Bharto vs Nathu

D.V. Sehgal, J.

Mst. Chalti was the daughter and the only heir of late Lehri son of Chet Ram resident of village Sheriya, tehsil Jhajjar, who owned the suit land described in para 1 of the original plaint. Nathu defendant respondent was cultivating the suit land under him as a tenant. After his death, Mst. Chalti tried to get a mutation of inheritance in respect of the suit land sanctioned in her favour. This mutation was entered in the Village Mutation Book, but was not sanctioned because of a general ban on the attestation of mutations in view of the operations of consolidation of holdings in the village. She filed an application before the Assistant Collector Ist Grade for the ejectment of the respondent which was allowed on 29.1.1970. The respondent preferred an appeal before the Collector, Rohtak, which was allowed and the order of the Assistant Collector was set aside on the ground that her name did not figure as an owner of the suit land in the revenue record and as such she had no locus standi to seek ejectment of the respondent. The Commissioner, Ambala Division, affirmed the decision of the Collector on an appeal filed by her, which was dismissed. Thereafter, she filed a suit in the Court of Sub Judge, Jhajjar, for declaration of her title to the suit land, which was decreed on 13.12.1971. She was declared to be the only legal heir of her father Lehri deceased and as such the owner of the suit land. The respondent preferred an appeal which came up for hearing before the learned Additional District Judge. Since the suit for declaration of her title simpliciter was contended to be not maintainable, she was allowed to withdraw the suit so as to file a fresh one along with the consequential relief of possession. She, however, filed a fresh suit for possession alone without claiming declaration of her title. Shri B.R. Gupta, Sub Judge, Jhajjar, held vide his order dated 12.7.1973 that the suit for possession was not maintainable in the Civil Court as there was relationship of landlord and tenant between the parties. He, therefore, ordered the plaint to be returned to her for presentation to the appropriate revenue Court. Instead of approaching the revenue Court once again, she filed the instant suit for declaration to the effect that she is the owner of the suit land and also for a decree for possession thereof as a consequential relief. The respondent in his written statement denied that she was the daughter or legal heir of Lehri deceased. Instead, he pleaded that he had been occupying and cultivating the suit land without payment of any rent and had become its owner by adverse possession. He also claimed to be a collateral of Lehri deceased and thus his only legal heir. He further contended that the Civil Court had no jurisdiction to try the suit; she had no locus standi and that the suit was barred by res judicata. During the pendency of the suit, Mst. Chalti died and the present appellants were brought on record as her legal heirs. The suit was ultimately decreed by the learned Sub Judge Ist Class, Jhajjar, vide his judgment and decree dated 6.2.1976. The respondent thereupon preferred an appeal which was allowed by the learned Senior Sub Judge (with enhanced Appellate Powers), Rohtak, vide judgment and decree dated 11.5.1977. The appellants have, thus, preferred the present regular second appeal in this Court.

As many as six issues were framed by the learned trial Court. However, for the decision of the present appeal, it is necessary to set out only the following three issues, which were agitated before the learned lower Appellate Court :

Issue No. (1) : Whether the plaintiff is the owner of the suit land as alleged in the plaint ? OPP.

Issue No. (3) : Whether the suit is barred by res judicata? OPD.

Issue No. (4) : Whether this Court has no jurisdiction to try the suit ? OPD.

The learned Senior Sub Judge affirmed the finding of the learned trial Court on issues Nos. (1) and (3) and held that the appellants are the owners of the suit land as their predecessorininterest Chalti was the daughter of Lehri, who was its original owner. It was further held that the suit was not barred by res judicata. However, issue No. (4) was decided against the appellants and it was held that in spite of the fact that respondent had denied the title of Mst. Chalti and had instead set up his own title, the appellants could not maintain the suit for possession and as such they were relegated to their remedy for ejectment of the respondent before the revenue authorities.

I have heard the learned counsel for the parties and I am of the view that the finding of the learned Senior Sub Judge on issue No. (4) is not correct. Mst. Chalti sought remedy by ejectment of the respondent before the revenue Courts and exhausted the same up to the stage of appeal before the Commissioner. She, however, could not succeed as the respondent denied her title as also relationship of landlord and tenant between her and himself. She was, therefore, forced to seek remedy for declaration of her title and possession in the Civil Court. Neither in the previous suits filed by her nor in the instant suit the respondent ever accepted his character as tenant under her. He instead denied the fact that Mst. Chalti was the daughter of Lehri deceased and in fact pleaded ownership of the suit land by way of adverse possession as also in his capacity as a collateral and sole heir of Lehri. In this situation it was not at all just and proper to relegate the plaintiffs once again to seek remedy for ejectment of the respondent, in his character as tenant, before the revenue authorities. I am fortified in this view by a Division Bench judgment of this Court in Sada Ram v. Gajjan, 1970 P.L.R. 223 : 1970 R.C.R.(Rent) 127 wherein it was held

"That the denial of the relationship of landlord and tenant by the tenant in his written statement to a suit for ejectment determines a tenancy forthwith, thus giving the right to the landlord to the possession of the leased property, when the lease is not for a fixed period but from year to year or at will as in the present cases. A year to year tenancy or a tenancy at will gets determined by such a denial or renunciation of title."

The Division Bench judgment in Sada Ram''s case (supra) was followed by P.C. Pandit, J. in Smt. Suhag Rani v. Shri Sukhdev etc., 1971 Current Law Journal 391 : 1971 R.C.R.(Rent) 418. The learned Senior Sub Judge has placed reliance on the judgment of B.R. Tuli, J in Daulat Ram and Nepal Singh v. Payare Lal and Bhagwan Sahai, 1975 PLJ 12. In Daulat Ram''s case (supra), however, the Division Bench judgment in Sada Ram''s case (supra) was not noticed. Following the dictum of the Division Bench in Sada Ram''s case (supra), I hold that after declaration of title of Mst. Chalti and the appellants who are her legal heirs to the suit land the decree for possession as granted by the learned trial Court ought to have been upheld.

The Civil Court had jurisdiction to grant the decree in the given circumstances. The finding on issue No. (4) returned by the learned trial Court has been wrongly reversed by the learned Senior Sub Judge.

In the CrossObjections filed by the respondent, his learned counsel contended that he had moved an application for amendment of the plaint before the learned Senior Sub Judge during the pendency of the appeal so as to take the plea that Lehri had executed a Will in his favour and by virtue of the said Will he was the sole and exclusive owner of the suit land. He contends that this application for amendment had been wrongly dismissed by the learned Senior Sub Judge. To buttress his argument, he contended that howsoever long the delay the amendment of pleadings ought not to have been declined as the procedure is a mere handmaid of justice and should not impede the course of justice. I have gone through the order dated 21.2.1977 passed by the learned Senior Sub Judge, Rohtak rejecting the application of the respondent for amendment. I am satisfied that the application was rightly declined. In spite of diverse proceedings taken by Mst. Chalti in different Courts the respondent had at no stage set up the Will allegedly executed in his favour by Lehri. I, therefore, agree with the view of the learned Senior Sub Judge that the application for amendment was not a bona fide one. It was rather aimed at prolonging the proceedings to allow the respondent to continue in possession of the suit land.

Consequently, I allow the appeal and set aside the judgment and decree dated 11.5.1977 of the learned Senior Sub Judge and restore those of the learned Sub Judge Ist Class, Jhajjar, dated 6.2.1976. The crossobjections filed by the respondent are dismissed. The appellants shall get costs of appeal, which are assessed at Rs. 300/