Santa Singh (dead) through LRs vs Ujagar Singh and Others

Vinod K. Sharma, J.—This regular second appeal is directed against the judgment and decree dated 28.1.1985, passed by the learned Courts below, vide which the suit filed by the plaintiffs claiming themselves to be owners of the land bearing khasra No. 1//32 (0-5) in pursuance to the resolution proceeding book of Consolidation Department situated in village Majrian after removal of malba, has been decreed.

The case set up by the plaintiff/respondents was, that the plaintiffs along with defendants No. 2 to 6 were the owners of the suit land, situated in village Majrian, in which the plaintiffs had 3/4th share and defendants No. 2 to 6 had 1/4th share. The case set up by the plaintiffs was, that besides the land in dispute, the plaintiffs and defendants No. 2 to 6 had some other joint land, which was mutually partitioned, and the suit land fell to the share of the plaintiffs about five months back and they were in its possession exclusively. The case of the plaintiffs further was, that on Sunday prior to the date on which the suit was instituted, the plaintiffs had to go out of village, for joining a marriage of their cousin and taking advantage of their absence, appellant/defendant No. 1 raised construction over the land in dispute by employing a number of masons and labourers. Prior to this, the defendants were cultivating the land in dispute as tenants of the plaintiffs. On the basis of the averments made, they claimed to be owners of the suit land. It was the case of the plaintiff/respondents, that possession of defendant No. 1, Santa Singh over the suit land was without any right or authority being a trespasser, therefore, the plaintiffs were entitled to possession. It was also pleaded by the plaintiffs, that defendant/appellant was asked on number of occasions to remove the construction and hand over the possession of the plot to the plaintiffs to no avail.

The suit was contested by all the defendants by filing joint written statement, wherein the averments made on merit were denied. The stand taken in the written statement was, that the defendant No. 1/appellant was in possession of the suit land for the last 20 years, where he constructed his own house. The defendant No. 1/appellant claimed his possession to be open, notorious and hostile, therefore, he claimed ownership by way of adverse possession. It was admitted by the defendants, that the plaintiffs were the owners of the suit land in the revenue record. It was also asserted, that during the consolidation, area was reserved and defendant No. 1 was shown as marusi, as his house existed in the site in suit, on this account also it was claimed that defendants had become owners of the suit land by way of adverse possession. Other objections qua the maintainability of the suit were also raised.

Attempt was made to defeat the rights of the plaintiffs, by raising a plea that the land, in fact, vested in the gram panchayat, therefore, the civil Court did not have jurisdiction to entertain and try the suit. This plea was rejected as it was beyond pleadings as no such case was set up in the written statement.

On the pleadings of the parties, the learned trial Court framed the following issues:

Whether the plaintiffs are entitled to the possession prayed for in respect of the suit land? OPP

Whether defendant No. 1 has become owner of the land in suit by adverse possession? OPD

Whether the suit has been properly valued for the purposes of court fee and jurisdiction? OPD

Whether the suit is hopelessly barred by time? OPD

Whether this court has no jurisdiction to try this suit? OPD

Relief.

Issues No. 1 and 2 were taken up together. On appreciation of evidence, the learned trial Court held, that it was proved by the plaintiffs that sale deed dated 7.10.1980 was executed by Smt. Sundri in favour of plaintiffs, and defendants No. 2 to 6. The learned Court, in addition, took note of the chakbandi Ex. P2, copy of jamabandi for the year 1975-76 and mutation Ex. P6, to hold that the suit land was earlier owned by Smt. Sundri wife of Babu, who sold it to the plaintiffs by way of sale deed. The plaintiffs were, thus, held to be the owners of the suit property. The learned trial Court did not accept the plea of adverse possession, for the reason that defendant No. 1/appellant in his statement had merely stated that he was considering himself to be the owner of suit land and had constructed a house thereon. The learned trial Court came to the conclusion that the ingredients of adverse possession were not fulfilled, therefore, defendant No. 1 could not be said to have perfected his title by way of adverse possession. The learned trial Court, therefore, decided issues No. 1 and 2 in favour of the plaintiffs and against the defendants.

Issue No. 4 was also decided in favour of the plaintiffs and against the defendants.

The learned trial Court decided issue No. 5 in favour of the plaintiffs and against the defendants, by holding that the civil Court had the jurisdiction to entertain and try the suit.

Resultantly, the suit was decreed.

Findings on issue No. 5 were affirmed by the learned lower appellate Court by recording as under:

Respondents No. 1 to 6/plaintiffs have claimed that they are co-sharers of the khasra in dispute and have been in its exclusive possession on the basis of family settlement while the case of appellant/defendant No. 1 and other defendants is that appellant/defendant No. 1 has become the owner of the suit land through adverse possession. Such a suit for possession is always triable by Civil court and the learned counsel for appellant/defendant No. 1 could not show at the time of arguments as to how the jurisdiction of civil court is barred from trying this suit and how the jurisdiction lies with the revenue court only as claimed in the written statement. Under the circumstances, I hold that the civil court has jurisdiction to try this suit and finding of the learned trial court on issue no. 5 is also affirmed.

Mr. K.S. Sidhu, learned senior counsel, appearing on behalf of the appellant, contends that this appeal raises the following substantial questions of law:

Whether the findings of the learned Courts below on issue No. 5 are perverse being contrary to the pleadings of the plaintiffs admitting that the defendant was the tenant under them?

Whether in view of the averments made in the plaint, jurisdiction of the civil Court to entertain and try the suit was barred?

In support of the substantial questions of law, the learned senior counsel for the appellant referred to para No. 3 of the plaint, which reads as under:

That last Sunday the plaintiffs had gone out of their village to join marriage party of their cousin and the defendant No. 1, taking advantage of the absence of the plaintiffs from the Village and raised construction over the same by employing a number of masons and labourers. Before that they were cultivating the same as tenants of the plaintiffs and now they allege themselves to be its owners.

The contention of the learned senior counsel for the appellant by referring to para 3 of the plaint was, that once the plaintiffs admitted that defendant/appellant was cultivating the suit land as tenant, therefore, the civil Court did not have jurisdiction to entertain and try the suit.

It was contended, that the admission of the plaintiffs in the plaint was ignored while deciding issue No. 5.

Mr. G.S. Jaswal, learned counsel, appearing on behalf of the respondents, however, supported the decree on the plea, that in view of the stand taken by defendant No. 1 in the written statement claiming ownership by way of adverse possession, his right to tenancy came to an end, therefore, it was only the civil Court, which could have entertained and tried the suit and no fault can be found with the judgment and decree of the learned Courts below, that the civil Court had the jurisdiction to try the present suit.

The contention of the learned senior counsel for the appellant cannot be accepted. Positive stand in the case was, that defendant No. 1/appellant, had raised construction over the land in dispute, whereby he claimed adverse possession and ownership of the land in dispute, by denying that he was tenant. Even if for the sake of arguments, defendant No. 1 is taken to be tenant still the civil Court would have the jurisdiction to entertain and try the suit, as the Punjab Tenancy Act, 1887, defines the land, tenant and landlord as under:

(1) ''Land'' means land which is not occupied as the site of any building in a town or village and is occupied or has been let for agricultural purposes or for purposes subservient to agriculture, or for pasture, and includes the sites of buildings and other structures on such land.

(2) x x x

(3) x x x

(4) x x x

(5) ''tenant'' means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that other person, but it does not include:

(a) an inferior landowner, or

(b) a mortgagee of the rights of a landowner, or

(c) a person to whom a holding has been transferred, or an estate or holding has been let in farm, under the Punjab Land Revenue Act, 1887, for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear, or

(d) a person who takes from the Government a lease of unoccupied land for the purpose of subletting it,

(6) ''landlord'' means a person under whom a tenant holds land, and to whom the tenant is, or but for a special contract would be, liable to pay rent for that land.

The Punjab Security of Land Tenures Act also defines the tenant as defined by the Punjab Tenancy Act.

The collective reading of the definitions given above, would show that defendant No. 1, even as a tenant would not be covered under the provisions of the Punjab Security of Land Tenures Act, to claim that the civil Court did not have the jurisdiction to try the suit. It also cannot be said that findings on issue No. 5 were contrary to admission made in plaint.

The substantial questions of law raised are answered against the appellant, and it is held that the learned Courts below rightly decided issue No. 5 by holding that the civil Court had the jurisdiction to entertain and try the suit.

In view of the finding recorded, there is no merit in this appeal, it is accordingly ordered to be dismissed.

No costs.