Posted On by &filed under High Court, Punjab-Haryana High Court.


Punjab-Haryana High Court
Som Nath vs Lachhman Singh on 28 September, 2000
Author: R Anand
Bench: R Anand


JUDGMENT

R.L. Anand, J.

1. Defendants Nos. 1 to 5 in the trial Court; namely, Som Nath, DCS Raj, Gurbachan Singh, Hari Chand and Mohinder Pal, have filed the present civil revision and has been directed against the judgment dated 8.4.1999, passed by the Addl. Distt. Judge, Jagadhari, who affirmed the order dated 30.6.1998, passed by the Court of Addl. Civil Judge (Sr. Divn.), Jagadhari, who allowed the application of the plaintiffs – Lachhman Singh, Ranjore Singh, Ra-mesh Kumar and Rajroop Singh, now respondent 1 to 4, under Order 39 Rules I and 2, C.P.C., and granted temporary injunction in their favour restraining defendants 1 to 7, i.e. the present petitioners; Mahipal and Shanti Devi, from interfering into the possession or forcibly dispossessing the plainliffs from the suit property, except in due course of law, till the decision of the suit.

2. Some facts of the case can be noticed in the following manner:-

3. Plaintiffs filed a suit for declaration to the effect that the entries in the column of cultivation in the name of defendants 6 and 7; namely, Mahipal and Shanli Devi, in respect of the agricultural land measuring 11 Kanals 13 marlas bearing Khewat/Khatauni No. 3/3, Khasra No. 3 Rectangle No. 48, Khasra Nos. 19/2,22, Rectangle No. 55 Khasra No: 2/1/2, situated in the revenue restate of Village Chhapar Mansurpur, Tehsil Jagadhri, District Yamuna Nagar, are wrong, illegal, null and void and liable to be corrected in the names of the plaintiffs and defendants 8 to 12; namely, Om Pal Singh, Dheer Singh, Rajbir Singh, Parveen Kumar and Smt. Kamla, as they are the tenants in the land in dispute. The plaintiffs also prayed for a decree for possession by way of pre-emption in respect of the land measuring 11 kanals 13 marlas along with all rights of Jumla Hakook, etc., such as tube-well in working condition, on the basis of two registered sale deeds dated 1.6.1998 registered on 2.6.1998 on payment of Rs. 1,00,000/-. The plaintiffs also prayed for permanent injunction against the defendants 1 to 7 that they be restrained from interfering in the peaceful possession of the plaintiffs over the said land. The plaintiffs further prayed that defendants 1 to 7 be restrained from interfering in the possession of plaintiffs and that of defendants 8 to 12.

4. The case set up by the plaintiffs in the trial Court was that earlier one Fateh Singh was the owner of the suit land and plaintiff No. 1 Laehhman Singh along with others was tenant under him. Later on, the ownership of the land was changed in the names of defendants 6 and 7, but the plaintiff No. 1 along with the predecessors of plainliffs 2 to 4 and defendants 8 to 12 remained tenants over the suit land and they have not been ejected from the suit land. Defendants 6 and 7 sold away the suit land in favour of defendants 1 to 5 secretly and without notice to the plaintiffs. On the basis of the sale deeds, defendants 1 to 7 are taking forcible possession of the suit land from the plaintiffs on which they have got no legal right, title or authority. Under these circumstances, the plaintiffs prayed that during the pendency of the suit, they should not be ejected forcibly by defendants 1 to 7.

5. Along with the suit, an application under Order 39 Rules 1 and 2, CPC, was also filed. The application was contested on the plea that defendants 1 to 5 have become the owners of the suit land and they have purchased this land from defendants 6 and 7 and they are in possession of the same. Neither the plaintiffs nor defendants 8 to 12 were the tenants. They were not in possession of the suit land at any time, therefore, they had no right, title or interest or concern with the land in question and they are not entitled to any injunction.

6. Parties placed on record documents before the trial Court and for the reasons given in paras 4 to 8 of the order dated 30,6.1998, which are quoted hereinbelow, the application under Order 39 Rules 1 and 2 was allowed and directions were given to defendants 1 to 7 not to (sic)

(sic) ‘tenants’ and ‘the defendants No. 1 to 5 are in possession over the suit property, after its purchase. Explaining his arguments, learned counsel for the defendants No. 1 to 5 contended that the plaintiffs have not even deposited ‘Zare-pan-jam’ at the time of institution of the suit, therefore, the stay application was liable to be dismissed.

6. In order to succeed, the plaintiffs have to establish (i) a ‘prima facie’ case; (ii) ‘balance of convenience’; and (iii) irreparable loss, if the injunction is refused. The plaintiffs have filed the present suit for pre-emption of the sale in respect of the suit land on the ground that they are in possession over the suit property as ‘tenants’. The copy of jamabandi for the years 1962-63, 1981-82 and 1986-87 clearly shows the possession of the

plaintiffs over the suit property as ‘Gair Marushi’ qua the land owner Fateh Singh. The perusal of copy of Khasra girdawari w.e.f. Rabi-1970 to Rabi-1992 also shows the cultivating possession of Rattan Singh, i.e. father of plaintiffs No. 2 to 4, over the suit property.

7. The case of the defendants, on the other hand, is that the plaintiffs never remained in possession over the suit property as ‘tenants’. Actually, the defendants No. i to 5 are in actual physical possession over the suit property at present. Learned counsel for the defendants No. 1 to 7 placed reliance upon the entries in the copy of Roznamcha’ and the ‘copy of latest Khasra girdawari’ for the year 1997-98, showing the possession of owners over the suit property. The presumption of truth is attached to the entires of the jamabandi under Section 44 of the Punjab Land Revenue Act, but no such presumption is attached to the entries in the copy of Khasra girdawari. However, these entries are only admissible into evidence as Ihese are prepared by a Public Officer in the discharge of his public duties, unless the defendants are able to show by some cogent evidence or they are able to prove that the plaintiffs were evicted from the suit land in accordance with law, there is a presumption in favour of ‘continuity of possession’ in favour of the tenants i.e. plaintiffs, as per the entries in the copy of jamabandi. This being so, from these documents on the file, it has emerged out that the plaintiffs and the proforma defendants Nos. 8 to 12 are in possession over the suit property as ‘tenants’ and the defendants have not been able to show their possession over the suit property.

8. A ‘prima facie’ case and ‘balance of convenience’ at this stage, are made out in favour of the plain-tiffs and they shall suffer an irreparable loss, in case, the injunction is refused. Therefore, I accept the prayer of the plaintiffs for temporary injunction and accordingly restrain the defendants Nos. 1 to 7 from interfering into the possession or from forcibly dispossessing the plaintiffs from the suit property, except in due course of law, till decision of the suit or till further order, whichever may be earlier.”

7. Aggrieved by the order of the trial Court, defendants 1 to 5 filed an appeal under Order 43, CPC, before the Court of Addl. Distt. Judge, Jagadhari, who for the reasons given in paras 7 to 14 of the impugned order, which are quoted below, dismissed the appeal :-

“7. For disposal of such like applications, the Court is to see (i) prima facie case, (ii) balance of conven-ience, and (iii) irreparable loss. In this case as per jamabandi for the year 1962-63 disputed numbers were shown to be owned by Fateh Singh, Rattan Singh and Lachhman Singh were tenant Gair Marusi on these numbers. In the subsequent jamabandis for the year 1981-82 and 1986-87 same entries continued showing Rattan Singh

and Surjit Singh to be Gair Marusi tenant on the land. Thereafter as per jamabandi for the year 1991-92 the entries with regard to ownership were changed in the name of Mahi Paland Shanti. But before change of these entries, no orders were passed by any revenue officer nor the same have been placed on the file that what was the basis for change of entries with regard tochange of possession on the disputed land. So, there was no basis for change of entries in the jamabandi for the year 1991-92.

8. As per law laid down by our Hon’ble Supreme Court in case Mansu v. Shadi Ram, 1998(1) RLR 294 : 1996(3) RRR 438 (SC), the tenancy entries if made, there is presumption in favour of continuity of possession. These are presumed to be correct unless by some cogent evidence or overt act it could be proved that he abandoned the tenancy or was otherwise evicted in accordance with law.

9. Identical are the facts of the case in hand because in this case there is no document available on the file showing that tenants Rattan Singh and Surjit Singh were evicted from the suit land by passing any order by the revenue authorities. So, the subsequent change of possession in favour of Mahi-pal and Shanli Devi is not in accordance with law as per law laid down by our Hon’ble Supreme Court.

10. Similar controversy had gone before our Hon’ble High Court in case Paramjit Singh v. Jora Singh, 1998(1) Revenue Law Reporter 387 : 1998(1) RRR 209 (P&H), wherein our Hon’ble High Court laid down the similar law that if any change is effected without any mutation and there is no order of the revenue authorities for changing the entries, it is for the defendants to prove as to how change of entries came to be made. In the absence of any presumption in favour of later entries would stand rebutted by the fact that alteration in later entries was made unauthorisedly. Identical are the facts of the case in hand because in this case the change in the revenue record i.e. Jamabandi was made without any order of revenue authorities. So, subsequent entries in the revenue record by way of jamabandi are not to be taken as correct.

11. Learned counsel for the appellants further took the plea that in this case appellants had put their appearance before the Court on 29.6.1998 and the case was fixed for 30.6.1998 and the order was pronounced even without procuring presence of all the defendants. However, at the appeal stage service of all the respondents has already been effected. Learned counsel for the appellant further took the plea that jamabandi being record of right has got presumption of truth attached to it (and) unless there is any rebuttal to it, same is to be presumed to be correct. On this point he has placed reliance upon authority of law from our Hon’ble

High Court in case Sarwan Singh and another v. Gram Panchayat and Cram Sabha, Gurugarh and another, 1993 PLJ 445.

(sic) appellants are owners on the basis of fhe sale-deed. So, no injunction order should be issued against them and the order passed by the learned trial Court is not in accordance with law and the same be set aside. In support of his arguments he has placed his reliance upon authority of law from the Hon’ble Apex Court of (he counlry in case Sri Hanuman Thappa v. Sri Muni Naray-anappa, 1996(2) Apex Court Journal 670 : 1997(1) RRR 697(SC). I have gone through this authority of law from our Hon’ble Supreme Court and of the considered view that on facts this authority of law is not applicable. Plaintiffs-respondents do not challenge the ownership of the appellant but they arc concerned about their possession in their capacity as tenants Gair Morust. So, this authority of law is not of any help to the present appellant.

14. In view of the above discussion the order passed by the learned trial Court is in accordance with established principles of law. As per law laid down by our Hon’ble High Court in case Man Singh and another v. U.S. Kohli and others, 1997(1) Civil Court Cases 638 : 1997(2) RRR 370 (P&H), on an appeal against the order under Order 39 rules 1 and 2 of the Civil Procedure Code the appellate Court can interfere with the discretion exercised by the trial Court only if (he findings recorded by the learned trial Court are perverse or suffer from any illegality or that the trial Judge had failed to exercise the jurisdiction vested in him by law. But this is not the case before the Court because the learned trial Court has rightly come to the conclusion that the entries in the subsequent jamabandies i.e. jamabandi for the year 1991-92 and thereafter have been changed without any basis. So, there is nothing to interfere in the discretion exercised by the learned trial Court.”

8. Aggrieved by the order dated 8.4.1999, the present revision, which I am disposing of with the assistance rendered by the counsel for the parties. I have also gone through the record of the case with their assistance.

9. Counsel for the petitioners has assailed the impugned order from different angles. He submitted that Fateh Singh was the original owner of the property. He sold the land in question to Mahipal and Smt. Shanti Devi wife of Mahipal, vide registered sale deed dated 5.1.1973 and through that sale deed Fateh Singh gave the possession of the land and the standing crop to defendants 10 and 11. Shanti Devi is none else-but the daughter of Rallan Singh, who was a tenant under Mahipal. Mahipal was the son-in-law of Rattan Singh. Rattan Singh, father of plaintiffs 2 to 4 and respondent No. 11, was himself the attesting witness of the registered sale deed dated 5.1.1973. Plaintiff No. 1

Lachhman Singh is cousin brother of Rattan Singh. On the basis of that sale deed, the jamabandi was prepared correctly in the year 1991-92 and this entry of jamabandi was repeated in the year 1996-97 and Samey Singh and Shanti Devi have been shown as owners of the property and in the entry of khasra gir-dawari, they have further been shown to be in possession. Later on, Mahipal and Shanti Devi sold the land vide registered sale deeds for a consideration of Rs. l,60,187/- on 1/2.6.1998. On the basis of these sale deeds, the possession of the property has come to the present petitioners. According to the counsel for the petitioners, neither Rattan Singh nor his co-tenants ever filed a suit for possession when the land was sold by Fateh Singh to defendants 10 and 11. Now, the plaintiffs, who are sons of Rattan Singh and brothers of Shanti Devi, have filed the present suit for declaration that they are the tenants and are entitled to sue for possession by way of permanent injunction, which is nothing but an abuse of process of law. The first appellate Court has not considered all these facts and has acted without jurisdiction in dismissing the appeal. He submitted that the subsequent jamabandis have to prevail over the previous jamabandis. The present petitioners had purchased the land in the year 1998 after (for ?) a valuable consideration and on the basis of that sale deed, they have got the possession and the Courts below have committed a patent illegality in relying upon the previous revenue record. He also submitted that right of pre-empt ion is a very weak right. The present petitioners are the owners of the property and, therefore, no injunction can be granted against a true owner in favour of a person who had already relinquished his right of tenancy in favour of Shanti Devi and Mahipal when the sale deed of 1973 was attested by Rattan Singh. He submitted that an affidavit has also been executed by the heirs of the tenant vide which they had relinquished their right, title or interest, if any, in the tenancy. In support of his contentions, counsel for the petitioners has also relied upon certain case law, which I will discuss in the subsequent portion of this judgment.

10. On the contrary, counsel for the respondents Mr. C.B. Goel, controverted the submissions of counsel for the petitioners and submitted that when the discretion has been properly exercised by the lower Court as well as by the first appellate Court, the High Court should be slow in interfering in the discretionary matters until and unless the findings given by the Courts below are perverse. Counsel for the respondents submitted that Rattan Singh never surrendered his tenancy rights which requires a voluntary relinquishment. Mere attestation of the sale deed by Rattan Singh in favour of Mahipal and Shanti Devi does not mean that Rattan Singh had relinquished his tenancy rights and, moreover. Rattan Singh was not the sole tenant on the land in question. He submitted that the entries of the jamabandi are totally erroneous and that is the reason that the plaintiffs have filed a suit for declaration that the entries of jamabandi in favour of the present petitioners are illegal, null and void. According to Mr. Goel, the plaintiffs are heirs of the tenants and they have never been dispossessed by any competent Court of jurisdiction nor their tenancy has been determined or terminated. Their status is that of tenants and, there-fore, they have the right to sue for possession by way of pre-emption. With regard to the sale deed executed in favour of defendants 1 to4, he submitted that had Rattan Singh surrendered his possession or tenancy rights, there would have been some entry in the Roznamcha of the Revenue Patwari. Any amendment in the jamabandi in an illegal manner is not binding upon the plaintiffs. Once a tenant always a tenant. The tenants are in possession for the last about 20/30 years. There is a presumption of continuity of possession in their favour. At no point of time, it has been proved that the tenants had abandoned their tenancy rights in favour of the petitioners. So far as the affidavit is concerned, it has never seen the light of the day nor it was ever acted upon or shown to the revenue authorities. In these circumstances, the orders passed by the Courts below are perfectly in consonance with the law of the land and, therefore, this revision should be dismissed.

11. I have considered the rival contentions of the parties and am of the considered opinion that this revision is totally devoid of any merit and Ihe discretion has been exercised by the Courts below in a proper manner.

12. At the cost of repetition, I may say that three types of reliefs were claimed by the plaintiffs : (i) for declaration that the entries of jamabandi are wrong, illegal, null and void and are liable to be corrected in the names of Ihe plaintiffs; (ii) that the plaintiffs are the tenants and, therefore, they have the right of pre-emption on the basis of the sale deed dated 1/2.6.1998; and (iii) since the plaintiffs are in possession of the property as tenants, therefore, their possession should not be disturbed by the defendants or their vendors.

13. The present revision is only in an application under Order 39 Rules 1 and 2 CPC. While disposing of such applications, this Court has only to see, prima fa-cie case; balance of convenience and the irreparable injury. It is the admitted case of the parties that Fateh Singh was the owner of the property. There is also no dispute that Rattan Singh and Lachhman Singh were the tenants as Gair Marusi. This is being reflected in the jamabandi for the year 1962-63. Possession was also being reflected in the subsequent jamabandis starting from 1981-82, 1986-87 and 1991-92. For the first time, the entries regarding ownership changed in the year 1991-92 in the names of Mahipal and Shanli Devi. There is no entry right from 1962 up to 1991, i.e. for the last 30 years, that the tenants Rattan Singh, Lachhman Singh and others had relinquished their tenancy rights in favour of Mahipal and Shanti Devi. The attesting witness is not bound by the contents of the document. He simply identifies the vendor and the vendee. Even if it is assumed for the sake of arguments that Rattan Singh was the attesting witness of the sale deed of 1973, no inference can be drawn that he had relinquished his right of tenancy in favour of Mahipal and Shanti Devi. Moreover, Rattan Singh was not the sole tenant. Tenancy was also in favour of plaintiff No. 1 Lachhman Singh. In these circumstances. Rattan Singh could not relinquish the tenancy rights of Lachhman Singh. It is also not established on the record, prima facie, that Rattan Singh and Lachhman Singh were ever ejected from the land in question by any competent revenue or civil authorities. Once they are held to be tenants and their tenancy rights are continuing right from the year 1962 onwards, then, the presumption of the law is that once a tenant always a tenant and the further presumption is regarding continuation of possession and not otherwise. If the tenancy has not been determined or terminated for the advantage of Mahipal or Shanli Devi, how it can be determined for the benefit of the present petitioners. There is no prima facie evidence even that the entries regarding the column of cultivation were ever changed with the knowledge of Rattan Singh and Lachhman Singh or successors of Rattan Singh. It is true that right of pre-emption is a weak right but in this case, prima facie, it is established that the plaintiffs were the tenants at the relevant time of the sale of 1998 and, therefore, they were keeping the property in the capacity of Gair Marusi. Thus, they had the locus standi to file the suit for pre-emption because the right of pre-emption of a tenant is still prevalent in the State of Haryana though the right of a co-sharer has been withdrawn and repealed. It is yet to be decided by the trial Court as to whether there was any abandonment or relinquish-ment on the part of the plaintiffs. Subsequent entries of jamabandi, if prima facie are held to be illegal or debatable or questionable, in these circumstances, the balance of convenience lies in favour of the plaintiffs. The affidavit, which is being relied upon by the counsel for the petitioners has never been acted upon in any revenue record. Also, on the basis of broad probabilities and preponderance, no tenant would like to relinquish his right of tenancy which is a very valuable right with respect to an agricultural land. In this view of the matter, I do not see any illegality in the impugned order and do not want to interfere in the discretion, which has been legally exercised by the Courts below.

14. It has been observed in Mansu v. Shadi Ram, 1998(1) RLR 294, a judgment of the Hon’ble Supreme Court that if the entries are in favour of a tenant, the presumption is in favour of continuity of possession. This presumption can only be rebutted if some cogent evidence or overt act is proved that the tenant had abandoned the tenancy or has been evicted in accordance with law.

15. Again, in Paramjit Singh v. Jora Singh, 1998(1) RLR 3S7, it was held that any change in the entries in the jamabandi, which is without any basis or material, cannot be relied upon or looked into nor any weight can be given to such an entry.

16. In Amal Kumar and others v. Bhupinder Singh and others, 1976 PLJ 26, it was held that prior notice

in writing is necessary to the person likely to be affected by the change of the entries of khasra girdawari and such changes should be attested by the Lambardar or Member Panchayat of the village.

17. In Durga (deceased) and others v. Milkhi Ram and others, 1969 PLJ 105, it was held that under Section 44 of the Punjab Land Revenue Act, presumption of correctness of the jamabandis is rebuttable. If the earlier entries have been changed by the later revenue entries in an unauthorised manner or by mistake and there is not material to justify such change, the presumption of correctness attached under Section 44 stands rebutted.

18. In Jit Singh and others v. Chanan Singh and an-other, 1966 PLJ 246, it was observed that when the tenancy is joint and even if the tenancy has been relinquished by some of the joint tenants, it will not jeopardise the interest of the remaining joint tenants and they would continue to be tenants of the entire tenancy because the tenancy is joint and indivisible.

19. Now, I will proceed to discuss the case law which has been, relied upon by the counsel for petitioners.

20. The first judgment relied upon by counsel for the petitioners is Sarwan Singh and another v. Gram Panchayat and GramSabha, Gurugarh and another, 1993 PLJ 445 : 1993(2) RRR 513 (P&H), wherein it was held that while dealing with Section 44 of the Punjab Land revenue Act, a presumption of truth is attached to the entries in record of right, i.e. jamabandi, and in the absence of any rebuttal, these entries have to be presumed to be correct.

21. There is no dispute with the proposition of law. It is a triable issue whether the entries relied upon by the counsel for the petitioners are in accordance with law and whether the admitted tenants or their heirs relinquished their tenancy rights in favour of Mahipal and Shanti Devi.

22. The counsel, then, relied upon Rubinder Singli v. Rajasthan Financial Corporation, 1995 ISJ (Banking) 199, in which it was held that the order which practically amounts to decreeing the suit is beyond tbe provision of interlocutory order.

23. The ratio of this judgment is not applicable to the facts in hand. I have already stated above that we are supposed to see the three basic ingredients before granting the temporary injunction. Prima facie, the plaintiffs were the tenants. On the date of the sale, they will be considered as tenants and will have the locus standi to file the suit. Any entry in the jamabandi or khasra girdawari detrimental to the interest of the plaintiffs and casts a cloud on their rights, the same can be questioned in the civil Court. The plaintiffs were in possession of the property in the capacity of tenants and, therefore, their possession has to be protected. It is wrong to say that the plaintiffs are trespassers. Therefore, the judgment in Rubinder Singh’s case (supra) is not applicable to be facts in hand.

24. Counsel also placed reliance upon State Bank of J. and K. v. Mohd. Yaqoob Khan and others, 1992(4) SCC 167, This judgment, again, is too far from facts in hand.

25. Yet reliance was placed on Shri Raja Darga Singh of Solon v. Tholu and others, AIR 1963 SC 361.

26. In this case, two Courts held that the defendant was not a tenant. Question of fact was adjudicated by the two Courts. In that background, the Hon’ble Supreme Court was pleased to hold that if two Courts had held that the defendant is not a tenant, which is a question of fact, such findings should not be disturbed in Regular Second Appeal. We all know that Regular Second Appeal is maintainable only on the question of law and no Regular Second Appeal can be entertained on the question of facts.

27. Reliance was also placed on Radhakishan Laxminarayan Toshiniwal v. Shridhar Ramchandra Alshi and others, AIR 1960 SC 1368. This judgment simply lays down that the parties can enter into an agreement for the sale of the property and if such agreement has been executed between the parties in order to defeat the right of pre-emption, it is no fraud in the yes of law.

28. The dying argument of the counsel for the petitioners was that his clients will be happy if the parties are directed to maintain status quo with regard to possession. According to Mr. Sarin, his clients are in possession of the property. He submitted that vide order dated 3.6.1999, Hon’ble Amar Dutt, J. was pleased to direct the parties to maintain status quo regarding possession as it existed on that day, i.e. 3.6.1999 till further orders.

29. Counsel for the respondents submitted that his clients will not be satisfied with this order because they are in actual physical possession of the property as tenants. The petitioners under the garb of this order can dispossess the plaintiffs and it would affect the valuable rights of the plaintiffs, who established their tenancy and possession on the date of the sale of June, 1998. When the findings of the two Courts, prima facie, are in favour of the plaintiffs they are not satisfied with the order of status quo.

30. This point has also been taken note of by me. We have seen in experience that the order of status quo leads to multiple problems. Under the garb of status quo orders, the persons with muscle and authority try to disturb the possession of others. Even the instances are known when the police connived with one side or the other. It is true that in some cases, status quo order with regard to possession is being issued by the High Court and by the Courts subordinate also, but every case has to be viewed from its own angle. In the present case, the status quo order cannot be issued because it will affect the prima facie rights of the plaintiffs regarding their tenancy and possession over the property in question. Modifying the orders of the

lower Courts would virtually give an undue advantage to the present petitioners.

31. In this view of the matter, I am of the considered opinion that this revision is totally devoid of any merit and the same is hereby dismissed with no order as to costs.

32. Nothing stated above shall amount to expression of my opinion on the merits of the case.

32. Revision dismissed.


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