Amar Singh vs Dalip Singh

G.R. Majithia, J.

This judgment will dispose of Regular Second Appeal Nos. 1821 of 1978 and 1822 of 1978.

The facts : Appellants Amar Singh and another claiming to be the owners of the land in dispute under the provisions of Punjab Occupancy (Vesting of Proprietary Rights) Act filed a suit in the Court of Assistant Collector I Grade, Ballabgarh on 29.7.1975 under Section 77 of the Punjab Tenancy Act seeking ejectment of the respondent inter alia on the ground that they were small landowners and the respondent had defaulted in the payment of rent of the land. The said suit was decreed on October 29, 1976. The order was not appealed against. The respondenttenant was evicted in execution of the decree of the revenue Court and the appellants were put in possession thereof.

Respondent Dalip Singh instituted a suit seeking declaration that in fact he was in possession of the land in suit as a mortgagee and that there was no relationship of landlord and tenant between the parties, and that the judgment and decree of the revenue Court was without jurisdiction and void. As he was dispossessed during the pendency of the suit, the plaintiff amended the plaint to add the relief of possession.

The suit was contested by the appellants. It was admitted on their behalf that they had obtained a decree for ejectment of the plaintiff from the land in dispute from the revenue Court and asserted that they had already taken possession of the suit land in execution of the said decree. The other allegations made in the plaint were denied.

On the pleadings of the parties six issues were framed but the material ones are issues No. 1 and 2 which are reproduced below :

(1) In what capacity the plaintiff is in possession of the property in dispute and to what effect ? OPP.

(2) Whether the order of Assistant Collector dated 29.10.76 is against law and without jurisdiction and not binding upon the plaintiff as alleged in para No. 4 of the plaint ? OPP.

The trial Court decided issue No. 1 against the plaintiff and on issue No. 2, it was held that the order of the Assistant Collector was within jurisdiction and the same was binding upon the parties and this issue was also decided against the plaintiff. As a necessary consequence the suit of the plaintiff/respondent was dismissed. On appeal by the plaintiff/respondent, the first Appellate Court reversed the aforesaid findings on issues No. 1 and 2 which alone were challenged before it. The appeal was allowed and the suit of the plaintiff/respondent was decreed. Aggrieved thereby, the defendant/appellants have preferred regular second appeal in this Court. The regular second appeals in this Court came up before S.P. Goyal, J. (as his Lordship then was) who noticed a conflict of precedent and referred the following question of law for decision to a larger Bench :

"Whether the decision of Rent Collector under the Rent Control Laws or a Revenue Court under section 77 of the Punjab Tenancy Act upon the relationship of landlord and tenant between the parties operates as res judicata and is not open to challenge in a subsequent suit or in other collateral proceedings between the parties ?"

The Full Bench by majority held that the decision of the Rent Collector under the Rent Control Laws or the Revenue Court under Section 77 of the Punjab Tenancy Act upon the relationship of landlord and tenant between the parties would not operate as res judicata and was open to challenge in a subsequent suit or any other collateral proceedings between the parties. The judgment is reported as Amar Singh v. Dalip, AIR 1981 Punjab and Haryana 237 (Full Bench). The judgment rendered by this Court was affirmed by the apex Court in Richpal Singh v. Dalip, 1987(2) RCR(Rent) 351 (SC) : 1987 RRR 598 (SC) : AIR 1987 Supreme Court 2205 : 1987 RRR 598. In the light of the decision rendered by this Court and the apex Court, it can no more be argued that the judgment rendered by a Court of limited jurisdiction will not bar the raising of the question whether relationship of landlord and tenant exists between the parties in a regular civil suit. The only questions which survive for consideration in the regular second appeals are :

(i) Whether the respondent/plaintiff was in possession of the disputed land as a mortgagee ?

(ii) Whether the order of eviction passed by the Revenue Court against respondent/plaintiff is within jurisdiction ?

The trial Court found that it did not stand proved that any valid mortgage came into being in between the parties. The first Appellate Court reversed the finding only on the ground that in the revenue record the respondent/plaintiff is recorded as a mortgagee and on the basis of the entries in the revenue record it came to the conclusion that the respondent/plaintiff was in possession of the land as a mortgagee and after so holding it came to the conclusion that the judgment rendered by the revenue Court was without jurisdiction. It came to this conclusion without reverting to the evidence brought by the plaintiff/respondent to substantiate the plea that he was in possession of the suit land as a mortgagee. The plaintiff appeared as PW 1 at the trial and stated that he was in possession of the land for the last 30 to 32 years and was in possession on the basis of the oral mortgage in his favour. He also admitted that he did not know whether the mortgage subsists or not but added that he was in possession of the land as an owner. He also admitted that the consideration for the mortgage was paid by his father and he did not know whatwas the consideration and when the same was paid to the defendants or their predecessorsininterest. He also admitted that no writing was prepared. The revenue record shows that the mortgage came into existence in the year 1962 when the plaintiff was put in possession of the land as a mortgagee of the first tenant. There is no other evidence on the record to support the plea that the respondent/plaintiff is in possession as a mortgagee. On the basis of the evidence referred supra it is not possible to hold that the respondent/plaintiff is in possession of the land in dispute as a mortgagee. The respondent/plaintiff did not plead or prove when the mortgage was created, the term of the mortgage, the consideration for the mortgage and how it was created. The provisions of Section 59 of the Transfer of Property Act had been extended to Haryana vide Notification No. SO/CA 1882/S.I. 1/67 with effect from 5.8.1967 and in view of the fact that the provisions were extended to the State of Haryana no oral mortgage could be created. Thus, the plea of the respondent/plaintiff that he was in possession of the suit land as a mortgagee remains unsubstantiated and on the basis of the evidence on record the finding of the first appellate Court to the contrary cannot be upheld. The first appellate Court reversed the conclusions of the trial Judge on this issue without meeting with the reasoning and conclusions arrived at by the trial Judge and he reversed the finding of the latter under issue No. 1 only on conjectures which is not permissible at law.

No meaningful arguments were addressed by any of the counsel for the parties that the judgment rendered by the revenue Court holding that relationship of landlord and tenant exists between the parties and that the respondent/plaintiff was liable to be evicted for the reasons mentioned therein is without jurisdiction. The first appellate Court held that the judgment rendered by the revenue Court was without jurisdiction only after holding that the respondent/plaintiff was in possession of the land in dispute as a mortgagee. This finding has been reversed. The second finding of the first appellate Court that the judgment rendered by the revenue Court is without jurisdiction cannot be sustained and the same is also reversed.

For the aforesaid reasons the judgment and decree of the first appellate Court are set aside and those of the trial Court are restored. However, in view of the peculiar circumstances of the case parties are left to bear their own costs.