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2000 DIGILAW 549 (PNJ)

Amar Nath And Ors. v. Kabal Singh And Ors.

2000-05-23

M.L.SINGHAL

body2000
Judgment M.L.Singhal, J. 1. This RSA is directed against the judgment and decree dated 21.6.69 passed by Additional District Judge, Jalandhar whereby he accepted the appeal of Kabal Singh defendant and dismissed the suit of the plaintiff respondent Amar Nath for possession of 1/2 share of land measuring 1 kanal 18 marla towards west to khewat No. 1030, Khatauni No. 1526 Khasra No. 4390/1446-2737 as entered in jamabandi for the year 1958-59 situated in the area of Nawanshahr as shown in red in the plan Ex.P1 attached to the plaint in reversal of the judgment and decree dated 28.6.67 passed by Sub Judge First Class, Nawanshahr in his favour. 2. Facts:- Amar Nath plaintiff (appellant herein) filed suit in November 1965 for possession of 1/2 share of land measuring 1 kanal 18 marla as detailed in the heading of the plaint and described in the site plan attached to the plaint. It is alleged in the plaint that Dharam Pal son of Sagli Ram was co-owner/co-sharer of land measuring 1 kanal 18 marla. Dharam Pal son of Sagli Ram was in Hissedari possession thereof. He purchased from Dharam Pal son of Sagli Ram vide registered sale deed dated 13.6.58 1/2 share of this Khasra number towards west and put the plaintiff in possession thereof. Kabal Singh defendant No. 1 took forcible possession thereof 3-4 months ago and raised one kacha kotha in some portion of the land in suit. Chiranji Lal defendant No. 2 and husband of defendant No. 3 Pt. Siri Ram purchased some area of khasra No. 4390/1446/2737 from Dharam Pal son of Sagli Ram. Defendant Smt. Karam Devis husband died about 1-1/2 years ago and his interest devolved upon Smt. Karam Devi defendant No. 3. Amar Nath plaintiff sought possession of 1/2 share of land measuring 1 kanal 18 marla towards west as purchaser from co-owner Dharam Pal alleging that Kabal Singh defendant was trespasser. Kabal Singh defendant resisted the suit of the plaintiff urging that he was not trespasser. He had purchased about 4 marlas of site vide sale deed. He had pre-empted the sale of land measuring 7 marla effected by Dharam Pal in favour of Lachman Singh son of Bawa Singh. He was thus in possession of land measuring 11 marla out of this khasra Number as owner. He had purchased about 4 marlas of site vide sale deed. He had pre-empted the sale of land measuring 7 marla effected by Dharam Pal in favour of Lachman Singh son of Bawa Singh. He was thus in possession of land measuring 11 marla out of this khasra Number as owner. He was in possession of the remaining 1 kanal 7 marla of this kahsra number as tenant since 12.4.54 at a rental of Rs. 60/- per annum under Sagli Ram and Dharam Pal and at a rental of Rs. 100/- per annum from the year 1957. Kiraya Nama is dated 12.4.1954. There are pucca kothas raised by him on the land in suit. He is carrying on the business of the sale of wood on the land in suit. He has raised shops there which are of the value of Rs. 20,000/-. Land in suit is situated within the municipal limits of Nawanshahr and as such the matter was cognizable by Rent Controller under the East Punjab Urban Land Restriction Act 1949. Plaintiff was stopped by his act and conduct inasmuch as he had been seeing the house being constructed on the land in suit. He had been receiving rent in the shape of fuel wood. On the pleadings of the parties, the following issues were framed by the learned Subordinate Judge :- 1. Whether the plaint is not properly valued for purposes of Court fee and jurisdiction? OPD 2. Whether defendant No. 1 is a tenant of the plaintiff in the land in dispute? If so, whether this court has jurisdiction to try this suit? OPD 3. Relief. 3. Subordinate Judge First Class, Nawanshahr decreed the plaintiffs suit for possession in view of his finding that Kabal Singh was a trespasser. It was found that he was in illegal possession as gair maurusi without payment of rent. Kabal Singh went in appeal which was allowed by Additional District Judge, Jalandhar vide order dated 21.6.69 in view of his finding that Kabal Singh was purchaser of 4 marlas of land out of this khasra number. He got 7 marlas of land through pre-emption. Amar Nath purchased 1/2 of 1 kanal 18 marlas of land out of this khasra number vide sale deed dated 13.6.58. from Dharam Pal. He got 7 marlas of land through pre-emption. Amar Nath purchased 1/2 of 1 kanal 18 marlas of land out of this khasra number vide sale deed dated 13.6.58. from Dharam Pal. Kabal Singh was tenant in respect of 1 kanal 10 marlas of land out of this khasra number through rent deed Ex.D1 executed by him in favour of Sagli Ram and the annual rent was settled at Rs. 60/- per annum. Rent deed Ex.D1 is dated MAM. It was found that initially he had taken 1 kanal 10 marla of land as tenant. Later on, he took the entire 1 kanal 18 marla at a rental of Rs. 100/- per annum. At that time, the defendant had not purchased 11 marlas of land out of this khasra number as such he had to take the entire land on rent. He found that rent had been paid vide receipts dated 12.4.1954, 16.4.1956, 25.4.1957 and 19.1.1958. It was also found that Kabal Singh paid taxes to Municipal Committee. Nawanshahr vide receipts D7 to D13. It was found that possession was not delivered to Amar Nath and that the recital in the sale deed Ex.P1 was false. Amar Nath could be put in possession if Kabal Singh had been ejected before the execution of the sale deed. Kabal Singh was earlier tenant under Sagli Ram. On Sagli Rams death, he became tenant under his son Dharam Pal by operation of law. Kabal Singh was not trespasser. He was not in forcible possession. Not satisfied with the judgment and decree of Additional District Judge, Jalandhar, Amar Nath came to this Court through this appeal. High Court vide order dated 27.7.81 set aside the judgment and decree of Additional District Judge, Jalandhar and restored that of the Subordinate Judge First Class, Nawanshahr. It was held that plaintiff Amar Nath was entitled to possession of 1/2 share of land measuring 1 kanal 18 marla in view of the finding that there was no relationship of landlord and tenant between Amar Nath and Kabal Singh and if there was any relationship of landlord and tenant between Dharam Pal and Kabal Singh, it ended on 13.6.58 when the land in suit was sold to Amar Nath and Amar Nath never accepted Kabal Singh as tenant nor Kabal Singh ever paid him (Amar Nath) any rent. It was also found that Kabal Singh could not be treated as tenant by holding over or by sufferance under Amar Nath. Not satisfied with the order of the High Court, Kabal Singh approached the Honble Supreme Court. Honble Supreme Court allowed the appeal of Kabal Singh and set aside the judgment of the High Court and remitted the matter of reconsideration. Honble Supreme Court passed the following order:- "We are totally dissatisfied with the impugned judgment of the High Court. If admittedly the appellant was a tenant under the original owner-Dharam Pal unless the tenancy has been properly extinguished that will continue as against the purchaser the present respondent. However, what is urged on behalf of the respondent is that the rent receipts produced by the appellant issued by Dharam Pal do not relate to the suit property. Concerning this, the High Court has not even adverted to this important factor. It is necessary because if the rent receipts relates to the suit property certainly the reversal of the judgment of the lower appellate Court was unwarranted. On the contrary, if they do not relate to the suit property, it should have held so before reversal. Accordingly, we set aside the impugned judgment of the High Court and remit the matter for reconsideration in the light of the above observations. Appeal is allowed. No costs." 4. This is how this RSA has come up over again before this Court for being disposed of. Case of the plaintiff lies in a very narrow compass. His case is that Khasra No. 4390/1446-2737 as per jamabandi for the year 1958-59 was owned by Dharam Pal son of Sagli Ram son of Mehar Chand in co-ownership/co-sharership. Dharam Pal had 1/2 share therein. He was in possession of the western side of this khasra number towards railway road. He purchased 1/2 share of this khasra number from Dharam Pal vide sale deed Ex.Pl dated 13.6.58 and he was put in possession thereof. Shri Vishwa Nath PW1 stated that he is the real brother of Amar Nath plaintiff. He appeared for him before the Sub Registrar on 13.6.58. Sale deed Ex.P1 (certified copy) was executed by Dharam Pal in favour of Amar Nath. Dharam Pal thumb marked sale deed in token of its correctness. Amar Nath was put in possession of the land purchased vide this sale deed. He remained in possession all along. He appeared for him before the Sub Registrar on 13.6.58. Sale deed Ex.P1 (certified copy) was executed by Dharam Pal in favour of Amar Nath. Dharam Pal thumb marked sale deed in token of its correctness. Amar Nath was put in possession of the land purchased vide this sale deed. He remained in possession all along. About 1/3/4 years ago Kabal Singh stepped into possession forcibly. This taur was never let out to anyone. They allow Jhiwars for 2-3 months every year for the manufacturing of baskets etc. Amar Nath was recorded in Khasra girdawri in kharif 1964. Kabal Singh made application for correction of Khasra girdawri. He further stated that it was vacant site when they purchased and still it is continuing as vacant site (taur). It was denied that kabal Singh has been in possession of this site since the year 1954 as tenant. His statement was recorded on 1.3.1967. Case of Kabal Singh defendant, on the other hand, is that he was never trespasser so far as this taur is concerned. He took this khasra number on rent from the owner in the year 1954. Since then, he has been in possession thereof. He executed rent note Ex.D1 in favour of Sagli Ram son of Mehar Chand qua taur measuring 1 kanal 10 marla. He had been paying rent to Dharma Pal son of Sagli Ram who gave him receipts Ex.D3, D4, Sagli Ram gave him receipt Ex.D5 in token of the receipt of its rent. He stated that he has been in possession of this taur since the year 1954 as tenant. Thereafter, he constructed house. He has been paying house tax to Municipal Committee, Nawanshahr. Ex.D7 to D13 are the receipts showing the payment of house tax to Municipal Committee, Nawanshahr. He had been paying rent for this house to Amar Nath in the shape of fuel wood which Amar Nath had been collecting for his wooden tall (wood shop). Rent deed Ex.D1 relates to khasra number measuring 1 kanal 10 marla. Initially, rent settled was Rs. 60/- per annum. Thereafter, the rent was raised to Rs. 100/- per annum. Out of the said khasra number measuring 1 kanal 18 marla, he purchased site measuring 4 marla vide sale deed. He pre-empted the sale of land measuring 7 marla out of this khasra number. Initially, rent settled was Rs. 60/- per annum. Thereafter, the rent was raised to Rs. 100/- per annum. Out of the said khasra number measuring 1 kanal 18 marla, he purchased site measuring 4 marla vide sale deed. He pre-empted the sale of land measuring 7 marla out of this khasra number. He thus became co-sharer in this khasra; his share being 11 marla. He became in possession of the remaining 1 kanal 7 marla as tenant. As per Kabal Singh, the aforesaid receipts relate to the taur in dispute where he has raised house and is also carrying on the business of the sale of fuel wood. It was not suggested to him as to which property these receipts relate to, if these receipts do not relate to taur in dispute? Receipt D4 is dated 19.1.1958. It is regarding 1 kanal 18 marla of land @ Rs. 100/- per annum. In the beginning. Kabal Singh took 1 kanal 10 marlas of land @ Rs. 60/- per annum. Later on, he took the entire land 1 kanal 18 marla @ Rs. 100/- per annum. At that time, kabal Singh had not purchased 11 marlas of land, as such, he had to take the entire land on rent. Dharam Pal son of Sagli Ram DW1 stated that his father was owner of the disputed taur. Kabal Singh defendant is in possession of this as tenant, he used to pay rental at Rs. 60/- per month to his father. Kabal Singh executed rent deed in favour of his father Ex.D1. After his fathers death, Kabal Singh had been paying him rent. He gave him receipts Ex.D2, D3 and D4. His father gave him receipt Ex.D5. Defendant has built house on this taur. 5. Learned counsel for appellant-plaintiff Amar Nath submitted that these receipts do not relate to the property in suit. At the cost of repetition, I must say that if these receipts do not relate to the property in suit, the plaintiffs brother Vishwa Nath PW1 should have disclosed as to which property these receipts relate to, if they do not relate to the property in suit as they had been executed by Dharam Pal son of Sagli Ram or his father Sagli Ram. Kabal Singh was figuring in Khasra girdawri. He was figuring in the house tax assessment record. Kabal Singh was figuring in Khasra girdawri. He was figuring in the house tax assessment record. In khasra girdawri for kharif 1964, Amar Nath was shown as owner in possession. Kabal Singh made an application for correction of Khasra girdawri praying that he be show as in possession as tenant @Rs. 60/- per annum and he be recorded as in possession in rabi 1965. Khasra girdawri was ordered to be corrected by Tehsildar (assistant Collector Second Grade), Nawanshahr on 5.1.66. Amar Nath went in appeal which was allowed by Collector (Sub Divisional Officer (Civil), Nawanshahr vide order dated 28.3.66. Commissioner, Jalandhar Division, Jalandhar allowed the appeal of Kabal Singh and ordered the Khasra girdawri in question to be corrected in accordance with the order of Assistant Collector Second Grade, Nawanshahr dated 5.1.66. 6. When the possession of Kabal Singh was initially as tenant, he would be deemed to be in possession as tenant unless there was elevation in his status. If he had not paid any rent to Amar Nath, that does not mean the cessation of relationship of landlord and tenant between them. Payment of rent to Amar Nath was not necessary. What was necessary was agreement to pay rent. When Kabal Singh had agreed to pay rent to Sagli Ram in view of the execution of rent note dated 12.4.54, he was under an implied agreement to pay rent to Amar Nath under whom he became tenant by operation of law. 7. Learned counsel for the appellant submitted that the Subordinate Judge had found, on consideration of evidence, that these receipts do not relate to this Khasra number as in these receipts, no property number is mentioned for which rent was paid and receipts D7 to D13 relate to the other house of Kabal Singh as shown in site Plan Ex.D6 which bears some other boundaries and which do not relate to this Khasra number. It was submitted that the Court of appeal should not have reversed this finding of fact without any tangible evidence. Suffice to say, the Court of appeal reversed this finding of fact which was found to have been recorded erroneously on erroneous appreciation of evidence. It was submitted that the Court of appeal should not have reversed this finding of fact without any tangible evidence. Suffice to say, the Court of appeal reversed this finding of fact which was found to have been recorded erroneously on erroneous appreciation of evidence. Court of appeal (Additional District Judge, Jalandhar) has observed that Kabal Singh was in possession as tenant and possession was never given to Amar Nath by vendor Dharam Pal and the recital to this effect in sale deed Ex.P1 was wrong. Receipts as to payment of rent relate to this property. If these receipts were not relating to this property, plaintiff Amar Nath would have stated that these receipts relate not to this property but to that property. Court of appeal was within its jurisdiction to reverse the finding of fact arrived at by the learned trial Court on erroneous appreciation of evidence. Sitting. in second appeal, it will not be permissible to the High Court to reverse the finding of fact recorded by the appellate Court in second appeal, the High Court can go into question of law alone. Learned Additional District Judge was within his jurisdiction to arrive at a different finding of fact on reappraisal of evidence. For the reasons given above, this appeal fails and is dismissed. Decree passed by Additional District Judge reversing that passed by Subordinate Judge is maintained.