7
to the effect that the relationship of landlord and tenant subsists between the
parties. In so far as the present issue is concerned, we have already held in
our conclusions recorded in furtherance of the first, as well as, the second
submission advanced by the learned counsel for the petitioners, that the
relationship of landlord and tenant between the petitioners’ predecessors
and Ram Piari and Bhagwan Dass never came to an end. Since the
petitioners have merely inherited the rights of their predecessors, the
relationship of landlord and tenant between the petitioners and Ram Piari
and Bhagwan Dass, in the first instance, and thereafter, with respondents
No.5 to 9 continued to subsist. The only question that remains to be
considered is, whether the petitioners can be permitted to tender all arrears
of rent at the present juncture ? It is not possible for us to allow the
petitioners to redeem themselves by making any payment of rent, interest
thereon and costs at the present juncture.
In view of the conclusions drawn by us, hereinabove, there can
be no doubt, whatsoever, about the relationship between the petitioners and
respondents No.5 to 9. The petitioners are tenants under respondents No.5
to 9. There can also be no doubt about the fact, that the petitioners had
failed to tender any rent before the Assistant Collector, Ist Grade, Karnal,
when an ejectment application was filed by respondents No.5 to 9, or at any
time thereafter. This factual position stands acknowledged, even at the
hands of the learned counsel for the petitioners. In view of the
acknowledged factual position, we are satisfied that the petitioners deserve
to be ejected from the suit land forthwith. Ordered accordingly.
In the facts and circumstances of this case, we are satisfied that
exemplary costs should be imposed on the petitioners for misusing the
C.W.P No.1155 of 2008 8
process of law to their own benefit. The petitioners had been blatant in
asserting, that they failed to tender any rent since 1979, although, they were
in possession of the suit land. Their claim for the purchase of the land in
question was dismissed by the Civil Courts. This position attained finality
as far back as in the year 1986, when RSA No.716 of 1986 was dismissed
by this Court on 16.5.1986. Although, the petitioners knew, that they were
not owners of the land in question, they continued to tress-pass over it. They
denied the claim at the hands of respondents No.5 to 9 so much so, that they
did not consider it appropriate even to tender rent. As of now, even if the
acknowledged stance adopted by the learned counsel for the petitioners, is
taken on its face value, the petitioners have been in continuous possession
of the suit land since 1979, without paying even a single Rupee towards
rent. Even if, we assume that the rate of rent was Rs.10,000/- per acre per
year (although it must really be much more) rent payable by the petitioners
would be at least Rs.1,00,000/- a year. The petitioners have failed to pay
rent for a period of 29 years. They are, therefore, liable to pay rent alone to
the tune of Rs.29 lacs. While determining the liability of the petitioners,
one is liable to take into consideration the component of interest also, but
while disposing of the instant writ petition, we do not desire to take the
same into consideration. Additionally, for misusing the process of law, the
petitioners have made themselves liable to costs. We hereby assess the said
costs at Rs.10,000/-. The aforesaid total component of costs come to
Rs.29,10,000/- (29,00,000/- + 10,000/-) . The petitioners shall pay the costs
assessed, hereinabove within three months from today. It needs to be
clarified, that we have not required the petitioners to pay arrears of rent or
interest thereon. It is only in equity, that while determining the component
C.W.P No.1155 of 2008 9
of costs, we have assessed the rental value of the land, which remained in
continuous unauthorised occupation of the petitioners (from the year 1979
onwards).
The instant writ petition is dismissed in the aforesaid terms.
( J.S. Khehar )
Judge
( Nirmaljit Kaur )
18.12.2008 Judge.
sk.