Raghbir And Others vs Jumla Mushtarka Malkan And Others on 10 July, 2009

R.S.A.No.1773 of 2009                                          1



      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                      CHANDIGARH

                               R.S.A.No.1773 of 2009
                               Date of Decision : 10.07.2009

Raghbir and others                                  ...Appellants

                               Versus

Jumla Mushtarka Malkan and others                   ...Respondents

CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA

Present: Mr. C.B.Goel, Advocate, for the appellants.

HEMANT GUPTA, J. (ORAL)

The legal heirs of Ami Chand-plaintiff are in second appeal

aggrieved against the judgment and decree passed by the Courts below,

whereby the suit for declaration to the effect that he is owner in posession

of the suit land by acquiring proprietary rights as occupancy tenant in the

suit land under Sections 5 and 8 of the Punjab Tenancy Act, 1887 was

dismissed.

Both the Courts below, have recorded a concurrent finding of

fact that earlier the plaintiff filed a suit asserting him to be the owner of

the suit property. That suit was dismissed. The appellants have brought

the jamabandi for the year 1962-63 in respect of their contention that the

plaintiff has acquired occupancy tenancy rights. It was found that the

plaintiff is not able to establish the relationship of landlord and tenant. It

has been found that for establishing the relationship of landlord and

tenant, bialateral agreement is necessary and in order to establish tenancy,

the payment of rent is essential. However, the plaintiffs have not proved

either of them.

R.S.A.No.1773 of 2009 2

The plaintiff claims to be in possession for more than 30 years

in the suit land as tenant on the date and filing of suit filed on 7.11.1990.

However, in terms of Section 5 of the Act, the plaintiffs or their

predecessor in interest should have been recorded as occupancy tenant at

the time of the commencement of the Act i.e. 1887. 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 therefor 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

land, or

x x x x

In view of the above provisions and the revenue record

produced by the plaintiff from the year 1962-63, the plaintiffs have

miserably failed to prove their plea of occupancy tenant at the

commencement of Punjab Tenancy Act. Consequently, the present appeal

is dismissed as no substantial question of law arises for consideration by
R.S.A.No.1773 of 2009 3

this Court.

10.07.2009              (HEMANT GUPTA)
Vimal                       JUDGE