RSA No. 623 of 2008 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No. 623 of 2008
Date of Decision: 26.8.2009
Rajpal and others ......Appellants
Versus
Manohar Lal and others .......Respondents
CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA.
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Shri Ramesh Goyat, Advocate, for the appellants.
Shri R.A. Sheoran, Advocate, for the respondents.
HEMANT GUPTA, J. (Oral).
The defendants are in second appeal aggrieved against the
judgment and decree passed by the learned first Appellate Court, whereby
suit for declaration challenging the revenue record reflecting defendants to
be tenants, was decreed.
The plaintiff-respondents sought a declaration that they are
owners in possession of the land measuring 13 bighas 19 biswas on the
basis of purchase vide sale deed dated 22.1.1958, whereas the revenue
entries reflect the defendants as in cultivating possession of the suit land as
Gair Marusi tenants, being successors-in-interest of Chandgi son of Khanu.
Such entries are said to be illegal, null and void.
The learned trial Court found that in the jamabandi for the year
RSA No. 623 of 2008 (2)
1964-65, the plaintiffs are reflected as owners in possession of the suit land
on the basis of sale. However, in the jamabandi for the year 1968-69
(Exhibit P.3) Chandgi son of Khanu, is shown as a person in possession as
Gair Marusi tenant. However, such change in the jamabandi has not been
proved to be effected after notice to the owners. The learned trial Court
found that there is no material on the file as to how the said entries have
suddenly changed in favour of Chandgi. It is also found that the defendants
have not led any evidence in respect of payment of any rent to show that the
possession of the defendants is that of a tenant. However, the learned trial
Court recorded a finding that the defendants are proved to be in possession
of the suit property. In view thereof, the suit was dismissed.
In appeal, the first Appellate Court found that there is no proof
of payment of rent, which alone could justify entries in the revenue record
from the year 1968-69. It also found that under Section 44 of the Punjab
Land Revenue Act, 1887, the suit for declaration is maintainable only
before the Civil Court. Therefore, the suit for declaration was decreed
holding that no relief of injunction can be granted against the true owner as
the defendants have not been able to prove their possession as well, while
setting aside the judgment and decree passed by the learned trial Court.
Learned counsel for the appellants has vehemently argued that
the possession of the appellants is of more than 40 years and such
possession is reflected in the revenue record from the jamabandi for the year
1968-69. The revenue record for such a long period, could not have been
discarded at the instance of the plaintiffs particularly when the plaintiffs
have not claimed consequential relief for possession.
I do not find any merit in the said argument. The plaintiffs have
RSA No. 623 of 2008 (3)
challenged the revenue record, inter-alia, on the ground that the defendants
are not Gair Marusi tenants. There is no evidence by the defendants to show
that the defendants are in fact tenants. There is no proof of payment of any
rent which could alone establish a relationship of landlord and tenant
between the parties. Therefore, the revenue record regarding the defendants
to be tenants, is actually without any factual basis. In view of the said fact,
the suit for declaration filed by the plaintiffs has been rightly decreed by the
learned first Appellate Court. Since the suit is under Section 44 of the
Punjab Land Revenue Act, 1887, such suit for is for correction of revenue
record, therefore, there was no necessity for the plaintiffs to claim
possession in a suit for declaration under Section 44 of the aforesaid Act,
when the plaintiffs have been found in possession as well.
Consequently, I do not find any patent illegality or material
irregularity in the finding recorded or that the finding recorded gives rise to
any substantial question of law in the present second appeal.
Hence, the present appeal is dismissed.
(HEMANT GUPTA)
JUDGE
26.8.1009
ds