Mewa Singh vs Mandir Thakurji Estate Talwani

Mr. Surinder Gupta, J.—This is regular second appeal against the judgment passed by Civil Judge (Junior Division), Siwani whereby the suit filed by appellants-plaintiffs that the land in dispute measuring 65 kanals 10 marlas is jointly owned by appellants-plaintiffs No. 1 to 3 to the extent of � share and plaintiff No. 4 to the extent of remaining � share, on the basis of grant of occupancy rights under Section 3 of Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952, was dismissed. The first appeal filed by the plaintiffs against the judgment of Civil Judge (Junior Division), Siwani was also dismissed by Additional District Judge, Bhiwani.

Case of the plaintiffs, in brief, is that Mahant Chiranji Dass as Mahant of defendant Mandir Thakurji (later referred to as ''the temple'') leased out the suit land to forefathers of the plaintiffs and they were inducted as tenants gair marusi about 60-70 years ago. At that time, the land was barren and was not fit for cultivation. It was agreed between the forefathers of the plaintiffs and Mahant of the temple that forefathers of plaintiffs shall never be ejected from the suit land. The land was made cultivable and the forefathers of plaintiff continued cultivating it on payment of land revenue without any interference. Under the provisions of Sections 5 and 8 of Punjab Tenancy Act, 1887, the plaintiffs have obtained the ownership rights of the suit land and filed a suit to this effect before the Assistant Collector, 1st Grade, Siwani which was dismissed. Plaintiffs filed the appeal against the said judgment, which was also dismissed on the ground that revenue Court has no jurisdiction in the matter. They also made requests to the revenue authorities to correct the entries in the revenue record to record them as owners of the suit land but in vain. Hence, this suit.

The defendant contested and controverted the claim of plaintiffs and denied their possession over the suit land.

Learned Civil Judge (Junior Division), Siwani on appraisal of the evidence, observed that the claim of plaintiffs is not tenable under Section 5(2) of Punjab Tenancy Act. The relevant observations made in this regard in para 18 of the judgment reads as follows:-

"18. After hearing Id. Counsel for the parties and have gone through the record carefully I am of the considered view'' that the present case may fall (under) Section 5(2) of the Punjab Tenancy Act. From the language of Section 5(2) it is clear that he should fulfil three conditions, firstly, he should have continuously occupied the land for 30 years, secondly he paid no rent therefor, thirdly he paid the amount of land revenue thereon and rates and cesses. No doubt, in order to fulfil these conditions, plaintiffs examined Mewa Singh as PW1, who tendered his affidavit Ex.PW1/A in which he has stated that the suit property was earlier owned by the defendants. They are in possession of the suit property for the last 70 years as its owner gave the suit property to their forefathers for cultivating the same on nominal land revenue. He has also stated that at that time, it was agreed between the original owner and forefathers of the plaintiffs that they will improve and re-claim the suit property and shall make it cultivable and shall pay Government land revenue. He has further stated that it was also agreed that they and their successors shall not be ejected from the suit property. He has also stated that they have improved the suit property and have been cultivating the same on payment of Government land revenue. He has also stated that they have become owner on the basis of Punjab Tenancy Act. Thus, from his evidence, it is proved and admitted that the plaintiffs are in possession of the suit property for the last more than 30 years. However, in my considered view that the two conditions as mentioned (in) Section 5(2) of Punjab Tenancy Act have not been fulfilled by the plaintiffs. It is the specific case of the plaintiffs that their forefathers and they have been paying land revenue and rates, cesses to the Government till it was exempted by Government of Haryana. It is pertinent to mention here that since 1987, the land revenue has been exempted in Haryana. The payment of land revenue is a Government function. This function cannot be done orally. If this amount was paid to the Government, then there must have been a receipt or other documents showing the payment of land revenue and other rates and cesses. This payment cannot be proved by oral evidence as it is settled law that when there exists an evidence in the form of document(ary), then that fact must be proved by the production of the documents itself and the oral evidence is not sufficient to prove that fact. It is not the case of the plaintiffs that the defendants did not issue any receipt. Under these circumstances, it can be safely concluded that had the plaintiffs paid the land revenue, the defendants might have issued receipts for the same. Even if, it is assumed for the sake of arguments that the plaintiffs paid the land revenue etc. without receipt, it was their risk, they should have asked for the receipts and now they cannot be heard that they paid the land revenue."

On appeal, learned first Appellate Court while affirming the observations of learned lower Court, also took a note of the statement of plaintiff Ramji Lal, who appeared as PW2 and stated that the entire income of suit land is spent on temple which is used for repair, Prasad etc. of the temple.

I have heard learned counsel for the parties and have perused the paper book and record of the Courts below with their assistance.

Learned counsel for the appellants has argued that the Courts below have examined claim of plaintiffs under Section 5 of Punjab Tenancy Act despite the fact that Section 8 of Punjab Tenancy Act, was discussed by learned Civil Judge (Junior Division), Siwani. He did not evaluate the case of the plaintiffs under the provisions of this Section. Plaintiffs have sought to prove their occupancy right under Section 5 and 8 of the Punjab Tenancy Act and have been able to prove the same. Their possession over the suit land is admitted. The Courts below'' have also observed that they are in possession over the suit land for a period of more than 30 years and no efforts were made by the landlord to enhance the rent or to eject the appellants. This reflects that there was no intention to raise the rent or to recover anything from the appellants, who were tenant over the suit land. He has relied on the observations in Amin Lal v. Financial Commissioner (Revenue) Haryana and others, 1971 P.L.J. 619 and Muni Ram and others v. Phullia and Lalu, 1974 P.L.J. 369.

Learned counsel for the respondent has argued that the appellants-plaintiffs have alleged that they were inducted as tenant over the suit land by the Mahant of defendant temple with the assurance that he will never eject them. A Mahant is not owner of land is never competent to create any interest in the property of the temple beyond his life time except for unavoidable necessity. So far as this argument of learned counsel for the appellants that the defendant has never asked for the increase of rent or made any attempt to eject them as a result of which presumption of occupancy tenancy rights in favour of plaintiff can be raised under Section 8 of Punjab Tenancy Act, is not tenable in view of statement of plaintiff Mewa Singh PW1 that he has not filed any suit against the temple as he has full faith in it. Plaintiff Ramji Lal while appearing as PW2 has stated that the entire income of the land is used for repair, Prasad etc. of the temple. As such, it is clear that there is no need to eject the plaintiff or to call for increase of rent. A tenant on land who is giving entire income from land to the temple is virtually not a tenant but a benevolent, faithful worshiper of deity in temple. It is so reflected from statement of plaintiff Mewa Singh PW1 who has stated that suit has not been filed against temple. Even otherwise, Mahant is a Manager of property which vest in deity and possess no right to give its land to anyone without rent or with a promise not to eject him.

On giving a careful thought to the submissions of counsel for the parties, 1 find that the plaintiffs are claiming occupancy rights over the suit land under the provisions of Section 5(2) and 8 of Punjab Tenancy Act.

Learned Courts below have already discussed on appraisal of evidence that they do not fulfil the conditions of Section 5(2) of Punjab Tenancy Act.

Section 8 of Punjab Tenancy Act is of residuary nature and permits a person right of occupancy on any ground other than those as provided under Section 5 of Punjab Tenancy Act. It was also so observed by Division Bench of this Court in case of Amin Lal v. Financial Commissioner (Revenue), Haryana (supra).

Following substantial question of law requiring determination arises in this appeal:-

Whether the plaintiffs have been able to establish their right of occupancy under Section 8 of Punjab Tenancy Act, 1887?

Learned counsel for the appellants has relied on the observations of Muni Ram and others v. Phullia and Lalu (supra), wherein a Bench of this Court observed as follows:-

"5. This takes me to the legal aspect of the merits of the controversy. Both sides were agreed before the lower appellate Court and were also agreed before me that the case of the plaintiffs does not fall either under Section 5 or under Section 6 of the Tenancy Act. As already stated, the plaintiffs have sought to prove their occupancy tenancy under Section 8. On behalf of the defendants, it has been argued that the entries referred to above at best show possession of the plaintiffs over the land in question for a long time; and this by itself is incapable of proving occupancy tenancy.

On a review of the various judgments to which counsel have referred during the course of their submissions (Tota Ram v. Rana Bashisht Singh Chandra, 1952 L.L.T. 1; Devki Nandan and others v. Shiv Lal, 1958 L.L.T. 40; Achhar Singh and another v. Smt. Kartar Kaur and another, (1959) 61 P.L.R. 231; Anant Ram and another v. Lakhbir Gupta, 1962 L.L.T. 43, and Raghbir Singh v. Beli Ram, (1967) 69 P.L.R. (Delhi Section) 396, the following propositions of law appear to me to be firmly settled:-

(i) the intention of the landlord not to eject the tenant for ever should be seen as at the time of the inception of the tenancy. Any subsequent intention cannot ordinarily have any effect on the nature of the agreement which came into existence at the time of the commencement of the tenancy;

(ii) mere length of possession does not entitle a tenant to acquire occupancy rights in the land in his possession as a tenant;

(iii) the intention behind the wide scope left by Section 8 of the Tenancy Act is:-

(a) not to restrict the tenant in any way from establishing his rights of occupancy; and (b) to presuppose the existence of a large set of conditions in which occupancy rights can arise outside the scope of Sections 5 and 6 of the Tenancy Act;

(iv) in cases where circumstances exist from which an inference of an implied promise not to eject a tenant for ever can be raised, the burden of rebutting the said presumption must lie on the landlord, and if the landlord does not discharge that burden, effect should be given to the presumption and the tenant''s claim to the occupancy tenancy should be accepted;

(v) a strong presumption of the implied promise not to eject a tenant, and, therefore, of the existence of an occupancy tenancy in favour of such a tenant can be raised:-

(a) where a tenancy has lasted for many years during which there has been a rise in prices of agricultural produce and it is proved that no effort was made by the landlord to enhance the rent; and

(b) where despite the existence of a stray entry which is inconsistent with the preceding and the subsequent entries over a large number of years, circumstances show that there was no intention to raise the rent or to recover anything for the owner from the tenant."

Learned counsel for the appellants has confined his submissions to two propositions of law laid down above; firstly, that respondent-landlord has never made any attempt to eject the appellants from the suit land; secondly, they have never made any efforts for enhancement of the rent. This proves vesting of right of occupancy in favour of appellants. Both the above contentions raised by learned counsel for the appellants have no merits. Firstly, because Mewa Lal plaintiff while appearing as PW1, has stated that they have not filed any suit against the defendant-temple in which they have full faith. Secondly, in view of the statement of plaintiff Ramji Lal who stated that the entire income of the land is spent on the temple for its repair and to meet the expenses of Prasad etc. When the temple is getting the entire income of the land, no need accrues to seek the ejectment of those who have been given the same for cultivation. There was never any requirement for the temple to seek enhancement of rent as it is getting entire income from the land. In these circumstances, both the arguments advanced by learned counsel for the appellants collapse and have no merits. Appellants-plaintiffs have faith in the defendant temple and are giving the income of the suit land to the temple. If the temple take back the land from the plaintiff and give it to someone else, in that eventuality, it may not get a better person to cultivate its land. However, the above statement of plaintiffs Mewa Lal and Ramji Lal shatter their claim of title over the land owned by temple under Section 8 of Punjab Tenancy Act. It appears that the appellants-plaintiffs, who till the filing of the suit, were giving the entire income of the land to the temple, under greed have now claimed title over its land by raising the plea of having acquired right of occupancy.

Learned counsel for the appellants has not pointed out that any of the observations made by the Courts below are based on misreading of evidence or wrong interpretation of the documents on record. The substantial question of law framed in this-case is answered against the appellants-plaintiffs and in favour of respondent-defendant.

On perusal of the record and judgments of the Courts below, I find no legal or factual infirmity therein calling for any interference. This appeal has no merits.

Dismissed.