{"id":267682,"date":"2008-12-16T00:00:00","date_gmt":"2008-12-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/r-s-a-no-728-of-2007-vs-dalip-singh-deceased-through-on-16-december-2008-3"},"modified":"2017-06-22T20:51:51","modified_gmt":"2017-06-22T15:21:51","slug":"r-s-a-no-728-of-2007-vs-dalip-singh-deceased-through-on-16-december-2008-3","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/r-s-a-no-728-of-2007-vs-dalip-singh-deceased-through-on-16-december-2008-3","title":{"rendered":"R.S.A. No.728 Of 2007 vs Dalip Singh (Deceased) Through … on 16 December, 2008"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
R.S.A. No.728 Of 2007 vs Dalip Singh (Deceased) Through … on 16 December, 2008<\/div>\n
R.S.A. No.2409 of 2007                                -1-\n\n      IN THE HIGH COURT OF PUNJAB AND HARYANA\n                   AT CHANDIGARH\n                   ****\n                            Date of Decision:16.12.2008\n\n1.    R.S.A. No.728 of 2007\n\n      Jaswant Rai\n                                                      .....Appellant\n            Vs.\n\n      Dalip Singh (deceased) through his legal heirs-cum-\n      legal representatives and others\n                                                      .....Respondents\n\n2.    R.S.A. No.2409 of 2007\n\n\n      Jaswant Rai\n                                                      .....Appellant\n            Vs.\n\n      Punjab Wakf Board, Ambala Cantt. and others\n                                                 .....Respondents\n\nCORAM:- HON'BLE MR. JUSTICE HARBANS LAL\n\nPresent:-   Mr. Ramesh Goyat, Advocate for the appellant.\n\n            Mr. Abhinash Jain, Advocate for Mr. A.R. Takkar,\n            Advocate for respondents No.1 and 2.\n\n            Mr. Ashok Verma, Advocate for proforma respondent.\n                         ****\nJUDGMENT\n<\/pre>\n
HARBANS LAL, J.\n<\/p>\n
            This judgment shall dispose of Regular Second Appeal No.728<\/p>\n
of 2007 bearing caption Jaswant Rai v. Dalip Singh (deceased) through his<\/p>\n
legal heirs cum legal representatives as well as Regular Second Appeal<\/p>\n
No.2409 of 2007 titled Jaswant Rai v. Punjab Wakf Board and others as<\/p>\n
having arisen out of the same judgment\/ decree dated 29.8.2006 passed by<\/p>\n
the Court of learned Additional District Judge, Hisar whereby he accepted<\/p>\n
Civil Appeal No.24 of 2002 titled Dalip Singh (deceased) through his legal
\n R.S.A. No.2409 of 2007                                   -2-<\/span><\/p>\n
representatives v. Jaswant Rai as well as Civil Appeal No.28 of 2002<\/p>\n
bearing caption Punjab Wakf Board, Ambala Cantt. and another v. Jaswant<\/p>\n
Rai and others, and dismissed the suit filed by the plaintiff by setting aside<\/p>\n
the judgment\/ decree dated 29.4.2002 rendered by the Court of learned Civil<\/p>\n
Judge (Junior Division), Hisar whereby he decreed the suit for permanent<\/p>\n
injunction restraining the defendants- Punjab Wakf Board and others from<\/p>\n
interfering in the possession of the plaintiff over the suit land and from<\/p>\n
dispossessing the plaintiff forcibly without due process of law.<\/p>\n
            The brief facts which form the backdrop of the suit are that the<\/p>\n
suit land was allotted by defendant No.1 – Punjab Wakf Board, Ambala<\/p>\n
Cantt., as well as Administrator, Punjab Wakf Board to the plaintiff in the<\/p>\n
year 1983. The plaintiff has been in continuous possession of the same<\/p>\n
under these defendants on payment of fixed lagan (rent) since the said year.<\/p>\n
The lagan has been paid by him against a valid receipt. He requested many<\/p>\n
a times to these defendants to receive the fixed lagan from him for the future<\/p>\n
period, but they have totally refused to receive the same.     The plaintiff has<\/p>\n
already installed a tubewell in his name in the disputed land since 1987 and<\/p>\n
he is in cultivating possession of this land. He has incurred huge amount<\/p>\n
over the improvement of this land with regards to which the notice was<\/p>\n
given to the aforesaid defendants, who have enhanced the lagan from<\/p>\n
Rs.1500 to Rs.2500 per year by agreeing that they will not evict the plaintiff<\/p>\n
from this land in future. It came to the knowledge of the plaintiff that these<\/p>\n
defendants want to dispossess him with the help of his co-defendants by<\/p>\n
issuing false receipts to their co-defendants.       The plaintiff has also<\/p>\n
constructed a pucca room in the land in dispute by spending a huge amount<\/p>\n
and has been using the same since 1983. The defendants have got no right
\n R.S.A. No.2409 of 2007                                    -3-<\/span><\/p>\n
to dispossess him from the suit land. They were asked to desist from<\/p>\n
interfering with the possession of the plaintiff over the suit land, but all in<\/p>\n
vain. On these allegations, the suit has been filed for permanent injunction.<\/p>\n
In their joint written statement, defendants No.1 and 2 have inter-alia<\/p>\n
pleaded that the plaintiff was lessee only in respect of the land measuring 50<\/p>\n
kanal and not 61 kanals as alleged. He paid the lease money on 30.3.1992<\/p>\n
for the years 1991-1992, whereafter he did not intend to get the lease<\/p>\n
extended and, therefore, vacated the land in dispute and handed over its<\/p>\n
vacant possession to the answering defendants, who further leased out this<\/p>\n
land to Dalip Singh and Hari Singh at the rate of Rs.8,000\/- per annum in<\/p>\n
the year 1992-1993, at the rate of Rs.9,000\/- per annum in the year 1993-<\/p>\n
1994 and Rs.10,000\/- per annum in the year 1994-1995 and they are paying<\/p>\n
lease money regularly. After Dalip Singh’s death, the disputed land is on<\/p>\n
lease with his sons as well as Hari Singh. That the plaintiff is not in<\/p>\n
possession of the suit land. As alleged, the permission for installation of the<\/p>\n
tubewell was not obtained by the plaintiff. It has been denied that the<\/p>\n
development has been made by him in the suit land.\n<\/p>\n
            In their joint written statement, defendants No.3 to 6 have inter-<\/p>\n
alia pleaded that the plaintiff was lessee under the Punjab Wakf Board, but<\/p>\n
the lease deed in his favour was cancelled on 8.11.1988 by the Punjab Wakf<\/p>\n
Board, whereafter the disputed land was leased out to Dalip Singh, father of<\/p>\n
defendants who have been in possession of the suit land for the last 3 years.<\/p>\n
Dalip Singh- deceased had made payment of the lagan upto date whereas<\/p>\n
the plaintiff did not make payment of the same. Hence, if any entry in the<\/p>\n
revenue record is existing in his name, the same is illegal. He has no<\/p>\n
concern with the suit land. The answering defendants have been making the
\n R.S.A. No.2409 of 2007                                     -4-<\/span><\/p>\n
payment of lagan as well as the electricity bill of the tubewell.          The<\/p>\n
answering defendants have also compensated the plaintiff by making him<\/p>\n
payment in respect of the tubewell.\n<\/p>\n
            The following issues were framed by the learned trial Court:-<\/p>\n
            (i)     Whether the defendants are liable to be restrained from<\/p>\n
                    interfering in the possession of the plaintiff over the suit<\/p>\n
                    property and also from dispossessing him from the same<\/p>\n
                    forcibly and illegally as alleged in the plaint? OPP<\/p>\n
            (ii)    Whether the suit is not maintainable in the present from?<\/p>\n
                    OPD<\/p>\n
            (iii)   Whether the plaintiff has no locus standi to file the<\/p>\n
                    present suit? OPD<\/p>\n
            (iv)    Whether the suit is time barred? OPD<\/p>\n
            (v)     Whether the suit is bad for want of notice to defendants<\/p>\n
                    No.1 & 2? OPD 1 & 2.\n<\/p>\n
            (vi)    Whether the plaintiff has not come to the court with<\/p>\n
                    clean hands, if so, its effect? OPD<\/p>\n
            (vii) Whether the plaintiff has no cause of action to file the<\/p>\n
                    present suit? OPD<\/p>\n
            (viii) Whether the plaintiff is estopped to file the present suit<\/p>\n
                    by his own act and conduct? OPD<\/p>\n
            (ix)    Relief.\n<\/p>\n
            After hearing the learned counsel for the parties and examining<\/p>\n
the evidence on record, the learned trial Court decreed the suit in the terms<\/p>\n
as noted supra. Feeling aggrieved therewith, Dalip Singh- deceased through<\/p>\n
his legal representatives preferred an appeal, which was accepted by the
\n R.S.A. No.2409 of 2007                                    -5-<\/span><\/p>\n
learned Additional District Judge, Hisar setting aside the judgment\/ decree<\/p>\n
passed by the learned trial Court and dismissed the suit filed by the plaintiff.<\/p>\n
Inasmuch as Civil Appeal No.24 of 2002 ibid was preferred by Dalip Singh<\/p>\n
– deceased through his legal representatives and another Civil Appeal<\/p>\n
No.28 of 2002 was filed by the Punjab Wakf Board, Ambala Cantt., and its<\/p>\n
Administrator posing a challenge to the judgment\/ decree delivered by the<\/p>\n
learned trial Court, so the plaintiff Jaswant Rai has preferred the two<\/p>\n
appeals noticed at the outset, feeling aggrieved with the judgment\/ decree<\/p>\n
dated 29.8.2006 rendered by the learned First Appellate Court, vide which<\/p>\n
his suit has been dismissed.\n<\/p>\n
             I have heard the learned counsel for the parties, besides<\/p>\n
perusing the findings returned by both the Courts below with due care and<\/p>\n
circumspection.\n<\/p>\n
             Mr. Ramesh Goyal, Advocate on behalf of the common<\/p>\n
appellant Jaswant Rai, in both the appeals maintained with great eloquence<\/p>\n
that as would transpire from the impugned judgment, the learned First<\/p>\n
Appellate Court did not record any reason for reversal of the findings<\/p>\n
returned by the learned trial Court. This apart, the learned Lower Appellate<\/p>\n
Court ignored the settled principle of law that even a trespasser can be<\/p>\n
evicted only in the manner authorised by law. It is admitted case of the<\/p>\n
parties that initially the plaintiff\/ appellant was allotted the suit land by<\/p>\n
defendants No.1 and 2 in the year 1983, whereafter he continued in<\/p>\n
possession of the same as lessee on payment of lagan. Ex.P.2, the copy of<\/p>\n
jamabandi for the year 1993-1994 tends to show that the plaintiff is in<\/p>\n
possession of the disputed land as a lessee. Ex.D4, the copy of khasra<\/p>\n
girdawari too fortify this entry existing in Ex.P.2.        This documentary
\n R.S.A. No.2409 of 2007                                     -6-<\/span><\/p>\n
evidence go a long way in proving the possession of the plaintiff- appellant<\/p>\n
over the land in dispute on the date of institution of the suit, i.e., 20.5.1993.<\/p>\n
To add further to it, the defendants have also admitted that there is a<\/p>\n
tubewell and kotha (Room) in the suit land. The learned First Appellate<\/p>\n
Court has not assigned any cogent reason for reversing the findings returned<\/p>\n
by the learned trial Court on the basis of revenue record. The plaintiff-<\/p>\n
appellant being in admitted possession of the land in dispute is entitled to<\/p>\n
protect it against unlawful dispossession.\n<\/p>\n
             To tide over these submissions, Mr. Ashok Verma, Advocate<\/p>\n
representing the legal heirs-cum-legal representatives of the deceased Dalip<\/p>\n
Singh- defendant- respondent urged with great vehemence that as a matter<\/p>\n
of fact, the appellant had vacated the land in dispute and subsequently, it<\/p>\n
was leased out to Dalip Singh deceased and that being so, the legal heirs of<\/p>\n
the deceased Dalip Singh cannot be injuncted from cultivating the land.<\/p>\n
             Mr. Abhinash Jain, Advocate arguing on behalf of the Punjab<\/p>\n
Wakf Board, Ambala Cantt., as well as its Administrator- respondents<\/p>\n
pressed into service that in consequence of vacation of the suit land by the<\/p>\n
plaintiff- appellant, it was leased out in favour of Dalip Singh since<\/p>\n
deceased and that the legal heirs-cum-legal representatives of the deceased<\/p>\n
Dalip Singh had been making the payment of lease money regularly.<\/p>\n
             I have given a deep and thoughtful consideration to the rival<\/p>\n
contentions. The learned First Appellate Court in paragraph No.19 of the<\/p>\n
impugned judgment has observed as under:-\n<\/p>\n
             “The learned trial court held the plaintiff to be a lessee on land<\/p>\n
             measuring 60 kanals, though the plaintiff himself admitted in<\/p>\n
             his replication that he was lessee qua 50 kanals of land only.
\n R.S.A. No.2409 of 2007                                     -7-<\/span><\/p>\n
            Tubewell, which the plaintiff claims to have been installed in<\/p>\n
            the land in question, was not in use as deposed to by PW-2 Des<\/p>\n
            Raj, UDC, HPVN Adampur and the electric connection was<\/p>\n
            disconnected on 17.9.1996 as consumer Jaswant son of Ram<\/p>\n
            Narain had become defaulter. Lessees Dalip etc. are paying<\/p>\n
            lagan money to the Punjab Wakf Board. The observations of<\/p>\n
            the learned trial court that relationship of lessee and lessor<\/p>\n
            existed between the parties as the plaintiff was ready and<\/p>\n
            willing to pay the lease money. Relationship of lessee and<\/p>\n
            lessor cannot be created by willingness of a person to pay lease<\/p>\n
            money.     For creation of lease, there has to be bilateral<\/p>\n
            agreement between the parties.”<\/p><\/blockquote>\n
\n
            In the first instance, it is to be noticed, as to whether the learned<\/p>\n
First Appellate Court was right in observing that the learned trial Court held<\/p>\n
the plaintiff to be a lessee of land measuring 61 kanals though the plaintiff<\/p>\n
admitted himself in his replication that he is lessee qua 50 kanals of land<\/p>\n
only. To my mind, its answer must be in the negative for the reason that a<\/p>\n
glance through the plaint would reveal that as a matter of fact, the suit has<\/p>\n
been filed qua the land measuring 60 kanal and 1 marla.             By way of<\/p>\n
inadvertence or due to typographical mistake in the replication, the land has<\/p>\n
been shown as 50 kanals. Indeed, the plaint is the basic document of the<\/p>\n
pleadings. That being so, no serious note can be taken of the fact that in the<\/p>\n
replication, the plaintiff has alleged himself to be a lessee qua the land<\/p>\n
measuring 50 kanals. Further, the learned First Appellate Court observed<\/p>\n
that the tubewell being not in use, its connection was disconnected as the<\/p>\n
plaintiff had become defaulter. It is own case of the legal heirs-cum-legal
\n R.S.A. No.2409 of 2007                                  -8-<\/span><\/p>\n
representatives of the deceased Dalip Singh, i.e., defendants No.3 to 6 that<\/p>\n
they have compensated the plaintiff by making him payment in respect of<\/p>\n
tubewell. This admission is clincher towards the fact that the tubewell in<\/p>\n
the disputed land was installed by the plaintiff- appellant. It is a separate<\/p>\n
matter that connection thereof has been disconnected in consequence of<\/p>\n
non-payment of the electricity charges pertaining to this tubewell. Mere<\/p>\n
disconnection of tubewell does not confer any right on defendants No.3 to<\/p>\n
6. It is further observed by the learned First Appellate Court that Dalip<\/p>\n
Singh, etc., are paying lagan to the Punjab Wakf Board. It is apt to be borne<\/p>\n
in mind that defendants No.3 to 6 have come up with a specific plea that this<\/p>\n
lease deed in favour of the plaintiff was cancelled on 8.11.1988 by the<\/p>\n
Punjab Wakf Board and, thereafter, the land in dispute was leased out to<\/p>\n
Dalip Singh- deceased. The record is quite barren to show such cancellation<\/p>\n
of the lease deed. In the absence of such record, it would be just begging<\/p>\n
the question to say that such lease deed has been cancelled.         All the<\/p>\n
defendants have admitted in their written statements in categoric terms that<\/p>\n
initially the land in dispute was leased out in favour of the plaintiff-<\/p>\n
appellant. The defendants No.3 to 6 could have been inducted as lessee in<\/p>\n
the land in dispute only in the event the plaintiff- appellant had either<\/p>\n
surrendered the lease or vacated the land in dispute. The defendants No.1<\/p>\n
and 2 have come up with the plea that the plaintiff did not want to get the<\/p>\n
lease extended and thus, he vacated the land in dispute and handed over its<\/p>\n
vacant possession to them, whereas their co-defendants have put forth a<\/p>\n
different plea that the lease deed in favour of the plaintiff was cancelled.<\/p>\n
Ostensibly, they have taken up inconsistent pleas. Had the lease deed been<\/p>\n
cancelled, the defendants No.1 and 2 might have taken up such plea. As per
\n R.S.A. No.2409 of 2007                                    -9-<\/span><\/p>\n
Ex.D.4, from kharif 1997, the defendants No.3 to 6 came in possession of<\/p>\n
the suit land vide Rapat Roznamcha No.105 dated 27.11.1997. As has been<\/p>\n
reflected in Ex.D.5 as well as Ex.D.6, they have been continuing in<\/p>\n
possession of the suit land. The defendant Rajpal had moved an application<\/p>\n
for correction of entries in the khasra girdawari in the Court of Assistant<\/p>\n
Collector-II Grade, Hisar, which was allowed vide order dated 12.11.1997,<\/p>\n
which was given effect to vide above-mentioned Rapat Roznamcha on the<\/p>\n
basis of which defendants No.3 to 6 have been shown in the cultivating<\/p>\n
possession of the suit land from kharif 1997 onwards. The said order was<\/p>\n
challenged by the plaintiff in the Court of Collector Hisar who set aside the<\/p>\n
same vide his order dated 22.9.2000 Ex.P.8. The learned trial Court rightly<\/p>\n
proceeded to observe that “Once order dated 12.11.1997 was set aside by<\/p>\n
Collector Hisar vide Ex.P.8, the entries in Ex.D.4, Ex.D.5 and Ex.D.6 in<\/p>\n
favour of defendants No.3 to 6 by virtue of Rapat Roznamcha No.105 dated<\/p>\n
27.11.1997 lost their relevance.” It is further observed that “it is also worth<\/p>\n
mentioning here that earlier also a similar application was moved by<\/p>\n
defendants No.3 to 6 in the Court of Assistant Collector-II, Hisar for<\/p>\n
correction of khasra girdawari, which was dismissed vide order dated<\/p>\n
4.6.1997 Ex.P.9. In the said order, it was specifically observed by Assistant<\/p>\n
Collector-II Grade, Hisar that defendants No.3 to 6 and defendants No.1 and<\/p>\n
2 are in connivance with the each other and in fact, the plaintiff has been in<\/p>\n
possession of the suit land as a lessee.” It has also been rightly observed by<\/p>\n
the learned trial Court that “Ex.D.7 has not been passed in terms of para 9.9<\/p>\n
of Punjab Land Records Manual as per which it was incumbent upon the<\/p>\n
concerned revenue authorities to inform the affected person before effecting<\/p>\n
any change in revenue entries.”\n<\/p>\n
 R.S.A. No.2409 of 2007                                  -10-<\/span><\/p>\n
\n
            As would be apparent from Ex.D.7, the notice for spot<\/p>\n
inspection was issued to the plaintiff who did not come present at the site.<\/p>\n
The spot inspection was undertaken at his back on 18.6.2001. Thus, by no<\/p>\n
stretch of imagination, it can be said that paragraph No.9.9 ibid was<\/p>\n
observed before effecting change in the entries in the revenue record. DW1<\/p>\n
Mohammad Baksh in his cross-examination has stated that entry regarding<\/p>\n
plaintiff Jaswant Rai giving up his possession of the suit land is mentioned<\/p>\n
in the record of Wakf Board of 1992-1993. He stated that such record is<\/p>\n
lying in the head office and the same can be produced by Record Officer.<\/p>\n
As emanates from the record, no such effort was made by the defendants to<\/p>\n
summon such record from the Record Officer. There being no evidence<\/p>\n
with regards to the surrendering of the possession of the land in dispute by<\/p>\n
the plaintiff- appellant of his own, it is very difficult to accept such plea<\/p>\n
taken up by defendants No.1 and 2.\n<\/p>\n
            In consequence of the afore-referred discussion, the findings<\/p>\n
returned by the learned First Appellate Court are reversed and both these<\/p>\n
appeals are accepted setting aside the judgment\/ decree dated 29.8.2006<\/p>\n
rendered by the Court of learned Additional District Judge, Hisar and the<\/p>\n
judgment\/ decree dated 29.4.2002 passed by the Court of learned Civil<\/p>\n
Judge (Junior Division), Hisar is restored. Of course, having regard to the<\/p>\n
peculiarity of the facts and circumstances of the case, the parties are<\/p>\n
directed to bear their own costs.\n<\/p>\n
\n
December 16, 2008                                 ( HARBANS LAL )\nrenu                                                   JUDGE\n\nWhether to be referred to the Reporter? Yes\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court R.S.A. No.728 Of 2007 vs Dalip Singh (Deceased) Through … on 16 December, 2008 R.S.A. No.2409 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Date of Decision:16.12.2008 1. R.S.A. No.728 of 2007 Jaswant Rai …..Appellant Vs. Dalip Singh (deceased) through his legal heirs-cum- legal representatives and […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-267682","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nR.S.A. 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