Neti and anr. vs Ram Kishan and ors.

G.R. Majithia, J.

The second appeal is directed against the judgment and decree of the first appellate Court reversing on appeal those of the trial Judge and decreeing the suit of the plaintiff for possession of the suit land.

The respondents (hereinafter referred to as the plaintiffs) filed a suit for declaration and permanent injunction on the ground that the suit land was owned by Smt. Rumali, widow of Ghurey and Kuran Wati, daughter of Ghurey. They transferred the suit land in favour of the plaintiffs vide registered sale deed dated July 10, 1975. The plaintiffs were in possession of the suit land when they were forcibly dispossessed by the defendants necessitating the filing of the suit for declaration that the plaintiffs were in possession and for permanent injunction restraining the defendants from interfering in their possession and in the alternative, a decree for possession.

The defendants controverted the allegation made in the plaint and pleaded that they were in possession of the suit land as tenants.

The pleadings of the parties gave rise to the following issues :

(1) Whether the plaintiffs are the owners in possession of the suit land, as alleged ? OPP.

(2) Whether the defendants are in possession of the suit land, as tenants ? OPD.

(3) Whether the suit is barred by limitation ? OPD.

(4) Relief.

Issues No. 1 and 3 were found in favour of the plaintiffs by the trial Judge. Issue No. 2 was partly decided in favour of the defendants and partly against them.

The sole question which arises for decision is whether the defendants were in possession of the suit land as tenants. The relationship of landlord and tenant comes into existence as a result of an agreement, express or implied. It may be implied from the acts and conduct of the parties which indicate that the landlord intended to divest himself of the possession of the land and that the tenant intended to assume possession thereof. One of the most important circumstances from which this inference can be drawn is the payment of rent, for although rent is not an essential, it is a normal incident of tenancy and the fact that a person in possession of the land paid rent to the owner thereof indicates to an extent at least that the relationship of landlord and tenant exists between the parties. On the other hand, the fact that no rent was paid would lead one to a contrary conclusion and negative the existence of such relationship. The only evidence produced on record by the defendants is Jamabandi for the year 196667 (Ex. D.1) Col. No. 9 of the Jamabandi Ex.D.1 relates to rent and it is blank. The other evidence produced on record by the defendants is Khasra Girdawaris of the year 1967 till Rabi 1976 (Exhibit D.2). Exhibit D.2 also does not reveal that the defendants were paying rent to the landowner. In Jamabandi for the years 197172 (Ex. P1) in the column of rent, it is stated "Billa Lagaan, Ba Vajah Apasdari." Its English translation will be "without payment of rent on account of mutual relationship." In the Jamabandi for the year 196364. Ex. D. the column of rent is left blank. The revenue record produced by the parties does not establish that the plaintiffs were in possession of the suit land as tenants. Nonpayment of rent negatives the plea of tenancy. There is no plea, much less proof, that nonpayment of rent was because of any special contract entered into between the parties. I do not find any infirmity in the conclusions arrived at by the learned first appellate Court. The same calls for no interference.

Before I part with this judgment, it is also necessary to explain that substantial questions of law were framed at the time of motion hearing, but the same were not necessary to be framed in the light of the decision of a Full Bench of this Court in Ganpat v. Smt. Ram Devi and others, 1978 PLR 1, wherein it was held that the provisions of Section 41 of the Punjab Courts Act are in no way affected or curtailed by the amended Section 100 of the Code of Civil Procedure. Therefore, in the jurisdiction to which the Punjab Courts Act extends, the admission and adjudication of second appeals would be governed by Section 41 of the Punjab Courts Act to the exclusion of the general provisions of Section 100 of the Code of Civil Procedure. In the light of this judgment, the second appeal has to be disposed of under the provisions of Section 41 of the Punjab Courts Act.

Consequently, there is no merit in this appeal and the same is dismissed with no order as to costs.