Sadhu Singh and Another vs Kehar Singh and Another

Satish Kumar Mittal, J.—The defendants have filed this Regular Second Appeal against the judgment and decree passed by the first Appellate Court whereby on appeal filed by the plaintiffs, the suit of the plaintiffs for possession of the land in dispute and also for recovery of Rs. 15,000/- on account of damages for the use and occupation of the land for three years, has been decreed while setting aside the judgment and decree of the trial court, whereby the suit of the plaintiffs was dismissed.

The plaintiffs filed the aforesaid suit on the basis of their title. It is their case that Avtar Singh was the owner of the suit land. After his death, his widow Arjan Kaur, son Harjit Singh and daughter Dildarshan Kaur inherited the suit land. Subsequently, the said three persons sold the suit land in favour of Ralla Singh, father of the plaintiffs. It is the case of the plaintiffs that after the death of their father Ralla Singh, they inherited the suit land on the basis of the will and became owners in possession of the same. It is alleged that about three years before institution of the suit, the defendants illegally and forcibly took possession of the suit land. Since then they were cultivating the suit land.

The defendants contested the suit. However, it was contended that Avtar Singh was the owner of the land measuring 168 kanals 16 marlas and out of the said land, he had sold 2/3 share in favour of the Inder Singh, Pritam Singh (father of the defendants) and 1/3 share in favour of Sohan Singh vide registered sale deed dated 19.3.1957. Therefore, they are owners in possession of the suit land. However, the trial court dismissed the suit of the plaintiffs while observing as under:

The plaintiffs asserted themselves that the possession of the defendants is unauthorized, illegal and unlawful. But the revenue record speaks otherwise. In the jamabandi for the year 1979-80 Ex.DS, Sadhu Singh defendant is shown to be in possession as Gair Marusi. Similarly in the jamabandi Ex.P3 for the year 1994-95, the status of both the defendants has been recorded as Gair Marusi. Similarly in the jamabandi Ex.P3 produced by the plaintiffs for the year 1989-90, the status of the defendants is recorded as Gair Marusi. So from the totality of entire revenue record available on the file, I came to the conclusion that the defendants are in possession over the suit land as tenant at will and not in unauthorized and forcible possession. So both these issues are decided against the plaintiffs and in favour of the defendants.

On appeal, the first Appellate Court decreed the suit of the plaintiffs after rejecting the contentions raised by the defendant.

I have heard the counsel for the parties and gone through the judgments and decree passed by both the courts below. In this appeal, the dispute is about 5 Kanals 10 Marias of land comprising in Rectangle No. 17//, Khasra No. 8/2 min (2-12) and 8/2 min (2-18). According to the jamabandi for the year 1989-90 (Ex.P3), the plaintiffs have been shown to be the owners of the suit land. The copy of the sale deed dated 19.3.1957 by Avtar Singh in favour of Pritam Singh is on the record as Ex.D1. From the perusal of the said sale deed, it was found that he suit land was not the part of the said sale. Therefore, it was held that as far as the suit land is concerned, the same was not purchased by Pritam Singh father of the defendants. However, keeping in give other documentary evidence available on the record, it was held that the plaintiffs are the owners of this property as the same was purchased by their father Ralla Singh.

The first Appellate Court reversed the finding of the trial court to the effect that the defendants were tenants on the suit land while observing that it was never the stand of the defendants in the written statement. In this regard, the first Appellate Court has observed as under:

Now the next question, that arises for consideration, is, as to whether, the findings of the trial court to the effect, that the defendants are tenants at will, in the land in dispute, are correct or not? As stated above, no such case was set up by the defendants in the written statement. In case the defendants were tenants, they were required to set up such a case. Under these circumstances, any evidence led by die defendants, not in consonance with the pleadings, could into be read. Not only this, in the revenue record, the status of the defendants, has been shown as Gair-Marusis. However, it was not the case of the defendants, that they took the land, in dispute, on lease. No lease deed was produced, on record. No receipt regarding the alleged payment of lease money, was produced, on the record. There is no entry, in the revenue record, that they were making payment of any rent or lease money to the plaintiffs. In these circumstances, they could not be held the tenants at will by the court by traveling beyond the pleadings. It was held in Smt. Krishna v. Commissioner, Ambala Division and Ors. 1997 (2) P.L.J. 423, that the status of the occupant of the property, is determined by payment of rent. The facts of the aforesaid case go to show that in the Jamabandi, Gram Panchayat was recorded as owner, whereas, some persons were recorded to be in cultivating possession of the land as Gair-Marusis. Neither the rate of rent was mentioned, nor the payment of rent or share of crop by the occupants, was proved. It was, in these circumstances, held that he occupants were in unauthorized possession of the property. In Tarlok Singh v. Harnam Singh and Anr. 1974 R.L.R. 429, it was held that non-payment of rent negatives the relationship of landlord and tenant. The entries made in the columns of cultivation and Rent, are required to be read together. In these circumstances, the mere fact that the defendant were recorded as Gair-Marusis, in respect of the land, in dispute, without payment of any lease money did not make them the tenants at will. Their status was that of unauthorized occupants, in respect of the land, in dispute. The Trial Court, thus, fell in a grave error, in holding them to be the tenants at will. Since, the defendants, were trespassers, the plaintiffs had every right to seek decree of possession against them. The Trial Court was, thus, wrong, in declining the relief of possession, to the plaintiffs. The findings of the Trial Court, on issues No. l and 2, being erroneous, are reversed.

Counsel for the appellants could not controvert the factual position. In the written statement, the defendants have taken a definite stand that they are owners in possession of the suit land, and the assertion made by the plaintiffs that they are owners, was totally denied. In that situation, in my opinion, the first Appellate Court has rightly rejected the contention of the appellants that they should be declared as tenants at will on the suit land. When the defendants denied the title of the plaintiffs and claimed themselves to be owners of the suit land, they cannot be permitted to take the plea that now they be declared as tenants at will on the suit land. Thus, in my opinion, the first Appellate Court has rightly decreed the suit of the plaintiffs for possession of the land in dispute and also for recovery of Rs. 15,000/- on account of damages for the use and occupation of the land for three years.

In view of the aforesaid discussion, I do not find any illegality or perversity in the finding of fact recorded by the first Appellate Court. It is well settled that an appeal u/s 100 CPC can be entertained by the High Court only on a substantial question of law. If die findings of the subordinate courts on facts are contrary to the evidence on record and are perverse, such findings can be set aside by the High Court in appeal u/s 100 CPC. In this regard, reference can be made to a decision of die Supreme Court in Bondar Singh and Others Vs. Nihal Singh and Others, . Further, in Kulwant Kaur and Others Vs. Gurdial Singh Mann (dead) by Lrs. and Others etc., , it has been held by the Supreme Court that the question whether a lower court finding is perverse, would come within the ambit of substantial question of law. However, there must be a clear finding in judgment of High Court as to perversity, in order to show compliance with provisions of Section 100 CPC.

In this appeal, no substantial question of law has been involved. Dismissed.