Mehar Singh and Others vs The Financial Commissioner, Haryana, Chandigarh and Others

Sukhdev Singh Kang, J.—Mehar Singh and his two brothers have filed this writ petition under articles 226 and 227 of the Constitution of India for issuance of a writ of certiorari quashing the order of the Revenue Authorities ordering their ejectment from the land, in dispute. It his been filed in the following circumstances.

Smt. Suhari Bai, respondent No. 2, to this writ petition filed an application u/s 14-A(i) of the Punjab Security of Land Tenures Act (hereinafter called the Act) against Telu Ram, Ram Sarup and petitioner Mehar Singh, Jasmer Singh and Sher Singh for their ejectment from the land, in dispute, on the ground that the respondents had not paid anything as rent despite the persistent demand for the last 71/2 years It may be mentioned that this application was filed on January 15, 1976. The petitioners and the other two arragned as respondents appeared and contested the application inter alia on the ground that they had paid rent to Smt. Suhari Bai for the crops, 1969 to Kharif, 1970. The Civil Court had passed a decree on April 24, 1971, holding the Smt. Suhari Bai was not the owner of the land, in dispute, and the land in fact belonged to Raghbir Prashad and others. Thereafter in an appeal that decree was set aside on October 27, 1975, when Smt. Suhari Bai was declared to be the owner. The tenants had paid rent for the period from April 24. 1971 to October 27, 1975 to Raghbir Prashad and others who were owners of the land for this period. The ejectment application had not been thumb marked by Smt. Suhari Bai. The different tenants cultivated different parcels of land and a joint application for ejectment was not competent. However, the latter two objections did not seem to have been pressed before the learned Assistant Collector. On behalf of the petitioner-tenants, Jasmer Singh and Mehar Singh appeared as R.W. 1 and R.W.2 and made statements that they had paid rent for the period commencing Rabi 1969 to Kharif 1970 to Smt. Suhari Bai The learned Assistant Collector did not accept this version. He ordered their ejectment vide orders dated April 15, 1977 (A copy of the same is attached as Annexure p-1 to the writ petition). Aggrieved, the petitioners went up in appeal. This was partly allowed the learned Additional Collector held that the petitioner-tenants had not proved that they had sufficient cause for non-payment of rent. He affirmed the findings of the Assistant Collector regarding ejectment but came to the conclusion that the Assistant Collector had committed an error by not assessing the compensation for disbursement So while maintaining the ejectment orders he sent back the case to the Assistant Collector with the direction that he should gave a decision regarding the compensation for disbursement and ordered that the order of ejectment shall become operative after the decision of compehsation had been pronounced by the Assistant Collector Ist Grade. (A copy of the same is Annexure p.2.). Still, dissatisfied, the petitioners went up in revision. The commissioner vide his orders dated April 11, 1978 (A copy of the same is Annexure p.3) upheld the findings of the authorities below that the petitioners had not paid rent for the crops Rabi 1969 to Kharif 1970 without any valid reason. He concluded that the concurrent findings of the subordinate Revenue Authorities were in accordance with law and there was no justification for any interference therein. Still undeterred the petitioners filed a revision petitioner before the Financial Commissioner which was dismissed vide orders dated July 26, 1979 (A copy of the same is Annexure p.4). The learned Financial Commissioner came to the conclusion that there was no justification for the petitioners for non-payment of rent for the four crops of the years 1969 and 1970. Since there was a concurrent findings of fact of all the subordinate Revenue officers on this point and no new argument has been raised before him he did not think that the matter required his interference. Dissatisfied the petitioners have filed the present writ petition.

Mr. R. K. Chhokker, the learned counsel for the petitioners, has vigorously argued that the orders of the Revenue Authorities ordering the ejectment of the petitioners are wholly illegal and against the settled law. He has contentended that Jasmer Singh and Mehar Singh, petitioners appeared as their own witnesses and made statements on oath that they had paid batai (rent) to Smt. Suhari Bai for the four crops of the years 1969-70. The land lady did not dare to appear in the witness-box and controvert this positive assertion. Only Ganga Ram the brother and general-attorney of the landlady stepped into the witness-box. He was not aware of all the facts of the case because he had been appointed as atterney only in 1971, whereas the alieged default relates to the year 1969-70. He has urged that the respondent-landlady has not produced the best evidence available. A presumption should be drawn against her that if the evidence had been produced, it would have gone against her. In this situation, the findings of the Revenue Authorities that rent had not been paid by the petitioners for the crops 1969-70 are unsustainable in law. I have not been able to persuade myself to concure with the assertions of Mr. Chhokker. The self-serving statements of petitioners Jasmer Singh and Mehar Singh have rightly been rejected by the revenue authorities. During their cross-examination, both these witnesses stated that they had paid the batai but did not obtain any receipt from the landlady. They did not examine any other evidence to substantitate the claim regarding payment of batai. It was within the province of the Revenue Authorities to appreciate and reject the oral evidence regarding payment of rent. Different applications filed by both the parties reveal that Smt Suhari Bai is an old lady. She seems to be in her nineties now. She was brought up in the old atmosphere when ladies hesitated to appear what to say in court even in public. So. her hesitance to appear as her own witness can be explained by her age and bent of mind. Further more, no law requires that in any civil or revenue court the petitioner must appear as a witness. Ganga Ram had appointed; an attorney. He has made a statement on oath. There is no inherent : infirmity brought out in his statement. So, the proposition that because Smt. Suhari Bai did not appear as a witness an inference be drawn against her, cannot be accepted In fairness to Mr. Chhokker, it must be meationed that he has relied upon a decision of the final court in Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, and a division bench judgment of this court in Karnal Distillery Co. Ltd. and Others Vs. Ladli Parshad Jaiswal and Another, n support of this contention. But the two authorities are not helpful to him. In the first case, a party to the litigation had not cared to produce documentary evidence in its possession. In these circumstances, it was held that an inference could be drawn. In the second case, the defendant had not appeared as his own witness. However, in that case, the attorney of the defendant also had not stepped into the witness box.

It was then contended by Mr Chhokker that the application for ejectment was incompetent It had not been thumb marked by Smt. Suhad Bai. It was no application in the eye of law. An application for ejectment has not only to be thumb marked or signed but it has to be verified like a plaint. This argument is also without any merit. Apart from taking a plea in the written statement this question was not agitated before the Assistant Collector. It was not even raised in the grounds of appeal. An half-hearted argument was raised before the learned additional collector. There the learned counsel for Smt. Suhari Bai made statement at the bar that she had thumb marked the ejectment application in his presence As compared to this, there is no other evidence on the file to suggest that the ejectment application had not in fact been thumb marked by Smt. Suhari Bai.

Shri Chokkar argued that though his clients had paid the rent, yet he had an alternative argument that even if for the sake of argument it should be taken that the rent had not been paid for the years 1969-70, the ejectment application in 1976 will not be competent. Only a default in presenti could furnish a cause of ac ion for ejectment The failure of the tenant in the past to make payment for the rent will not render him liable for ejectment at some later date. According to the learned counsel, the rent for the years 1975-75 was not in arrears. So, the application for ejectment was misconceived. In support of this contention, he has cited before ire decision of the Financial Commissioner in Labh Singh v. Bant Singh 1979 P.L.J. 533 in that case, an application for ejectment in form ''L'' was filed on September 21, 1970 and even according to the landlord''s own admission rent was in arrears only for the kharif crop of 1970. An allegation was made that the rent, was in arrears regarding previous crops but it was proved that for the previous crops rent had already been paid in Court on the applications made by the land owner, it was contended that when the application was made on September 21, 1970, the rent for kharif crop was not due. This rent was not payable in November/December, 1970 but it had to be paid in early-1971. It was in this context that the Financial Commissioner had held that a tenant shall not be rejected unless he fails to pay rent regularly without sufficient cause which would mean that he, on the date of application for ejectment, was also in arrears of rent. These observations were elicited by the argument that on September 21, 1970 when the ejectment application was made, the rent for kharif 1970 had not become due and the rent for all the previous crops had already been paid under orders of the Revenue Authorities. So, the observations have been made in the conspectus of the factual situation of the case and no fault can be found with this observation. This observation, however, does not help the petitioners. There is a positive finding that the rent had not been paid for the four crops of 1969-70. Even on the date when the application was made this rent was due. So, the rent was due in presenti also. Once, rent becomes due it remains due till it is paid.

In paragraph 9 of the writ petition it has been mentioned that a few days before the filing of the writ petition the petitioner discovered a receipt issued by Smt. Suhari Bai evidencing the receipt of rent by her for the crops 1969-70, and a prayer is made to read that receipt in evidence. As noticed earlier while appearing as their own witnesses Jasmer Singh and Mehar Singh have categorically stated that they had not obtained receipts for payment of batai from Smt. Suhari Bai. In this situation no reliance can be placed on receipt, Annexure p-5.

Consequently, I find no merit in this writ petition and the same is dismissed. The petitioners shall pay Rs. 500/-as costs, to respondent Smt-Suhari Bai.