Jarman Singh vs Financial Commissioner (Appeals) and Others

V.K. Bali, J.—It is perhaps for the sole reason that fate of litigating parties herein fluctuated in various Courts that determination of a small issue as to whether the relationship of landlord and the tenant exists between the parties, has taken a period of over two decades.

Facts leading to filing of the two Letters Patent Appeals bearing Nos. 902 and 946 of 1991 on behalf of the tenant need a necessary mention before respective stand of the litigating parties is noticed.

The two admitted owners Vidya Sagar and Devinder Nath owning land in dispute measuring 148 Kanals in equal shares filed a suit for recovery of Rs. 7,200/ as arrears of rent for the crops for the years 1972-73, 1973-74 and 1974-75 on 19.8.1975. In defence, the tenant-respondent set up an agreement of sale dated 9.2.1958 with regard to land measuring 88 Kanals 8 Marias said to have been executed by one of the owners namely Vidya Sagar on his behalf and also on behalf of his real brother Devinder Nath, the owner of the other half. By virtue of agreement aforesaid, 7 acres of irrigated land was to be sold to him at the rate of Rs. 1000/- per acre and with regard to the remaining 4 acres of land the rate settled between the parties was Rs. 600 per acre. The plea of Jarnam Singh, the appellant in these two appeals that he was in possession of the suit land in part performance of the contract succeeded. It obviously resulted into a finding that there was no relationship of landlord and the tenant between the parties. The suit for recovery of the rent and for eviction was, thus, dismissed by Assistant Collector 1st Grade on 9th February, 1982. Aggrieved, the owners, the respondents herein carried an appeal u/s 80 of the Punjab Tenancy Act before the Collector which was dismissed on 11.8.1982. The landlords were unsuccessful before the Commissioner who dismissed the revision preferred on their behalf on 22.11.1983. The second revision before the Financial Commissioner met with the same late vide order dated 25.2.1987. Inasmuch as considerable time had elapsed from the date when the aforesaid suit was instituted, the landowners filed yet another suit on 2.6.1979 for the recovery of rent for the crops for the years 1975-76, 1976-77 and 1977-78. The Assistant Collector 1st Grade, Jullundur, on the basis of the revenue record that was produced before him decreed the suit vide his order dated 8.11.1982. The appeal preferred by the tenant failed before Collector on 24.2.1983. However, in revision preferred by the tenant before the Commissioner, the matter was recommended for acceptance of the revision and dismissal of the suit before the Financial Commissioner. Financial Commissioner accepted the reference. It requires to be mentioned here that the recommendation made by the Commissioner in the second suit and the second revision of the landlords with regard to first suit came to be disposed of by a common judgment. Aggrieved, the landlords preferred two Civil Writ Petitions which in turn were again decided by a learned Single Judge of this Court by a common judgment. Both the petitions were accepted. It is against the decision rendered by the learned Single Judge in the two writ petitions referred to above, decreeing the suit of landowners-respondents that the two Letters Patent Appeals under clause III of the Letters Patent have been preferred by the tenant,

Mr. J.S. Chahal, learned Counsel appearing for the appellant contends that agreement of sale dated 9.2.1958 executed by Vidya Sagar on his behalf as also on behalf of Devinder Nath was proved. Vidya Sagar, it is further argued was not only brother of Devinder Nath but also was his attorney and was, thus, competent to enter into an agreement with regard to one-half of the suit land owned by Devinder Nath as well. Once possession of appellant Jarman Singh was in pursuance of an agreement i.e. in part performance of the contract, the appellant was within his right to protect his possession and suit instituted on behalf of the landlord for recovery of rent and eviction treating him to be a tenant was wholly incompetent contends the learned counsel. Mr. Arun Jain learned counsel appearing for the landlords joins issue with the appellant''s counsel and vehemently contends that the relationship of landlord and tenant between the parties was proved by the entries made in the record of rights which have presumption of truth u/s 44 of the Land Revenue Act and in absence of any rebuttal to the revenue entries, the learned single Judge rightly held that there exists relationship of landlord and the tenant between the parties. In so far as agreement of sale dated 9.2.1958 is concerned, it is argued that tenant vide notice dated 30.5.1958 Ex. DW-9/A himself cancelled the same and it is thereafter only that the revenue entries consistently record him or his father as tenant on payment of Rs. 2,400/- per year.

We have heard the learned counsel for the parties at considerable length and with their help perused the record. There appears to be no substance whatsoever in the contention raised by the counsel appearing for the appellant. It is admitted position that agreement dated 9.2.1958 was only with regard to 88 Kanals and 8 Marias whereas the eviction was sought from the entire land owned by Vidya Sagar and Devinder Nath measuring 148 Kanals. There could, thus, be no defence on behalf of the appellant in so far as the land which was not covered by agreement of sale is concerned. With regard to remaining land as well i.e. 88 Kanals 8 Marias, the agreement in question was executed by Vidya Sagar. Nothing at all has been proved on record to show that he was Attorney of his brother Devinder Nath as well. It is only when the suit was filed, Vidya Sagar mentioned in the plaint that he was filing the suit for himself as also on behalf of his brother Devinder Nath being his Attorney. That does not necessarily mean that he was his Attorney at the time when agreement of sale came into being i.e. on 9.2.1958 i.e. nearly 16 years after the agreement of sale. The landlord produced on records of the case Jamabandis for the years 1962-63, 1968-69 and 1973-74. In the Jamabandi for the year 1962-63, Kartar Singh son of Partap Singh has been recorded to be a tenant on part of the suit land whereas his sons Jagmohan Singh, Ajit Singh and Randhir Singh have been recorded as tenants on the remaining land. The rent is recorded to be Rs. 560/- per years. Admittedly, Kartar Singh is father of appellant Jarman Singh. In the Jamabandi for the year 1968-69 appellant Jarman Singh is recorded to be a tenant on land measuring 32 Kanals 8 Marias whereas his brothers Jagmohan Singh, Ajit Singh and Randhir Singh have been recorded to be tenants on the remaining land measuring 116 Kanals. The rent is recorded to be Rs. 131/- per Kanal per year. In the Jamabandi for the year 1973-74, appellant Jarman Singh is recorded to be a tenant on the entire suit land. The rent is recorded to be Rs. 2,400/- per year. There is absolutely no mention in any of the Jamabandis that appellant Jarman Singh or his brothers were ever in possession of the land in part performance of the contract. There is a definite reason for there being no entry in the revenue records with regard to agreement of sale. It may be recalled that appellant vide notice dated 31.5.1958 Ex. DW.9/A himself cancelled the agreement and it is thereafter that Jamabandis for the year 1962-63 came into being. It is not disputed that Jamabandis are record of rights and entries contained therein have presumption of truth. It is true the presumption is rebuttable but no evidence whatsoever has been led in this case to show that consistent record of rights incorporated in Jamabandis ever since 1962-63 is in any way incorrect. In so far as plea by the appellant Jarman Singh that he is in possession in part performance of the contract u/s 53 of the Transfer of Property Act is concerned, suffice it to say that the same is permissible only if prior in point of time agreement of sale is proved. As mentioned above, the agreement, if any, between the parties was cancelled and it is thereafter only that relationship of landlord and tenant between the parties came into being. That apart, the doctrine of part performance as embodied in section 53 of the Transfer of Property Act requires agreement to be in writing as also that the transferee has taken possession in furtherance of a contract and that he is willing to perform his part of the contract. As mentioned above, the appellant himself cancelled the agreement way back in 1958 and thus, could not possibly plead his possession in pursuance of an agreement of sale having protection of section 53 of the Transfer of Property, Act.

Finding no merit in these appeals, we dismiss the same, leaving, however, the parties to bear their own costs throughout.