Ram Kumar vs Jagdish and others

J.V. Gupta, J.

This is plaintiff''s second appeal whose suit for possession of the agricultural land was decreed by the trial Court, but dismissed in appeal.

Plaintiff Ram Kumar filed the suit on the allegations that the suit land was in possession of his father Ram Gopal as a nonoccupancy tenant for the last several years. After his death in the year 1972, he was in possession of the suit land which is shamilat deh. He remained in its possession up to rabi 1973. However, the defendants got incorrect khasra girdawari entries made in their favour in respect of the suit land for kharif 1972 and also for the subsequent harvests. Taking advantage of the said incorrect entries, the defendants took forcible possession of the land from him in disobedience of the interim injunction passed by the trial Court during the pendency of the suit. The present suit for the grant of the permanent injunction was filed on August 29, 1972. The plaint therein was later on amended and the relief of possession was sought for. In the written statement, the defendants pleaded that Ram Gopal, the father of the plaintiff, had surrendered the possession of the suit land in favour of the proprietary body in May, 1971. Consequently, the defendants had taken possession thereof in May, 1971 on behalf of the proprietary body and had sown kharif 1971 crop in the said land. It was, thus, denied that the plaintiff had been dispossessed from the suit land during the pendency of the suit or that the alleged dispossession was wrongful. The right of the plaintiff to claim back the possession was, thus, repudiated. It was also pleaded that the suit was bad for nonjoinder of the other members of the proprietary body and that the civil Court had no jurisdiction to entertain the suit in view of the provisions of section 50A read with section 77 of the Punjab Tenancy Act (hereinafter called the Act). The main controversy in the trial Court between the parties was as to whether the plaintiff was cultivating the suit land at the time of the institution of the suit, as alleged. On the appreciation of the evidence, the trial Court found that the plaintiff seemed to be in cultivating possession of the suit land, he was certainly in possession thereof as a tenant at the time of the institution of the suit and that he was forcibly dispossessed therefrom during the pendency of the suit. It was further found that since the plaintiff was dispossessed during the pendency of the suit, the civil Court had the jurisdiction to entertain the suit. Consequently, the plaintiff''s suit was decreed. In appeal, the learned Senior Subordinate Judge with enhanced appellate powers reversed the finding of the trial Court on the question of possession and came to the conclusion that the plaintiff had failed to prove that he was in cultivating possession of the suit land at the time of the institution of the suit. It may be stated here that the case set up by the defendants that the plaintiff''s father Ram Gopal had surrendered the possession of the suit land in May, 1971, was negatived by the lower appellate Court as well. Thus, it was held that the civil Court had no jurisdiction to entertain the suit in view of the provisions of section 50A read with section 50 and section 77(3)(g) of the Act. it was also held by the lower appellate Court that all the members of the proprietary body were necessary parties to the suit and since they were not joined as defendants to the suit, the same was liable to be dismissed on that ground also. Consequently, the plaintiff''s suit was dismissed. Dissatisfied with the same, he has filed this second appeal in this Court.

The learned counsel for the appellant contended that once the case set up by the defendants that Ram Gopal the father of the plaintiff had surrendered possession in May, 1971, was negatived by both the Courts below, then, it could not be held by the lower appellate Court that the plaintiff was not in possession of the suit land at the time of the filing of the suit in August, 1972. According to the learned counsel, there is presumption of continuity as regards possession and, therefore, it was for the defendants to prove at to when they dispossess the plaintiff from the suit land. The approach of the lower appellate Court in this behalf was wrong, illegal and misconceived and, therefore, the finding arrived at by it was vitiated. The learned counsel further contended that the suit against the defendants as such was competent and the whole of the proprietary body was not a necessary party as held by the lower appellate Court. In support of the contention, the learned counsel relief upon Ata Mohammad v. Madari, AIR 1937 Lahore 824. On the other hand, the learned counsel for the defendants contended that on the appreciation of the entire evidence, the lower appellate Court has found that the plaintiff was not in occupation of the land, in dispute, at the time of the institution of the suit and that the same being a finding of fact could not be interfered with in second appeal. In support of the contention, the learned counsel relied upon Ramchandra v. Ramalingam, AIR 1963 Supreme Court 302.

It may be stated here that it is common case of the parties that in case it is found that the plaintiff was is possession of the land, in dispute, at the time of the filing of the suit and was dispossessed therefrom during the pendency of the suit, then the civil Court had the jurisdiction to entertain the suit and in case it is found that the plaintiff was not in possession of the suit land at the time of the filing of the suit, then the civil Court has no jurisdiction to pass the decree. Thus, the real controversy between the parties is as to whether the plaintiff was in possession of the suit land or not when the suit was filed in August, 1972?

As observed earlier, the case set up by the defendants in their written statement was that Ram Gopal, the father of the plaintiff, surrendered possession of the suit land in May, 1971 and since then, they were in its possession. this plea raised by them was negatived by both the Courts below. Even the lower appellate Court observed that there is evidence in rebuttal of plaintiff Ram Kumar, P.W. 2 and also of his son Mahabir P.W. 3, that Ram Gopal did not surrender voluntarily possession of the suit land. In this situation, it was felt that the trial Judge and rightly disbelieved the version of the defendants about possession of the suit land having been voluntarily surrendered by Ram Gopal to the proprietary body. The said finding of the trial Judge was consequently affirmed. Once it is so held, then, it was for the defendants to prove as to when they came into possession of the suit land because there is presumption of the continuity as regards the possession. besides, there is documentary evidence on the record to prove that the plaintiff was in possession of the suit land up to rabi 1973. Moreover, there is nothing on the record to show how and under what circumstances, Ram Gopal, the father of the plaintiff, surrendered possession to the defendants, nor is there anything on the record to prove as to on what basis, the entries were made in favour of suit land. In these circumstances, the finding of the lower appellate Court is vitiated being wrong and illegal. The approach of the lower appellate Court in this behalf was misconceived whereas the trial Court rightly came to the conclusion that the plaintiff was in cultivating possession of the suit land as a tenant at the time of the institution of the present suit and was forcibly dispossessed therefrom during its pendency. As observed earlier, once it is so found, then it is not disputed that the civil Court had the jurisdiction to entertain the suit.

As regards the objection that all the members of the proprietary body were not joined as defendants has no substance because it were the defendants who dispossessed the plaintiff from the suit land and were in illegal possession thereof. Reference in this behalf may be made to Ata Mohammad''s case (supra). It will be relevant to observe that even the lower appellate Court found that nevertheless the plaintiff was entitled to get possession of the land, in dispute, restored to him, as he or his father had not relinquished his rights of tenancy and rights of possession on the land, in dispute, but in spite of that, the suit was dismissed on the ground that the civil Court had no jurisdiction to entertain the present suit because he had failed to prove that he was dispossessed from the suit during the pendency of the suit.

As a result of the above discussion, this appeal succeeds and is allowed. The judgment and decree of the lower appellate Court are set aside and that of the trial Court decreeing the plaintiff''s suit are restored with costs.