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2001 DIGILAW 632 (PNJ)

Shingara Ram v. Prem Chand

2001-06-01

M.L.SINGHAL

body2001
JUDGMENT M.L. Singhal, J. - This is plaintiffs regular second appeal against the judgment and decree dated 23.8.1999 of Additional District Judge, Hissar whereby he had maintained the dismissal of his suit ordered by the Additional Civil Judge (Sr. Division), Tohana vide order dated 28.1.1997. 2. This regular second appeal has arisen in the following circumstances. 3. Shingara Ram filed suit for declaration against Prem Chand and others to the effect that he is in possession of land measuring 31 Kanals 2 Marlas situated in village Jakhal, Teh. Tohana, Distt. Hissar as detailed is the heading of the plaint and is entitled to retain its possession till he is evicted therefrom and further that Prem Chand etc. defendants No. 1 to 13 have no right to evict him illegally and forcibly or in any manner, whatever; in the alternative, without prejudice to what has been stated above, he has perfected his title qua the said land because of being in continuous peaceful, open and hostile possession as owner thereof for more than 12 years and is entitled to get his name recorded in the column of ownership in the revenue record and for permanent injunction restraining defendants No. 1 to 13 or any other person claiming through them from dispossessing him from the said land forcibly and illegally and for mandatory injunction directing them to restore the possession of the said land or any portion thereof if they happen to be in forcible and illegal occupation of the said land or any portion thereof. It is alleged in the plaint that he is in possession of land measuring 31 Kanals 2 Marlas situated in village, Jakhal. It was Banjar Kadim land. It was allotted to him by the Collector, Hissar (defendant No. 13-A) in the year 1971 through lease deed Ex.P-2 under the East Punjab Utilisation of Lands Act, 1949. Its possession was delivered to him in the year, 1971. Rapt was recorded in the roznamcha waqeati in token of delivering him possession of the land. Since then, he has been in possession of the land as allottee/lessee. He was never ordered to be evicted by any court or officer of competent jurisdiction. His possession was open, peaceful, continuous and hostile since the year 1971. During this period, he has never paid any theka or batai to any proprietor of shamilat deh Ramanand Patti. Since then, he has been in possession of the land as allottee/lessee. He was never ordered to be evicted by any court or officer of competent jurisdiction. His possession was open, peaceful, continuous and hostile since the year 1971. During this period, he has never paid any theka or batai to any proprietor of shamilat deh Ramanand Patti. He has become owner by way of adverse possession. 4. Defendants No. 1, 3, 4, 6 and 8 to 10 contested the suit of the plaintiff. It was urged that the lease period in respect of suit land in favour of plaintiff had expired and after the expiry of the period of lease, plaintiff ceased to have any concern with the land. Plaintiff transferred the possession of the land to the owners of the land after obtaining compensation from them. He gave affidavit to this effect on 24.4.1989 when he had given up possession of the land to the owners after receiving compensation from them. He also gave general power of attorney to Kapur Singh for the correction of Khasra girdawri. The owners got corrected the revenue record in their favour. Thereafter, the owners of the land as co-sharers sold the suit land to the defendants Jaswant Rai, Kasturi Land and Jamna Dass. They sold their share to Basera Rice Mill, Jakhal who constructed a four wall in the land. Lease was only for 7 years and the land allotted under the East Punjab Utilisation of Lands Act, 1949 was not at all heritable. 5. Defendants No. 2, 5, 7, 11, 12 and 13 filed written statement. It was pleaded that defendants No. 2, 5 and 7 had purchased the suit land jointly with defendants No. 1 to 10. Later on defendants No. 2, 5 and 7 sold their share to Basera Rice Mill, Jakhal. 6. On these pleadings of the parties, the following issues were framed by the learned trial Court : 1. Whether the plaintiff is owner in possession of the suit property ? OPP 1-A. Whether the plaintiff and defendant No. 14 have perfected their title over the suit land by remaining in continuous, peaceful, open and hostile possession and have acquired the title of the ownership of the suit land ? OPP 2. Whether the suit is not maintainable in the present form ? OPD 3. OPP 1-A. Whether the plaintiff and defendant No. 14 have perfected their title over the suit land by remaining in continuous, peaceful, open and hostile possession and have acquired the title of the ownership of the suit land ? OPP 2. Whether the suit is not maintainable in the present form ? OPD 3. Whether the plaintiff has no locus-standi and cause of action to file the suit ? OPP 4. Whether the plaintiff is estopped from filing this suit by his own act and conduct ? OPD 5. Relief. Additional Civil Judge (Sr. Division), Tohana vide order dated 28.1.1997 dismissed the plaintiffs suit in view of his finding that plaintiff is not owner in possession of the suit land. Defendants are owners in possession of the suit land. It was found that as plaintiff is not in possession of the suit land, suit for declaration simplicitor is not maintainable. Defendants are in possession of the suit property as owners. Relief of possession has not been claimed by the plaintiffs against them. It was found that the plaintiff stood estopped from filing the suit when he had given up possession in favour of the land-owners and had sworn affidavit Ex.DW6/A where-through he swore that he had relinquished possession in favour of the land-owners and further he had executed power of attorney on the basis of which revenue entries were got corrected in the name of the defendants. It was found that the plaintiff had no locus standi to file the present suit when he had relinquished possession in favour of the land-owners and had also exeucted power of attorney on the basis of which revenue entries were got corrected in the name of the defendants. 7. Plaintiff went in appeal, which has dismissed by Additional District Judge, Hissar vide order dated 23.8.1999. 8. Still not satisfied, plaintiff has come up in further appeal to this court. 9. I have heard the learned counsel for the parties and have gone through the record. 10. In appeal, learned District Judge, Hissar found that the plaintiff is not in possession of the suit land. Possession of the suit land is with the defendants. Plaintiff voluntarily handed over possession of the suit land in favour of the owners of Shamilat Deh Ramanand Patti Hasab Rasab Jar Khewat after accepting compensation. 10. In appeal, learned District Judge, Hissar found that the plaintiff is not in possession of the suit land. Possession of the suit land is with the defendants. Plaintiff voluntarily handed over possession of the suit land in favour of the owners of Shamilat Deh Ramanand Patti Hasab Rasab Jar Khewat after accepting compensation. Lateron, the shares in the suit land were sold to the defendants and they become owners of the suit land. It was found that the ownership of the landowners during the period of lease under the East Punjab Utilisation of Lands Act, 1949 did not remain in abeyance and the owner is competent to sell the land and there is no provision in the Act which debars the land-owner from transferring the land by sale or otherwise. It was found that even if there was contravention of condition No. 6 of the lease deed or Section 7(1) of the East Punjab Utilisation of Lands Act, 1949, it does not amount that the possession of the suit land was actually not handed over to the land-owners. Plaintiff was in unauthorised possession and he relinquished possession and handed over possession to the original land- owners. It was found that the learned trial Court had found on issue No. 1 that as plaintiff was in possession of land as lessee due to allotment of the land under the East Punjab Utilisation of Lands Act, 1949, his possession was permissive and permissive possession cannot be converted into adverse possession. It was found that when the learned trial court had adverted to the question of adverse possession by considering evidence on issue No. 1, it was unnecessary to remand the case to the learned Trial Court for returning finding on issue No. 1-A. 11. Land measuring 31 Kanals 2 Marlas was allotted to the plaintiff under the East Punjab Utilisation of Lands Act, 1949 vide allotment letter Ex.P-1 dated 9.4.1971 by the Collector, Hissar. Possession of the land was given on 19.5.1971. Lease was for a period of 7 years commencing from Kharif, 1971. It was submitted by the learned counsel for the appellant that even after the expiry of the period of lease, appellant continued in possession of the land and he was never ordered to be evicted by any court or officer. Possession of the land was given on 19.5.1971. Lease was for a period of 7 years commencing from Kharif, 1971. It was submitted by the learned counsel for the appellant that even after the expiry of the period of lease, appellant continued in possession of the land and he was never ordered to be evicted by any court or officer. It was submitted that the alleged relinquishment of possession by the plaintiff to the landowners vide affidavit dated 24.4.1989 Ex.DW6/A and execution of the power of attorney dated 24.4.1989 Ex.DW3/1 authorising Kapur Singh to seek correction of Khasra girdawri was of no consequence as handing over of possession of the leased land direct to the owners and not to the Collector is not envisaged by the scheme of the Act. 12. It was held in Dasaundha Singh and others v. State of Haryana and others, 1973 PLJ 1, that the collector was empowered to take possession from the owner only for the maximum period of 20 years for which he could lease it to a tenant. It was thus clearly contemplated that on the expiry of that period the Collector would restore possession to the owner. The Act nowhere contemplated that the owner should be completely deprived on his ownership rights. The compensation to which he was entitled under Section 4 was for the temporary deprivation of the ownership rights for the period during which the possession of the land had been taken over by the Collector and given on lease to a tenant. Section 7(1) when read in this context clearly shows that it was intended to empower the Collector to make an order in writing after the expiry of the lease saying that the possession of the land shall be given to the person named or specified in the order. The words "to whom possession of the land shall be given" contained the mandate under which the Collector derived powers of directing that the possession of the land was to be given by the tenant to the owner whose name was specified in the Collectors order. The compulsory and the summary process by which that order could be enforced is to be found in Section 11. The compulsory and the summary process by which that order could be enforced is to be found in Section 11. If the tenant did not comply with the order or direction made under Section 7 the Collector could take or cause to be taken such steps or use or cause to be used such force as was necessary for securing compliance with the order made under Section 7(1). 13. Sub-sections (2), (3) and (4) reinforce the above interpretation of sub- section (1) of Section 7. Once delivery of possession of the land to the person specified in the order made under sub-section (1) had been effected the Collector stood discharged from all liability in respect of such delivery. Sub-sections (3) and (4) were meant for a similar purpose when a person to whom possession of land was to be given could not be found. 14. The sole purpose for which the East Punjab Utilisation of Lands Act was enacted was to ensure that lands such as were capable of producing food or fodder but which owing to the neglect on the part of the owners were not being cultivated should be utilised for cultivation and for growing food and fodder crops. 15. According to the statement of objects and reasons in the Bill large tracts of fertile land had remained uncultivated due to the negligence or absence of displaced owner landlord. The policy of the Government was not to leave any cultivable land unsown as far as possible which was necessary to attain self-sufficiency in the matter of food. 16. The whole purpose of the East Punjab Utilisation of Lands Act would be defeated if the provisions of the Punjab Tenancy Act were made applicable to it. From the provisions of the East Punjab Utilisation of Lands Act no intention can be attributed to the Legislature of creating a relationship of landlord and tenant between the Collector and the tenant as defined by the Act of the same nature as was provided for by the Punjab Tenancy Act. 17. Plaintiff was a lessee/allottee for a period of 7 years inducted by the Collector under the East Punjab Utilisation of Lands Act, 1949. After the expiry of the period of 7 years, he ceased to be allotee/lessee. Plaintiff surrendered possession in favour of the owners. 17. Plaintiff was a lessee/allottee for a period of 7 years inducted by the Collector under the East Punjab Utilisation of Lands Act, 1949. After the expiry of the period of 7 years, he ceased to be allotee/lessee. Plaintiff surrendered possession in favour of the owners. He swore affidavit Ex.DW6/A in token of the fact that he had transferred possession of the land to the landowners. He also executed power of attorney in favour of Kapur Singh for the correction of entries in the Khasra girdawri. If the Collector had made an order in writing that the possession of the land shall be given to the person named or specified in the order, then it could be said that the delivery of possession to the person not named or specified in the order was bad. In this case the Collector passed no order that after the expiry of the lease, possession of the land shall be given to the person named or specified in the order and therefore the delivery of the possession by the allottee to the owner of his own shall not be bad in law. The Act nowhere contemplated that owner should be completely deprived of his ownership rights. In this case, compensation was paid to the plaintiff by the owners in lieu of his giving up possession. 18. Plaintiff cannot be said to have become in adverse possession after the expiry of the period of lease because his possession was permissive in the beginning. A person whose possession is permissive in the beginning cannot claim to be in adverse possession. 19. It was held in Surjan Singh and others v. Gurdev Kaur and others, 1986(1) All India Land Laws Reporter 418 that permissive possession cannot be converted into adverse possession. Plaintiff was a lessee. As such, his possession over the suit property was permissive possession. 20. It was submitted by the learned counsel for the appellant that under Section 7(1) of the East Punjab Utilisation of Lands Act, 1949, only the Collector was competent to return the suit land to the landowners. 21. Plaintiff was a lessee. As such, his possession over the suit property was permissive possession. 20. It was submitted by the learned counsel for the appellant that under Section 7(1) of the East Punjab Utilisation of Lands Act, 1949, only the Collector was competent to return the suit land to the landowners. 21. In my opinion, if no order was passed by the Collector under Section 7(1) of the Act regarding delivery of possession to the owner, the delivery of possession by the allottee to the owner of his own will not affect the validity of delivery of the possession because after the expiry of the period of lease, he was required to surrender possession. If he had surrendered possession to the Collector, the Collector would have given possession to the land-owners. The owners had transferred the suit land in favour of the defendants through different sale deeds for consideration. In jamabandis/Khasra girdawris, plaintiff does not figure as in possession of the land. 22. It was held in Lachhman v. Ram Chand, 1981 PLJ 72 that a person brought on the land as lessee by Collector under the East Punjab Utilisation of Lands Act, 1949, cannot claim benefit of Section 17-A of the Punjab Security of Land Tenures Act. During the period of lease by the Collector, the ownership of the land continues to be with the landowners. There is no provision in the Act according to which it could be held that the land-owner ceases to have the right of ownership or that he was debarred from transferring the land by way of sale or otherwise. Sale by the landowner cannot be held to be void or invalid in any manner. 23. In my opinion, both the courts below on correct appreciation of evidence came to the conclusion that the plaintiff was not owner in possession of the suit land, plaintiff was not in adverse possession of the suit land, plaintiff was estopped from filing the suit by his own act and conduct. Plaintiff had no cause of action to file this suit when he had relinquished possession of his own to the land-owners, who had sold the land further to the defendants, plaintiff gave up possession of the land in suit on receipt of compensation. In this appeal, no question of law arises, what to talk of substantial question of law. Plaintiff had no cause of action to file this suit when he had relinquished possession of his own to the land-owners, who had sold the land further to the defendants, plaintiff gave up possession of the land in suit on receipt of compensation. In this appeal, no question of law arises, what to talk of substantial question of law. Plaintiffs case is concluded by finding of fact concurrently arrived at by the two courts below on proper appreciation of evidence. This appeal is dismissed. Appeal dismissed.