Ram Singh And Others vs Shashi Parkash And Others on 20 October, 2009

Regular Second Appeal No. 2937 of 2001                      -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH


                               Regular Second Appeal No. 2937 of 2001

                               Date of Order: 20.10.2009
Ram Singh and others
                                                              ....Appellants

                                  Versus

Shashi Parkash and others
                                                             ..Respondents

CORAM: HON’BLE MR. JUSTICE RAJIVE BHALLA

Present: Dr. Surya Parkash,Advocate
for the appellants.

Mr. Rajinder Goyal, Advocate
for the respondents.

RAJIVE BHALLA, J (Oral).

The appellants filed a suit for declaration that they are owners in

possession, as occupancy tenants and, therefore, cannot be dispossessed

by the respondents. The respondents contested this suit by denying that

the appellants are occupancy tenants, and in addition, pleaded that the

Civil Court has no jurisdiction to decide the question whether a person is an

occupancy tenant or not.

The trial court, vide judgment and decree dated 03.09.1998,

rejected the appellants assertion that they are occupancy tenants.

However, as the appellants were able to establish their possession, the trial

court issued an injunction restraining the respondents from dispossessing

the appellants except in due course of law.

Aggrieved by the aforementioned judgment and decree, the

appellants and the respondents filed separate appeals. The first appelalte

court dismissed both the appeals. The appeal filed by the appellants was

dismissed by holding that the question whether a person is an occupancy
Regular Second Appeal No. 2937 of 2001 -2-

tenant or not cannot be decided by a civil court. The appeal filed by the

respondents, against the grant of an injunction, was dismissed by holding

that as the appellants have been able to establish their possession. It does

not call for interference. It would be necessary to mention that the

respondents have not filed any appeal against the dismissal of their

appeal.

Counsel for the parties are ad-idem that the judgment and decree

passed by the first appellate court is a nullity as the jurisdiction to decide

whether a person is an occupancy tenant or not rests with a civil court as

held by a Division Bench of this Court in “Ami Lal v. Financial

Commissioner, Revenue Haryana, 1971 PLJ, 619, and subsequently

affirmed by a Full Bench of this Court reported as Shiv Charan v.

Financial Commissioner, Haryana and others, 2004(3), P.L.R. 569.

It is prayed that in view of this error of law committed by the first

appellate court, the appeal be allowed and the matter be remitted to the

Additional District Judge (iv), Faridabad, to decide the appeal afresh and in

accordance with law.

In view of what has been stated hereinabove, the appeal is

allowed, the judgment and decree dated 11.04.2001, passed by the

Additional District Judge (iv), Faridabad, is set aside, with respect to the

appeal filed by the appellants and the matter is remitted to the Additional

District Judge (iv), Faridabad, to decide this appeal afresh, within a period

of three months, from the receipt of a certified copy of this order.

Parties are directed to appear before the Additional District Judge

(iv), Faridabad, on 01.12.2009.

October 20, 2009                                    (RAJIVE BHALLA)
nt                                                     JUDGE