Sarup Singh vs Sardul Singh

Surinder Gupta, J.—The plaintiff-appellant Sarup Singh (later referred to as ''the appellant'') filed the suit for permanent injunction restraining the defendant from interfering in his possession over the suit land measuring 3 Kanals 8 Marlas bearing Khewat No. 1 Khatauni No. 7 Rect. No. 14 Khasra No. 14/1 situated in village Badial, over which he is in possession as a tenant. The defendant Sardul Singh denied the possession of the plaintiff over the suit land and his tenancy, rather claimed his possession over the suit land, which he had purchased from the previous owners vide sale deed dated 21.4.1986.

The pleadings of the parties led to the framing of the following issues by the trial Court:-

(i) Whether the plaintiff is in possession of the suit land as a tenant under the defendant over the suit property? OPP

(ii) Whether the suit is barred u/s 77 of the Punjab Tenancy Act? OPD

(iii) Whether the plaintiff is entitled to the injunction prayed for? OPD

(iv) Relief

Findings on issues No. 1 to 3 were recorded by the trial Court in favour of the plaintiff and his suit was decreed vide judgment and decree dated 8.10.1986.

In appeal, the first appellate Court set aside the judgment of the learned trial Court with the observations as follows:-

Matter may be viewed from another angle. It is well settled that payment of rent is a necessary incidence of tenancy Not an iota of cogent evidence was led in to prove that the plaintiff (Sarup Singh) ever paid Batai or rent to Amar Singh (Deceased) in the first instance and on his death to his successors-in-interest, namely Jagidh (sic) Singh etc.

Learned counsel for the parties have been heard and file perused with their assistance.

Learned counsel for the appellant has argued that the judgment of the learned appellate Court is based on misinterpretation of the evidence produced in this case. The documentary evidence on record was sufficient to prove possession of plaintiff over the suit land as tenant-at-will. He has argued that it is settlement of rent in between owner and tenant, which is required to be established by the tenant and not payment of rent. The landlord has so many legal remedies available to him in the event of nonpayment of rent by a tenant. Learned first Appellate Court has gone astray while dismissing the suit of the appellant on the ground that he has not been able to prove the payment of rent.

Learned counsel for the respondent has argued that the plaintiff Sarup Singh had not appeared as a witness and there is no explanation for his non-appearance. PW Darshan Singh, attorney of plaintiff, was not having any knowledge about the possession over the suit land. Natha Singh, PW-2 had no land in the village where the suit land is situated. So, he had no occasion to know about the possession of the plaintiff over the suit land. On the other hand, the possession of the defendant is proved from the oral evidence i.e. statement of Sadul Singh and his witnesses. Even Darshan Singh, Attorney of plaintiff, who has appeared as PW-1, has stated that the land was taken by Sarup Singh from Bhajno and there is no evidence to show that Bhajno was the owner of the suit land.

The substantial question of law which arises for consideration in this appeal is:

Whether the tenant is required to prove the payment of rent in order to establish his possession as tenant over a property?

Admittedly, the plaintiff is recorded to be in possession over the suit land as tenant-at-will. In column no. 5 of the jamabandi for the year 1982-83 (Ex. P-3) pertaining to the suit land, the appellant is recorded to be owner in possession as tenant-at-will and in column no. 9 the terms of tenancy regarding the payment of rent have been elaborately mentioned. The similar entries were earlier recorded in the jamabandies for the year 1966-67 (Ex. P-5), 1977-78 (Ex. P-6) and 1971-72 (Ex. P-7) and Khasra-girdawari for the year 1985-86 (Ex. P-4). As per entry in the jamabandi for the year 1966-67 Sarup Singh is recorded to be in possession of the suit land as tenant even under Amar Singh, previous owner from whom the defendant purchased this land.

Admittedly, the plaintiff has not appeared as witness in this case. He has examined his attorney Darshan Singh. There is no dispute with the proposition of law that the statement of attorney cannot be taken as statement of plaintiff himself. It can at the most be read as statement of facts relating to the matter in dispute. The non-appearance of plaintiff, as his own witness cannot be a sole ground to dismiss his suit. The contention of the plaintiff with regard to his possession over the suit land finds support from the entries of jamabandi (Ex. P-3, Ex. P-5 to P-7) and Khasra-Girdawari (Ex. P-4), besides oral testimony of PW-1 Darshan Singh and PW-2 Natha Singh. It has been stated by Natha Singh that he belongs to village Hayatpur and the suit land is in possession of the plaintiff for the last 18-20 years. He had remained Sarpanch of village Hayatpur for 20/22 years. The mere fact that his land do not adjoin the suit land or he do not possess any land in village Badial where the suit land is situated is no reason to disbelieve his testimony. Even the defendant is resident of village Hayatpur and PW-2 Natha Singh had remained Sarpanch of that village. Absolutely no reason has come on file that this witness has any reason to depose in favour of the plaintiff and against the defendant. Sardul Singh-defendant, while appearing as DW-1 has stated that earlier this land was in possession of his brother Mehnga Singh, who has since died. Thereafter wife of Mehnga Singh, Rakho came in possession of the suit land. Mehnga Singh had a daughter named Bhajno. There was litigation in between Rakho and Bhajno with regard to the property of Mehnga Singh, over which possession of Rakho was proved. Bhajno or her husband Sarup Singh had never cultivated the land as they used to live in village Terkiana. He has admitted that his possession was never entered in any girdawari pertaining to the suit land. The entry in the girdawari with regard to the possession over the suit land continued to be in the name of the owners, as he was paying share of produce to the original owners. It is not a case where the defendant is not aware that he has to get the entries of his possession over the land recorded in the khasra-girdawaries. Admittedly, defendant owned another 4 Killas of land and has stated that the entries with regard to the possession of those 4 Killas are rightly recorded in the Khasra-Girdawari.

Learned first appellate Court has displaced the plaintiff with regard to his claim of possession over the suit land with the observation that he has not been able to produce any evidence with regard to the payment of rent. Perhaps the statement of defendant has escaped the attention of the learned first appellate Court while recording such findings. The defendant has admitted that he had never taken any receipt of the payment of share of produce to the owners. He never deposited the share of produce of the owner, as they have been receiving the same. He never received any compensation of the suit land from the government as and when there was a drought. He has never filed any petition so far, for the correction of entry in khasra-girdawari.

In view of the above facts, the testimony of other witnesses examined by the defendant do not help him in proving his possession over the suit land. The learned first appellate Court besides disbelieving the testimony of witnesses of appellant has disbelieved his case that plaintiff Sarup Singh has not been able to prove that he had never paid Batai or rent to the owners of the land. The first appellate Court observed in paras 11 & 12 of the judgment while dismissing the suit of the appellant as follows:-

Inevitable conclusion, therefore, is that the plaintiff (Sarup Singh) miserably failed to establish that he was in possession of the suit land and was cultivating it as tenant-at-will on the payment of Batai. As such, it must be held that he was not in possession of the suit land as the tenant-at-will. Needless to say that Sardul Singh (defendant) was the owner of it by virtue of its purchase throughout the registered sale deed (Ex. D. 1) from the successors-in-interest, namely, Jagdish Singh etc. of Amar Singh (deceased) who admittedly was the owner of it.

Upshort is that the instant appeal is accepted. Judgment/decree under appeal is set aside. In result the suit of the plaintiff (Sarup Singh) stands dismissed with costs throughout.

It is evident that the learned first Appellate Court has gone astray while declining to admit the claim of the plaintiff with regard to his possession over the suit land. The documentary evidence placed on record prove his possession and tenancy over the suit land. There is no dispute with regard to the proposition of law that the entries in the jamabandies are rebuttable, but the defendant-respondent has not produced any evidence to rebut the genuineness of the entries in the jamabandi for the years 1966-67, 1971-72, 1977-78 and 1982-83. The defendant has claimed that he had been earlier cultivating the land as tenant and paying the share of produce to the owners. He never got any entry recorded in the revenue record in his name with regard to possession over the suit land. Even after the purchase of land he had made no attempt to get the entry in the revenue record changed in his favour with regard to the suit land. In view of the facts & circumstances and the evidence that has come on file, as discussed above, I am of the considered opinion that the trial Court had rightly held the plaintiff to be in possession of the suit land. The substantial question of law as discussed in para 9 of this judgment is decided in favour of appellant. The observations of the learned first appellate Court are not based on proper appreciation of fact and law on the point, as such, is not sustainable and set aside. This appeal is allowed. The judgment and decree passed by the learned trial Court is upheld. Parties to bear their own costs.