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21 November, 2012

An Unauthorized Occupant with Long Continuous Possession can Protect the same by seeking an Injunction against any person in the world except True Owner

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An Unauthorized Occupant with Long Continuous Possession can Protect the same by seeking an Injunction against any person in the world except True Owner

PUNJAB AND HARYANA HIGH COURT
Before :- Rakesh Kumar Garg, J.
RSA No.1037 of 2010 (O & M). D/d. 10.3.2010.
Sajjan Singh and Anr . - Appellants
Versus
Gram Panchayat and Ors. - Respondents
2010(2) ICC 271

For the Appellants :- Mr. B.R. Mahajan, Advocate.

A. Specific Relief Act, 1963, Sections 37 and 41 - Civil Procedure Code, 1908, Section 100 - Permanent injunction - Unauthorised occupant - A person who has been in long continuous possession can protect the same by seeking an injunction against any person in the world other than the true owner - Appellants are not entitled to the relief of injunction against the respondent Gram Panchayat who is the true owner. [Para 15]

B. Specific Relief Act, 1963, Sections 37 and 41 - Civil Procedure Code, 1908, Section 100 - Occupancy rights - Declaration and injunction - Revenue record do not show the existence of occupancy tenancy with respect to the plaintiffs or their father as no written agreement has been proved on record on their behalf which allegedly had taken place between them and the defendant Gram Panchayat with respect to the disputed land which could show the nature of the tenancy at its inception - Moreover, there is no cogent evidence to the effect that at the time of inception of the tenancy, there was an agreement between the parties to the suit to the effect that the plaintiffs could not be ejected from the disputed land at all - From the evidence, it is amply clear that the disputed land is owned by the defendant-Gram Panchayat - In these circumstances, the plaintiffs cannot be said to have acquired occupancy rights in the part of the disputed land. [Para 13]

Cases Referred :
1. Ram Karan v. The Financial Commissioner and Others, 1980 P.L.J. 295.
2. Partaprai N. Kothari v. John Braganza, 1999 (3) L.J.R.152.

JUDGMENT
Rakesh Kumar Garg, J. - This is plaintiffs' second appeal challenging the judgment and decrees of the courts below whereby their suit for declaration and injunction was dismissed.
2. The brief facts necessary for the disposal of the instant appeal as emanating from the impugned judgment and decrees are that the father of the appellants namely Des Raj had taken lands measuring 15 kanals 7 marlas and 23 kanals 8 marlas as detailed in the headnote of the plaint for the purpose of cultivation in the capacity of Ghair Morusi. Land measuring 15 kanals 7 marlas was taken on rent at the rate of Rs.20/- per year (chakota saal tamam) from the defendant/respondent Gram Panchayat about 50 years ago. The land was uneven and unfit for cultivation and an agreement was arrived at between the father of the plaintiffs and defendant Gram Panchayat to the effect that after the father of the plaintiffs shall make the disputed land cultivable, he and his successors would never be ejected from the land till they pay the requisite rent. Under the agreement, the father of the plaintiffs made the disputed land cultivable and thereafter started cultivating the same. After some time with mutual consent the rent of the disputed land was enhanced to Rs.25/- per year (chakota saal tamam). The father of the plaintiffs during his lifetime remained in cultivating possession of the disputed land and also made regular payment of rent qua the same. The Gram Panchayat in connivance with the revenue authorities got substituted the words 'lessee' in column No.5 against the words 'Ghair Morusi' and in column No.9 relating to the rent the words 'Rs.25/-' were deleted. The change of the entries in the revenue record qua the disputed land were wrong and not binding on the rights of the plaintiffs and were liable to be corrected. No orders by any of the revenue officers were passed regarding change in the revenue entries and no notice was ever issued to the plaintiffs or their father in this regard.
3. It is further case of the appellants that after the death of their father tenancy rights have been inherited by them which have now ripened into an ownership with respect to the aforesaid land measuring 15 kanals 7 marlas as per the Punjab Occupancy Tenants(Vesting of Proprietary Right)Act, 1952. The other part of the disputed land measuring 23 kanals 8 marlas the same was given to the father of the plaintiffs in capacity as of Ghair Morusi tenant on rent. However, the Gram Panchayat in connivance with the revenue authorities got substituted the word 'lessee' against the word 'Ghair Morusi Tenant' in the revenue record and those entries were wrong and not binding on the rights of the plaintiffs. No ejectment order was ever passed against the plaintiffs or their father with respect to the disputed land. Defendant-Gram Panchayat cannot without taking prior possession from the plaintiffs lease out the aforesaid land to another person. The defendants on the basis of the wrong revenue entries were bent upon to take forcible possession of the disputed land. Hence the necessity arose to file the present suit.
4. Upon notice, defendant Nos.1 and 3 appeared and contested the suit by filing written statement wherein various preliminary objections were raised. On merits, it was averred that disputed land was Shamlat Deh and was leased in an open auction and was in possession of the lessee. It was further submitted that the disputed land was never given to the father of the plaintiffs under any agreement and as such the question of the plaintiffs or their father to be in possession of the disputed land does not arise at all. It was further averred that the disputed land vested in Gram Panchayat and suit land measuring 15 kanals 7 marlas was given to defendant No.3 on lease for the year 2001-02 and was in his cultivating possession. Other part of the land measuring 23 kanals 8 marlas was in possession of one Ishwar from year 2001-02 on lease. The plaintiffs had no right, title or interest in the disputed land. Dismissal of the suit was prayed for.
5. After hearing both the parties, issues No 1 to 3 were decided against the plaintiffs, whereas issue No.4 to 7 were decided against the defendants. On the basis of the findings on various issues, the trial court dismissed the suit vide judgment and decree dated 29.11.2006.
6. Aggrieved with the above said judgment and decree, the plaintiffs filed an appeal. Upon notice, respondent No.1 Gram Panchayat appeared. However, respondent Nos.2 and 3 were proceeded against ex parte.
7. It is relevant to mention that the plaintiffs had also moved an application for leading additional evidence under Order 41 Rule 27 read with Section 151 CPC for placing on record eviction petition moved by Gram Panchayat/defendant wherein Gram Panchayat alleged that the plaintiffs were in possession whereas Gram Panchayat had denied possession of the plaintiffs over the suit land in their written statement. The aforesaid application was opposed on the ground that the aforesaid copy of the eviction petition was not necessary to adjudicate the point involved in the present appeal as there would be no change in the nature of the suit on account of filing of ejectment petition as the plaintiffs had filed the suit for declaration claiming the ownership of suit land which was shamlat land.
8. The aforesaid application was dismissed by the Lower Appellate Court finding that the aforesaid additional evidence would not improve the case of the plaintiffs in any manner as they were stated to be in unauthorized possession of the suit land and if the plaintiffs would admit the contents of the aforesaid documents then it would be against the case of appellants as they were claiming ownership rights having occupancy tenancy rights vested in them in suit land measuring 15 kanals 7 marlas and being tenant on the remaining land.
9. On merits also on reappraisal of the evidence the Lower Appellate Court recorded a finding of fact that the plaintiffs have miserably failed to show that they were in continuing possession over the suit land as Gair Morusi tenant. Regarding the claim of the plaintiffs for occupancy rights under the provisions of Punjab Occupancy Tenants(Vesting of Proprietary Rights)Act, 1952, it was found that they have failed to fulfill the requirement of having such right and thus the Lower Appellate court dismissed the appeal vide impugned judgment and decree dated 05.02.2010.
10. Still not satisfied, the plaintiffs have approached this Court by filing this appeal.
11. Learned counsel for the appellants has vehemently argued that the findings of the courts below to the effect that the plaintiffs have failed to prove continuous possession over the suit land suffers from perversity and was contrary to the admission of defendants in the ejectment application dated 23.07.2007 in which the possession of the plaintiffs for more than 10 years was admitted by defendants. It has been further argued on behalf of the appellants that entry of Ghair Morusi in favour of the appellants was deleted unauthorizedly and the change in revenue record by incorporating wrong entries was done without any order of any authority. The material evidence has been ignored by the courts below and the findings so recorded suffer from perversity and as such cannot be sustained. On the basis of the aforesaid arguments learned counsel for the appellants has submitted that following substantial question of law arise in this appeal:
1. Whether the judgments and decree of the courts below suffer from perversity, being contrary to evidence on record and settled principles of law and therefore unsustainable?
12. I have heard learned counsel for the appellants and perused the impugned judgment and decrees.
13. From the pleadings of the parties and the arguments raised by the learned counsel for the appellants, it may be noticed that appellants are claiming that land measuring 15 kanals 7 marlas vested in them under the provisions of Punjab Occupancy Tenants(Vesting of Proprietory Right) Act 1952 and were in possession of the remaining land being tenants and therefore they were entitled to the relief as sought. As far as claiming of occupancy rights is concerned, it is well settled that person who claims to have become owner of the land under the provisions of the Vesting of Proprietory Right Act must show that he was recorded as occupancy tenant in the revenue record with regard to the said land. From the evidence adduced on record, the names of the plaintiffs or their father have not been recorded as occupancy tenants in the revenue record immediately before the commencement of the Vesting of Proprietory Act. Nor they have claimed to have right of occupancy in the disputed land at any time after the commencement of the Act of 1952. The revenue record do not show the existence of occupancy tenancy with respect to the plaintiffs or their father as no written agreement has been proved on record on their behalf which allegedly had taken place between them and the defendant Gram Panchayat with respect to the disputed land which could show the nature of the tenancy at its inception Moreover, there is no cogent evidence to the effect that at the time of inception of the tenancy, there was an agreement between the parties to the suit to the effect that the plaintiffs could not be ejected from the disputed land at all. From the evidence on the file, it is amply clear that the disputed land is owned by the defendant-Gram Panchayat. In these circumstances, the plaintiffs cannot be said to have acquired occupancy rights in the part of the disputed land measuring 15 kanals 7 marlas. With regard to the claim of the plaintiffs that they were Ghair Morusi tenants in possession with respect to another part of the property measuring 23 kanals 8 marlas in the revenue record placed on the file, there is no entry with respect to the payment of any rent in the rent column since the year 1971-72.
14. In case titled as Ram Karan v. The Financial Commissioner and others 1980 P.L.J.295 it has been observed by this court that:
"It is settled law that generally in the revenue record, the persons even in unauthorized possession are described as Ghair Morusi(tenants) in the column of cultivation but from this entry alone, it cannot be held that the status of such persons is that of tenants unless in the rent column it is disclosed that such persons were liable to pay rent."
Thus, no fault can be found in the impugned judgment and decree.
15. As regards relief of injunction as prayed for by the plaintiffs with respect to the disputed land against the defendant Gram Panchayat is concerned, in case titled as Partaprai N.Kothari v. John Braganza 1999 (3) L.J.R.152 it has been observed by Hon'ble Supreme Court of India that a person who has been in long continuous possession can protect the same by seeking an injunction against any person in the world other than the true owner.
16. In view of the aforesaid, the appellants are not entitled to the relief of injuction against the respondent Gram Panchayat who is the true owner.
17. No other point was urged.
18. Thus, no question of law much less substantial question of law arises in this appeal.
19. No merits.
20. Dismissed.

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