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Judgment
Pankaj Jain, J
[1] Defendants-State of Punjab is in Regular Second Appeal.
[2] Plaintiff filed a suit seeking decree of declaration to the efffect that he has become owner in possession of the suit property as detailed out in the headnote of the plaint
[3] Plaintiff claimed that he was a tenant in the suit property havving inherited rights of tenancy from his forrefathers qua land measuring 120 kanals (heereinafter referred to as the suit property).
[4] Plaintiff along with his brothher was in possession as occupancy tenant. State of Punjab and other Eaast Punjab States vide Ordinance promulgated as Patiala and East Punjab States Union Abolition of Bisweddari Ordinancee, 2006 BK determined the rights of the occupancy tenants and the landlords,, it was held that the occupancyy tenants are entitled to 3/4th of the entire hollding held by them and the landdlord shall own the remaining 1/4th share. Out of 120 kanals, possessed by the plaintiff and his brother as occupancy tenants, 32 kanals 02 marlas was given to the real owner i.e. Sttate of Punjab and rest of the land came undeer the ownership of plaintiff Ganda Singh. However, the revenue record coulld not be corrected. In the coluumn of ownersship, provincial Government waas recorded as the owner. Plainntiff thus claimmed his entitlement as owner, claiming that he along with his brother beeing occupancy tenants and he having inherited tenancy rights frrom his brotheer on his death, is entitled to be declared as owner of the entire suit land.
[5] The suit was contested by thee defendants.
[6] It was claimed that only lineeal descendant or widow can ennjoy the tenanccy rights and thus, the plaintiff does not fall within the purvieww of Section 18 of the Pepsu Tenancy and Aggricultural Lands Act, 1955. It was further cllaimed that by the dint of enactment of Pepsu Tenancy and Agricultural Lands Act, 1955, the Punjaab Occupancy Tenants (Vesting of Proprietarry Rights) Act, 1952 stands reppealed. It was further claimed that neither under the Pepsu Tenancy and Agricultural Lands Act, 1955 nor under anyy other law, ownership vested in the State can be transferred in the name of the plaintiff.
[7] Suit was put to trial framing following issues:-
“1. Whether the plaintiff is the owner in possession of the land in dispute? OPD.
Whether the plaintiff has no locus standi and cause of acttion to file the suit? OPD.
Whether the suit is nott maintainable in the present from? OPD.
Whether the plantiff has not served notice U/s 80 CPC? If so its effect ? OPD.
Whether the civil court has no jurisdiction to try the suit? OPD.
Whether he suit is withinn limitation? OPP.
Whether the defendants are entitled to special costs U/s 35-A? OPD.
1-A. Whether the plaintiffs had become owner in possession of the suit land by operation of law since 1946 and 1952 duee to enactment ? OPP.
3-A. Whether provision of Sec 18 of the Pepsu and Agricultuural Lands Act which has been repealed is applicable to the present suit ? OPD.
Relief. ”
[8] Issue Nos.1 and 1-A were deecided together. Trial Court fouund that petitiioner Ganda Singh along with his brother Kaku Singh have been recorded as occupancy tenants prior to coming into force of the 1954 Act. In terms of Section 2 (1) (a) of the 1954 Act, the plaintiff along with his brother-Kaku Singh are deemed to be occcupancy tenants on the appoinnted date. Thhus, in terms of the provision as contained under 1954 Act, the plaintiff attained ownership rights. Triaal Court thus held that in view of admitted tenancy and the continuation of the possession of the plaintiff since the year 1931, the plaintiffs are provedd to be occupancy tenants whose tenancy rights graduated into ownershipp by operation of law. With the aforesaid findings, the Trial Court decreedd the suit filed by the plaintiff.
[9] Dissatisfied with the judgmeent and decree passed by the Coourt of the first instance, defendants-State preferred appeal. In the groundss of appeal beefore the Lower Appellate Court, a new factual plea was taken by the State. It was claimed that the land, in question, was owned by a Musllim.
On his migration, it vested in custodian under the provisions of the Pepsu Evacuees (Administration of Property) Ordinance of 2006 BK. Under the provisions of the Ordinance, holder of the property is deemed to be holdding it on behaalf of the custodian. It was claiimed that accordingly the ancesttors of the plaintiff were not occupancy tenantts, but holding land under custoddian merely ass licensees. Lower Appellate Court found that the aforesaid plea having noot been raised in the written statement cannot be allowed to be raised in the grounds of appeal before the Appellate Court.
[10] Affirming the findings recorded by the Court of the first instance, Lower Appellate Court found thhat the plaintiff having continuedd in possession of the proprietary rights in sppite of adverse entry in the revenue record, was entitled for declaration. Thee Lower Appellate Court dismissed the appeal preferred by State of Punjab.
[11] In the second appeal beffore this Court, the defendannts-appellantss have filed an application undeer Order XLI Rule 27 CPC seekking production of the revenue record in formm of jamabandies, pedigree tabbles and mutattions.
[12] As per the applicants-appellaants, jamabandi for the year 1998-99 Bikrammi (1941-42 AD), Kasim Ali andd others are recorded in the coluumn of ownersship. In the column of cultivatioon, Bhani son of Mutaba is recorded as marusi. Vide Mutation No.301, inheriitance of Bhani son of Mutaba was mutated in favour of Kaku Singh, Gannda Singh sons of Bhani. In the pedigree table, Bhani and Jai Singh, sonns of Mutaba have been recordded. Kaku Singh son of Bhana died. Since he was unmarried and issueless, his mutation was sanctioned in favour of Gaanda Singh son of Bhana Singh. It was claimmed by the appellants that Gannda Singh the ancestors of Kartar Singh, etcc executed Will dated 19.08.19992. In the said Will, he mentioned his parentage as Ganda Singh, son of Bhana Singh, son of Deva Sinngh. However,, the property vested in Ganda Singh, son of Bhani Singh, sonn of Mutaba.
[13] After hearing the parties, thiss Court vide order dated 20.12.20018 allowed the application filed by State under Order XLI Rule 27 CPC to decide folllowing issue:-
‘Whether Mutaba and Deva Singh were one and the saame persons and whether Bhani was also known as Bhana or not? The order reads as under:-
“ State of Punjab is in thhe regular second appeal against the judgments passed by the courts below.
Respondents-plaintiffs had filed a suit claiming declarattion that they are owners in posssession as tenancy in their favour occupancy tenancy has maturedd into ownership.
During the pendency of the appeal, application for additionnal evidence has been filed so as to prove that Sucha Singh son of Jai Singh and Bhani son of Muttaba were in possession as per jamabandi for the year 1941-1942, which is equivalent to Bikrami 1998-1999. Whereas subsequenntly Bhani has been changed to Bhana and they have been shown as son of Deva Singh. A pedigree taable Annexure A-2 based on jamabbandi for the year 1941-1942 is also sought to be produced.
No doubt, State of Punjab should have produced thhese documents before the court at the very first stage, however, keepping in view the fact that ownership of the property which is alleged too be public property as per the stannd of the State of Punjab is involved, some extra leverage has to be granted to the State. The courts have been constituted to do substanttive justice and rules of procedure are enacted to advance justice and not to scuttle it. It may be noted that as per jamabandi for the yeaar 1941-1942, which is sought to be produced in additional evidence certain owners who belong to Muslim religion were recordedd as owners, who had stated to have migrated to Pakistan and therrefore, the property became evacuee property and thus vested firsstly in the Central Government and thereafter in the State Governmment.
Keeping in view the aforesaid facts, it is consideered appropriate to allow the application for additional evidennce,
permitting the State as well as to the respondents to lead evidence in question whether Muttaba andd Deva Singh was one and the saame person or not and whether Bhaani was known as Bhana or not? For this purpose, learned trial courrt is requested to submit a report after granting opportunities to both the parties.
Let a report be submitted within a period of 6 months. The original record of Civil Suit No.299, dated 19.03.1991 is already available with the trial court,, which may be summoned from the record room.
Parties through their coounsels are directed to appeal beffore the learned trial court on 14.01.2019.
Adjourned to 22.07.20199.
To be listed in urgent.”
[14] The parties appeared before the Civil Judge (Junior Divisioon), Sunam. After recording the evidence, the concerned Court reported as under:-
“ In reference to subjecct cited above as per order daated 20.12.2018, trial court was directed to grant opportunities to the parties to lead additional evidence on question whether Muttaba and Deva Singh are same person or not and whether Bhani was knoown as Bhana or not. In this regard report was to be submitted within six months but thereafter as per orrder dated 05.07.2019, time to subbmit report was extended for furtheer three months and matter was to be put on 16.10.2019.
In this regard State of Punjab examined seven witness nammely Tehsildar Surinder Singh as AW-1, retired Patwari Girdari Lall as AW-2, Registry Clerk Ashwani Kumar as AW-3, ANSK Jagraj Singh as AW-4, AOK Gulzar Singh ass AW-5, Halqa Patwari Sukhdev Singh as AW-6 and Field Kanungo Gurnam Singh as AW-7. On other hand respondent/plaintiff examined six witnesses namely Assistant Record Keepar Pooja as RW-1, Nuumberdar Rachpal Singh as RWW-2, Handwriting and Fingerprint Expert Dr. Inderjit Singh as RWW-3, Magar Singh as RW-4, Prem Singh as RW-5 and Karnail Singhh as RW-6. The onus was on the Sttate of Punjab to prove that Muttaba and Deva Singh are different peerson and Bhani and Bhana Singh are different persons as they had pleaded the same. Surinder Sinngh, Tehsildar was examined as AW-1 who had deposed by way of affidavit Ex.AWI/A that in jamabandi for the year 1941-42 namee of Sucha Singh son of Jai Singh and Bhani son of Muttaba has been recorded in the column of culltivation. Thereafter, Bhani died and vide mutation no.301, his share was inherited by his sons nammely Kaku Singh and Ganda Singh. Thereafter, in jamabandi for the year 1945-46 and for the year 1953-54 names of Kaku Singh and Ganda Singh were recorded as in culttivating possession. Thereafter, in the jamabandi for the year 1957-58. name of Kaku Singh and Ganda Singh was changed from Bhanni to Bhana. After this consolidattion took place and while preparingg document khatauni istemal, name of Bhana was changed to Bhana Singh. Thereafter, land comprisedd in khatauni no.646/686 was allootted to the parties in lieu of land comprised in khatauni no.6022 where name of Bhana Singh was written as Bhan Singh. Furtherr after preparation of document Misal Haqiat, Bhan Singh was recorrded as son of Deva Singh insteadd of son of Mattaba Singh in jamaabandi for the year 1941-42. It was further stated that the property in question actually belongs to Ganda Singh son of Bhani son of Muttaba but the property is beeing claimed by Ganda Singh son of Bhana Singh son of Deva Singh.
Thereafter, retired Patwwari Girdhari Lal was examined as AW-2 who had translated the Urdu version of jamabandi for the year 1998-99 and Kursinama (Pediigree table) into Punjabi. He furtther deposed that as per record namme of Bhani has been recorded as son of Muttaba. Thereafter, reegistry clerk Ashwani Kumar was examined as AW-3 who had brought the record regarding Will no.113 dated 19.08.1992 execcuted by Ganda Singh son of Bhan Singh. Thereafter, Gulzar Sinngh, Assistant Office Kanungo was examined as AW-5 who haad brought copy of resolution of consolidation no.286. Thereafteer, Halqa Patwari Sukhdev Singh was examined as AW-6 and Field Kanungo Gurnam Singh was examined as AW-7.
On the other hand, Assisstant Record Keeper at Judicial Coourt Complex, Pooja was examined as RW-1 who had brought the original file of suit bearing noo.839 dated 20.11.1992 and civil suit no.829 dated 18.11.1992. Thereeafter, Numberdar Rachpal Singh was examined as RW-2, who had deposed that his father Kartar Singh was formal numberdar of villaage Daska who had attested the sale deed dated 22.01.1974, 06.06.1983 and 28.06.1979. He identified the signature of his father. Dr. Inderjit Singh, Handwriting and Fingerprint Expert was examined as RW-3 who had compared the signature of Kartar Singh nuumberdar and has deposed that the signature of Kartar Singh on thhe above stated sale deed are simiilar. Thereafter, Maghar Singh was examined as RW-4, Prem Singh was examined as RW-5 and Karnaill Singh was examined as RW-6.
After perusal of entire evidence, it has transpired that state has produced no evidence withh regard to the fact that Mutaba and Deva Singh are different persoon and whether Bhani was knownn as Bhana. Although they have tendered revenue record in evidence. On the other hand, RW-4 Maghar Singh and RW-5 Prem Singh who are residents of village Daska have categorically stated in their evidence that father of Ganda Singh wass Bhana who was also known as Bhan Singh and further that Bhan Singh was son of Mutaba who was also known as Deva Singh. ”
[15] Counsel for the respondentss submits that the report received from the concerned Court being in favour of the plaintiff, the pressent deserves to be dismissed.
[16] State Government is not in a position to dispute the fact thatt no evidence could be adduced by the State too the effect that Deva Singh Mutaba are differeent persons or that Bhana was noot known as Bhani.
[17] I have heard counsel for the parties and have carefully gone through reecords of the case.
[18] Even though a Muslim was recorded as owner of the landd in question as per jamabandi for the year 1940-41, it is not in dispute that plaintiff-Ganda Singh along with his broother Kaku Singh were recordedd as occupancy tenants in terms of Section 8 of Act No.60 of 1887, i.e. the Punjab Tenancy Act, 1887. The land iss situated in the erstwhile Statee of Patiala. In the said State, farmane shahi No.8 dated 11.03.1947 was promulgated. The same provided for appportionment of lands between the landlords and their occupancy tenants in the ratio of 1/3rd and 2/3rd in the case of occcupancy rights under Section 5 of the Punjab Tenancy Act, 18887 and in the ratio of 2/5th and 3/5th in thhe case of occupancy rights unnder Sections 6 & 8 of the said Act.
[19] The farmane shahi No.6 waas amended and superseded by the Pepsu Abbolition of Biswedari Ordinance,, 2006 BK (2006 BK = 1950 AD). Section 2 (j) of the Ordinance defined ‘occupancy tenant’ as under:-
“2(j) “occupancy tenant” means a tenant who immediately before the notified date-
(i) has a right of occupancy in pursuance of either Section 5 or seection 6 of the Punjab Tenancy Act, 1887, in force in the Union, or
(ii) has establishedd or establishes a right of occupancy in pursuance of either Section 7 or Section 8 of the said Act, in any land owned by a landlord; ”
[20] Section 9 provided for declarration of shares of the occupancy tenant andd landlord in the holding. The saame reads as under:-
“9. The Partition Commissionner shall determine and declare the respective shares of the landloord and the occupancy tenant in the holding which shall be-
(a) in the case of occupaancy tenant, three-fourth of the entire holdings and
(b) in the case of the landlord, one-fourth of the entire holding: [Provided that-
(a) where the occupancy tenant pays only cash rent; or
(b) where the occupanccy tenant pays rent in kind whichh is less than one-fourth of the produce of the holding; the respective shares of the landlord and the occupancy tennant shall be determined in accordance with the rules made in this behalf by the Government:
Provided further that where in respect of any holding the occupancy tenant does not pay to the landllord anything over and above the land revenue and rates and cesses thereon, he shall be entitled to the entire holding.] ”
[21] The said Act was further superseded by the Pepsu Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953. The 1953 Act was further superseded by 1954 Act. Section 2 (h) thereof defines “occupancy tenant” ass under:-
"2 (h) “Occupancy tenant", in respect of any land means a person who, at the commmencement of the President's Act is or is deemed to be an occupancy tenant in respect of the land and includes a persson who, after such commencement obtains a right of occupaancy in respect of the land, whether by any agreement with the landlord or by any decree or order of any court or other authority of competennt jurisdiction and includes also the predecessors and successors in interest of an occupancy tenant:”
Provided that no person who has abandoned his tenancy shall be deemed to be an occupanccy tenant within the meaning of this clause.
Explanation 1.- For the purpooses of this clause, a person is or is deemed to be an occupancy tenant at the commencement of the President's Act-
(i) if he is reccorded, immediately before the commencement off the President's Act, as an occupancy tenant in the latesst annual records; or
(ii) if he is recorded in the record-of-rights of any of the estates of the formmer Faridkot State as-
(a) Muzara-i-shartia,
(b) chakotedarr khas,
(c) muzara bilatai-yun sifat,
(d) muzara tabe marzi malik,
(e) chakotedarr nautor,
of any landlord, not beinng the Government; or
(iii) if he is recorded in the latest annual records of any estate of the former Malerkotla State as-
(a) dakhilkar,
(b) maurussi; or
(iv) if he was recordded as an occupancy tenant in the annual records onn the 11th March, 1940, and-
(a) the right of occupancy in the land has been extinguished, but partition proceedings under the Farman-i-Shahi No. 6, dated the 11th March, 1947, or the Patiala and East Punjab States Union Abolitionn of Biswedari Ordinaance, 2006 Bk. (Ordinance No. XXXIII of 2006 Bk.) have not been finally completed; or
(b) he has been diispossessed, or deprived of his righht to the occupation off the land at any time after the 11th March, 1940, but has not been granted any relief unnder the Patiala and East Punjab States Union Abolitionn of Biswedari Ordinaance, 2006 Bk.
[(v) if he is recorded, immediately before the commencement of the Pepsu Occupancy Teenants (Vesting of Proprietary Rights) Amendment Act, 1969, as a Muqarraridar in the latest annnual records.]
Explanation II.- Where an occupancy tenant holds any land unnder another occupancy tenant, thee former shall be deemed to be the occupancy tenant within the meeaning of this clause;
(i) "prescribed" means prescribed by rules made under this Act;
(j) "special officer" means any officer appointed by the Government by notificcation in the official Gazette for performing the functions and duties assigned to such offiicer under this Act and a speecial officer shall have jurisdictionn to perform his functions in such local area as may be specified in the notification;
(k) "the President's Act"" means the Patiala and East Punnjab States Union Occupancy Tenants Vesting of Propriettary Rights) Act, 1953 (Presiddent's Act 3 of 1953);
(1) references, in this Act to the Punjab Tenancy Act, 1887 (Punjab Act XVI of 18877), and the Punjab Land Revenue Act, 1887 (Punjab Act XVIII of 1887), shall be construed as references to those Acts as in force in the State of Patiala and East Punjab States Union.”
[22] Section 3 of the same reads as under:-
“3. Extinguishment of rights of landlords and vesting the same in occupancy tenants:- Notwwithstanding anything to the contrrary contained in any law, custom or usage for the time being in force,, on and from the appointed day,-
(a) all right, title and interest (including the contingent interesst, if any, recognised by any law, custom or usage for the time being in force) of a landdlord in the land held under him byy an occupancy tenant shall be extinguished; and such rights, title and interest shall vest in the occupancy tenant free from all encumbrances, if any, crreated in the land by the landlord;
(b) the landlord shall cease to have any right to collect or receeive any rent in respect of suuch land (including arrears of rent, if any, whether under a decree or not, for any period priorr to the appointed day) and his liability to pay land revenuee in respect of the land shall also cease;
(c) the occupancy tenant shall be liable to pay direct to the Government the land revenue payable in respect of the landd;
(d) the landlord shall be entitled to receive and be paid such compensation as may bee determined or deemed to have been determined, under this Act. ”
[23] Counsel for the appellant haas not been able to dispel the fact proved byy the plaintiff that he, i.e. Ganda Singh along with his brother-Kaku Singh weere recorded as occupancy tenants under Section 8 of the Punnjab Tenancy Act,1887 in the jamabandi for the year 1940-41. They continued as such. Thus in view of afore-reprooduced provisions, by the dint of Abolition of Biswedari Ordinance, 2006 BK, plaintiffs became eligiblee to acquire ownership qua land to the exxtent of 3/4th share. Their riight graduated to the right of proprietary rights as the vesting of ownershipp in occupancy tenants was continuously recognized by the successsive legislationns. An attempt made by the appellant to make out new factual case has also failed.
[24] In view thereof, this Court finds no ground to interfere in the findings recorded by the Courts below.
[25] In view of the above, the instant appeal is ordered to be dismissedd.
[26] All pending miscellaneouss application(s), if any, stands disposed off.