Gordhan vs Narain Dass etc.

G.R. Majithia, J.—The plaintiff-appellant came to the Court with the allegations that he and his predecessors-in-interest were in cultivating possession of the disputed land as tenants-at-will for the last more than 40 years and were paying land revenue and cesses. He has become occupancy tenant of the land before filing the present suit since he fulfilled all the conditions of Sections 5 and 8 of the Punjab Tenancy Act and thus acquired the rights of occupancy tenant under the provisions of Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953.

The defendants controverted the pleas of the plaintiff and pleaded that they were only licensees allowed to remain in possession of the suit land on account of relationship.

The plaintiff sought permission to amend the plaint and in the written statement filed to the amended plaint, the defendants set up a counter claim. The learned trial Judge, framed the following issues:-

Whether the plaintiff has become occupancy tenant of the suit land as alleged in the plaint and thus the owner of the suit land OPP.

Whether the plaintiff has no locus standing to file the present suit? OPD.

Whether the plaintiff is estopped from filing the present suit? OPD.

Whether the suit is not maintainable, OPD.

4A. Whether the sale deed executed by defendant No. 4 in favour of defendant No. 5, dated 18-1-1982 is illegal and not binding on the plaintiff? OPP.

4B. Whether the written statement dated 5-6-1985 to the amended plaint has been changed unauthorisedly, if so, its effect? OPP.

Relief.

The learned trial Judge dismissed the suit of the plaintiff but allowed the counter claim and passed a decree for possession in favour of the defendants. The learned first Appellate Court maintained the decree of the trial Judge.

Before the learned Appellate Judge an application under Order 41 Rule 27 CPC was moved to produce Jamabandi for the year 1919-20, by way of additional evidence.

The learned first appellate Court refused permission to the appellant to produce additional evidence on the grounds that the same was not required by him for pronouncing the judgment; the appellant was given large number of opportunities to produce evidence by the trial Court and that at the trial Moharrir Patwari was summoned with the excerpt but the witness was not examined.

I have heard the learned counsel for the parties. Mr. Jain, the learned counsel for the appellant submitted that the lower Appellate Court was in error in refusing permission to the appellant to produce the copy of Jamabandi for the year 1919-20 by way of additional evidence. It is correct that the appellant was negligent at the trial and did not produce the revenue record which was sought to be produced at the appellate stage. However, in the circumstances of the present case, the learned appellate Judge ought to have granted permission to the appellant to produce the Jamabandi for the year 1919-20 by way of additional evidence. They produced Jamabandi for the year 1938-39 and onward. They did not produce Jamabandi for the period prior to 1938-39 and this was sought to be done by way of additional evidence. The entries in the Jamabandi for the year 1919-20 are not in conflict with the earlier entries. These are only a clarifier and explains the status of the occupier. The authencity of the revenue record is not assailed. In revenue record in the column of cultivation the predecessors in interest of the appellant are shown as tenants at-will, but in the column of rent, they are shown to be in occupation like owners on payment of land revenue. The predecesscrs-in-interest of the appellant and the appellant are paying land revenue. The owner never paid land revenue.

Under Clause (b) of rule 27 of Order XLI of the Code of Civil Procedure, the appellate Court can receive additional evidence not only when it requires such evidence to enable it to pronounce the judgment but also for any other substantial cause There may well be cases where even though the Court finds that it is able to pronounce the judgment on the state of record as it is, and so it cannot strictly say that it requires additional evidence to enable it to pronounce the judgment, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. In K. Venkataramiah Vs. A. Seetharama Reddy and Others, , their Lordships of the Supreme Court were pleased to observe as under:-

Under R. 27. (1), the appellate Court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment", but also for "any other substantial cause." There may well be cases where even though the Court finds that it is able to pronounce judgment on the state of record as it is, and so it cannot strictly say that it requires additional evidence to enable it to pronounce judgment, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence for any other substantial cause under R. 27(1)(b) of the Code.

This was followed in Mehar Chand and others v. Kavti Parshad (1984) 86 P.L.R. 272 by R.N. Mittal, J. and it was held that the appellate Court has the power to allow additional evidence not only if it requires such evidence to enable it to pronounce judgment but also for any other substantial cause and even in cases where it considers that in the interest of justice something which remains obscure should be filed up so that it can pronounce judgment in a more satisfactory manner and the defect may be pointed out by a party or that party may move the court to supply the defect. In this view of the matter, I allow the application filed under Order XLI Rule 27 of the CPC and allow the copy of Jamabandi for the year 1919-20 to be placed on record as Exhibit P-16.

I had put it to the learned counsel for the respondents during the course of arguments that in the event, I allow the application for additional evidence whether he wants to lead any evidence in rebuttal. He replied in the negative. However, he strongly opposed the production of additional evidence in the second appellate state. I repel his submissions for the reasons stated supra.

The history of rent in the Punjab is that it owes its original mainly to fiscal arrangements, and not directly to economic causes. In large number of cases tenants at-will have been paying land revenue or cesses with or without a small additional payment on account of Mali-kana Payment of rent and cesses to the State on behalf of the land owners will be in lieu or rent.

In sub-section (3) of Section 4 of the-Punjab Tenancy Act, 1887, rent is defined as under:-

(3) "rent" means whatever is payable to a landlord in money, kind or service by a tenant on account of the use or occupation of land held him.

The term is wide enough to include the payment of land revenue and cesses by the occupier on behalf of the landlord.

In Settlement Manual Ray M. Douie, 4th Ed, 1960 at Page 104 para 206, it was observed as under:-

The chief fact in connection with the history of rent in the Punjab is that it owes its origin mainly to fiscal arrangements, and not directly to economic causes. This is obvious in the cause of the rents consisting of the land revenue and cesses with or without a small additional payment on account of Malikana, which are still commonly paid by tenants-at-will, in some parts of the country. But it is equally true of batai and zabti rents. The former represent the share of the produce which native governments claimed under the name of muhsul or hakimi hissa (i.e. the ruler''s portion).

It is obvious that in some cases rent, consists of land revenue and cesses, if that is so, oral and, documentary evidence has come on record from which, it is apparent that predecessor-in-interest of the plaintiff and the plaintiff have been paying land revenue and cesses for the last more than five decades. There is no rebuttal to this evidence. In fact it appears to have been admitted by the defendants also Payment of land revenue and cesses is also a kind of rent. Resultantly, I hold that the predecessors-in-interest of the plaintiff were in occupation of the land as tenant-at-will and the same position is occupied by the plaintiff. However, from the material on record, it cannot be held that the plaintiff had acquired occupancy rights under the provisions of Punjab Tenancy Act and thereafter became owners under the provisions of Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953.

In view of my finding that the plaintiff is tenant-at-will, the counter claim filed by the defendants is rejected. The plaintiff can only be evicted in accordance with the provisions of section 9 of the Punjab Security of Land Tenures Act and not in a civil suit.

I allow the appeal to the extent that I grant declaration to the plaintiff that he is tenant-at-will on the suit land and he will be entitled to remain in possession till he is evicted in accordance with the provisions of Punjab Security of Land Tenures Act. The counter claim filed by the defendant has been rejected. However, in all other respects the judgment of the first Appellate Court is maintained. I leave the parties to bear their own costs.

After I had pronounced the judgment, the learned counsel for the respondent brought to my notice that his one submission that the plaintiff forfeited his tenancy right when he asserted that he had acquired higher rights of occupancy tenants and this will amount to denial of right of the owner and will cause forfeiture of their right as a tenant-at-will.

This point was not raised before the courts below. However, I thought it proper to deal with this aspect of the matter. The plaintiff claimed that they had become occupancy tenants under the provisions of Section 5 and 8 of the Punjab Tenancy Act and on the commencement of Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953 they became the owners of the land. They never denied the title of the landlord. Setting up a permanent tenancy is not a denial of title of the landlord and it will not tantamount to disclaimer of the landlord''s title. In somewhat similar circumstances, the apex Court dealt with this aspect of the matter and the judgment is reported as Raja Mohammad Amir Ahmad Khan Vs. Municipal Board of Sitapur and Another, and it was held thus:-

A title as a permanent lessee with a heritable and transferable right in the property was as much a title as one with full ownership and if he stated that he was seeking a declaration from the Civil Court of his title as permanent lessee of such a character, there would, of course, be no question of his setting up a title in himself in derogation of the landlord''s.

There is no substance in the submission made by the learned counsel and the same is repelled.